IN THE HIGH COURT OF MADRAS
S.M. SUBRAMANIAM, J.
M. Mahalingam - Appellant
Versus
Engineer in Chief, Water Resources Department, Public Works Department and Ors - Respondent
W.P. Nos. 28633 to 28646 of 2014, M.P. Nos. 1 of 2014, 1 of 2015 and Cont. P. 561 to 574 of 2015
Decided On : 12-12-2017
Constitution of India, 1950 - Articles 21, 14, 16, 226, 323-A, 309, 320, 335, 315, 32, 141, 142, 23, 162 - Working Department – Contractor - In this pretext writ petitioners have submitted their representation on seeking regularisation fourth respondent sent a reply to writ petitioners by stating that writ petitioners have been paid daily wages only through Contractors and therefore their case cannot be considered in accordance with G -O - Writ petitioners have further submitted their representation - Under these circumstances fourth respondent issued impugned order in proceedings rejecting claim of writ petitioners for regularisation on ground that they were appointed on daily wage basis through Contractors and therefore their claim cannot be entertained - Held, We have already indicated constitutional scheme of public employment in this country and executive or for that matter court in appropriate cases would have only right to regularise an appointment made after following due procedure even though a non-fundamental element of that process or procedure has not been followed - This right of executive and that of court would not extend to executive or court being in a position to direct that an appointment made in clear violation of constitutional scheme and statutory rules made in that behalf can be treated as permanent or can be directed to be treated as permanent - However if any such law prevails and covering field of appointment of regularisation and permanent absorption then general law would not apply - In nutshell special law and rules will prevail over general law and special rules in force are to be applied in relevant case - Petitions stand dismissed.
S.M. SUBRAMANIAM, J.
1. The claim of the writ petitioners for regularisation were rejected in proceedings dated 17.9.2014 on the ground that the employees who were appointed on contract basis and on daily wages, are not entitled for regularisation in accordance with the Government Orders. In this regard, a direction is also sought for in this writ petition to regularise the services of the writ petitioners in the existing vacancy by taking note of the fact that the petitioners have completed 10 years of their continuous service. The learned counsel, appearing on behalf of the writ petitioners, state that the writ petitioners were employed on daily wage basis in the Irrigation and Public Works Departments in the year 2002 and their names were registered under the Muster Roll on 1.11.2013. As on 30.9.2005, the first respondent sent a communication to the second respondent to furnish the list of daily wage employees, who have completed 10 years of their services for the purpose of sending proposals for regularisation. There was an interdepartmental communication between the respondents 1 and 2 in proceedings dated 7.2.2008 to regularise the services of the daily wage employees, who are employed in the Department of Public Works. The Association of the employees' sent a representation to the respondents on 25.7.2008 to regularise the services of such daily wage employees whose names were registered in the Nominal Muster Roll.
2. This apart, the Tamil Nadu Public Works Department Employees Association also made a representation on 12.8.2008 to regularise their services. The writ petitions filed by the Association in W.P. No. 25704 of 2008 was disposed of by this Court on 24.11.2008, directing the respondents to consider the representation submitted by the Association on 17.9.2008. The Principal Secretary to Government, Public Works Department, intimated on 15.10.2009 that there was a complete bar on appointing the Nominal Muster Roll employees until an action is taken as per the orders passed in W.P. No. 25704 of 2008. The Government Order in G.O. Ms. No. 134 dated 7.5.2010 to regularize the services of 985 daily wage employees in the Department of Public Works.
3. Further, the first respondent sent a Circular to all the Chief Engineers on 13.12.2011 to take efforts to settle the grievances of the daily wage employees. The Assistant Executive Engineer, Irrigation Sub Division PWD/WRO, Gobichettipalayam furnished the list of daily wage employees, including the writ petitioners and their details of employment in proceedings dated 6.5.2013.
4. The third respondent has admitted the fact that the 16 daily wage employees in the Irrigation Division at Gobi, are working as daily wage employees. Under these circumstances, the Government issued G.O. Ms. No. 74, Personnel and Administrative Reforms (F) Department, dated 27.6.2013, imposing certain conditions for granting regularisation of temporary/daily rated employees.
5. In this pretext, the writ petitioners have submitted their representation on 9.4.2014, seeking regularisation. The fourth respondent sent a reply to the writ petitioners on 11.6.2014, by stating that writ petitioners have been paid daily wages only through the Contractors and therefore, their case cannot be considered in accordance with G.O. Ms. No. 74 dated 27.6.2013. The writ petitioners have further submitted their representation on 15.9.2014. Under these circumstances, the fourth respondent issued impugned order in proceedings dated 17.9.2014, rejecting the claim of the writ petitioners for regularisation on the ground that they were appointed on daily wage basis through the Contractors and therefore, their claim cannot be entertained.
6. The learned counsel for the writ petitioners states that in the present writ petitions, an interim order of status quo was granted and that has not been complied with and the contempt petitions were also filed. This Court, directing the Registry to list the contempt petitions also al
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