Madras High CourtWA(MD)/621/2013allowed

The Assistant General Manager v. N.Nagarajan

2020-12-23Honourable Mr Justice N. Kirubakaran,Honourable Mr Justice B.Pugalendhi15 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23.12.2020

CORAM

THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN AND THE HONOURABLE MR.JUSTICE B.PUGALENDHI W.A(MD)Nos.621 to 633 of 2013 and W.P(MD)Nos.15126 and 15127 of 2013 and M.P(MD)Nos.1,1,1,1,1,1,1,1,1,1,1,1,1,1,1 AND 1 of 2013

1. The Assistant General Manager (Administration), Maduram Complex, Dr.Ambedkar Road, Madurai

2. The Branch Manager, State Bank of India, Madurai Main Branch, Sangam Towers, 7,West Veli Street, Madurai - 625 001 ... Appellants in WA(MD). 621/ 2013

1. The Assistant General Manager (Administration), Maduram Complex, Dr.Ambedkar Road, Madurai

2. The Branch Manager, State Bank of India, Theni Branch, Theni District.

... Appellants in WA(MD). 622/ 2013

1. The Assistant General Manager (Administration), Maduram Complex, Dr.Ambedkar Road, Madurai

2. The Branch Manager, State Bank of India, Uthamapalayam Branch, Uthamapalayam Taluk, Theni District.

... Appellants in WA(MD). 623/ 2013 1/15

1. The Assistant General Manager, State Bank of India, Administration, II Mc Donald Road, Cantonment, Trichy.

2. The Branch Manager, State Bank of India, Peravurani Branch, Pattukottai Taluk, Thanjavur District ... Appellants in WA(MD). 624/ 2013

1. The Assistant General Manager (Administration), Maduram Complex, Dr.Ambedkar Road, Madurai

2. The Branch Manager, State Bank of India, Periyakulam Branch, Theni District.

... Appellants in WA(MD). 625/ 2013

1. The Assistant General Manager, Administration-II, State Bank of India(Zonal Office), Mc Donald Road, Cantonment, Trichy.

2. The Branch Manager, State Bank of India, Peravurani Branch, Thanjavur District

3. The Branch Manager, State Bank of India, Pattukottai Branch, Thanjavur District ... Appellants in WA(MD). 626/ 2013

1. The Assistant General Manager, Administration-II, State Bank of India(Zonal Office), Mc Donald Road, Cantonment, Trichy.

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2. The Branch Manager, State Bank of India, Main Branch, Trichy District ... Appellants in WA(MD). 627 to 631/ 2013

1. The Assistant General Manager (Administration), Madhuram Complex, Dr.Ambedkar Road, Madurai.

... Appellant in WA(MD). 632/ 2013

1. The Assistant General Manager, Administration-II, State Bank of India(Zonal Office), Mc Donald Road, Cantonment, Trichy.

2. The Branch Manager, State Bank of India, Pattukottai Branch, Pattukottai Taluk, Thanjavur District ... Appellants in WA(MD). 633/ 2013 - Vs. - N.Nagarajan ... Respondent in WA(MD). 621/ 2013 P.Kamaiyyan ... Respondent in WA(MD). 622/ 2013 P.Ravi ... Respondent in WA(MD). 623/ 2013 D.Solamon Rajan ... Respondent in WA(MD). 624/ 2013 N.Veluchamy ... Respondent in WA(MD). 625/ 2013 V.Krishnamurthy ... Respondent in WA(MD). 626/ 2013 V.A.Raju ... Respondent in WA(MD). 627/ 2013 M.Manickavasu ... Respondent in WA(MD). 628/ 2013 R.Sivakumar ... Respondent in WA(MD). 629/ 2013 M.Babu ... Respondent in WA(MD). 630/ 2013 R.Nagaraju ... Respondent in WA(MD). 631/ 2013 3/15

S.Palanichamy ... Respondent in WA(MD). 632/ 2013 R.Nagaraj ... Respondent in WA(MD). 633/ 2013 Common Prayer :Appeal filed under Clause 15 of the Letters Patent, to allow these writ appeals by setting aside the order made in WP (MD).Nos. 81, 617, 618, 698, 899,900, 901,902,532 of 2011, 14971, 14976, 14977, 14996 of 2010 dated 21.03.2013 Prayer in WP(MD). 81 of 2011, Writ Petition is filed under Article 226 of the Constitution of India, praying to issue a Writ or order or in the nature of Writ of Mandamus directing the Respondents to give the petitioners permanent appointment to the post of Watchmen Cum Armed Guard as per the Respondent's rule as he is already selected to the said post through the proceedings of the 1st respondent dated 18.06.2009 by filling up the existing vacancy in the Post of Watchmen Cum Armed Guard and thereafter fill the remaining vacancies in the Post of Watchmen Cum Armed Guard by fresh selected candidates who appeared in the interview and are selected long after selection of the petitioner.

Prayer in WP(MD). 14971 of 2010 :

Writ Petition is filed under Article 226 of the Constitution of India, praying to issue a Writ or order or in the nature of Writ of Mandamus directing the Respondents to give the petitioners permanent appointment to the post of Watchmen Cum Armed Guard as per the Respondent's rule as he is already selected to the said post through the proceedings of the 1st respondent dated 15.12.2010 by filling up the existing vacancy in the Post of Watchmen Cum Armed Guard and thereafter fill the remaining vacancies in the Post of Watchmen Cum Armed Guard by fresh selected candidates who appeared in the interview and are selected long after selection of the petitioner. Prayer in WP(MD). 14976 of 2010 :

thereafter fill the remaining vacancies in the Post of Watchmen Cum Armed Guard by fresh selected candidates who appeared in the interview and are selected long after selection of the petitioner. Prayer in WP(MD). 14977 of 2010 :

Writ Petition is filed under Article 226 of the Constitution of India, praying to issue a Writ or order or in the nature of Writ of Mandamus directing the Respondents to give the petitioners permanent appointment to the post of Watchmen Cum Armed Guard as per the Respondent's rule as he is already selected to the said post through the proceedings of the 1st respondent dated 13.12.2007 by filling up the existing vacancy in the Post of Watchmen Cum Armed Guard and thereafter fill the remaining vacancies in the Post of Watchmen Cum Armed Guard by fresh selected candidates who appeared in the interview and are selected long after selection of the petitioner.

Prayer in WP(MD). 14996 of 2010 :

Writ Petition is filed under Article 226 of the Constitution of India, praying to issue a Writ or order or in the nature of Writ of Mandamus directing the Respondents to give the petitioners permanent appointment to the post of Watchmen Cum Armed Guard as per the Respondent's rule as he is already selected to the said post through the proceedings of the 1st respondent dated 18.12.2002 by filling up the existing vacancy in the Post of Watchmen Cum Armed Guard and thereafter fill the remaining vacancies in the Post of Watchmen Cum Armed Guard by fresh selected candidates who appeared in the interview and are selected long after selection of the petitioner.

Prayer in WP(MD). 617 of 2011 :

Writ Petition is filed under Article 226 of the Constitution of India, praying to issue a Writ or order or in the nature of Writ of Mandamus directing the Respondents to give the petitioners permanent appointment to the post of Watchmen Cum Armed Guard as per the Respondent's rule as he is already selected to the said post through the proceedings of the 2nd respondent dated 02.02.2005 by filling up the existing vacancy in the Post of Watchmen Cum Armed Guard and thereafter fill the remaining vacancies in the Post of Watchmen Cum Armed Guard by fresh selected candidates who appeared in the interview and are selected long after selection of the petitioner.

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Prayer in WP(MD). 618 of 2011 :

Writ Petition is filed under Article 226 of the Constitution of India, praying to issue a Writ or order or in the nature of Writ of Mandamus directing the Respondents to give the petitioners permanent appointment to the post of Watchmen Cum Armed Guard as per the Respondent's rule as he is already selected to the said post through the proceedings of the 1st respondent dated 10.06.2002 by filling up the existing vacancy in the Post of Watchmen Cum Armed Guard and thereafter fill the remaining vacancies in the Post of Watchmen Cum Armed Guard by fresh selected candidates who appeared in the interview and are selected long after selection of the petitioner. Prayer in WP(MD). 898 of 2011 :

Writ Petition is filed under Article 226 of the Constitution of India, praying to issue a Writ or order or in the nature of Writ of Mandamus directing the Respondents to first give the petitioners permanent appointment to the post of Watchmen Cum Armed Guard as per the Respondent's rule as he is already selected to the said post by the respondent by filling up the existing vacancy in the Post of Watchmen Cum Armed Guard and thereafter fill the remaining vacancies in the Post of Watchmen Cum Armed Guard by fresh selected candidates who appeared in the interview and are selected long after selection of the petitioner.

Prayer in WP(MD). 899 o f 2011 :

Prayer in WP(MD). 900 o f 2011 :

the respondent by filling up the existing vacancy in the Post of Watchmen Cum Armed Guard and thereafter fill the remaining vacancies in the Post of Watchmen Cum Armed Guard by fresh selected candidates who appeared in the interview and are selected long after selection of the petitioner.

Prayer in WP(MD). 901 o f 2011 :

Prayer in WP(MD). 902 o f 2011 :

Writ Petition is filed under Article 226 of the Constitution of India, praying to issue a Writ or order or in the nature of Writ of Mandamus directing the Respondents first to give the petitioners permanent appointment to the post of Watchmen Cum Armed Guard as per the Respondent's rule as he is already selected to the said post through the proceedings of the respondent dated 18.12.2002 by filling up the existing vacancy in the Post of Watchmen Cum Armed Guard and thereafter fill the remaining vacancies in the Post of Watchmen Cum Armed Guard by fresh selected candidates who appeared in the interview and are selected long after selection of the petitioner.

Prayer in WP(MD). 532 o f 2011 :

Writ Petition is filed under Article 226 of the Constitution of India, praying to issue a Writ or order or in the nature of Writ of Mandamus directing the Respondents first to give the petitioners permanent appointment to the post of Watchmen Cum Armed Guard as per the Respondent's rule as he is already selected to the said post through the proceedings of the 2nd respondent dated 24.05.2005 by filling up the existing vacancy in the Post of Watchmen Cum Armed Guard and thereafter fill the remaining vacancies in the Post of Watchmen Cum Armed Guard by fresh selected candidates who appeared in the interview and are selected long after selection of the petitioner.

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(in Writ Appeals) For Appellants :Mr.S Sethuraman For Respondent :Mr.V.R.Venkatesan V. Manoharan ... Petitioner in WP(MD). 15126 of 2013 S. Maheswaran ... Petitioner in WP(MD). 15127 of 2013 - Vs. -

1. The Assistant General Manager, Administration - II, State Bank of India (Zonal Office), Mc Donald Road, Cantonment, Thiruchirappalli.

2. The Branch Manager, State Bank of India, Mannargudi Branch, Big Bazzar Street, Mannargudi - 614 091, Thiruvarur District.

... Respondents in WP(MD). 15126 & 15127 of 2013 Common Prayer in WP(MD).Nos. 15126, 15127 of 2013 : Writ Petitions are filed under Article 226 of the Constitution of India, praying to issue a Writ of Mandamus, directing the respondent to first give the petitioner permanent appointment to the post of Watchmen Cum Armed Guard as per the respondents rule as he is already selected to the said Post thorugh the Proceedings of the 1st Respondent dated 09.08.2006 by filling up the existing vacancy in the post of Watchmen Cum Armed Guard and thereafter fill the remaining vacancies in the post of Watchmen Cum Armed Guard by fresh selected candidates who appeared in the interview and are selected long after selection of the petitioner. For Petitioner - Mr.V.R.Venkatesan For Respondents - Mr.S.Sethuraman (in both WPs) 8/15

COMMON JUDGMENT [Judgment of the Court was delivered by B.PUGALENDHI, J] The subject matter of these writ appeals and the writ petitions are with regard to the recruitment of the respondents/ Armed Guards on temporary basis and their eligibility for permanent absorption. 2.Since the issue involved in these writ appeals and the writ petitions is one and the same, they are taken up together for hearing and disposed of by way of this common judgment. 3.The respondents / writ petitioners are Ex-Servicemen and they were appointed in the appellant Bank as Armed Guards on temporary basis. The writ petitions in W.P(MD)Nos.

14971, 14976, 14977 and 14996 of 2010, 81, 617, 618, 898, 899, 900, 901, 902 and 532 of 2011, were filed for a writ of mandamus, directing the appellants / respondents to provide permanent appointment to the respondents / writ petitioners to the post of Watchman cum Armed Guard. 4.The learned Single Judge disposed of those writ petitions, by a common order, dated 21.03.2013, directing the appellants to consider the case of the writ petitioners for permanent appointment with reference to their age, subject to the writ petitioners fulfilling all other conditions, as and when, fresh notification is issued for filing up the vacancies in the post of Armed Guard, Security and Watchman, etc., 5.Aggrieved over the common order, dated 21.03.

2013, passed by the learned Single Judge in the writ petitions, the present appeals are filed by the Bank and the present writ petitions in W.P(MD) Nos.15126 and 15127 of 2013 are filed seeking a writ of mandamus, directing the appellants to give permanent appointment to the writ petitioners. The present two writ petitions have been tagged along with these writ appeals on 07.01.2014.

6.Heard Mr.S.Sethuraman, learned Standing Counsel appearing for the Bank in writ appeals and in the writ petitions and Mr.V.R.Venkatesan, learned Counsel appearing for the respondents in the writ appeals and for the petitioners in the writ petitions. 7.When the cases are taken up for hearing Mr.Sethuraman, learned Standing Counsel appearing for the appellants submitted that the issue involved in these writ appeals and writ petitions were already decided by the Hon'ble Supreme Court in the case of State Bank of India Vs Chinnaponnu and Another, [in Civil Appeal Nos.6883 to 6884 of 2016], by appointing an One Man Commission by a retired 9/15

High Court Judge and the learned Judge has also disposed of the cases on 30.01.2020.

8.According to the learned Standing Counsel appearing for the appellants Bank, all these respondents / writ petitioners were appointed as temporary employees by the respective Bank Managers without following any process of law and all these writ petitioners are also above 55 years of age. The learned Counsel further submitted that the writ petitions were filed very belatedly after a period of 11 years, from the date of issuance of call letters and they are not entitled for any relief and therefore, prayed for allowing the writ appeals and dismissal of the writ petitions. 9.Mr.V.R.Venkatesh, learned Counsel appearing for the respondents / writ petitioners submitted that all these recruitments were made as per the Circular Letter No.1, dated 03.04.

2002 and the writ petitioners were sponsored by the District Ex-Servicemen Welfare Board with certain educational qualifications and age limit. All these writ petitioners were recruited strictly by adhering to the recruitment process and they are entirely different from the recruitments, which were subject matter before the Hon'ble Supreme Court in Civil Appeal Nos. 6883 to 6884 of 2016, wherein the details and the mode of recruitments were not at all furnished. But, in the present cases, the details are very much available and all these recruitments were made, strictly after adhering to the recruitment procedure, as per the circular issued by the Deputy General Manager in the year 2002. The learned Counsel, therefore, prayed for dismissal of the writ appeals and allowing the writ petitions. 10.

We paid our anxious consideration to the rival submissions and also perused the materials placed on record. 11.It is seen that the appellant State Bank of India, engaged the writ petitioners as temporary Watchmen during the years 2002, 2003 and 2006, etc., These recruitments were made by the respective Branch Managers by calling details / data of the retired army personnel from the Assistant Director of Ex-Servicemen Welfare Board. The call letters produced by the writ petitioners reveal that they had been called for temporary appointments. But there are no details, as to their appointments and their period of service.

Therefore, the writ Court, while disposing of the writ petitions, has recorded that the learned Counsel for the writ petitioners claimed that they are still continuing in service, but the same is denied by the learned Counsel for Bank, stating that their temporary services had already been disengaged. In view of the disputed question of facts, the learned single Judge passed an order that in the event any of the writ petitioners are till being engaged on temporary basis, such engagement shall be continued, till those persons are considered for permanent absorption, as directed by the Court.

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12.With regard to the recruitments of all the temporary employees, it is stated that at the request of the State Bank Staff Federation, a settlement was arrived at between the State Bank of India, and the Union, in the year 1987 that the temporary employees, who had worked during the period from the year 1975 to 1987 shall be given chances, for being considered for appointment in the Bank Services, against the vacancies like to arise. Names of the suitable candidates will be waitlisted, in order or their aggregate temporary service. These panels of such waitlisted candidates shall be valid upto Dec, 1991. The names of the suitable candidates were divided into 3 categories, category A- those, who completed 240 days, Category B- Those who completed 270 days and Category C-Those who completed 70 days.

13.On 16.07.1988 a modification was made and a second settlement was entered into between the parties whereby, qualifying service was extended up to 31.07.1998 instead of 31.12.1987. Pursuant to the settlements referred to above, an advertisement was issued in the The Hindu Madras by the State Bank of India, on 01.08.1998 calling for applications from such temporary employees who were paid scale wages (monthly). It was done region wise as there were different vacancies to be filled up in different regions. 14.Thereafter, the Union espoused the cause of casual employees / stroke daily wagers for being absorbed as permanent employees in the Bank and a third settlement was entered into on 27.10.

1998 by which, it was decided to consider all candidates against vacancies likely to arise from the year 1988 to 1992, as apparently, in some of the circles, the number of vacancies were more than the waitlisted temporary scale wage employees and Chennai Circle was an exception where the waitlisted temporary employees were more than the available vacancies. Under a 4th settlement, dated 09.01.1991, the validity of the Panel was extended from 1991 to 1994. On 01.05.1991 the State Bank of India, pursuant to the 3rd settlement issued an advertisement calling for applications, from casual /daily wagers for giving a chance to those persons, employed in the Bank.

This move by the Bank triggered the controversy and various disputes were raised before the Industrial Tribunal, Writ petitions were filed before the High Court and against the award of the Industrial Tribunal various writ petitions were filed and finally the parties approached the Hon'ble Supreme Court and in those proceedings, the Hon'ble Supreme Court appointed Mr.Justice R.S.Ramanathan, to decide the issue and also formulated the scope of enquiry to verify whether the list prepared in pursuance of the settlement 1987 (1st Settlement) and the consequent advertisement made by the Bank on 01.08.1988, does or does not contain the name of any casual / daily wagers.

also would have made it to the list by their merit in the list of temporary employees. In case any such candidates are found, then the learned Judge was to determine the compensation to be paid to such persons as there is no question of giving employment as on date. 15.As directed by the Hon'ble Supreme Court, Hon'ble Mr.Justice R.S.Ramanathan, has completed the task, on enquiring all the respective Counsel and concluded his proceedings, which reads as follows:

"According to the stand of the Bank that they do not have the details of the temporary employees, who were included in the list such as the date of joining, their length of service, the days on which they were employed cannot be accepted as rightly pointed by the learned Counsel appearing for the Unions that the lis is pending from 1987. At the same time, the Union's stand that they do not have any particulars of casual/daily wagers cannot be accepted at their face value as the Unions had also espoused the cause of casual/daily wagers which resulted in the 3rd settlement. Therefore, as submitted by the learned Counsel appearing for the Union adverse inference cannot be drawn.

Further, it is admitted by both the parties that all the petitioners, who raised disputes before the Tribunal and are parties before the Supreme Court could not have been accommodated and absorbed in employment. In other words, considering the number of casual/daily wagers who were included in the list of temporary employees proportionate number of temporary employees can be considered for compensation. Therefore, even assuming that there was jumbling of casual/daily wagers as contended by the Unions, all the respondents before the Hon'ble Supreme Court could not be given the benefit. The benefit can be confined only to the extent of number of casual/daily wagers, who were included into the list of temporary employees.

In that case, it is difficult to determine the number of casual/daily wagers, who were included in the temporary list and the compensation payable to those persons, who would have been absorbed in the absence of any assistance either from the Bank or from the Union. The Hon'ble Supreme Court also made it clear that in the event of coming to the conclusion that some casual/daily wagers were included in the list of the temporary employees then I will have to determine the compensation payable to such persons as there is no question of giving them employment.

compensation payable to such persons. I have already held that in the absence of assistance from the Bank and from the Unions it is not possible to determine the number of persons from casual/daily wagers, who were included in the list of temporary employees. The Hon'ble High Court in the batch of writ petitions filed against the Awards in ID 207 of 2004 batch and ID 80 of 2000 batch gave a factual finding that some casual/daily wagers were included in the list of temporary employees and they were given employment. The Hon'ble Supreme Court also took that finding into consideration and directed me to find out if really there was jumbling of list.

At the risk writ petition, in the absence of any assistance from the Bank as well as the Union it is not possible to find out the number of persons, who were employed as casual/daily wagers and who were included in the list of temporary employees and later absorbed in employment. At the same time, as suggested by the learned Counsel Mr.N.G.R.Prasad, I cannot draw adverse inference and cannot come to a conclusion that all the respondents before the Hon'ble Supreme Court would have been benefitted if there had been no jumbling of list.

However, considering the fact that the respondents before the Hon'ble Supreme Court are fighting their cause from 2000 onwards and the Bank, which is expected to maintain the records regarding the date of entry, length of services all employees including casual /daily wager does not come forward to furnish the particulars such as date of entry, length of service of the temporary employees and casual/daily wagers, and the Union also is not prepared to give the details of those casual/daily wagers, who were absorbed in employment along with temporary employees, I am of the opinion that it would be justified if compensation is paid to the workers, who are parties before the Hon'ble Supreme Court.

The next question that arises for consideration is what would be the quantum of compensation payable to the workers/ respondents before the Hon'ble Supreme Court. The lis is pending from 2000 and the workers succeeded before the Hon'ble High Court. It is stated in the ID 207 of 2004 batch, 284 temporary employees were parties. In ID 80 of 2000 batch 19 temporary the High Court viz, the temporary employees were also parties before the Hon'ble Supreme Court as respondents, that cannot be ascertained by me. The Hon'ble Supreme Court also made it clear in their order that my determination of this issue will not be available for further challenge and the benefit, if any would also go to any of the respondents alone before the Hon'ble Supreme Court and not to open another pandora box after 3 decades.

respondents, who were parties before the Hon'ble Supreme Court and not to others.

Considering the long period of litigation and the number of persons affected and considering the various aspects as stated above in my opinion a sum of Rs.50,000/- to each temporary employees/respondents before the Hon'ble Supreme Court payable by the State Bank of India, the petitioner before the Hon'ble Supreme Court to pay a sum of Rs.50,000/- to each of the respondents/ temporary employees before the Hon'ble Supreme Court within a period of one month from the date of receipt of a copy of this order. 16.The said proceedings, dated 31.01.2020, was also accepted by the Hon'ble Supreme Court and therefore, a quietus has been given to the issues.

17.The issue involved in these writ appeals and writ petitions are also covered under the judgment of the Hon'ble Supreme Court, cited above and the proceedings of the Hon'ble Mr.Justice R.S.Ramanathan, dated 31.0.2020 and as such, the writ appeals are allowed and the writ petitions are dismissed, on the above terms. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar (CO) // True Copy // / /2021 Sub Assistant Registrar(CS) Dsk To 1.The Assistant General Manager (Administration) Maduraim Complex, Dr.Ambedkar Road, Madurai.

2. The Assistant General Manager, State Bank of India, Administration-II Mc Donald Road, Cantonment, Trichy.

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+1cc to Mr.V.R.Venkatesan, Advocate Sr.No.27005 +30ccs to Mr.S.Sethuraman, Advocate Sr.Nos.27229, 27228, 27223, 27224, 27225, 27226, 27227, 27216, 27217, 27218, 27219, 27220, 27221, 27222, 27230 W.A(MD)Nos.621 to 633 of 2013 and W.P(MD)Nos.15126 and 15127 of 2013 23.12.2020 VR (CO) NR (11/02/2021) 15P : 34C 15/15