S.Sujatha v. The Director of Collegiate Education

Judgment.

14.Allowing the appeal preferred by the Commercial Taxes Department, this Court set aside the directions given by the High Court for regularization of services of those daily wage employees who had more than 10 years of service. The Court held as follows:- " We are, therefore, of the view that, at best, the Division Bench of the High Court should have directed that wages equal to the salary that is being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily-wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in Government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily wage earners, there would be no question of other allowances being paid to them. In view of our conclusion, that the Courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularization. We also notice that the High Court has not adverted to the aspect as to whether it was regularization or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant(they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in Civil Appeal No. 3595-612 and those in Commercial Tax Departments similarly situated will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time.'

15.In our view, the appellants herein would fall under the category of persons mentioned in paragraphs 8 and 55 of the judgment and not in paragraph 53 of judgment of Umadevi's.

17.The appellants stated that they had undergone a selection process held fourteen years back, following an advertisement published in the year 1995 but the merit list was neither prepared nor published. Selection process, though had undertaken by the Council was not completed and now the Council is no more in existence. However, if Board proposes to undertake any regular selection process to fill up the posts, the applications, if any, submitted by the appellants may also be considered after giving age relaxation.

18.In Umadevi's case in paragraph 55 of the judgment, the Constitution Bench has also permitted such persons to participate in selection process waiving the age relaxation and giving the weightage for having been engaged or worked in the department for a significant period of time."

17.When one time relaxation was granted only in favour of irregularly appointed employees as mandated in para 53 of the Umadevi case, the case of daily wage employees was dealt with in paras 55 & 58 of the Umadevi case. In that case one time relaxation was not granted however they were allowed to compete in the recruitment process by giving them age relaxation. Claim of daily wage employees for regularisation in terms of para 53 was rejected but opportunity was granted to them to compete in the regular selection process undertaken by the respondents by giving them age relaxtion. In the instant case in hand, in terms of the respondent submission, the petitioners were not at all appointed in any of the sanctioned post and they were appointed as daily wage employees in the self finance stream of the fourth respondent college.

18.In the lis in hand, the petitioners are neither illegal nor irregular appointees. The fourth respondent College is administered by the Department of HR & CE and the same is affiliated to the Manonmanium Sundaranar University. The College offers both aided and self-financed courses. Though the appointments to the various sanctioned posts in the aided stream are duly notified and the selection process is carried out with the prior permission of the first respondent in terms of the extant Rules of recruitment, as far as the appointments to the posts in the self-financing stream, there are no available Rules of recruitment. The petitioners were appointed on temporary basis during 2009 and 2011 in the self-financing stream of the fourth respondent College. Though the Hon'ble Apex Court has deprecated the practise of making appointments on contract basis or adhoc basis or daily wage basis way back in the case of State of Karnataka v. Umadevi (3), reported in 2006 (4) SCC 1, the respondents 4 and 5 having appointed the petitioners on temporary basis, now after filing of these Writ Petitions claim that they were appointed on daily wage basis.

19.The Hon'ble Apex Court in the case of Sheo Narain Nagar and Others v. State of Uttar Pradesh and another reported in (2018) 13 Supreme Court Cases 432, in a similar case has heavily commented on the State for flouting the mandates of Umadevi case and the relevant portion of the same is extracted as follows:- "When we consider the prevailing scenario, it is painful to note that the decision in Uma Devi (Supra) has not been properly understood and rather wrongly applied by various State Governments. We have called for the data in the instant case to ensure as to how many employees were working on contract basis or ad-hoc basis or daily-wage basis in different State departments. We can take judicial notice that widely aforesaid practice is being continued. Though this Court has emphasised that incumbents should be appointed on regular basis as per rules but new devise of making appointment on contract basis has been adopted, employment is offered on daily wage basis etc. in exploitative forms. This situation was not envisaged by Uma Devi (supra). The prime intendment of the decision was that the employment process should be by fair means and not by back door entry and in the available pay scale. That spirit of the Uma Devi (supra) has been ignored and conveniently over looked by various State Governments/ authorities. We regretfully make the observation that Uma Devi (supra) has not be implemented in its true spirit and has not been followed in its pith and substance. It is being used only as a tool for not regularizing the services of incumbents. They are being continued in service without payment of due salary for which they are entitled on the basis of Article 14

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read with Article 34 (1)(d) of the Constitution of India as if they have no constitutional protection as envisaged in D.S. Nakara v. Union of India, AIR 1983 SC 130 from cradle to grave. In heydays of life they are serving on exploitative terms with no guarantee of livelihood to be continued and in old age they are going to be destituted, there being no provision for pension, retiral benefits etc. There is clear contravention of constitutional provisions and aspiration of down trodden class. They do have equal rights and to make them equals they require protection and cannot be dealt with arbitrarily. The kind of treatment meted out is not only bad but equally unconstitutional and is denial of rights. We have to strike a balance to really implement the ideology of Uma Devi (supra). Thus, the time has come to stop the situation where Uma Devi (supra) can be permitted to be flouted, whereas, this Court has interdicted such employment way back in the year 2006. The employment cannot be on exploitative terms, whereas Uma Devi (supra) laid down that there should not be back door entry and every post should be filled by regular employment, but a new device has been adopted for making appointment on payment of paltry system on contract/adhoc basis or otherwise. This kind of action is not permissible, when we consider the pith and substance of true spirit in Uma Devi (supra)."

20.Fully fortified by the judgment of the Hon'ble Apex Court cited supra, I have no hesitation to hold that the petitioners are not back door entrants or illegal or irregular appointees, in the absence of Rule of recruitment for the self-financing stream of the fourth respondent College. However the limited relief which is sought for by the petitioners is only to permit them by relaxing their age to participate in the selection process. The field reality that all the petitioners have put in service in the self-financing stream of the fourth respondent college for more than a decade and that the petitioners in W.P.(MD)No.1345 of 2024 was 31 years of age in 2011, the petitioner in W.P.(MD)No.1433 of 2024 was 31 years of age in 2009 and the petitioner in W.P.(MD)No.4573 of 2024 was 30 years of age in 2009, that is during their respective year of appointment has been conveniently negated. Having allowed to work continuously for more than a decade continuously without interruption in the self-financing stream of the fourth respondent and having extracted/exploited work during their most productive years in life, now the fourth respondent is negating their "legitimate expectation" to be permitted to participate in the ensuing selection process for the cadre posts notified in the aided stream of the fourth respondent College.

21.Fully fortified by the mandates of the Hon'ble Apex Court in the case of Sathya prakash & others vs. State of Bihar & others reported in 2010 4 SCC 179, this court without disturbing the impugned notification, is inclined to direct the respondents 4 and 5 to allow the petitioners to compete in the recruitment process vide the impugned notification dated

05.12.2023 by giving them age relaxation and giving the weightage for having been engaged or worked in the self-financing stream of the fourth respondent College for a significant period of time.

22.In view of the above, these Writ Petitions stands disposed of. There shall be no order as to costs. Consequently connected miscellaneous petitions are closed.

27.02.2024 NCC : Yes / No Index : Internet : Mrn Note: Issue order copy on 27.02.2024. To

1.The Director of Collegiate Education, College Road, Chennai – 600 006.

2.The Commissioner, Hindu Religious and Charitable Endowments Department, Nungambakkam, Chennai – 600 034.

3.The Joint Director of Collegiate Education, Tirunelveli Region, Tirunelveli District.

4.The Secretary, Sri Devi Kumari Women's College, Kuzhithurai Post, Kanniyakumari District.

5.The Principal, Sri Devi Kumari Women's College, Kuzhithurai Post, Kanniyakumari District.

L.VICTORIA GOWRI, J. Mrn W.P.(MD)Nos.1345, 1433 and 4573 of 2024

27.02.2024

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 27.02.2024 CORAM: THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI W.P.(MD)Nos.1345, 1433 and 4573 of 2024 and W.M.P.(MD)Nos.1388, 1389, 1391, 1392, 1476, 1477, 1479, 1481, 4408, 4410, 4414 and 4415 of 2024 S.Sujatha ... Petitioner in W.P.(MD)No.1345 of 2024 S.Satheesh Kumar ... Petitioner in W.P.(MD)No.1433 of 2024 C.Priya ... Petitioner in W.P.(MD)No.4573 of 2024 Vs. 1.The Director of Collegiate Education, College Road, Chennai – 600 006. 2.The Commissioner, Hindu Religious and Charitable Endowments Department, Nungambakkam, Chennai – 600 034. 3.The Joint Director of Collegiate Education, Tirunelveli Region, Tirunelveli District. 4.The Secretary, Sri Devi Kumari Women's College, Kuzhithurai Post, Kanniyakumari District. 5.The Principal, Sri Devi Kumari Women's College, Kuzhithurai Post, Kanniyakumari District. ... Respondents in all cases PRAYER in W.P.(MD)No.1345 of 2024 : Writ Petition filed under Article 226 of the Constitution of India, praying this Court for issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the impugned notification dated 05.12.2023 (Vide Proceedings in Va.Aa.No. 321/Sae.Ma.THo.A/Ka.Ku dated 05.12.2023) issued by the 4th respondent, quash the same in so far as prescribing the age limit as per the Government Rules thereby fixing the age limit as 32 and 34 for General Category and Most Backward Class Category respectively for all the posts in the 4th respondent college and further direct the fourth respondent to permit the petitioner to participate in the recruitment/selection process for all the posts more particularly to the post of Lab Assistant in the fourth respondent college in the light of the orders of this Hon'ble Court dated 01.02.2022 in W.P.(MD)No.1760 of 2022. PRAYER in W.P.(MD)No.1433 of 2024 : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, calling for the records relating to the impugned notification dated 05.12.2023 (Vide Proceedings in Va.Aa.No. 321/Sae.Ma.THo.A/Ka.Ku dated 05.12.2023) issued by the 4th respondent, quash the same in so far as prescribing the age limit as per the Government Rules thereby fixing the age limit as 32 and 34 for General Category and Backward Class Category respectively for all the posts in the 4th respondent college and further direct the fourth respondent to permit the petitioner to participate in the recruitment / selection process for all the posts more particularly to the post of Record Clerk in the fourth respondent college in the light of the orders of this Hon'ble Court dated 28.01.2022 in W.P.(MD)No.1614 of 2022. PRAYER in W.P.(MD)No.4573 of 2024 : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, calling for the records relating to the impugned notification dated 05.12.2023 (Vide Proceedings in Va.Aa.No. 321/Sae.Ma.THo.A/Ka.Ku dated 05.12.2023) issued by the 4th respondent, quash the same in so far as prescribing the age limit as 32 and 37 for General Category and SC (Arunthathiyar) Category for the post of Office Assistant in the 4th respondent college and further direct the 4th respondent to permit the petitioner to participate in the recruitment/selection process for the post of Office Assistant in the 4th respondent college in the light of the orders of this Hon'ble Court dated 16.08.2022 in W.P.(MD)No.12491 of 2022. For Petitioner : Mr.T.Cibi Chakraborthy (in all W.Ps.) For Respondents 1 to 3 : Mr.N.Ramesh Arumugam (in all W.Ps.) Government Advocate For Respondents 4 & 5 : Mr.R.Sankarganesh (in all W.Ps.) COMMON ORDER These Writ Petitions have been filed for issuance of a Writ of Certiorarified Mandamus, to quash the impugned notification dated 05.12.2023 (Vide Proceedings in Va.Aa.No. 321/Sae.Ma.THo.A/Ka.Ku dated 05.12.2023) issued by the fourth respondent, in so far as prescribing the age limit as per