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Judgment
K. Chandru, J.—Heard both sides.
The petitioners have got themselves registered their names in various employment exchanges in Madurai, Virudhunagar and Ramanathapuram Districts and they are qualified Diploma holders. They are eligible to be appointed as Overseers under the Rural Development and Panchayat Raj Department under the Government of Tamilnadu. Some of the petitioners were also employed temporarily as NMR workers. When they were waiting for being sponsored through employment exchanges for getting appointed to the posts of Overseers on the basis of their employment exchange seniority, the State Government issued order in G.O. Ms. No. 96, Rural Development and Panchayat Raj Department, dated 6.6.2008. By the aforesaid G.O., the State Government absorbed Technical Assistants with Diploma/Degree in Civil Engineering qualification and who were appointed after sponsored through the employment exchanges under the National Rural Employment Guarantee Scheme (NREGS) and Tsunami Rehabilitation programme as Overseers under the Tamil Nadu Panchayat Development Engineering Subordinate Service.
Since the said order is under challenge, it is necessary to set out the operative portion of the order as well as the history behind the policy decision taken by the State Government. Para 8 of the impugned order reads as follows:
The Government after detailed examination have decided to accept the proposal of the Director of Rural Development and Panchayat Raj and hereby order as follows:
(a)The eligible 543 persons indicated in the Annexure I to this order recruited through employment exchange shall be absorbed as Overseers in the Engineering wing of the Rural Development and Panchayat Raj Department.
(b)The Rule 2 (relating to the modes of appointment) of the special rules for the Tamil Nadu Panchayat Development Engineering Subordinate Service shall be relaxed in favour of the said 543 persons as a special case.
(c)The Rule 4(a) (relating to age) of the special rules for the Tamil Nadu Panchayat Development Engineering Subordinate Service which prescribes that the age for direct recruitment shall not exceed 40 years be relaxed in favour of 98 persons out of 543 persons who are aged above 40 years of age as on 1.7.2008 as indicated in the Annexure II to this order.
(d)The Districts to which these newly appointed Overseers have been allotted are indicated in Annexure I to this order. The District Collectors concerned will issue the appointment orders as Overseers after once again satisfying themselves that the said persons were originally appointed as Technical Assistants only through the employment exchange; that they have at least a Diploma in Civil Engineering; and about their community (in respect of SCs, STs.MB Cs and DNCs and BCs).
(e)The Overseers now appointed shall be junior to all these Overseers appointed by directed recruitment through employment exchange or by promotion from the category of Road Inspectors prior to the date of issuance of this Government Order i.e. 6.6.2008.
(f)Their dates of joining as Technical Assistants in any district either under the National Rural Employment Guarantee Scheme or the Tsunami Rehabilitation Programmes - and where their dates of joining are the same, then their age - shall be the basis for the limited purpose of fixing the inter-se seniority among the bloc of 543 Overseers now appointed. Accordingly, their inter-se seniority at the district level is indicated in Annexure I to this order. The above principles shall also form the basis for determining their inter-se seniority at the State level, if required at any time in the future. Notwithstanding anything stated above, their previous service as Technical Assistants on consolidated pay basis will not be counted for service/pensionary benefits of any kind. They shall furnish an undertaking in triplicate to the District Collector agreeing to those stipulations before the appointment orders are issued to them.
(g)The balance 130 posts of Overseers as detailed in the Annexure III to this order shall be filled up through employment exchange.
(h)All the 961 posts of Technical Assistants sanctioned in National Rural Employment Guarantee Scheme districts shall be disbanded.
(i)The 95 sanctioned posts of Technical Assistants in Tsunami District Implementation Units may be continued, but filled up only through outsourcing from an engineering manpower firm in the future.
In exercise of the powers conferred by Rule 48 of General Rules of the Tamil Nadu State and Subordinate Services contained in Part-II in volume - I of the Tamil Nadu Services Manual 1977, the Governor of Tamil Nadu hereby relaxes the Rule 2 (relating to the modes of appointment) and Rule 4(a) (relating to age) of the Special Rules for the Tamil Nadu Panchayat Development Engineering Subordinate Service in favour of the persons indicated in Annexure-I and II to this order respectively, so as to enable them to be appointed as Overseers in the Tamil Nadu Panchayat Development Engineering Subordinate Service, with effect from the date of their joining duty.
Pursuant to the said direction issued by the State Government, recruitments were made by Collectors in various Districts. In most of the districts, the District Collectors conducted written test for recruiting those candidates, who also got their names registered with the appropriate employment exchanges. However in Dindigul and Tiruvannamalai districts as well as in two other districts, the District Collectors went for recruitment by engaging an outsourcing agency, i.e. Tamil Nadu Manpower Corporation and thus the posts were filled up.
Labelling this recruitment as an irregular appointment, some candidates registered with employment exchanges at Dindigul and Tiruvannamalai Districts filed writ petitions in the principal bench of this Court being W.P. Nos. 14222 and 14407 of 2008 in M. Rajesh and Ors. v. State of Tamil Nadu and Ors. Those two writ petitions came to be dismissed by a common judgment dated 8.7.2008. S. Nagamuthu, J. while dismissing those writ petitions, raising identical contentions, in paragraphs 16, 18 and 20, recorded the following findings:
Above all, such appointments in the matter of the petitioners were not made by the District Collectors at all. So, they cannot be construed to be either temporary or contractual employees of the Government. They are all employees of the outsourcing agency. The proposal of the second respondent which is the foundation for issuance of G.O. Ms. No. 96 Rural Development and Panchayat Raj (E3) Department dated 06.06.2008 is to create additional posts of Overseers in order to ensure that the measurement of National Rural Employment Guarantee Scheme works are done without delay every week in all panchayats so that the scheme could be implemented effectively to help the rural poor. If appointment is to be made for such posts of Overseers as per the Tamil Nadu Panchayat Development Engineering Subordinate Service Rules in the regular course; it may consume much time and it would not be in the interest of the scheme. So, it was thought of absorbing these Technical Assistants who were appointed through the employment exchanges. Since, the post of Technical Assistants were no more required to achieve the scheme, it was proposed to disband the Technical Assistants.
The persons who were not at all appointed by the Government even as temporary employee or contract employee cannot have any right for absorption....
The appointment of 543 persons as Technical Assistants through employment exchange and by conducting test under the scheme was only for the implementation of the said scheme and the said appointment was not regulated by any service rules. The said appointment, therefore, cannot be construed to be a regular appointment made as per the service rules under the constitutional scheme. Therefore, in the matter of absorption, those 543 persons also cannot have any legitimate expectation for being absorbed as Overseers but for the relaxation given. The Government being the employer, has got the discretion under the constitution to frame necessary rules under Article 309 of the Constitution of India regulating the selection/appointment of absorption of candidates for various posts. In this case, in respect of the post of Overseers under the Engineering wing of Rural Development Panchayat Raj Department, the Government has issued Tamil Nadu Panchayat Development Engineering Subordinate Service Rules under which the appointment of Overseers could be made either by direct recruitment or by promotion from Road Inspectors. The Government''s authority, being the employer, to relax the said rules, in respect of a group of persons with an object cannot be termed to be unconstitutional provided, the object of amending the said rule is within the frame of constitution. In this case as I have already extracted, the object is to achieve the implementation of the scheme as expeditiously as possible by engaging additional number of Overseers with necessary qualification. of course, the Government could have gone for the regular method of appointment of Overseers under the rules without relaxing the same. But in the case on hand, having regard to the object of achieving early and effective implementation of the scheme, and considering the reasons stated in the proposal of the Director of Rural Development and Panchayat Raj, the Government has thought it fit to relax the rules in respect of those 543 persons alone. I am not able to find any discrimination in the relaxation so given in respect of those persons alone. Thus, there is nothing to suggest that there is either irrationality or arbitrariness in relaxing the rules.
Aggrieved by the order passed by the learned judge, those petitioners filed Writ Appeals before the division bench in W.A. Nos. 776 and 777 of 2008. The division bench presided by A.K. Ganguly, C.J. (as he then was) by a common judgment dated 6.8.2008 dismissed the two writ appeals. In paragraphs 5 and 6 of the order of the division bench, it was observed as follows:
Considering the aforesaid facts, this Court dispose of the above two appeals by directing that in case of future recruitment to the post of Overseer in the aforesaid two Districts, viz., Tiruvannamalai and Dindigul, the appellants, whose registration continues in the Employment Exchange, should be given a chance to appear in the said recruitment process. In doing so, the cases of the appellants should not be discarded on the ground of their age. In other words, if they have crossed the requisite age, it should be condoned. After they appear in the written test, their performance in the test should be taken into 9 account including their seniority in registration. This Court makes it clear that if in all these things, the appellants are found equal along with other persons who are to be recruited, in that case, the case of the appellants should be given a weightage considering their past experience. This Court also gives a direction that the vacancies in the aforesaid two Districts in the post of Overseer may be filled up by initiating recruitment process as early as possible, preferably, within a period of six weeks from this date.
This Court in passing this order in view of the stand taken by the Government in para 4 of G.O. Ms. No. 96, Rural Development and Panchayat Raj (E3) Department, dated 06.6.2008, which reads as follows:
(iii) The present Technical Assistants are having a field working experience of 1 - 2 years in the Districts which will be advantageous for the district administration in effective implementation of Rural Development Schemes, whereas the new recruits from employment exchange will be raw hands.
After the division bench upholding the order of the Government in G.O. Ms. No. 96, RD& PR (E3)Department, dated 6.6.2008, under normal circumstances, the matters should have come to rest. Unmindful of the decisions of the principal bench, writ petitions came to be filed before the Madurai Bench by different persons on identical grounds. W.P.(MD) No. 6955 to 6957 of 2008 were filed on 31.7.2008. W.P.(MD) No. 6239 of 2008 was filed on 18.7.2008 and W.P.(MD) No. 7783 of 2008 was filed on 26.8.2008. In some matters, this Court while entertaining the writ petitions, granted interim orders directing the respondent to keep one post vacant.
On notice from this Court, the respondent State has filed a counter affidavit, dated 23.9.2008. The contentions raised by the petitioners were that the State Government''s action in absorbing Technical Assistants as Overseers under the NREGS Scheme is unconstitutional. Their initial appointments were illegal and they have no right to get absorbed into Government service. Their entries is through back door. By their absorption, the direction of the Supreme Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, was violated. The petitioners who were qualified and got their names registered in the employment exchange were overlooked by such adhoc absorption. The persons who were engaged in Tsunami relief work, were recruited from the coastal districts of Tamil Nadu. Had the petitioners given such opportunity, they would have also participated in working under those schemes. The statement made by the Government in the impugned G.O. that those Technical Assistants had gained vast experience was not correct and in general, by such recruitment, the future of the petitioners have become bleak as they have been denied their legitimate expectation of entering into the Government service. Apart from citing Uma Devi''s case, Mr. Thalaimutharasu also referred to the judgment of the Supreme Court in State of Bihar Vs. Upendra Narayan Singh and Others, . They also submitted that by this adhoc absorption, even the communal roster was not followed, thereby denying social justice.
Mr. Prabhu Rajadurai after referring to the same decision stated that it is nothing but spoil sharing system invented by the Government to appoint persons of their own choice without following due process. But even after knowing that such candidates have been absorbed, none of the absorbed Overseers have been made either individually or in a representative capacity as parties to these Writ Petitions. The writ petitions are liable to be dismissed on the short ground of non joinder of parties vide decisions of the Supreme Court in Prabodh Verma and Others Vs. State of Uttar Pradesh and Others, and Tridipkumar Diyal v. State of West Bengal reported in 2009 (1) SCC 708.
It is rather surprising to note that the learned Counsels can rise these issues all over again when the matters were set at rest by the order passed by the division bench in respect of very same impugned order. This Court is not inclined to enter into a futile exercise of reviewing the earlier order that too passed by a division bench since similar contentions were dealt with and was rejected by the court.
Mr. S.C. Herold Singh, learned Government Advocate drew the attention of this Court to the stand taken by the respondent State in the counter affidavit. He referred to the following averments made in paragraphs 24 and 25 which are as follows:
...the absorption of Technical Assistants as Overseers from other Districts affects the basic livelihood and survival of the petitioner is incorrect. The rights of employees who were recruited in the past after due process and were within the Government system and who were retrenched or likely-to-be-retrenched for any reason (e.g. due to the winding up of an organization or a scheme etc) are greater than the rights of persons outside the Government system such as unemployed persons who are merely registered with the Employment Exchange. This has been the Government policy all along. The petitioner has no locus standi in questioning the policy of Government. The policy of the Government is in tune with the policy for the rehabilitation of the retrenched or ''likely to be retrenched'' employees of the Government, which is also supported by the Honourable Supreme Court in its judgment pertaining to the case of employees of Census Department in C.A. No. 810/98. Comparison of unemployed persons with no vested rights with those already employed as per due process is a comparison of non comparables and is bad in law.
...It is submitted that this is a case where there is no violation of procedure laid down by the Honourable Apex Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, in the absorption of Overseers. The Technical Assistants who were having the same qualifications as that of Overseers and who were recruited from among the names sponsored by Employment Exchange based on seniority and communal roster and selected based on merit were taken up for absorption as Overseers. Had this absorption not been done, their juniors in the employment exchange would have been taken up as Overseers and they, the seniors would have been retrenched which would, in fact, have been violative of law....
The learned Government Advocate in response to the allegation of denial of communal representation referred to the report of the Director of Rural Development and Panchayat Raj which found reflected in para 6 of the impugned order which is as follows:
He has furnished the details of Community-wise breakup of eligible persons as under:
Community-wise break up of eligible persons
Category
No. of posts to be filled up out of 543 as per Communal Roster
No. of persons already selected under community wise allotment
No. of persons already selected under open competition
Total
SC
98
98
1
99
ST
5
-
-
-
DNC/MBC
109
109
4
113
BC
163
163
156
319
Open
Competition
168
-
12
12
Total
543
543
The short fall if any, in maintaining the minimum number of candidates as per the communal roster will however be set right while filling up of the remaining vacancies. As such no relaxation seems to be necessary in the communal status/roster.
In the light of the stand taken by the respondents and in view of the judgment of the earlier division bench, the writ petitions filed by the petitioners are clearly misconceived and bereft of merits. Though the counsel for petitioners stated that it was a back door entry into public employment, the same cannot be accepted. The reasons given by the Government as well as the policy decision taken by them to absorb the Technical Assistants as an one time measure cannot be interdicted by this Court at the instance of the petitioners.
Even after Uma Devi''s case (cited supra), this Court as well the Supreme Court upheld the policy of the Government in absorbing adhoc employees as an one time policy measure based on sound reasoning. In this context, one may refer to the case of the Computer Instructors. They were initially recruited through ELCOT and appointed as Instructors to teach computer science in various Government Higher Secondary schools in Tamil Nadu and whose salaries were paid by the respective Parent Teachers'' Association of those schools. After several years of their services, the State Government took a policy decision to absorb them by conducting a special competitive examination. When that exercise was challenged by the qualified Post Graduate Teacher candidates who got their names registered in the employment exchanges through their Association, a division bench of this Court had upheld the said policy decision including the action of absorbing those candidates.
Subsequent challenge made before the Supreme Court came to be rejected vide its decision in Tamil Nadu Computer SCB Ed. Govt. Welfare Society (1) v. Higher Secondary School Computer Teachers Assn., reported in (2009) 14 SCC 517. It is necessary to refer to the following passages found from the decision of the Supreme Court including the facts set out and the final decision rendered by the Supreme Court, which are as follows:
In continuation of the aforesaid policy decision another memorandum was issued intimating the decision of the Government that the Government itself can appoint computer instructors, for the purpose of implementing computer education scheme in all such schools. A broad criteria as to how the selection process would take place was also conveyed in the aforesaid letter.
It was stated in the said communication that special test would be conducted by the Teachers'' Selection Board for computer teachers who are serving in Government High Schools and that selection would be made on the basis of the marks obtained. It was also made clear by the State Government in the said communication dated 4-10-2006 that educational qualification like B Ed for selection of computer instructor would not be insisted upon.
On 10-10-2006 the State Government took a decision that those computer instructors appointed by the contractors and who were in service on the dates when the Government took over the responsibility of payment of their salary in government schools immediately after the expiry of the contract period would be eligible to appear in the special test to be conducted by the Teachers'' Recruitment Board. It was also stated therein that the minimum qualifying marks would be 50%.
The decision of the Government to dispense with the B Ed qualification was challenged by the qualified B Ed graduates in Computer Science before the High Court of Madras. Such qualified B Ed graduates in Computer Science filed a batch of writ petitions before the High Court of Madras. A learned Single Judge of the High Court while disposing of the writ petitions held that the said Government M.S. Letter No. 188 dated 4-10-2006 is unsustainable and consequently quashed the same.
Aggrieved by the same the Higher Secondary School Computer Teachers'' Association preferred writ appeal whereas the Government of Tamil Nadu preferred a separate writ appeal. All the aforesaid appeals were taken up for consideration by the Division Bench of the High Court. By the impugned order dated 22-8-2008, the Division Bench of the High Court set aside the order of the learned Single Judge holding that the learned Single Judge was not justified in setting aside the policy decision of the Government.
It was held by the Division Bench of the High Court that it would accept the statement of the State that the present recruitment is a special recruitment for absorption of existing computer instructors, who were lawfully engaged with due sanction of the Government and that for employment of future vacancies for the posts of computer instructors, the recruitment would be made from all eligible applicants (with B Ed qualification) without any preference being shown to the already employed computer instructors in Government Higher Secondary Schools and that such recruitment would be made on employment on seniority basis.
The High Court accepted the aforesaid statement of the Government, which was taken as genuine and reasonable and consequent thereto the High Court issued a direction to the governmental authorities that the entire process of selection on the basis of special drive examination would be conducted strictly only as a one-time measure.
The appellants have challenged before us the aforesaid alleged arbitrary decision of the Government in conducting a special recruitment test against the rules and guidelines issued for the recruitment of computer instructors and also by altering the minimum qualifying marks from 50% to 35% so as to absorb a larger number of candidates of its choice and thereby violating its own norms and guidelines.
The contract employees who were appointed by the contractor were discharging their duties as computer instructors in the government schools for a number of years on a consolidated pay. Their plea for regularisation of their service was, however, rejected by the Court holding, inter alia, that they have no such vested right to claim for such regularisation. However, in order to give them one opportunity to get themselves properly selected and then absorbed against regular posts, one-time opportunity was given to them by the Government for getting themselves selected and then recruited and absorbed considering the fact that they were engaged and paid from the fund released by the Government.
The appellants herein have challenged the entire process of selection contending, inter alia, that such a special recruitment test could not have been held for giving advantage to contract employees who were not even qualified persons to be appointed as such computer instructors in government schools. The Rules provide that such posts of computer instructors, which are to be filled up as against permanent and sanctioned posts to impart education in Computer Science in Government Higher Secondary Schools would be filled up by following the rules of reservation in accordance with the existing Rules for such appointment.
We have considered the aforesaid rival submissions of the counsel appearing for the parties in the light of the records placed before us. It is clearly established from the records that in order to give one-time opportunity, a special recruitment test was ordered to be held for selection and recruitment as also absorption of existing computer instructors. The said decision was taken on sympathetic consideration and with the intention of doing justice to those existing computer instructors who were working in government schools for a very long time. Such a recruitment drive and test was held by laying down rules of recruitment thereby providing a level playing field for all concerned.
(Emphasis added)
Even though both the State as well as the aggrieved individuals filed review applications, the same was also rejected by the Supreme Court vide decision in Tamil Nadu Computer Science B Ed Graduate Teachers Welfare Society (2) v. Higher Section School Computer Teachers Assn., reported in (2010) 1 SCC 526.
In the light of the above, the contentions made by the petitioners cannot be countenanced by this Court. Hence all writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed.