T.Kalimuthu v. Union Of India
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.08.2023 CORAM :
THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR W.P.Nos.19335 & 18552 of 2023 and W.M.P.Nos.18610, 17783, 21804, 22301 of 2023 1.T.Kalimuthu 2.M.Subramani 3.M.Bhuvaneswri 4.A.Sivagami 5.S.Eswari 6.T.Sathiyaraj 7.A.Murugan 8.G.Suthanthiram 9.P.Vijayalakshmi 10.G.Rajmohan 11.B.Yuvamala 12.K.Sivakumar 13.I.Francis Xavier 14.M.Kumaravel 15.J.Sathiyaraj 16.C.Muthumanickam 17.N.Mohan 18.P.Tamilarasu 19.M.Subbaiah 20.M.Kathamuthu 21.M.Prakash 22.S.Karthickraja 23.K.M.Balu 24.R.Kathiravan 25.L.Baskaran 26.A.Kulandaivel 27.K.Venkatachalam 28.G.S.Manickavasagam
29.P.Govindasamy 30.K.Arulsankar ... Petitioners in W.P.No.19335 of 2023
1. C.S.Tharageswari
2. T.Sankar
3. S.Malarvizhi
4. V.Valarmathi
5. G.Jagathratchagan
6. S.Kanaga Thara
7. R.Jayapal
8. M.Ravichandiran
9. K.Kalaiarasi 10.P.Thiyagarajan 11.P.Umamageswari 12.S.Suresh 13.S.Manimaran 14.S.Senthamizhselvan 15.V.Suresh 16.D.Ashok Kumar 17.M.Kavitha 18.K.Nagalakshmi 19.A.R.Raja 20.A.S.Selvakumar 21.A.E.Thanigachalam 22.T.V.Vinayagam 23.T.K.Raja 24.S.M.Vinayagam 25.M.Saritha 26.L.Durgadevi 27.N.Megarajan 28.G.Manivannan 29.S.Sengottuvel 30.M.Sudha 31.M.A.Muthamil Selvan 32.C.Ramamoorthi 33.K.Munsiyabee 34.S.Tamil Selvi
35.M.Prabasankar 36.A.Balu 37.M.Ramesh Kumar 38.D.Prabu 39.S.Kanchana 40.R.Ruba 41.T.Rajinikanthan 42.J.Sarada 43.J.Prabu 44.S.Karpagam 45.R.Nallathambi 46.K.Sakhivelu 47.N.Kalaivani 48.K.Krishnan 49.K.Visagamoorthi 50.M.Prema 51.R.Kanchana 52.K.Subramani 53.S.Sasikumar 54.G.Ravi 55.P.Murugesan 56.S.Ranitha 57.K.V.Ramkumar 58.M.Vasantha 59.D.Jayanthi 60.K.Selvi 61.R.Pandian 62.C.Kumar 63.K.Palanivel 64.P.Jayakodi 65.S.Sudakar 66.V.Kothanayaki 67.D.Govindaraju 68.S.Vijayakumari 69.S.Padma 70.M.Mohan 71.V.Kalaiselvan 72.R.Anthony Aruldass 73.R.Danivel Raj 74.K.Srila
75.T.Sivakamasundari 76.B.Bakiyaraj 77.S.Vinothini 78.G.Syed Shahid 79.G.Kalilur Rehman 80.P.Govindarajan 81.B.Jothimurugan 82.A.Elangovan 83.Y.Philip 84.G.Sivakumar 85.N.Kothai 86.R.Joicemalar 87.C.Arockiyammal 88.S.Bavani 89.K.Suresh 90.Kannan B 91.Ramkumar G 92.Mercy P 93.Devendiran D 94.G.Sujatha 95.Stalin C 96.Siddhikkhan S 97.Senthilkimar M 98.C.Sumathi 99.N.Revathi 100.A.Sivasankar 101.P.K.Bhoopalan 102.P.Venkatesan 103.S.S.Sudha 104.S.Murugan 105.P.Prabhakar 106.D.Suganthi 107.S.Paripooranamary 108.M.Prakash 109.V.Thirupathi 110.S.Velmurugan 111.R.Jayapal 112.M.Govindasamy 113.G.Sampath 114.V.Thirumal
115.R.Srinivasan 116.S.Sangeetha 117.T.Lakshmi 118.D.Gayathri 119.N.Ganesh 120.K.Thangavelu 121.A.Kalaivani 122.V.Ranganathan 123.R.Sundarapandian 124.R.Karikalan 125.P.Thirumurugan 126.M.Rubavathi 127.G.Ashokkumar 128.M.Shanthi 129.P.Kamalam 130.S.Ramesh 131.V.Sivasubramaniyam 132.S.Pandiyan 133.R.Rajendran 134.A.Sabapathi 135.S.Rajakumar 136.S.Arunachalam 137.R.Thirumalai 138.R.Jayaseelan 139.R.Kanagaraj 140.K.Sundararajan 141.R.Ponmalai 142.V.Asaithambi 143.M.Radhakrishnan 144.L.Muniammal 145.R.Sridhar 146.S.Sivakumar 147.V.Jayaprakash 148.M.Gnanasekaran 149.D.Ranjith Kumar 150.V.Palanivel 151.P.Vajjiravel 152.K.Ramanajothi 153.K.Kannadas 154.G.Palanivel
155.M.Pugalenthi 156.R.Thambidurai 157.A.Ramesh 158.P.Magalingam 159.P.Ganga 160.S.Dhivya 161.G.Vinoth 162.K.C.Anandhi 163.M.Srinivasan 164.N.Senthil 165.G.S.Murugesan 166.S.Gnanasekaran 167.L.Mohankumar 168.S.Dhanalakshmi 169.P.Balan 170.S.Ravikumar 171.S.Gomathi 172.V.Sekar 173.M.Rajamani 174.R.Vijayalakshmi 175.A.Sundararajan 176.M.Sundaramahalingam 177.E.Murugesan 178.P.A.Immanuel 179.P.Ravichandran 180.M.Ponnusamy 181.M.Chandrasekaran 182.K.Shanmugam 183.V.Latha 184.K.Sasi 185.S.Maharajan 186.M.Ghouskhan 187.K.Sivasubbramaniyan 188.R.Kamalakannan 189.R.Sivagnanam 190.P.Venkatachalapathi 191.P.Tamizhselvi 192.K.Gowri 193.D.Saritha 194.L.Bharathi
195.K.Vinoth 196.A.Arunraj 197.V.Manjanikoother 198.C.Selvakumar 199.M.Premanandan 200.R.Durai 201.V.Vasanthakumar 202.M.Indumathi 203.J.Bhuvaneswari 204.M.Amaravathi 205.M.Devimeenakshi 206.L.Sivakami 207.K.Suguna 208.P.Mathiyalagan 209.S.Balasubramaniyan 210.C.Reena 211.M.Premanand 212.V.Kannan 213.N.Balasubramaniyan 214.S.Ramanan 215.A.Arul 216.B.Senthilkumar 217.M.Mahendranath 218.T.Kalanithi 219.G.Sudhakar 220.K.Jawahar 221.A.Velvizhi 222.K.Gnanasoundari 223.Felix Maria Xavior P 224.K.Pushbalatha 225.Prabu D 226.V.Jayamoorthy 227.A.Ummal Fajriya 228.D.Mani 229.Ramamurthy D 230.A.Malarvizhi 231.M.Ahila 232.Dhanalakshmi ... Petitioners in W.P.No.18552 of 2023
Vs.
1.Union of India, Represented by its Secretary, Ministry of Rural Development, Krishna Bhavan, Dr.Rajendra Prasad Road, New Delhi - 100 001.
2.State of Tamil Nadu, Represented by its Additional Chief Secretary, Rural Development and Panchayat Raj Department, Fort St. George, Chennai - 600 009.
3.The Commissioner of Rural Development & Panchayat Raj, Saidapet, Chennai - 600 015.
4.The Director - SASTA, Social Audit Society of Tamil Nadu, Panagal Maaligai, West Saidapet, Chennai - 600 015.
5.The Joint Director North, Social Audit Society of Tamil Nadu, Panagal Maaligai, West Saidapet, Chennai - 600 015.
6.The Assistant Director, Social Audit Society of Tamil Nadu, Panagal Maaligai, West Saidapet, Chennai - 600 015.
... Respondents in both writ petitions Common Prayer: Writ Petitions filed under Article 226 of the Constitution of India for issuance of a Writ of Declaration declaring the practice of imposing artificial break in service to the petitioners who are
engaged as Block Resource Persons and District Resource Persons under the Social Audit Society of Tamil Nadu (SASTA) every year as illegal and consequently, forbearing the respondents from disengaging them from their respective service.
For Petitioner : Mr.J.Lajapathi Roy Senior Counsel for M/s.Lajapathi Roy and Associates in W.P.No.19335 of 2023 : Mr.I.Abrar Md Abdullah in W.P.No.18552 of 2023 For R1 : Mr.D.Simon Central Government Standing Counsel in both writ petitions For R2 to R6 : Mr.R.Neelakandan Additional Advocate General assisted by Mr.P.Baladhandayutham Special Government Pleader in both writ petitions C O M M O N O R D E R These writ petitions have been filed to declare the practice of imposing artificial break in service to the petitioners who are engaged as Block Resource Persons and District Resource Persons under the Social Audit Society of Tamil Nadu (SASTA) every year as illegal and consequently, to forbear the respondents from disengaging them from their
respective service.
2.The case of the petitioners is as follows : The petitioners are engaged as District Resource Persons and Block Resource Persons under the Social Audit Society of Tamil Nadu (SASTA). The petitioners have also completed the 30 days Certificate Course on Social Accountability and Social Audit and only after proper training, the petitioners are engaged as District Resource Persons and Block Resource Persons under the SASTA. The petitioners are paid salary out of the Mahatma Gandhi National Rural Employment Guarantee Scheme Funds. The petitioners have been continuously working in the above Scheme, however, the Government has passed the Government Order in G.O.Ms.No.17, Rural Development and Panchayat Raj (CGS-1) Department, dated 22.02.2023, in which, a new set of guidelines have been framed for engaging resource persons for facilitating SASTA. Besides, a notification has also been issued inviting proposals from recruitment service agencies in order to recruit District Resource Persons and Block Resource Persons.
3.It is the contention of the petitioners that they have adequate experience in the conduct of Social Audit and have been working as per the Annual Master Circular of Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS). Now, the respondents are attempting to replace the petitioners with a new set of temporary employees. Hence, it is the grievance of the petitioners that they should not be replaced and as such, they seek for a writ of declaration as stated supra.
4.A counter affidavit has been filed by the 4th respondent and the same has been adopted by respondents 5 and 6. It is the contention of the respondents that SASTA is an independent organisation, established by the State Government to facilitate conduct of Social Audits by Gram Saba. To ensure quality and maintenance of ethical standards in the Social Audit process and to follow-up the Social Audit findings, every Social Audit Unit had appointed adequate number of State, District and Block Resource Persons. The staffing pattern, qualification, etc., of personnel to be recruited for Social Audit Unit (SAU) at the State, District and Block level will be decided by the State Government in consultation with the
Governing Body of the SAU.
5.It is the contention of the respondents that the practice of imposing artificial break in service while engaging persons as Resource Persons in SASTA is untrue. Only eligible persons without adverse remarks were engaged on contract basis from 03.03.2022 to 28.02.2023 as per the Contract executed between the Director, SASTA and the petitioners. It was extended for two more months, i.e., from 01.03.2023 to 30.04.2023. Further, one more month extension was given till 31.05.2023, so as to complete the pending works as per the Contract. The contract has expired on 31.05.2023. Thereafter, the contract was not extended, as there was no requirement for Resource Persons in SASTA.
Thus, it is their contention that the allegation of disengaging the Resource Persons is not willfull, but on completion of the works under the contract, on which they were engaged. Once they complete the contract, they would be relieved. They would be engaged only on satisfying the requirements for engagement in the subsequent contracts based on Annual Master Circular, prevailing on that period. There is no right conferred on any person based on experience only, when qualifications are prescribed by Annual Master Circulars of Government of India.
preference over the persons with prescribed qualifications. Because of the change in Annual Master Circular conditions issued by the Government of India, corresponding orders were issued by Government of Tamil Nadu. The petitioners, whoever satisfies the prescribed qualification as per the prevailing Annual Master Circular, would be engaged on contract, as the condition of the engagement of employees will be changing dynamically depending upon the need of the Government.
6.It is the contention of the learned Senior Counsel appearing for the petitioners that the petitioners have been engaged in the services for the last 9 years under the MGNREGS Scheme. Though they have been engaged for such a long period, now, attempt is being made by the respondents to disengage the petitioners by way of G.O.Ms.No.17, Rural Development and Panchayat Raj (CGS-1) Department, dated 22.02.2023, and to engage a similar set of persons under the same Scheme. Therefore, it is the contention of the learned Senior Counsel that, so long as the Scheme continues, the petitioners, who have acquired adequate training and relevant experience as Block Resource Persons and District Resource Persons under the Scheme, cannot be disengaged.
7.Per contra, learned Additional Advocate General submitted that the petitioners cannot claim any absolute right to continue under the Scheme, as the engagement of personnel under the Scheme is purely based on the Annual Master Circular conditions issued by the Government of India. The respondents are following the Master Circular conditions issued by the Government of India. Further, it is the contention of the learned Additional Advocate General that the petitioners' contract period is already over and therefore, the petitioners cannot claim to continue in the services as a matter of right.
8.Heard the learned counsel on either side and perused the entire materials available on record.
9.It is not in dispute that the petitioners were engaged in the SASTA under the MGNREGS Scheme as Block Resource Persons and District Resource Persons, on contract basis and they have been in service for more than 9 years. The contract has been renewed from time to time and lastly, it has been renewed from 01.03.2023 to 30.04.2023 and further extension was given till 31.05.2023. It is also not in dispute that, every
year, renewal has been made in respect of petitioners' contract. The very nature of appointment of petitioners is contractual and the contract makes it clear that the petitioners have been appointed on the basis of contract to fulfill the objective of MGNREGS Scheme, i.e., to conduct Social Audit. Therefore, this Court is primarily of the view that, once the petitioners have been appointed only on contract basis, they cannot claim any right for regularisation.
10.However, the petitioners have undergone 30 days training as per the Annual Master Circular issued by the Central Government, which fact is not in dispute. It is also not in dispute that the petitioners have been allowed to work for more than 9 years on contract basis. Now, it appears that the Government Order has been passed inviting applications to engage another set of contract employees. The very purpose of engaging the persons on contract basis is to conduct Social Audit. When the petitioners have undergone training as required under the Master Circular issued by the Government of India and have acquired adequate experience in the relevant field, this Court is at loss to understand as to why a similar set of new persons is required to be engaged for the similar work. Though it is true that the petitioners cannot claim any right for regularisation and
they can work only as contract employees, disengaging them and engaging a similar set of persons to do the same work what the petitioners were doing, is not warranted. Even if new persons are appointed on contract basis later, they would be required to undergo 30 days Certificate Course as per Clause 10.1.5 of the Annual Master Circular issued by the Government of India.
11.In S.Udayakumar and others v. Union of India represented by the Secretary, Ministry of Agriculture and others [W.P.(MD) No.1627 of 2018, dated 22.03.2018], this Court has held as follows : "7.This Court finds considerable force in the aforesaid submission of the learned Special Government Pleader for the State Government. This is not a Public Interest Litigation. The petitioners rights have not been shown to be infringed in any manner by issuance of the impugned Government order made in these Writ Petitions. The order impugned in these Writ Petitions are therefore, sustained. But then the Writ Petitions cannot be closed with this. During the course of arguments, the learned Special Government Pleader supported the artificial break in the services of the writ petitioners. Hence this Court issues the following directions:-
(i).It is made clear that the scheme appointees could have no claim for regularisation. But then so long as the scheme continues, subject to one being fit and not found guilty of any misconduct, the scheme appointee can continue in the said post so long as the scheme is in force. (ii).The Hon'ble Supreme Court in the decision reported in 1985 4 SCC 43-(Rattan Lal & Others Vs. State of Haryana & Others), deplored the practice of giving artificial break in service. The state Government is expected to function as a model employer. This proposition continues to hold good even in this age of liberalisation and globalisation. The aforesaid judgment was relied on in the subsequent Full Bench decision of the Hon'ble Supreme Court reported in (1991) 2 SCC 599-(Sri Rabinarayan Mohapatra Vs. State of Orissa and others).
The very same principle has been reiterated in yet another decision of the Hon'ble Supreme Court reported in (2009) 6 SCC 611- (MD.Abdul Kadir & Another Vs. Director General of Police, Assam & others). Therefore, it cannot lie in the mouth of the State Government to now contend that they are entitled to terminate the services of the contractual employee on the expiry of the 11th month and give artificial break after which engage them again. This Court makes it clear that the practice of giving artificial breaks shall be discontinued henceforth. The benefits payable to the petitioners/Scheme appointees in terms of the scheme norms, shall be disbursed.
In view of the comprehensive nature of the relief given to the petitioners herein, there shall be of no claim for payment of past arrears. However, as regards the future, it is undertaken by the Government that the periodical/annual increment will be given effect in terms of the scheme regulations."
12.Considering the above judgment, a learned Single Judge of this Court, in another writ petition in W.P.No.6948 of 2021, order dated 25.01.2023, relating to Agricultural Technology Management Agency (ATMA) Scheme, held that "the funding agency for carrying out the ATMA Scheme is the Central and State Government and the implementing agency is the concerned State Government. The contractor is choosen by the implementing agency and whatever payments are made by the contractor, is from the funds that is received by him from the funding agency. In view of the same, the contractor is expected to strictly follow the guidelines issued under the ATMA Scheme." While holding so, it was also made clear that the Scheme appointees could have no claim for regularization, but so long as the Scheme continues, subject to one being fit and not found guilty of any misconduct, the Scheme appointee can continue in the said post so long as the Scheme is in force.
13.Therefore, this Court is of the view that, when the petitioners have already undergone training under the Scheme and have continuously worked as contract employees for more than 9 years, inviting applications from others to replace the petitioners who are already working for many years, does not arise at all. However, it is once again made clear that the petitioners cannot claim any regularization and their services are purely contractual in nature. The respondents shall not disengage the petitioners from SASTA and in fact, the contract can be continued with the petitioner, if the petitioners are fit and not found guilty of any misconduct. 14.Accordingly, these writ petitions are disposed of with the following directions :
i. The respondents shall not disengage the petitioners from their services, except in the cases where they are unfit or found guilty of any misconduct or involved in any criminal case or act(s) of moral turpitude, etc.
ii. The respondents shall consider renewal of the contract with the petitioners, instead of disengaging them totally by engaging a new set of persons.
No costs. Consequently, connected miscellaneous petitions are closed. 29.08.2023 mkn Internet : Yes Index : Yes / No Speaking order / Nonspeaking order To 1.The Secretary, Union of India, Ministry of Rural Development, Krishi Bhavan, Dr.Rajendra Prasad Road, New Delhi - 100 001.
2.The Additional Chief Secretary, State of Tamil Nadu, Rural Development and Panchayat Raj Department, Fort St. George, Chennai - 600 009.
3.The Commissioner of Rural Development & Panchayat Raj, Saidapet, Chennai - 600 015.
4.The Director - SASTA, Social Audit Society of Tamil Nadu, Panagal Maaligai, West Saidapet, Chennai - 600 015.
5.The Joint Director North, Social Audit Society of Tamil Nadu, Panagal Maaligai, West Saidapet, Chennai - 600 015.
6.The Assistant Director, Social Audit Society of Tamil Nadu, Panagal Maaligai, West Saidapet, Chennai - 600 015.
N. SATHISH KUMAR, J.
mkn W.P.Nos.19335 & 18552 of 2023 29.08.2023