COMMON ORDER

The petitioners have filed these writ petitions seeking a writ of mandamus to direct the first respondent to regularize their services from their initial date of appointments till 01.06.2006 with all consequential monetary and service benefits

2. The petitioners were appointed as Secondary Grade Teacher/Junior Secondary Grade Teacher / Junior grade B.T.Assistant / Physical Education Teachers between the years 2003 to 2006 on consolidated pay of Rs.3000/-, Rs.4000/- and Rs.4500/- from the year 2004. The Government took a policy decision to absorb the petitioners in various Panchayat Union Schools, High Schools and Higher Secondary Schools in the vacancies available as on 01.06.2003 and to re-designate them as Junior Secondary Grade Teacher / Junior Grade B.T.Assistant / Junior Grade P.G.Assistant on consolidated pay. However there is no corresponding amendment in the Service Rules and an executive order alone was given to down grade the post. In the said order it is stated that those persons who have been appointed to the down graded post shall be entitled to be regularized after the completion of five years in the consolidated pay.

2.1 As per the Government Order in G.O.Ms.No.55 dated

02.06.2004 the petitioners would not be eligible for regularization for a period of five years. Subsequently, another Government Order in G.O.Ms.No.99, School Education (Budget-2) Department dated 27.06.2006 was issued following the Government Order in G.O.Ms.No.100 Education (Budget) Department dated 27.06.2003, to regularise the services of petitioner and similar other persons who have been regularized with effect from 01.06.2006 irrespective of their date of appointment. 3. Mr.S.Mohanavadivelan, the learned counsel for the petitioners, submitted that the two year services of the petitioners were not considered either for the Selection Grade or for the Special Grade or for awarding any increment or fixing pay; those persons who have been appointed just one day prior to the issuance of G.O.Ms.No.100 Education (Budget) Department dated 27.06.2003 are getting all service benefits. However the petitioners are not able to get any benefit; the petitioners have participated in competitive exam and had undergone a thorough selection process; since differential treatment has been given to two similarly placed persons, it is violative of the right to equality. The writ petitions are filed to regularize the service of the petitioners from the initial date of their appointment.

4. Mr.P.Gurunathan, the learned Additional Government Pleader, submitted that on 09.03.2019 the petitioners gave representation and it is under consideration; the petitioners were appointed outside the scope of normal recruitment procedure and such contract services cannot be regularized; the Hon’ble Supreme Court in State of Rajasthan and Ors. Vs. Daya Lal & Ors., reported in AIR 2011 SC 1193 have considered the scope of regularization of irregular or part time appointments in all possible eventualities and laid down the principles as under:

“ (i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and Courts should not issue a direction for regularisation of services of an employee which would be violative of the constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.

(ii) Mere continuation of service by a tempora