TMI Blog2017 (3) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... as per Tamil Nadu Finance Code Volume (2) Appendix (5) and his appointment was completely temporary. The respondent being appointed as part-time Masalchi, cannot compare himself to full-time daily wagers and seek benefit of G.O.Ms.No.22 dated 28.02.2006. The Single Judge also failed to consider that the Government did not grant regularisation of services of any part-time employee on completion of ten years of his service as envisaged under the G.O.Ms. No.22 dated 28.02.2006. The learned Single Judge erred in extending the benefit of G.O.Ms.No.22 dated 28.02.2006 to the respondent that too retrospectively from the date of completion of ten years of service of the respondent. As rightly contended by the learned senior counsel for the appellants, if the respondent is to be given monetary benefits from the date of completion of ten years of service, that is from 01.04.1999 till the date of his regularization that is 18.06.2012, the financial commitment to the State would be around ₹ 10,85,113/- (approximately)towards back wages apart from pension which will have a huge impact on the State exchequer. It is pertinent to note thateven the regularisation of services of part-ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2006 was issued whereby the Government directed to fill vacancies in various categories in the Registration Department existing against the Direct Recruitment through Tamil Nadu Public Service Commission, Employment Exchange, Commissioner of Technical Education and on Compassionate Grounds, etc. various categories were considered and,interalia, among them 308 posts of watchman were required to be filled. 4. The respondent herein approached the High Court by filing W.P. No.26702 of 2010 praying for regularization of his service on completion of ten years of service from the date of his appointment and to appoint him as Watchman in the regular time scale. Vide order dated 26.11.2010, the learned Single Judge directed the Inspector General of Registration to extend the benefits of G.O. Ms. No. 22 dated 28.02.2006 and grant regularization to the respondent from the date of completion of ten years of service with salary and other benefits. 5. Being aggrieved, the appellant-department filed writ appeal contending that G.O.Ms. No.22 dated 28.02.2006 is applicable only to the daily wage full-time employees and not applicable to the respondent as the respondent was only a part-time M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as the public exchequer. The counsel lastly contended that if the impugned order is not set aside, it would open flood gate of unwarranted litigations. 7. Per contra, the learned counsel for the respondent contended that following G.O. Ms. No. 22 dated 28.02.2006, the High Court had earlier allowed claims of many similarly situated employees and the order of the High Court was also confirmed by this Court. The counsel thus contended that the High Court rightly directed the appellants to extend the benefit of G.O. Ms. No. 22 dated 28.02.2006 issued by Personnel and Administrative Reforms Department, to the respondent, retrospectively from the date of completion of ten years of respondent s service with salary and other benefits. The counsel also contended that the respondent should get the benefit of G.O. Ms. No. 505, Finance (AA-2) Department dated 14.10.2009 andthe respondent sought parity with those 57 part-time employees, working as Masalchi in Treasury Department, whose services were regularisedvide G.O. Ms. No. 32, Finance (Ka. Ka 2) Department dated 26.03.2010. 8. We have considered the submissions of the learned counsel for both the parties and also perused the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the service conditions prescribed for the post concerned, subject to their being otherwise qualified for the post. 3. The Departments of Secretariat may therefore, be directed to pursue action to regularize the services of the daily wages employees working in all Government Departments, who have rendered 10 years of service as on 01.01.2006 as ordered in para 2 above in consultation with the respective Heads of Departments wherever necessary. In special cases wherein relaxation of rules is required proposal shall be sent to Government. 4. This order issues with the concurrence of Finance Department vide its U.O. No.985/FS/P/2006 dated 28.02.2006. 11. In G.O. Ms.No.22 P AR Dept. dated 28.02.2006, only full-time daily wage employees were directed to be regularized on completion of ten years of continuous service as on 01.01.2006. This was clarified by the Government in the Government Order passed subsequently G.O.Ms.No.74 P AR Dept. dated 27.06.2013 clarifying that G.O.Ms.No.22 P AR Dept. dated 28.02.2006 is applicable only to the full-time daily wage employees, who had completed ten years of continuous service as on 01.01.2006. In G.O.Ms.No.74 dated 27.06.2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent to the Government even in cases where relaxation of rules are not involved. In G.O. Ms. No.74, it was thus, made clear that the part-time employees are not entitled for regularization and that full-time daily wage employees, who had completed ten years of service as on 01.01.2006 shall be regularized against regular vacancies in the sanctioned post. It was also made clear that the services of daily wage employees who have completed ten years of service after 01.01.2006 are not entitled for regularization. 12. In the present case, the respondent herein was engaged to fetch water, to sweep and other connected menial works for one or two hours in a day as part-time Masalchi. The post of part-time Masalchi is not included in ClassIV or V of the Tamil Nadu Basic Service. Further a part-time Masalchi cannot be treated as equivalent to the post of Masalchi (full-time) basis because the post of part-time Masalchi does not come under the purview of service rules. The respondent herein was only a part-time Masalchi and hence the question of applying G.O.Ms.No. 22 P AR Dept. dated 28.02.2006, which is applicable only to the daily wage full-time employees,does not arise. 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that, the remaining 172 Part time Masalchis, mentioned in the Annexure, may be appointed in Time Scale Pay, in the existing vacancy of watchmen by relaxing the Rule 3 (A) (Community Rotation) and Rule 5 (1) (Age Qualification) and the services of the Part-masalchi be regularized and they may be awarded monetary benefit from the date of issue of the order In pursuance of the above said Government Order and vide proceedings of the District Registrar, the respondent herein appointed as full-time employee in the post of Watchman on 02.07.2012 and has been placed at Sub-Registrar, Uraiyur, Trichy. As per G.O. Ms.No.84, the respondent can claim monetary benefits only from the date of issuance of Government Order regularising his services and not earlier. 14. In a similar issue, concerning part-time sweepers, the State of Tamil Naduhas filed an appeal before this Court, and those appeals were allowed by this Court byjudgment dated 21.02.2014 inSecretaryto Government, School Education Department, Chennai vs. Thiru. R. Govindasamy and Others (2014) 4 SCC 769. After referring to various judgments on this issue, in paras (5) to (7), this Court held as under:- 5. The issue i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to regularization and parity in pay, relevant in the context of these appeals: (i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption or permanent continuance, unless the employees claiming regularization had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services of an employee which would be violative of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularized. (ii) Mere continuation of service by a temporary or ad hoc or daily-wage employee, under cover of some interim orders of the court, would not confer upon him any right to be absorbed into service, as such service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en years of continuous service as on 01.01.2006 will be regularised and not part-time Masalchis like the respondent herein. In G.O.Ms. No. 84 dated 18.06.2012, the Government made it clear that G.O.Ms. No. 22 dated 28.02.2006 is applicable only to full-time daily wagers and not to part-time daily wagers. Respondent was temporarily appointed part-time worker as per Tamil Nadu Finance Code Volume (2) Appendix (5) and his appointment was completely temporary. The respondent being appointed as part-time Masalchi, cannot compare himself to full-time daily wagers and seek benefit of G.O.Ms.No.22 dated 28.02.2006. The Single Judge also failed to consider that the Government did not grant regularisation of services of any part-time employee on completion of ten years of his service as envisaged under the G.O.Ms. No.22 dated 28.02.2006. 17. The learned Single Judge erred in extending the benefit of G.O.Ms.No.22 dated 28.02.2006 to the respondent that too retrospectively from the date of completion of ten years of service of the respondent. The respondent was appointed on 01.04.1989 and completed ten years of service on 31.03.1999. As rightly contended by the learned senior counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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