IN THE HIGH COURT OF MADRAS
S.M. SUBRAMANIAM, J.
M.Loganathan - Appellant
Versus
Principal Secretary to Government, Public Works Department - Respondent
W.P.Nos.12236, 12237 & 12238 of 2016 and W.M.P.Nos.10570, 10571 & 10572 of 2016
Decided on : 30-08-2018
Constitution of India, 1950 - Articles 21, 14, 16, 226, 323-A, 309, 320, 335, 12, 315, 32, 141, 23, 162 – Vacancies - Learned Senior Counsel appearing on behalf of Writ Petitioners states that Writ Petitioners were appointed as NMR Mazdoor in Public Works Department - Writ Petitioners have been serving in Public Works Department from year onwards in various branches of Public Works Department - Writ petitioners claim regularisation based on length of services rendered in Department as emperor employment - However order of rejection was also passed in these Writ Petitions by Government in proceedings - Thus submissions made by learned Senior Counsel that direction should be issued to consider recommendations would not arise at all - Held, This Court has to place on record that State is bound to oversee appointments made in this regard illegally or irregularly by competent authorities and same is to be construed as fraud on Constitution and such authorities are liable for prosecution under Discipline and Appeal Rules and other relevant rules - State shall be vigilant in this regard and authorities indulging in such activities of exercising powers by issuing illegal or irregular appointments are to be booked under Discipline and Appeal Rules - No leniency can be shown by State in this regard since these all are Constitutional principles required for State to be followed and State being a modal employer has to implement Constitutional perspectives and principles scrupulously and without any deviation - 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.
Mr. S.M.Subramaniam, J.
The relief sought for in these Writ Petitions are to call for the records in relation to the order passed by the first respondent in proceedings dated 17.12.2015. The impugned order dated 17.12.2015 states that after issuance of orders in G.O.Ms. No.74, Personnel and Administrative Reforms Department, dated 27.06.2013, which was given retrospective, with effect from 01.01.2006 among others.
2. The following conditions had been ordered in respect of regularisation of daily wages employees:-
1. In cases of relaxation of services rules, the service rule relating to the educational qualification and mode of recruitment shall not be relaxed.
2. The Services of the full time daily wage employees who have completed 10 years of service after 01.01.2006 shall not be regularised.
In view of the said position, the claim of the Writ petitioners has been rejected as the petitioners were found not eligible for regularisation.
3. The learned Senior Counsel, appearing on behalf of the Writ Petitioners, states that the Writ Petitioners were appointed as NMR Mazdoor (Assistant) in Public Works Department. The Writ Petitioners have been serving in Public Works Department from the year 1988 onwards in various branches of the Public Works Department. The Writ petitioners claim regularisation based on the length of services rendered in the Department as emperor employment.
4. The learned Senior Counsel would further contend that the case of the Writ Petitioners were recommended by the competent authorities under whom the petitioners are serving. However, the order of rejection was also passed in these Writ Petitions by the Government in proceedings dated 17.12.2015. Thus, the submissions made by the learned Senior Counsel that the direction should be issued to consider the recommendations would not arise at all.
5. This apart, this Court has decided the legal principles in the matter of regularisation and permanent absorption in the light of the precedents laid down by the Constitution Bench judgment of the Honourable Supreme Court of India, in the case of State of Karnataka v. Umadevi [(2006) 4 SCC 1] and the judgment of this Court dated 12.12.2017 in W.P.Nos.28633 to 28646 of 2014 and the relevant paragraphs are extracted here under:
“8. The learned counsel for the writ petitioners made a submission that it is the duty mandatory on the part of the respondents to consider the case of the writ petitioners for regularisation in the existing vacancies since the writ petitioners have put in more than 10 years of their services as daily wage employees and their names are registered under the Nominal Muster Roll maintained by the respondents. It is not the case of appointment of the writ petitioners but the case of their regularisation is the contention of the writ petitioners. When the employees have completed 10 years of their services, without the intervention of any Court order then their services to be regularised as per paragraph 53 of the Constitution Bench judgment of the Honourable Supreme Court of India, in the case of State of Karnataka v. Umadevi [(2006) 4 SCC 1], laid down the legal principles in the matter of regularisation, permanent absorption. The relevant Paragraph 53 of the judgment, cited supra, is extracted hereunder:-
“53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128], R.N. Nanjundappa [(1972) 1 SCC 409] and B.N. Nagarajan [(1979) 4 SCC 507] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment.
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