The State of Tamil Nadu v. M. Padmavathi

JUDGMENT (Order of the Court was made by Mr.K.KUMARESH BABU.,J.) The issue in these Writ Appeals relates to the regularisation of the temporary casual labourers/NMRs, who had completed 10 years of service.

¶2It is to be noted that the State of Tamil Nadu had taken a policy de­ cision by issuance of G.O.Ms.No.22, Personal and Administrative Reforms

(F) Department, dated 28.02.2006, wherein such temporary casual labour­ ers/NMRs who had been continuing in service on completion of 10 years of service as on 01.01.2006 shall be regularised. Page No.2/18

¶3It is also to be noted that thereafter Government had also issued Government Orders in the year 2007, 2010 and 2012 regularising the ser­ vices of similarly placed persons even though they have not completed 10 years of service as on 01.01.2006. The Government again had issued G.O.Ms.No.74, Personnel and Administrative Reforms (F) Department, dated 27.06.2013, reiterating G.O.Ms.No.22, dated 28.02.2006, by taking note of the fact that there has been certain regularisation, regularising the employment of persons, who had completed 10 years of service post

01.01.2006 and had stated that there could be no regularisation of persons, who have completed 10 years of service after 01.01.2006, however protected the interest of person, who had been regularised by subsequent Government Orders.

4.The claim of the casual labourers/NMRs in the present case is that they should be given equal treatment of similarly placed persons and they should not be singled out. The Government Order in G.O.Ms.No.74, dated

27.06.2013, was challenged before this Court in relation to fixing of a cut off Page No.3/18 date has been arbitrary and discriminatory. The learned Single Judge who dealt with the Writ Petition had accepted the contention of such casual la­ bourers/NMRs and had held that the fixing of cut off date as arbitrary and discriminatory and had directed the regularisation of their employment if they had completed 10 years of service on or before 27.06.2013 by taking the date of notification of G.O.Ms.No.74, to be the date before which they have completed their services. Being aggrieved against the said order, the Government had preferred W.A.No.606 of 2019.

5.In other batch of Writ Appeals, the learned Single Judge had rejected the claim of the casual labourers/NMRs by relying upon the judgment of the Hon'ble Apex Court in the case of Uma Devi vs. State of Karnataka's case reported in (2006) 4 SCC 1, and had held that casual labourers/NMRs who have come through back door entry cannot be sought to be regularised.

6.Heard Mr.L.Chandrakumar, learned counsel appearing for the ap­ pellants and Mr.V.Arun, learned Additional Advocate General appearing for Page No.4/18 the respondents.

7.We propose to deal with the Writ Appeal filed by the Gov­ ernment and private respondents separately. W.A.No.606 of 2019:-

8.It is to be noted that the learned Single Judge had passed the order impugned in this Writ Appeals along with other Writ Petitions. Against the aforesaid common order, the Government had preferred various Writ Appeals. A batch of Writ Appeals arising out of the said common order had been dealt with by the Division Bench of this Court in W.A.No.2875 of 2018 etc., and by order dated 16.08.2019, had set aside the order insofar as the Writ Petitions that were impugned in that batch of Writ Appeals and had remitted the matter back to the learned Single Judge for a fresh consideration. Thereafter, the very same learned Single Judge had taken up the matter and had passed orders on 22.04.2022, reiterating his earlier order by also taking note of the various orders made by Division Benches of this Court in the similar issue. On a query as to whether any Page No.5/18 appeal had been filed in the said order, the learned Government Pleader would submit that as on date no appeal had been filed, but an opinion had emanated from the office of the Advocate General addressing the Government to file an appeal against the same.

¶9Be that as it may, the issue of regularisation of the casual la­ bourers/NMRs had been dealt with by the various Division Benches of this Court and infact, the Division Benches had also considered the fact that sub­ sequent Government Orders had been issued by the Government regularising the employment of the similarly placed persons, had directed the regularisation of services of such employees. It is a trite law that similarly placed persons should be treated equally. In the present case, the Government even in the Government Order issued in G.O.Ms.No.74, dated

27.06.2013, admits the position that where persons who had not completed 10 years of service as on 01.01.2006, had been subsequently regularised and had also expressly protected their regularisation.

10.The private individuals in these Writ Appeals are also Page No.6/18 similarly placed persons and therefore, they cannot be sought to be discriminated from similarly placed persons and in that view of the matter, the learned Single Judge had rightly concluded that the cut off date

01.01.2006 fixed in G.O.Ms.No.74, as being arbitrary.

¶11As stated supra, a coordinate bench of this Court had set aside the orders passed by the learned Single Judge along with the order in the writ Petition impugned in these Appeals and had remitted the matter back to the learned Single Judge. The learned Single Judge had again reiterated his earlier order. In such view of the matter, we do not find any necessity in passing any further orders in this Writ Appeal and hence, W.A.No.606 of 2019, is closed. W.A.No.2830 of 2019 etc., batch:-

12.The private individuals in all these Writ Appeals being ag­ grieved against the order of the learned Single Judge had approached this Court wherein the learned Single Judge had rejected their claim for regularisation. It is to be noted that the learned Single Judge had heavily placed reliance upon the judgment of the Hon'ble Apex Court along with Page No.7/18 other judgments to conclude that the private individuals request cannot be considered as they are entered into service has not through the established procedure and hence their entry is back door entry.

13.It is also brought to our notice that the learned Single Judge had also dealt with similar issue in a batch of Writ Petitions before the Madurai Bench of this Court in W.P.(MD).No.10066 of 2014, etc., batch and by or­ der dated 04.11.2020, had taken a similar view. The aforesaid judgment had been challenged by the aggrieved persons therein in W.A.Nos.337 & 338 of 2021. A Division Bench of this Court which had dealt with aforesaid Writ Appeal had set aside the order passed by the learned Single Judge and directed the Government to extend the benefit of regularisation of service to the Appellants. For better appreciation, the relevant paragraphs of the aforesaid, Division Bench judgment is extracted hereunder:-

¶9The order passed in the writ petitions has referred to several decisions of the Honourable Su­ preme Court and in particular, the decision of the Con­ stitution Bench of the Honourable Supreme Court in the case of Umadevi vs. State of Karnataka, [(2006) 4 SCC

(1)]. On a reading of the order passed by the learned Page No.8/18 Writ Court, we find that the correctness of the stand taken by the petitioners qua that taken by the respond­ ent – Department appears to have not been dealt with. The crucial question would be as to whether the appel­ lants satisfied the requirements to be treated on par with the other similarly placed persons. The appellants were nonsuited or in other words, denied the relief of regularization on the ground that they have not completed ten years of continuous service on the crucial date.

10.From the perusal of the records placed be­ fore this Court, we find that the respondent – De­ partment themselves have certified and re­ commended the case of the appellants to have com­ pleted ten years of service on contract daily wage basis and contract basis and these recommendations have been made by none other than the Superintending En­ gineer of the respondent – Department as early as in the year 2017, precisely, on 08.12.2017 and

03.07.2017 respectively. This recommendation has not been disputed by the Department in their counter affidavit filed in the writ petitions. In fact, in the counter affidavit filed in W.P.(MD) No.14503 of 2017, filed by the appellant in W.A.(MD) No.338 of 2021, there is a reference to various Judgments of the Honourable Supreme Court and certain paragraphs from the Judgments have extracted. The only averment, which is Page No.9/18 contained in the counter affidavit, is that the appellant in W.A.(MD) No.338 of 2021, namely, N.Parthasarathy was paid wages through a private contractor. Admittedly, to tide over the exigencies and in order to fulfil certain very important water bodies, the Department had necessarily to engage NMRs / contract labourers. Such NMRs / contract labours continued to work for several years as in the case of the appellant for more thann 20 years and the Government realizing the fact that these persons have been working for several years and their services were virtually indispensable thought fit to grant the relief of regulariz­ ation. The relief of regularization was to be granted based on the fulfillment of certain parameters by fixing a cut off date within which the concerned NMRs/ contract labours should have completed ten years of continuous service. The Superintending Engineer, who is the Head of the Department in the particular region, has recommended and certified that both the appellants have completed ten years of continuous service on the crucial date. Without disputing the said document by merely stating that one of the appellants was paid through a private contractor is to unjustly deny the relief of regularization to the appellants alone, which was extended to several 1000s of people in the State.

¶11Identical issue was considered by the Honourable Division of this Court in the case of State of Tamil Page No.10/18 Nadu, Public Works Department and two others vs. P.Subramanian and three others [W.A.No.493 of 2016, dated 25.04.2016] and the appeal filed by the Government was dismissed. Thus, in the light of the fact that the certification done by the Superintending Engineer certifying that the appellants have completed the requisite number of ten years of continuous service having not been disputed, the appellants were entitled to be granted the relief extended to the other similarly placed persons. In this regard, it will be beneficial to refer to the decision of the Honourable Supreme Court in the case of Union of India, rep.by the Chief Postmas­ ter General and another vs. G.Subramani and another [(2013) 7 MLJ 724], wherein, it was held that equal treatment should be accorded to similarly placed persons withoug any discrimination.

¶12Further, the learned counsel has drawn the attention of this Court to the order, dated 22.09.2017 in W.P.No.29346 of 2014 etc. batch [G.Sivaganesan and five others vs. The State of Tamil Nadu, Public Works Department and two others], wherein the learned Single Bench had quashed paragraph No.6 of G.O.Ms.No.74, dated 27.06.2013 and several Judg­ ments of the Honourable Division Bench on the said is­ sue have been referred to and the relief of regulariza­ tion was granted to the petitioners.

¶13Thus, for all the above reasons, we are of the Page No.11/18 considered view that the appellants are entitled to the relief as prayed for in the writ appeals. 14. In the res­ ult, the writ appeals are allowed and the order dated

04.11.2020, passed in W.P.(MD) Nos.10066 of 2014 and 14503 of 2017, is set aside. Consequently, W.P.(MD) Nos.10066 of 2014 and 14503 of 2017 are allowed and the impugned orders in these writ petitions are quashed and the respondents are directed to extend the benefit of regularization of service of the appellants in terms of the relevant Government Orders and bring them under the time scale of pay, within a period of three months from the date of receipt of a copy of this Judgment. No costs.

¶14It has also been brought to our notice that the same was taken on appeal by the Government by filing a Special Leave Petition and the same had been dismissed by the Hon'ble Apex Court in its order dated

06.05.2021. For better appreciation, the said order is extracted hereunder:-

1.In the facts and circumstances of the present case and without this Court expressing any opinion on the wider propositions of law sought to be raised, we see no case for interference under Article 136 of the Constitution.

2.The Special Leave Petitions are accordingly dis­ missed.

3.Pending applications, if any, stand disposed of. Page No.12/18

¶15In view of the above, that the order of the learned Single Judge taking up an identical view had been dealt with by the Division Bench of this Court and had set aside the said order which had been also affirmed by the dismissal of the Special Leave Petition. Therefore, we are constrained to hold that the view taken by the learned Single Judge impugned in these Writ Appeals will also have to be necessarily set aside.

16.That apart, the learned Single Judge had heavily relied upon by the judgment of the Hon'ble Apex Court in the case of Uma Devi's case which had been reported in (2006) 4 SCC 1. The Government even after the judg­ ment, had been appointing the casual labourers/NMRs. The Govern­ ment had taken a conscious policy decision to regularise the services of such casual labourers/NMRs not only considering the length of service. Such a policy decision had not been questioned by any one. When such a policy decision had been taken and not been questioned by any one, the Court cannot supplement its views on such a policy decision taken by the Government, the Court will have to only look that if such policy de­ Page No.13/18 cision is arbitrary and discriminatory.

17.It is also not the case of the Government that they had not regularised any such casual labourers/NMRs subsequent to the decision made in Uma Devi's case. It is true that similarly placed persons cannot seek equality by relying upon a decision which is illegal. In the present case, the Government Orders regularising similarly placed persons was on a con­ scious policy decision taken by the Government, which the Government had decided to be not disturbed in G.O.Ms.No.74 dated 27.06.2013. The said Government Orders have also not been put to challenge before this Court. A policy decision taken by the Government cannot be interfered with by the Court unless or until, it is challenged on the ground of lack of jurisdiction, arbitrariness or colourable exercise of power. It is not the case that such Government Orders, had been issued on any of the afore-stated grounds and infact the Government itself stands by such Government Orders. There­ fore, we are of the considered view that the private individuals in these Writ Appeals cannot be non-suited by relying upon the Hon'ble Apex Court judgment in Uma Devi's case (supra) and they have to be suited on Page No.14/18 par with the similarly placed persons, who have been regularised by the Government in their policy decision taken in G.O. Ms.No.334 Public Works (C2)Dept., dated 19.10.2007, G.O.Ms.No.134 Public Works (C2) Deprt., dated 07.05.2010 and G.O.Ms.No.202 Public Works (C2) Dept., dated 01.08.2012.

18.In the light of the above reasoning and findings, we are of the con­ sidered view that the order passed by the learned Single Judge which had been impugned in all these Writ Appeals would have to be interfered with and accordingly they are set aside and as a sequel, the Government is directed to consider the claim of the appellants herein and shall be regularised their services in accordance with G.O.Ms.No.74 dated

27.06.2013 by taking the date of notification, dated 27.06.2013, as to be the cut off date for fixing the period of completion of 10 years of service.

¶19In the result:- a) W.A.No.606 of 2019 is closed. b) All other Writ Appeals are allowed and the impugned order passed by the learned Single Judge is set aside. Page No.15/18 c) Consequently connected Miscellaneous Petitions are closed. However there shall be no order as to costs. (R.S.K.,J.) (K.B., J.)

16.08.2023 Index: Yes Speaking Order pbn Page No.16/18 To

1.The Engineer in Chief, Water Resources Department, Public Works Department, Chennai – 600 005.

2.The Chief Engineer, Water Resources Department, Public Works Department, Coimbatore Region, Coimbatore – 641 001.

3.The Superintending Engineer, Water Resources Organisation, Bhavani Basin Circle, Erode – 638 011.

4.The Executive Engineer, Public Works Department, Water Resources Organisation, Bhavani Sagar Dam Division, Bhavani Sagar, Erode District. Page No.17/18 WritoAppealoNo.606oofo2019 R.SURESHoKUMAR.,oJ. and K.KUMARESHoBABU.,J. Pbn W.A.oNos.606o&o2830oofo2019 &oW.A.Nos.416,o871otoo883oofo2018

16.08.2023 PageoNo.18/18

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 16.08.2023 CORAM THE HONOURABLE MR. JUSTICE R.SURESH KUMAR AND THE HONOURABLE MR. JUSTICE K.KUMARESH BABU W.A.Nos.606 & 2830 of 2019 & W.A.Nos.416, 871 to 883 of 2018 CMP.Nos.18198 & 4974 of 2019 M.Mahalingam ... Appellant Vs 1.The Engineer in Chief, Water Resources Department, Public Works Department, Chennai – 600 005. 2.The Chief Engineer, Water Resources Department, Public Works Department, Coimbatore Region, Coimbatore – 641 001. 3.The Superintending Engineer, Water Resources Organisation, Bhavani Basin Circle, Erode – 638 011. 4.The Executive Engineer, Public Works Department, Page No.1/18 Water Resources Organisation, Bhavani Sagar Dam Division, Bhavani Sagar, Erode District. ... Respondents PRAYER Writ Appeal filed under Clause 15 of Letter Patent against the order dated 12.12.2017 made in W.P.No.28633 of 2014. For Appellants : Mr.L.Chandrakumar for all W.As and Respondent in W.A.No.606 of 2019 For Respondent : Mr.V.Arun AAG assisted by Mr.R.Kumaravel AGP for respondents in all W.As and appellant in W.A.No.606 of 2019 Mr.R.Kumaravel AGP for R3 in W.A.No.606 of 2019