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Judgment
Pushpa Sathyanarayana, J.—1. The writ petition is filed for issuance of a writ of Certiorarified Mandamus to call for the records pertaining to the order of the 2nd respondent passed in his proceedings Na.Ka.No.ALB1/68345/2015 dated 18.02.2016 and quash the same as illegal and consequently direct the respondents to regularize the petitioner''s service with effect from the year 2006 onwards with all monetary benefits.
The petitioner has been serving as a sweeper in the second respondent''s Regional Office as well as godown situated at Konam from the year 2006 onwards. The petitioner was paid Rs.500/- per month on daily wage basis by the respondents. Despite serving the respondent for more than 10 years, his service was not regularized. According to the petitioner, though vacancies had arisen for group IV employees, his case was not considered for regularization. Hence, the petitioner gave a representation on 13.08.2015, requesting the second respondent to consider his regularization. Since it did not evoke any response, W.P. No. 22602 of 2015 was filed to consider his representation to regularize his service and that writ petition was disposed of on 16.11.2015, directing the respondents to consider the representation for regularization of service of the petitioner within a period of 6 weeks from the date of receipt of that order. However, the respondents rejected the representation of the petitioner in Na.Ka.No.A1B1/68345/2015, dated 18.02.2016. Aggrieved by the same, the above writ petition has been filed to quash the same.
It is the case of the petitioner that though he has been serving with the second respondent for more than 10 years, regularization was not done. Even after receipt of notice, the respondents have not chosen to file their counter affidavit.
Heard both sides.
It is the contention of the petitioner that he has employed in the respondent Corporation for more than 10 years and hence, they ought to have regularized his services. In the impugned order, the second respondent has stated that in view of the Government Letter dated 03.07.2002, G.O. Ms.No.49, P & AR (F) Department, dated 14.05.2002 and also on the basis of the conclusion arrived at the 346th Directors'' council, Group-D posts such as scavengers, toilet cleaners and gardeners etc., will be filled up by the Tamil Nadu Civil Supplies Corporation only through outsourcing by using the agreement holders. This fact is denied by the petitioner as false, because in the impugned order, nowhere, it is mentioned that the petitioner is an outsource employee. Hence, the act of the respondent is violative of Article 14 of the Constitution of India.
It is also contended that when the services of the petitioner has been used for more than 10 years, the presumption is that there is a regular need for his services. In that case, it is obligatory on the part of the respondent to examine the feasibility of his regularization.
Per contra, the learned counsel for the respondent contended that as per the Government''s Letter dated 03.07.2002, G.O. Ms.No.49, P & AR (F) Department, dated 14.05.2002 and also on the basis of the conclusion arrived at the 346th Directors'' council, Group-D posts such as scavengers, toilet cleaners and gardeners etc., will be filled up by the Tamil Nadu Civil Supplies Corporation only through the outsourcing method by using the agreement holders.. The irony is that the petitioner was appointed only in the year 2006. This is much after 4 years period contemplated under the Government''s letter dated 03.07.2002. Therefore, the impugned order passed by the respondent is legally valid and it does not need interference of this court.
The learned counsel for the petitioner also relied on a judgment of this court made in W.P. No.3025 of 2011, dated 22.01.2014, wherein, paragraph Nos. 9 and 10 reads as follows:-
"9. From the above documents referred to above, it is clear that the petitioners have completed more than 480 days of continuous service for a period of 24 calendar months in two years. It is very unfortunate that inspite of documents being scrutinized, the claim of the petitioners have been rejected. Having extracted the work and no fault at their end, depriving them the permanent status, is not only illegal but also opposed to principles of natural justice. When other persons have been regularized in service, the action of the Management in not regularising the services of the petitioners amounts to clear discrimination and smacks victimization. The employees are asking for Class IV employment. Sponsorship through employment Exchange is not required for persons who are going to be employed under Class IV employees. Some of the provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 are extracted below:-
"Sec.2 Definition. In this Act, unless the context otherwise requires -
(i) "Unskilled Office Work means work done in an establishment by any of the following categories of employees namely,
Daftri
Jamadar, orderly and peon
Dusting man or farash;
Bundle on record lifter;
Process server;
Watchman;
Sweeper;
Any other employee doing any routine or unskilled work which the Central Government may, by notification in the Official Gazette, declare to be unskilled office work.
Sec.3 Act not to apply in relation to certain vacancies:-
This Act shall not apply in relation to vacancies --
.....
(d) in any employment to do unskilled office work
Sec.4 Notification of vacancies to employment exchanges-
(1) After the commencement of this Act in any State or area thereof, the employer in every establishment in Public Sector in that State or area shall, before filling up any vacancy in any employment in that Establishment, notify that vacancy to such employment exchanges as may be prescribed.
(2) The appropriate Government may, by notification in the official gazette, require that from such date as may be specified in the notification, the employer in every establishment in Private Sector or every establishment pertaining to any class or category of establishments in Private Sector shall, before filling up any vacancy in any employment in that establishment, notify that vacancy to such employment exchanges as may be prescribed and the employer shall thereupon comply with such requisition.
The manner in which the vacancies referred to sub section (1) or sub section (2) shall be notified to the employment exchanges and the particulars of employment in which such vacancies have occurred or are about to occur shall be such as may be prescribed
Nothing in sub sections (1) and (2) shall be deemed to impose any obligation upon any employer to recruit any person through the Employment Exchange to fill any vacancy merely because that vacancy has been notified under any of those sub section.".
The provisions of Employment Exchange Act is only directory in nature and not mandatory; whereas the provisions of the Tamil Nadu Industrial Establishment (Conferment of permanent Status to Workmen) Act, 1981 and the provisions of the Industrial Disputes Act, 1947 are mandatory in nature."
In view of the above order of this court, it can be said that though the petitioner has completed 480 days of continuation service in the period of 24 calender months, the respondent did not take any steps to regularize his services to give permanent status to him.
It is also contended by the learned counsel for the petitioner that in view of the provisions of Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, the employment exchange is not required for persons who need to be employed under class IV category and sponsorship through employment exchange is not necessary.
It is also further contended that the petitioner is a direct employee of the respondent corporation, evidencing which the second respondent by his proceedings in Na.Ka.No.E2/1038/08, dated 20.02.2008, requested the Senior Manager (Labour) TNCSC, Chennai to send a copy of the appointment order pertaining to his appointment.
From the above factual matrix, it is clear that the respondents have been deliberately dodging to regularize the services of the petitioner, who has already put in 10 years of service. The petitioner cannot be deprived of the benefit of being regularized. Therefore, the impugned order dated 18.02.2016, passed by the second respondent is set aside and the second respondent is directed to regularize the services of the petitioner with effect from 2006 and give all the benefits, which may arise out of regularization on and completion of 480 days of continuous service, in a period of 24 calender months, within a period of 3 months from the date of receipt of a copy of this order.
Accordingly, this writ petition is allowed. No costs.