The Secretary to Government, Youth Welfare and Sports Development Department and Others vs S. Muthu and Others

V. Ramasubramanian, J.—1. These writ appeals arise out of a common order passed by the learned Judge in a batch of writ petitions, directing the appellants/State to regularise the services of the respondents herein from the date of completion of three years of service.

We have heard Mr.K.Chellapandian, learned Additional Advocate General, appearing for the appellants/State, assisted by Mr.V.R. Shanmuganathan, learned Special Government Pleader and Mr.U.Minnavadi, learned counsel appearing for the respondents.

The respondents in these writ appeals were appointed as Sweepers on part-time basis with a consolidated pay, payable from out of the contingency fund allotted to the Directorate of National Cadet Corps. Contending that they are continuously engaged either from 1995 or from 1999 or from 2000 onwards, the respondents came up with writ petitions seeking regularisation of their services. These writ petitions were allowed, even at the threshold by a learned Judge, by a common order passed on 23.09.2011, on the basis of an unreported decision of a Division Bench of this Court, directing regularisation of their services. It is against the said common order, the State has come up with the above appeals.

The order passed by the learned Single Judge, out of which the above appeals arise, may be extracted usefully as follows:

"In all these cases, the petitioners were appointed on consolidated pay before the ban order came into existence. They have completed three ears of service and when they have approached the authorities for regularisation of their service, the same was rejected. It is in these circumstances, the present writ petitions are filed for a direction to grant them time scale of pay and regularisation after three years from the date of completion of original date of appointment on consolidated pay.

This issue has been covered by unreported decision of the Division Bench of this Court made in W.A. (MD) No. 273 of 2011, dated 02.03.2011 which has been followed by this Court also.

Accordingly, the writ petitions are allowed with a direction to the respondents to regularise the services of these petitioners from the date of completion of three years from their original date of appointment. Such orders shall be passed by the respondents, within a period of 12 weeks from the date of receipt of a copy of this order. No costs. Consequently, connected miscellaneous petitions are closed."

As seen from what is extracted above, the learned Judge allowed the writ petitions of the respondents on the sole ground that the issue was covered by the decision of a Division Bench of this Court, dated 02.03.2011, passed in W.A.(MD) No. 273 of 2011. A careful look at the order, dated 02.03.2011, passed in W.A.(MD) No. 273 of 2011 would show that the same was passed on the basis of a Government Order issued in G.O. Ms. No. 125, Municipal Administration and Water Supply Department, dated 27.05.1999. But, the said order was actually confined to cases of persons appointed in the Municipal Administration and Water Supply Department and who had put in long years of service on full time basis. W.A.(MD) No. 273 of 2011 arose completely under different circumstances. The Government itself was agreeable in that case to regularise the services of the contesting respondents in W.A. (MD) No. 273 of 2011 with effect from 01.03.2006, on the basis of G.O. Ms. No. 21, Municipal Administration and Water Supply Department, dated 23.02.2006. But, the individuals claimed that they are entitled to regularisation from the date of appointment, irrespective of a ban order that was in force under G.O. Ms. No. 463, Finance Department, dated 23.11.2001.

In other words, the issue that arose in W.A.(MD) No. 273 of 2011 was completely different from the issue raised in the writ petitions filed by the respondents. Even if the issues are one and the same, much water has flown under the bridge, thereafter.

As a matter of fact, the respondents were admittedly appointed as part-time sweepers. The question whether part-time employees are entitled to be regularised has already been answered by the Supreme by judgment, dated 21.02.2014, in Appeal Nos. 2726 to 2729 of 2014, reported in Secretary to Government vs. R.Govindaswamy - CDJ 2014 SC 146.

The respondents herein pitched their claim for regularisation on the basis of continuous service for more than 10 years. It is the very same argument that was rejected by the Supreme Court in Secretary to Government vs. R.Govindaswamy.

In State of Tamil Nadu v. M.Seeniammal - , 2014 (5)CTC 474, a Division Bench of this Court rejected the claims of persons who are similarly placed like the respondents herein. Therefore, the decision of the Supreme in Secretary to Government vs. R.Govindaswamy and the latest decision of a Division bench of this Court in State of Tamil Nadu v. M.Seeniammal now hold the field and the order of the learned Judge cannot be sustained.

There is also one more additional reason. The respondents were appointed as part-time sweepers in the Directorate of National Cadet Corps on consolidated pay. By G.O. Ms. No. 385, Finance Department, dated 01.10.2010, the Government directed sweepers working on daily wage basis and who have completed three years of service to be brought into regular time scale of pay. Based upon the said order, the Government had already issued G.O. Ms. No. 79, Youth Welfare and Sports Development Department, dated 19.12.2012, sanctioning the creation of 11 posts of sweepers in special time scale of pay so as to absorb 11 persons. The five respondents in these five appeals are included in the said list. In other words, by G.O. Ms. No. 79, Youth Welfare and Sports Development Department, dated 19.02.2012, the respondents herein have been absorbed into regular time scale of pay with effect from the date of the order. This itself is a concession granted to the respondents, despite the fact that the respondents were only part-time sweepers. In paragraph 7 of its judgment in Secretary to Government v. R.Govindasamy, the Supreme Court elicited the principles of law relating to the claim for regularisation of part-time service as follows:

"7. This Court in State of Rajasthan & Ors. v. Daya Lala & Ors., , AIR 2011 SC 1193, has considered the scope of regularisation of irregular or part-time appointments in all possible eventualities and laid down well-settled principles relating to regularisation and parity in pay relevant in the context of the issues involved therein. The same are as under:

"8(i).......

(iv) Part-time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part-time temporary employees.

(v) Part-time temporary employees in government-run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute."

(Emphasis added)

The present appeals are squarely covered by clauses (ii), (iv) and (v) of the aforesaid judgment. Therefore, the appeals are allowed. However, in light of the facts and circumstances of the case as Shri P.P. Rao, learned senior counsel has submitted that the appellant has already implemented the impugned judgments and does not want to disturb the services of the respondents, the services of the respondents which stood regularised would not be affected."

Therefore, the order of the learned Judge cannot be sustained.

However, relying upon the decision of the Supreme Court in M.P. Irrigation Karamchari Sangh v. The State of M.P. and another - , 1985 1 LLJ 519, it is contended by Mr.U.Minnavadi, learned counsel for the respondents that the respondents are entitled to regularisation. But, we fail to understand as to how the decision in M.P. Irrigation Karamchari Sangh has any relevance to the case on hand. That was a case which arose out of the refusal of the Government to refer a dispute for adjudication by the Tribunal. The Supreme Court held that the Government could not usurp the power of the Tribunal. Therefore, the said decision has no relevance to the case on hand at all.

In view of the above, the writ appeals are allowed and the common order of the learned Judge is set aside. There will be no order as to costs. Connected miscellaneous petitions are closed.