R.Boopal v. Govt. Of Tamilnadu, Rep. By
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :20.06.2018
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM W.P.No.23565 of 2016 and W.M.P.No.20186 of 2016 R.Boopal ..Petitioner vs 1.Govt of Tamil Nadu, represented by Secretary to Government, Revenue Department, Secretariat, Chennai 600 009.
2.The Commissioner/Director of Survey and Settlement, Chepauk, Chennai 600 005.
3.The Additional Director of Survey and Land Records, Chepauk, Chennai 600 005.
4.The District Collector, Erode District, Erode.
5.The Assistant Director of Survey and Land Records, Collectorate, Erode 638 011.
..Respondents Prayer:
Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus to direct the respondents to reinstate the petitioner in service as Jeep Driver, regularize the services in the said post from the date of the initial appointment on 27.01.2014 and to absorb the petitioner in the regular post of Jeep Driver and in regular scale of pay by granting necessary relaxation. For Petitioner : Mr.M.Ravi For Respondents : M/s.A. Sri Jayanthi, Special Government Pleader
O R D E R
The relief sought for in this writ petition is for a direction to direct the respondents to reinstate the petitioners in service as Jeep Driver and regularise the service in the sanctioned post of Jeep Driver from the date of initial appointment on 27.01.2014.
2. The writ petitioner had registered his name in the District Employment Exchange, Erode and accordingly, he was sponsored by the District Employment Exchange for appointment to the post of Jeep Driver. The writ petitioner had been appointed as Jeep Driver on daily wage basis for a period of two years in proceedings dated 13.01.2014. The order of appointment is enclosed in page 3 of the typed set of papers filed along with this writ petition. The order of appointment unambiguously stipulates the conditions that the appointment is purely temporary and no preference will be granted for regular appointment to the post of Jeep Driver and the writ petitioner cannot claim any priority based on the temporary appointment on daily wage basis for two years.
Further, it is stated that the services of the writ petitioner shall be terminated without any reasons and without issuing any show cause notice. Conditions are stipulated in the appointment order. All the conditions categorically states that the writ petitioner cannot claim any priority or otherwise or regular appointment for regularisation in the sanctioned post of Jeep Driver. The writ petitioner had agreed to the terms and conditions of the order of appointment and joined in service. Once the employees agreed the terms and conditions of the order of appointment and joined in service, then they are bound by the terms and conditions and thereafter, they cannot claim regularisation or permanent absorption contrary to the conditions stipulated in the order of appointment.
The writ petitioner is estopped from claiming any right from the terms and conditions stipulated in the order of appointment which he had accepted and joined and further served for a period of two years and relieved from the said post.
3. Merely absorbing the temporary employees as permanent Government servants will affect the opportunity of the general public and the eligible candidates who are waiting outside, seeking for public employment. Equal opportunity of public employment is a Constitutional mandate and all the citizen of this great Nation to be provided with equal opportunity in respect of public employment. Getting appointment on temporary/casual/daily wages post and working for certain period and thereafter, claim the regularisation/permanent absorption will certainly affect the equality right of other citizen of this great Nation. Lakhs and lakhs of qualified youths are waiting for the public employment and preparing for the open
competent process. The principles of equality contemplated under Article 14 of the Constitution of India will be provided to all the citizen equally. Creating back door entries for regularisation or permanent absorption can never be encouraged by the Constitutional Courts. There cannot be any comparison with good olden days, in view of the changing circumstances in the Society. The Courts has to take into consideration the prevailing circumstances and other social economic developments of our great Nation, before granting any such relief to the petitioner. In the current days, a lot of youth are waiting for public employment and they are preparing hardly to participate in the open competitive process.
Thus, all recruitments to the public employment by the State has to be undertaken only by following the recruitment rules in this regard by providing equal opportunity to all the citizens and by following procedures contemplated in the recruitment rules. Any other method other than the constitutional scheme for recruitment has to be stopped at once. State being the employer in the case on hand, no exception can be drawn in the matter of recruitment to the post. The Constitutional Bench of the Supreme Court of India in the case of State of Karnataka vs. Umadevi reported in 2006 [4] SCC 1 observes many such circumstances and it is relevant to state that the Honourable Supreme Court of India.
"4. But, sometimes this process is not adhered to and the Constitutional scheme of public employment is bypassed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post.
It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching Courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the concerned posts. Courts have not always kept the legal aspects in mind and have occasionally even stayed the regular process of employment being set in motion and in some cases, even directed that these illegal, irregular or improper entrants be absorbed into service. A class of employment which can only be called 'litigious employment', has risen like a phoenix seriously impairing the constitutional scheme.
Constitution of India. Whether the wide powers under Article 226 of the Constitution is intended to be used for a purpose certain to defeat the concept of social justice and equal opportunity for all, subject to affirmative action in the matter of public employment as recognized by our Constitution, has to be seriously pondered over. It is time, that Courts desist from issuing orders preventing regular selection or recruitment at the instance of such persons and from issuing directions for continuance of those who have not secured regular appointments as per procedure established. The passing of orders for continuance, tends to defeat the very Constitutional scheme of public employment.
It has to be emphasized that this is not the role envisaged for High Courts in the scheme of things and their wide powers under Article 226 of the Constitution of India are not intended to be used for the purpose of perpetuating illegalities, irregularities or improprieties or for scuttling the whole scheme of public employment. Its role as the sentinel and as the guardian of equal rights protection should not be forgotten.
5. This Court has also on occasions issued directions which could not be said to be consistent with the Constitutional scheme of public employment. Such directions are issued presumably on the basis of equitable considerations or individualization of justice. The question arises, equity to whom? Equity for the handful of people who have approached the Court with a claim, or equity for the teeming millions of this country seeking employment and seeking a fair opportunity for competing for employment? When one side of the coin is considered, the other side of the coin, has also to be considered and the way open to any court of law or justice, is to adhere to the law as laid down by the Constitution and not to make directions, which at times, even if do not run counter to the Constitutional scheme, certainly tend to water down the Constitutional requirements. It is this conflict that is reflected in these cases referred to the Constitution Bench.
10. In addition to the equality clause represented by Article 14 of the Constitution, Article 16has specifically provided for equality of opportunity in matters of public employment. Buttressing these fundamental rights, Article 309 provides that subject to the provisions of the Constitution, Acts of the legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State. In view of the interpretation placed on Article
12 of the Constitution by this Court, obviously, these principles also govern the instrumentalities that come within the purview of Article 12 of the Constitution. With a view to make the procedure for selection fair, the Constitution by Article 315 has also created a Public Service Commission for the Union and Public Service Commissions for the States. Article 320 deals with the functions of Public Service Commissions and mandates consultation with the Commission on all matters relating to methods of recruitment to civil services and for civil posts and other related matters. As a part of the affirmative action recognized by Article 16 of the Constitution,Article 335 provides for special consideration in the matter of claims of the members of the scheduled castes and scheduled tribes for employment.
The States have made Acts, Rules or Regulations for implementing the above constitutional guarantees and any recruitment to the service in the State or in the Union is governed by such Acts, Rules and Regulations. The Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set down therein.
12. In spite of this scheme, there may be occasions when the sovereign State or its instrumentalities will have to employ persons, in posts which are temporary, on daily wages, as additional hands or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently. This right of the Union or of the State Government cannot but be recognized and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment.
Nor can a court say that the Union or the State Governments do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed. Once this right of the Government is recognized and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for courts whether acting under Article 226 of the Constitution or under Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the constitutional scheme.
13. What is sought to be pitted against this approach, is the so called equity arising out of giving of temporary employment or engagement on daily wages and the continuance of such persons in the engaged work for a certain length of time. Such considerations can have only a limited role to play, when every qualified citizen has a right to apply for appointment, the adoption of the concept of rule of law and the scheme of the Constitution for appointment to posts. It cannot also be forgotten that it is not the role of courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution.
The approving of such acts also results in depriving many of their opportunity to compete for public employment. We have, therefore, to consider the question objectively and based on the constitutional and statutory provisions.
Punjab Vs. Jagdip Singh & Ors. (1964 (4) SCR 964). It was held therein, "In our opinion, where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give, he will not in law be deemed to have been validly appointed to the post or given the particular status."
14. Even at the threshold, it is necessary to keep in mind the distinction between regularization and conferment of permanence in service jurisprudence. In STATE OF MYSORE Vs. S.V. NARAYANAPPA [1967 (1) S.C.R. 128], this Court stated that it was a mis-conception to consider that regularization meant permanence. In R.N. NANJUNDAPPA Vs T. THIMMIAH & ANR. [(1972) 2 S.C.R. 799], this Court dealt with an argument that regularization would mean conferring the quality of permanence on the appointment. This Court stated:- "Counsel on behalf of the respondent contended that regularization would mean conferring the quality of permanence on the appointment, whereas counsel on behalf of the State contended that regularization did not mean permanence but that it was a case of regularization of the rules under Article
309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority, but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."
In B.N. Nagarajan & Ors. Vs. State of Karnataka & Ors. [(1979) 3 SCR 937], this court clearly held that the words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This court emphasized that when rules framed under Article 309 of the Constitution of India are in force, no regularization is permissible in exercise of the executive powers of the Government
under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognized therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization.
43.Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee.
If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules.
It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme.
had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required.
The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates. 45.While directing that appointments, temporary or casual, be regularized or made permanent, courts are swayed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open.
It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee.
A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment.
fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.
"49.It is contended that the State action in not regularizing the employees was not fair within the framework of the rule of law. The rule of law compels the State to make appointments as envisaged by the Constitution and in the manner we have indicated earlier. In most of these cases, no doubt, the employees had worked for some length of time but this has also been brought about by the pendency of proceedings in Tribunals and courts initiated at the instance of the employees. Moreover, accepting an argument of this nature would mean that the State would be permitted to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by us, the people of India.
It is therefore not possible to accept the argument that there must be a direction to make permanent all the persons employed on daily wages. When the court is approached for relief by way of a writ, the court has necessarily to ask itself whether the person before it had any legal right to be enforced. Considered in the light of the very clear constitutional scheme, it cannot be said that the employees have been able to establish a legal right to be made permanent even though they have never been appointed in terms of the relevant rules or in adherence of Articles 14 and 16 of the Constitution."
4. The Honourable Supreme Court of India thereafter reiterated or re- emphasized the same principles in the case of Secretary to Government Vs. R.Govindasamy and others reported in
[(2014) 4 SCC 769]. and it is relevant to extract Paragraph No.8 of the same:
"8.this Court in State of Rajasthan & Ors.
v. Daya Lal & Ors., AIR 2011 SC 1193, has considered the scope of regularisation of irregular or part-time appointments in all possible eventualities and laid down wellsettled principles relating to regularisation and parity in pay relevant in the context of the issues involved therein. The same are as under:
"(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant post".
5.
The Honourable Supreme Court of India authoritatively issued a direction that the High Court in exercise of power under Article 226 of the Constitution of India shall not issue direction for regularisation / absorption or permanent continuance unless the employees claiming regularisation had been appointed in accordance with regular appointment in course of recruitment rules against the sanctioned vacant post. The equality clause contained in Article 14 and 16 should be scrupulously followed. The Court should not issue a direction for regularisation of service of employment, it would be violation of the Constitutional Scheme.
6.
The Honourable Supreme Court of India emphasized the principles laid down in the case of Govindasamy [cited supra]. This Court cannot have any hesitation in following direction issued by the Honourable Supreme Court of India in this regard. 7.
The spirit of the judgment of the Honourable Supreme Court of India is that the State being the model employer is bound to follow the constitutional scheme, more specifically, for recruitment of candidates. Thus, all appointments to be made only by following the Constitutional Scheme and recruitment rules in this regard. In this view of the matter an inception or intrusion through back door in order to get absorption / regularisation cannot be allowed and the High Court cannot issue such direction for regularisation / absorption.
8. In the present case on hand, the writ petitioner served as a daily wage employee for a period of two years as Jeep Driver. The period of two years also expired and the petitioner
had already relieved from service.
9. This being the factum of the case, the writ petitioner has not established even a semblance of legal right so as to consider the relief as such sought for in this writ petition. Accordingly, the writ petition stands dismissed. Consequently, connected miscellaneous petition is closed. However, there shall be no order as to costs.
Sd/- Assistant Registrar(CS V) //True Copy// Sub Assistant Registrar To 1.The Secretary to Government, Govt of Tamil Nadu, Revenue Department, Secretariat, Chennai 600 009.
2.The Commissioner/Director of Survey and Settlement, Chepauk, Chennai 600 005.
3.The Additional Director of Survey and Land Records, Chepauk, Chennai 600 005.
4.The District Collector, Erode District, Erode.
5.The Assistant Director of Survey and Land Records, Collectorate, Erode 638 011.
+1cc to Mr.M.Ravi, Advocate sr.no.38804 +1cc to Government Pleader in sr.no.39097 W.P.No.23565 of 2016 nr 05/07/2018