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Judgment
K. Chandru, J.—All these Writ Petitions are filed by the petitioners seeking to challenge an order dated 18.9.2012 issued by the Principal
Secretary and Commissioner, Directorate of Art and Culture, Chennai. By the impugned orders, the petitioners were informed that approval was
granted to the Government Music School in Tiruvannamalai, Kancheepuram, Sirkazhi, Ramanathapuram, Sivagangai and Erode. The appointments
were made on the basis of an agreement entered into with the TEXCO (Tamil Nadu Ex-servicemen Recruitment Corporation) and the time scale
of pay for the post of Junior Assistant was fixed. Since the post was coming within the purview of the Tamil Nadu Public Service Commission, any
appointment to the post of Junior Assistant in Government service is to be made only on the basis of selection made by the Tamil Nadu Public
Service Commission. In the light of the above, the appointment made in favour of the petitioners through TEXCO was cancelled by the 2nd
respondent. Challenging the said order, these Writ Petitions were filed by the petitioners. The prayer made by the petitioners was to set aside the
identical orders dated 18.9.2012 passed by the 2nd respondent and after setting aside the same, seeks for a direction to consider the petitioners
for regularization of their service in the post of Junior Assistant. When the Writ Petitions came up on 25.10.2012, the matter was directed to be
posted on 29.10.2012 with permission to the petitioners to serve the learned Government Advocate. On 29.10.2012, this Court granted an
interim stay for a period of two weeks. Aggrieved by the grant of interim stay, the respondents State has filed a vacate stay application in M.P.
No. 3 of 2012 together with supporting counter affidavit dated 27.11.2012.
The case of the petitioners, as set out in the affidavit was that by G.O.Ms. No. 72, Tourism and Culture Department dated 24.4.2012, as
amended by G.O.Ms. No. 176, Tourism and Culture Department dated 21.8.2012, 7 posts were sanctioned in 7 Districts. The Government
Order says that seven posts of Junior Assistant in seven Districts Government Music Schools sanctioned for being filled up amongst the ex-
servicemen through TEXCO shall be converted into regular post carrying regular time scale of pay applicable to the post of Junior Assistant. The
Government Order never stated that incumbents are to be terminated from service. Instead of changing the post from Junior Assistant on contract
basis into Junior Assistant on temporary, the impugned order of termination came to be issued.
By G.O.Ms. No. 72, Tourism and Culture Department dated 24.4.2012, the State Government accepting the recommendation of the
Commissioner for Art and Culture Department hold that the posts, which are already sanctioned, to be filled up by TEXCO in the 7 Music
Schools, should be cancelled. Instead of this, Seven TEXCO Junior Assistants should be brought under time scale of pay and filled up on
temporary basis. In paragraph 4(b), initially the word used was that the Government is handing over 7 posts and in Tamil the word (***) was
used. Subsequently, by G.O.Ms. No. 176, Tourism and Culture Department dated 21.8.2012, the term (***) was used, which means ""approved
and therefore there was no guarantee that the persons who are recruited through TEXCO will be continued to be maintained as temporary
Government servants. As rightly found in the impugned orders, the post of Junior Assistant comes within the purview of TNPSC and any
recruitment to that post will have to be done only by the TNPSC as per the recruitment Rules and there is no scope for the petitioners who are
total strangers to the Government servants, who get themselves absorbed by being recruited through the Tamil Nadu Public Service Commission.
In the counter affidavit filed it is stated that since the recruitment to the post of Junior Assistant for these Music Schools will take some time, the
Government outsourced the recruitment to the TEXCO. It was also found that the persons appointed through TEXCO were not showing total
involvement in the work and the Government decided to remedy the situation by directly appointing temporary Junior Assistants to these posts.
It is also stated that there are 17 District Government Music Schools functioning, in which 10 Music Schools were already sanctioned with
regular Junior Assistants in time scale of pay. In respect of other 7 Music Schools, the Government wanted to bring an uniformity.
The appointment of the petitioners was made pursuant to an agreement which the Headmaster had entered with the TEXCO. With reference to
the period of entrustment/contract, in the said agreement it is stated that the agreement is liable to be renewed on yearly basis and recruitment to
the post of Junior Assistant shall be made only by TEXCO and the Music School is nowhere responsible for any dispute between the recruited
persons in the TEXCO. It is also stated that TEXCO being a contract agency is responsible for all statutory Regulations and if any complaint is
made by Music School, TEXCO will have to take appropriate action and if they are found guilty of the misconduct, TEXCO shall replace them.
The wages as well as the service charges payable in respect of employment of such persons is set out in paragraph 5 of the agreement.
In the said circumstances, it was contended that the petitioners not being employees of the State Government, they have no right to challenge the
order relieving them from service. The stand taken by the respondents is well founded. The petitioners being contract employees brought through
TEXCO have no legal right to continue in service either de hors the TEXCO or claim that they are Government servants.
As rightly held in the impugned order, the post of Junior Assistant has to be filled up only by TNPSC as per the recruitment Rules and the
petitioners in the guise of seeking regularisation cannot keep themselves designating as Government servants. Even otherwise, the Supreme Court
has held that in the matter of relating to contract employees, the question of regularisation cannot be considered in a Writ Petition under Article 226
of the Constitution of India.
In this context, it is necessary to refer to the judgment of the Supreme Court in the Steel Authority of India Ltd. and Others etc. etc. Vs.
National Union Water Front Workers and Others etc. etc., , wherein the Supreme Court held as follows: (6) If the contract is found to be genuine
and prohibition notification u/s 10(1) of the CLRA Act in respect of the establishment concerned has been issued by the appropriate Government,
prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or
other work of the establishment the principal employer intends to employ regular workmen, he shall give preference to the erstwhile contract
labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately, taking into consideration the age of
the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than
technical qualifications.
Further, the Supreme Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, has held that the appointment has to be
made only by recruitment Rules and not by any other method. Under the circumstances, there is no case made out. Hence, all the Writ Petitions
stand dismissed. No costs. The connected Miscellaneous Petitions are closed.
***