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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 passed by the 2nd respondent in his proceedings Na.Ka.No.AlB4/79487/2014 dated 06.01.2015 and quash the same as illegal and consequently direct the respondents to regularize the petitioner''s service to give permanent status with all service benefits.
The petitioner was appointed as a loadman in the second respondent''s godown situated at Konam on 01.02.1993. By proceedings in Na.Ka.No.CB/16650/2001, dated 18.07.2001, second respondent, appointed the petitioner as direct employee of the Tamil Nadu Civil Supplies Corporation Godown on daily wage basis. The second respondent categorized the loadmen into 2 types, possessing green card and pink card, based on seniority. Based on which, the petitioner was given pink card and he was in the 3rd place in the list of pink card holders. Despite serving the respondent for more than 21 years, his service was not regularized. In fact, the other similarly placed persons like petitioner, were regularized on 03.05.2000. According to the petitioner, though vacancies had arisen from the year 2000, his case was not considered for regularization. According to him, the second respondent had filled up 9 vacancies, discriminating the petitioner. Hence, the petitioner gave a representation on 08.09.2014, requesting the second respondent to consider his regularization. Since it did not evoke any response, W.P. No.16920 of 2014 was filed to consider his representation to regularize his service and that writ petition was disposed of on 06.11.2014, directing the respondents to consider the representation for regularization of service of the petitioner. However, the respondents rejected the representation of the petitioner in Na.Ka.No.ALB4/79487/2014, dated 06.01.2015. Aggrieved by the same, the above writ petition has been filed to quash the same.
It is the case of the petitioner that he has been serving with the second respondent for more than 21 years without being regularized. He has also been appointed in the permanent post. But regularization was not done, in spite of the petitioner being made permanent. After notice, the respondents have also filed their counter affidavit.
Heard both sides.
It is the contention of the petitioner that he has employed in the respondent Corporation for two decades and hence, they ought to have regularized his services. When the appointment is permanent, the regularization will follow. In the impugned order, the second respondent has stated that in view of Section 12(3) of the Industrial Disputes Act and the settlements dated 19.09.1991 and 30.01.1997, if any post become vacant, it will be filled up only through seniority list as well as rooster system. This fact is denied by the petitioner as false, because in the year 2000, 9 causal labourers were regularized. Therefore, it is pointed out by the petitioner that if 9 casual labourers can be regularized, the petitioner being a permanent employee ought to have been regularized. Hence, the act of the respondent is violative of Article 14 of the Constitution of India.
6.It is also contended that when the services of the petitioner has been used for more than 20 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 settlement under Section 12(3) of the Industrial Disputes Act, dated 19.09.1991, permanent posts have been filled up by temporary employees on the basis of seniority or rooster system. The irony is that the petitioner was appointed only on 18.07.2001. This is much after 3 years period contemplated under the agreement dated 30.01.1997. Clause 8 of the said agreement specifically states that the settlement is valid for only three years. The agreement came to an end in the year 2000. Therefore, the said defence is not available to the respondent.
8.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. Section 12(3) settlement also will not support the case of the respondents, because, it is only on the advice of the Advocate General, the respondents are following the norms of 12(3) settlement. From this, it is made crystal clear that the respondents are following the expired old 12(3) settlement.
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 21 years of service. The petitioner cannot be deprived of the benefit of being regularized. Therefore, the impugned order dated 06.01.2015, passed by the second respondent is set aside and the second respondent is directed to regularize the services of the petitioner with effect from 18.07.2001 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.