AI Structured Summary
Not yet generated for this judgment
Judgment
V. Kanagaraj, J.—All the above three writ petitions have been heard together since the subject matter of the dispute and the nature of relief are either same or similar and hence a common order is passed.
So far as W.P.17064 of 1991 is concerned, it is the same Petitioner who has filed W.P. No. 2845 of 1997 against the Coimbatore City Municipal Corporation. So far as W.P. 14164 of 1996 is concerned, it is filed by different individuals against the Government of Tamil Nadu and the Corporation of Madurai.
Heard the learned Counsel for the Petitioners and the Respondents as well.
The learned Counsel appearing for the Coimbatore City Municipal Corporation would contend that since the nature of relief sought for by one and the same Petitioner in W.P. 17064/91 and W.P.2845/97 in which the first petition is pertaining to the period that she was temporarily employed as Section Writer that is in the year 1991 and since the regularisation of that position had been sought for prior to hearing of the writ petition, termination had also been done, and hence W.P.17064 of 1991 would become infructuous. However, since the full relief to the present status has been sought for in her own petition in W.P.2845 of 1997, she could exhaust her remedy in the said writ petition.
Based on the above pleadings and arguments, W.P.17064 of 1991 is dismissed as infructuous. Consequently, connected WMP also is dismissed. No costs.
W.P.2845 of 1997:
Heard the learned Counsel for the Petitioner and the Respondent as well.
The grievance of the Petitioner is that she got appointed as Section Writer in the Respondent - corporation during 1987 on piece rate basis. During such period of employment, she was allowed to work in various Sections of the Respondent-corporation and was paid then and there; that in the year 1989, she was appointed in the Respondent-corporation to carry out pre election work and again in the year 1990 by order dated 28.11.1990, she was appointed on daily wages basis as a Section Writer and in the said manner, she was executing her work much to the appreciation of the Respondent.
The further pleadings are that number of vacancies in the cadre of Junior Assistants, Typists, Assistant, Sheroff arose and that she submitted her application, but there was no response from the Respondent-corporation; that she was always working under the threat of termination; that right from the year 1988, 1989, 1990 and 1991, she made rightful representation to the Respondent to absorb her in any one of the permanent posts, based on which she filed W.P.17064 of 1991 which is being dismissed as in fructuous ; but, in the meanwhile, the Respondent used to permit her to work for 89 days and terminate the services on the 90th day and reappoint her on the 91st day and as such, this trend was going on for over five years; that her last appointment was on 4.11.1994 and the order of termination had been issued on her and nine others on 2.2.1995: that she along with nine others approached the Government of Tamil Nadu and the Government was pleased to order the termination as illegal and the Government also issued a fax message to that effect on 6.2.1995 further directing the Respondent to keep the order of termination in abeyance. But the Respondents have not at all complied with the directions of the Government and did not withdraw the order of termination. Hence, joining hands with some others, she filed W.P. 12092 of 1995 for the issue of a writ of mandamus to implement the order of the Government dated 6.2.1995 wherein this Court by order dated 19.9.1995 has dismissed the petition with the following observations:
The prayer in the writ petition is to issue writ of mandamus directing the second Respondent to implement the order of the first Respondent 6.2.1995 contained in Telex Message. No such mandamus can be issued by this Court. This Court cannot be the Executing court for the letters or Telexes issued by the Government to others. If the Petitioners have right which has been violated, it is open to the Petitioners to assert that right in appropriate , proceedings. The Petitioner''s grievance is regarding the termination of their services. If that termination is wrongful, it is open to the Petitioners to seek appropriate relief in the appropriate forum. The present writ petition cannot be entertained and the same is rejected.
The Petitioner would further submit that even representations have been made on 15.12.1995 and 18.9.1996 to the Government to the effect of their order 6.2.1995 having not been obeyed, there was absolutely no response and hence challenging such orders of termination particularly dated 2.2.1995, the Petitioner has come forward to file this writ petition on certain other grounds as brought forth in the writ petition.
W.P.14164 of l996
So far as this writ petition is concerned, there are five Petitioners who filed the writ petition against the State of Tamil Nadu and the Corporation of Madurai, praying to issue a writ of mandamus or any other order or direction to absorb the Petitioners in the second Respondent Corporation on permanent basis by regularising their services from the date of their original appointment with all consequential benefits and seniority to them. Similar averments of the Petitioners having joined the services of the second Respondent Corporation as part time Section Writers on daily wages, the first Petitioner having been employed in the year 1976, the second Petitioner from the year 1979 and Petitioners 3 to 5 have been employed from the year 1986, the Petitioners are continuing in the employment and their wages are being paid every month.
Lamenting that the Petitioners have already been working for a period of 10 to 20 years in the Corporation and that to ward off the enactment of "The Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act (XLVI of 1981)" thereby conferring the employees working for more than 240 days continuously in a period of 24 months as permanent workers, the second Respondent-corporation adopted the tactics of giving artificial breaks thereby without allowing these Petitioners to become eligible to be appointed on the permanent basis, the Petitioners would pray hostile discrimination in violation of the fundamental right guaranteed to them under the Constitution of India, that the second Respondent being a statutorily installed Corporation and it is duty bound to apply the same to the Petitioners and the failure on the part of the Respondents as a whole to accord equal treatment is therefore unlawful and amounts to hostile discrimination.
During arguments, the learned Counsel appearing for the Respondent-corporation in W.P.2845 of 1997 and W.P. 14164 of 1996 would contend that the posts that are aspired by the Petitioners therein are not the sanctioned posts by the Government; that Section Writers are appointed when there is accumulation of work under the Junior Assistants; that these appointments are purely temporary and not through the employment exchange and it is direct and on daily rate basis; that when the work is over, they get terminated automatically.
The learned Counsel would further contend that so far as W.P.2845 of 1997 is concerned, in the year 1995 itself, the service period was over and the Petitioner got terminated; that the Government, on a representation submitted by the Petitioner, ordered to keep the termination in abeyance, that by this time, she got terminated and thereafter, joining hands with six others, she filed W.P. 12092 of 1995 praying to implement the order of the Government which got dismissed by this Court. The learned Counsel would, also submit that yet another writ petition in W.P. 15785 of 1992 dated 29.11.1999 was disposed of by this Court directing the Corporation to consider the Petitioners for future appointments of the same nature that they have been doing so long. Ultimately, the learned Counsel would end up his argument saying that the prayers of the Petitioners for regularising their services from the date of their original appointment with consequential benefits and seniority, could not be complied with and would pray for dismissing the said two writ petitions.
In assessing the whole frame of the case, from the pleadings and upon hearing the arguments of the learned Counsel for the Petitioners and contra, what comes to be known is that regarding the appointment of the Petitioners, concerned with both the two writ petitions on temporary basis, the service conditions, the termination every now and then effected without regularising their employment as pleaded on the part of the Petitioners is not at all denied by the learned Counsel for both the Respondent-corporations, and the objections of the corporations are on the ground that these Petitioners for being appointed on the permanent basis, they must compete over the sanctioned posts by the Government and the post of Section Writers is not equivalent to that of the Junior Assistants and that for the sanctioned posts, candidates are filled up from those sponsored by the employment exchange and hence it is difficult for these Petitioners to be regularised or taken as permanent employees of the Respondent''s Corporations.
It should be borne in mind that various welfare measures have been introduced for the regularisation of the services of the employees who are working on temporary basis for a long time, such as one that was introduced by the Government of Tamil Nadu by its enactment of "The Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act (46 of 1981)" conferring the status on employees working for more than 240 days continuously in a period of 24 months as permanent workers. The Supreme Court, in its various decisions, has deprecated in no certain terms the non regularisation of the services of those employees who have been kept working on temporary basis in regular status for years together. For instance, in this case, the allegations of the Petitioners against the Respondents for having created artificial breaks so as to render them incapable of claiming the statutory right of being conferred with the regularisation has not at all been denied or rebutted on the part of the Respondent''s Corporations. Their only stand is that the post of Junior Assistant is a sanctioned post and section writers cannot be appointed without being sanctioned by the Government.
In view of the above circumstances, more than those Judgments cited herein, the one ordered by the Division Bench of this Court in Writ Appeal No. 1544 of 1988 dated 3.1.1989 is more appropriately applicable to the Petitioners in the cases in hand wherein the learned Judges of the Division Bench have passed an order dealing with a number of Appellants who were similarly placed in the second Respondent Corporation in W.P. No. 14164 of 1996, thus directing regularisation of the temporary'' hands. Hence, it will be more appropriate to order these writ petitions also following the order of the Division Bench, giving such directions to the Respondent''s Corporations in W.P. Nos. 2845 of 1997 and 14164 of 1996, which will alone serve the ends of justice. Consequently, the following directions are issued:
(i) The Petitioner in W.P.2845 of 1997 will be provided employment in the Coimbatore City Municipal Corporation:
(ii) The Petitioners 1 to 5 in W.P. 14164 of 1996 will be provided employment in the Madurai Corporation:
(iii) The Commissioner, Coimbatore City Municipal Corporation and The Commissioner, Corporation of Madurai will address for relaxation of the age, qualification to the Government of Tamil Nadu, on receipt of which communication, the Government will consider the case of the above said six Petitioners who have been employed on piece rate basis for their services being regularised fixing them properly in suitable posts that are available in the Respondent''s Corporations fitting to their educational and other qualifications.
(iv) Till those six vacancies are filled, there will be necessity on the part of the Respondent''s Corporation to call for candidates through Employment Exchange.
I make it clear that only having regard to the peculiar circumstances of this case, I have passed the above order, but this will not constitute a precedent for other employees to claim.
In result, W.P.17064 of 1991 is dismissed as infructuous. W.P.2845 of 1997 and W.P.14164 of 1996 are disposed of with the directions issued in para No. 10 above.
However, in the circumstances of the case, there shall be no order as to costs.
Consequently, connected WMPs, are dismissed.