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2017 (3) TMI 438 - SUPREME COURT

2017 (3) TMI 438 - SUPREME COURT - TMI - Regularization to Watchman from the date of completion of ten years of service with salary and other benefits - Held that:- The learned Single Judge of the High Court, while allowing the writ filed by the respondent extended the benefit of the said G.O. Ms. No.22 dated 28.02.2006 and directed the appellants to grant regularisation of respondentís service from the date of completion of ten years of service with salary and other benefits. The learned Judge .....

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ily 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 envisa .....

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.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-time employees vide G.O.(Rt.) No.505 Finance (AA-2) Department dated 14.10.2009 and G.O.(2D) No.32 Finance (T.A. 2)Department dated 26.03.2010 was effectedby extending the benefit of G.O. dated 28.02.2006 only from the date of Gov .....

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at is 18.06.2012. The impugned order of the Division Bench affirming the order of the Single Judge granting benefits to the respondent from the date of completion of ten years of service is erroneous and the same is liable to be set aside. - Civil Appeal No. 3770 of 2017 [Arising out of SLP (C) No. 17702 of 2014] - Dated:- 7-3-2017 - Kurian Joseph And R. Banumathi, JJ. JUDGMENT R. Banumathi, J. Leave granted. 2. This Civil Appeal arises out of the judgment of the High Court of Judicature at Madr .....

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in the State of Tamil Nadu.The respondent completed ten years of service as part-time Masalchi on 31.03.1999. In G.O. Ms. No.22 Personnel and Administrative Reforms (F) Department, dated 28.02.2006, the State Government of Tamil Nadu directed that the services of the fulltime daily wages employees working in all Government Departments, who have rendered ten years of service as on 01.01.2006 be regularized by appointing them in the time scale pay of the post concerned subject to their being other .....

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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 .....

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ers as a full-time employees in the post of Watchman by regularisingthem and the services of respondent has been placed at Sub-Registrar, Uraiyur, Trichy. The Writ Appeal filed by the Department was dismissed by the High Court affirming the order of the Single Judge.Aggrieved, the appellants have filed this appeal contending that the High Court has erred in directing regularization of the service of the respondent herein from the date of completion of ten years of his service with salary and oth .....

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ours per day does not qualify for the benefit, as the Government Order directed regularisation of services of full-time daily wage employees only. The counsel also contended that the High Court failed to note that many full-time Masalchis serving in various departments of the State Government were regularised only as a one-time scheme to bring them under the time scale of pay andthe regularisation scheme was operative only from the date of issuance of order. The counsel further contended that th .....

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aside, they will also approach the Court for regularization with retrospective effect in which case the financial burden cast upon the appellant would run to crores of rupees per annum and the same would adversely affect the State as well 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 28.02.20 .....

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ded 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 impugned judgment and the documents available on record. 9. Part-time or c .....

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nt, the courts are swayed by the long period of service rendered by the employees. However, this may not be always a correct approach to adopt especially when the scheme of regularisation is missing from the rule book and regularisation casts huge financial implications on public exchequer. 10. In the present case, it is available on record that the State Government vide G.O. Ms. No.22 dated 28.02.2006, issued by the Personnel and Administrative Reforms Department, directed the services of daily .....

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. PERSONNEL AND ADMINISTRATIVE REFORMS (F) DEPARTMENT G.O. Ms. No.22 Dated 28.02.2006 ORDER: The Hon ble Chief Minister had announced during the Tamil Nadu Government Officials Union and Government Servants and Teachers Associations General Conference held on 08.02.2006, that the services of employees working in various Government Departments on daily wages basis who have completed more than 10 years of service as on 01.01.2006 will be regularized. 2. Based on the announcement made by the Hon bl .....

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ces 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 .....

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at the part-time employees are not entitled for regularization and that full-time daily wage employees, who had completed 10 years of service after 01.01.2006 are also not entitled for regularization of services. G.O.No. 74, Personnel and Administrative Reforms Department, dated 27.06.2013, reads as follows: 6) In supersession of the orders issued in the Government Order read above, the Government now issue revised orders on regularization of services of full time daily wage employees working in .....

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ngth. (iii) In cases of relaxation of service rules, the service rule relating to the educational qualification and mode of recruitment shall not be relaxed. (iv) In cases, where relaxation of rules are involved, monetary benefit shall be allowed with effect from the date of issue of orders as per Rule 23 (a)(ii) of the General Rules for Tamil Nadu State and Subordinate Services; (v) In cases where relaxation of rules are not involved, monetary benefit shall be allowed with effect from the date .....

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responsible for the said lapses. All the Heads of Departments are directed to ensure that all the above said instructions are followed without fail and lapses if any found, responsibility will be fixed against them; (ix) All the proposals for regularization of the services of full time daily wage employees should be 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 regular .....

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chi. 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 .....

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y to full-time daily wage employees and that the same was not applicable to part-time Masalchis. In the said G.O.(Rt.)No.84 dated 18.06.2012, it was made clear that monetary benefits are only from the date of issuance of the order of regularization. The relevant portion of the said G.O.(Rt.) No.84 Commercial Taxes and Registration (M2) Department, reads as under:- Registration Department - Tamil Nadu Basic Service - 172 Part time Masalchis - Relaxation of Rules and Appointing them as full time E .....

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from the date of issue of the orders. In compliance to the orders of the Hon ble High Court, the services of 6 Part time Masalchis were appointed in this Department and regularized their services from the date of issue of the orders in the reference 3rd and 5th cited. Considering the Part-time Masalchis working for a long period in this Department and most of them had completed the age of 40 and certain employees have completed 50 years of age, it is not possible to seek jobs from outside and th .....

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nted 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-Regi .....

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erring to various judgments on this issue, in paras (5) to (7), this Court held as under:- 5. The issue involved here remains restricted as to whether the services of the part-time sweepers could have been directed by the High Court to be regularised. The issue is no more res integra. 6. In State of Karnataka v. Umadevi (3) (2006) 4 SCC 1 this Court held as under: (SCC p. 40, para 48) 48. … There is no fundamental right in those who have been employed on daily wages or temporarily or on c .....

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uals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. 7. In Union of India v. A.S. Pillai (2010) 13 SCC 448 this Court dealt with the issue of regularisation of part-time employees and the Court refused the relief on the ground that part-timers are free to get themselves engaged elsewhere and they are not restrained from working elsewhere when they are not working for the author .....

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ties and thisCourt clearly laid down that part-time employees are not entitled to seek regularisation as they do not work against any sanctioned posts. It was also held that part-time employees in government-run institutions can in no case claim parity in salary with regular employees of the government on the principle of equal pay for equal work. Relevant excerpt from the said judgment is as under: 12. We may at the outset refer to the following well settled principles relating to regularizatio .....

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lowed 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 tempo .....

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zation in the absence of a legal right. (iii) Even where a scheme is formulated for regularization with a cut-off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date), it is not possible to others who were appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off date or seek a direction for framing of fresh schemes providing f .....

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ving 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. See: Secretary, State of Karnataka v. Uma Devi 2006 (4) SCC 1, M. Raja v. CEERI Educational Society, Pilani 2006 (12) SCC 636, S.C. Chandra v. State of Jharkhand 2007 (8) SCC 279, Kurukshetra Central Co-operative Bank Ltd v. Mehar Chand 2007 (15) SCC 680, and Official Liquidator v. Dayanand 2008 10 SCC 1. (emphasis added) 16. Th .....

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e basis, who have completed more than ten 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. .....

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etrospectively 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 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 ₹ 10,8 .....

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