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IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN, THE HONOURABLE MR. JUSTICE C. SARAVANAN, THE HONOURABLE MR. JUSTICE N. SENTHILKUMAR
M.Sivappa - Petitioner
Versus
The State of Tamilnadu, Rep. by its Principal Secretary, Rural Development Department and ors. - Respondents
Writ Petition No.23823 of 2023
Decided On : 26-02-2024
G.O.Ms.No.74 - Regularisation of Temporary Employees - G.O.Ms.No.22, G.O.Ms.No.74, Secretary, State of Karnataka vs. Umadevi - The court examined the retrospective application of G.O.Ms.No.74, which restricted the regularisation of temporary employees to those appointed through Employment Exchanges, contrasting it with G.O.Ms.No.22 that allowed broader regularisation. The court interpreted the legal provisions to conclude that while the government has the authority to amend policies, such amendments cannot retroactively nullify vested rights established under previous orders. The court emphasized the need for a welfare state to avoid exploitative practices in employment, particularly in permanent posts.
Fact of the Case:
The case revolves around the conflicting interpretations of G.O.Ms.No.74 issued by the Tamil Nadu government, which limited the regularisation of temporary employees to those appointed through Employment Exchanges, in contrast to G.O.Ms.No.22 that allowed regularisation for all temporary employees with ten years of service as of January 1, 2006. The issue arose after numerous petitions were filed challenging the retrospective application of G.O.Ms.No.74, which was seen as infringing on vested rights established by G.O.Ms.No.22.
Finding of the Court:
The court found that G.O.Ms.No.74 could not be applied retrospectively to take away vested rights conferred by G.O.Ms.No.22. It held that while the government has the power to change its policy regarding regularisation, such changes must not violate the rights already established for employees who had completed ten years of service. The court emphasized the need for the government to act as a model employer and not exploit its citizens through temporary employment in permanent posts.
Issues: The primary issue was whether G.O.Ms.No.74 could be applied retrospectively to deny regularisation rights that had been established under G.O.Ms.No.22. Additionally, the court considered the implications of temporary versus permanent employment and the government's authority to amend its policies regarding regularisation.
Ratio Decidendi: The court concluded that the retrospective application of G.O.Ms.No.74 was invalid as it infringed upon the vested rights of employees established under G.O.Ms.No.22. It reaffirmed that regularisation is a policy decision but must respect the rights of employees who have served in permanent posts, regardless of their employment status at the time of appointment.
Final Decision: The court held that employees who have completed ten years of service in permanent posts, regardless of whether their appointment was part-time or full-time, are entitled to regularisation. The case was directed to be listed for disposal in accordance with this opinion.
ORDER :
R.SUBRAMANIAN, J.
Upon being apprised of the conflicting opinions expressed by the Division Benches of this court, a learned Single Judge has referred the issue relating to the operation of G.O.Ms.No.74, Personnel and Administrative Reforms (F) Department, dated 27.06.2013 to a Larger Bench and hence the matter is before us.
2. The factual matrix:
Pursuant to the decision of the Hon’ble Supreme Court in Secretary, State of Karnataka and Others vs. Umadevi and others, reported in 2006 (4) SCC 1, the State of Tamil Nadu issued G.O.Ms.No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006 directing regularisation of all temporary employees, who had completed ten years of service as on 01.01.2006. The said Government order is extracted for convenience.
IMAGE
The said Government Order did not make any difference between those, who have been appointed through Employment Exchanges and others or between Part-Time and Full-Time Employees. Several claims for regularisation were made under the said Government Order and some cases reached this court also. Nearly after eight years, on 27.06.2013 the Government issued G.O.Ms.No.74 dated 27.06.2013 which in effect restricted the operation of G.O.Ms.No.22 dated 28.02.2006 to certain categories of temporary employees only. This led to a spate of rejections of requests for regularisation which in turn led to several Writ petitions being filed in this court and some of them reached the Hon’ble Supreme Court also.
3. The bone of contention in all these matters was the scope or the operation of G.O.Ms.No.74 dated 27.06.2013. The said Government Order itself provided that it shall be deemed to have come into force with retrospective effect from 01.01.2006. One of the main grounds of challenge to the said Government order was that it purports to take away a vested right and therefore, it cannot operate retrospectively. Yet another question that arose was the mode of recruitment of the temporary employees. G.O.Ms.No.22 dated 28.02.2006 did not make any distinction between a temporary employee sponsored by an Employment Exchange and others. However, G.O.Ms.No.74 dated 27.06.2013 sought to restrict the benefit of regularisation only to those, who have been employed through Employment Exchanges. Several orders were passed by the Hon’ble Single Judges as well as the Division Benches in matters relating to the interpretation of G.O.Ms.No.74 dated 27.06.2013 and the scope of the said Government order. It is in this factual background the order of reference came to be made.
Precedents:-
4. The order of reference itself refers to at least five different judgments of the Division Benches of this court, wherein the scope and ambit of G.O.Ms.No.74 dated 27.06.2013 was the subject matter. The earliest judgment that has been referred to is a judgment of a Division Bench in WA No.493 of 2016, wherein the contention of the Government, that the respondents in the said Writ Appeal were not entitled to regularisation, based on G.O.Ms.No.74 dated 27.06.2013 was rejected by this court on the ground that the said Government Order came to be passed nearly a year after orders were passed by the learned Single Judge allowing the Writ Petition directing regularisation of the respondents therein.
5. Another Division Bench of this court in WA (MD) No.686 of 2017 had directed regularisation of the services of the respondent therein, even though he had not completed 10 years of service as on 01.01.2006 on the ground that similarly placed persons were regularised. The Division Bench, however, did not even make a reference to G.O.Ms.No.74 dated 27.06.2013 and it is not seen from the order that the said Government Order was brought to the notice of the Division Bench when it disposed of the Writ Appeal.
6. In WA No. 1133 of 2014 which is decided on 29.06.2018 to which one of us (Hon’ble Mr.Justice R.Subramanian) was a party, the question of regularisation again cropped up and the contention of the appellants/Gove
The court established that while the government can amend policies regarding employment regularisation, such amendments cannot retroactively affect vested rights of employees, particularly in the con....
Regularization of employment should adhere to specific government policies, with part-time employees not entitled to claim rights reserved for full-time roles.
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