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2018 Supreme(Mad) 1117
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M. SUBRAMANIAM, J.
R. Karthikeyan - Petitioner
Versus
The Principal Secretary, Secretariat, Chennai & Others - Respondents
W.P. No. 7363 of 2018 & W.M.P. No. 9150 of 2018
Decided On : 02-04-2018
For the Petitioners: M/s. M. Ravi
For the Respondents: V. Kadhirvelu
Headnote:
The Hon'ble Supreme Court of India in Umadevi Case (2006) 4 SCC 1, laid down the legal principles that regularisation or permanent absorption can never be granted contrary to the recruitment rules in force. Equal opportunity in public employment is the constitutional mandate. All the eligible persons are to be given opportunity to participate in the selection process in order to secure public employment. Engaging a person on daily rated basis and only by length of service, if regularization or permanent absorption are granted, then this Court is of an opinion that the teeming, millions of eligible and meritorious candidates are deprived of their right of opportunity even to participate in the process of selection through open competitive process. Thus, such an activity of the executives are a fraud on the constitution and there cannot be any such back door appointment in the permanent vacancy in the time scale of pay. All the permanent posts are to be filled up only through open competitive process and by providing equal opportunity to all the eligible candidates in accordance with the procedures contemplated under the rules.
Fact of the Case:
The writ petitioners were appointed as daily wage employees in the year 2003 and they are continued in service for more than ten years, is the claim set out in these writ petitions. However, pursuant to the Judgment of the Constitution Bench of the Hon'ble Supreme Court of India in the case of The State of Karnataka Vs. Umadevi, reported in (2006) 4 SCC 1 [herein after referred to as “Umadevi Case”], one time benefit was granted by the Hon'ble Supreme Court of India in Paragraph (53) of the Judgment.
Finding of the Court:
The Hon'ble Supreme Court of India in Umadevi Case (2006) 4 SCC 1, laid down the legal principles that regularisation or permanent absorption can never be granted contrary to the recruitment rules in force. Equal opportunity in public employment is the constitutional mandate. All the eligible persons are to be given opportunity to participate in the selection process in order to secure public employment. Engaging a person on daily rated basis and only by length of service, if regularization or permanent absorption are granted, then this Court is of an opinion that the teeming, millions of eligible and meritorious candidates are deprived of their right of opportunity even to participate in the process of selection through open competitive process. Thus, such an activity of the executives are a fraud on the constitution and there cannot be any such back door appointment in the permanent vacancy in the time scale of pay. All the permanent posts are to be filled up only through open competitive process and by providing equal opportunity to all the eligible candidates in accordance with the procedures contemplated under the rules.
Issues: Whether the writ petitioners are entitled for the relief of permanent absorption as sought for in the writ petition?
Ratio Decidendi: The Hon'ble Supreme Court of India in Umadevi Case (2006) 4 SCC 1, laid down the legal principles that regularisation or permanent absorption can never be granted contrary to the recruitment rules in force. Equal opportunity in public employment is the constitutional mandate. All the eligible persons are to be given opportunity to participate in the selection process in order to secure public employment. Engaging a person on daily rated basis and only by length of service, if regularization or permanent absorption are granted, then this Court is of an opinion that the teeming, millions of eligible and meritorious candidates are deprived of their right of opportunity even to participate in the process of selection through open competitive process. Thus, such an activity of the executives are a fraud on the constitution and there cannot be any such back door appointment in the permanent vacancy in the time scale of pay. All the permanent posts are to be filled up only through open competitive process and by providing equal opportunity to all the eligible candidates in accordance with the procedures contemplated under the rules.
Final Decision: The writ petition stands dismissed.
1. The grievance of the writ petitioners is that the names of more than 66 persons were already listed out for the purpose of sending proposals to the Government for regularization of the services of those daily rated/casual labourers.
2. The petitioners are also similarly placed casual labourers and their names were not included in the proposed list. The learned counsel appearing on behalf of the writ petitioners state that when the petitioners are similarly placed, the respondents ought to have included the name of the petitioners in the proposed list for the purpose of granting regularization.
3. Regularization or permanent absorption can never be granted contrary to the recruitment rules in force. Equal opportunity in public employment is the constitutional mandate. All the eligible persons are to be given opportunity to participate in the selection process in order to secure public employment. Engaging a person on daily rated basis and only by length of service, if regularization or permanent absorption are granted, then this Court is of an opinion that the teeming, millions of eligible and meritorious candidates are deprived of their right of opportunity even to participate in the process of selection through open competitive process. Thus, such an activity of the executives are a fraud on the constitution and there cannot be any such back door appointment in the permanent vacancy in the time scale of pay. All the permanent posts are to be filled up only through open competitive process and by providing equal opportunity to all the eligible candidates in accordance with the procedures contemplated under the rules. There cannot be any back door entry. Persons who were appointed through back door, must be allowed to go out from the door through which they entered. When these all are the constitutional principles, the authorities competent cannot indulge in granting permanent absorption or regularization in respect of the employees, who were not appointed in accordance with the recruitment rules in force.
4. This Court has considered these legal principles elaborately in W.P.Nos.28633 to 28646 of 2014 dated 12.12.2017. In respect of the above said judgment, the authorities are continuously taking efforts to regularize the irregular and illegal appointments. Therefore, a serious view is to be taken in respect of such illegal acts of the executives also. The earlier judgment of this Court was an elaborate one in this regard and the Constitution Bench judgment and other subsequent judgments of the Hon'ble Supreme Court of India were followed in the above case and the important paragraphs of the said judgment are extracted hereunder:
“27. Considering the arguments advanced both by the learned counsel for the petitioners as well as the learned counsel for the respondents, this Court has to first consider the factual matrix involved in these writ petitions on hand. The writ petitioners, undoubtedly, were appointed as daily wage employees in the year 2003 and they are continued in service for more than ten years, is the claim set out in these writ petitions. However, pursuant to the Judgment of the Constitution Bench of the Hon'ble Supreme Court of India in the case of The State of Karnataka Vs. Umadevi, reported in (2006) 4 SCC 1 [herein after referred to as “Umadevi Case”], one time benefit was granted by the Hon'ble Supreme Court of India in Paragraph (53) of the Judgment.
28. Even before the said judgment, the State of Tamil Nadu issued G.O.Ms.No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006. As per the said Government Order, the temporary employees who have completed ten years of service as on the date of the Government Order can be regularised. Even prior to the judgment of the Hon'ble Supreme Court of India, the Government issued G.O.Ms.No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006, granting the benefit of one time regularization in respect of the temporary emp
