w w w . L a w y e r S e r v i c e s . i n



The Director of School Education (Higher Secondary), Chennai & Others v/s A. Inpavalli & Another


Company & Directors' Information:- H H EDUCATION PRIVATE LIMITED [Active] CIN = U80301WB1997PTC083294

Company & Directors' Information:- P. L. G. EDUCATION PRIVATE LIMITED [Active] CIN = U80300DL2007PTC171109

Company & Directors' Information:- A SCHOOL INDIA PRIVATE LIMITED [Active] CIN = U80211TN2011PTC079455

Company & Directors' Information:- C S EDUCATION PRIVATE LIMITED [Active] CIN = U80211DL2004PTC125711

Company & Directors' Information:- S D EDUCATION PRIVATE LIMITED [Strike Off] CIN = U80903MH2004PTC147463

Company & Directors' Information:- K-EDUCATION PRIVATE LIMITED [Active] CIN = U80301MH2014PTC256056

Company & Directors' Information:- P W EDUCATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U80212TN2009PTC072151

Company & Directors' Information:- A S C EDUCATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U80904TG2015PTC099629

Company & Directors' Information:- V S INDIA EDUCATION PRIVATE LIMITED [Active] CIN = U80904UP2016PTC084320

Company & Directors' Information:- O S EDUCATION PRIVATE LIMITED [Strike Off] CIN = U74999UP2008PTC035501

Company & Directors' Information:- G D EDUCATION PRIVATE LIMITED [Strike Off] CIN = U80302DL2003PTC122716

Company & Directors' Information:- S S V EDUCATION PRIVATE LIMITED [Active] CIN = U80904DL2012PTC245724

Company & Directors' Information:- S S M EDUCATION PRIVATE LIMITED [Active] CIN = U72200HR2010PTC040713

Company & Directors' Information:- P H EDUCATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U80211DL2008PTC177735

Company & Directors' Information:- O E S EDUCATION PRIVATE LIMITED [Strike Off] CIN = U80302DL2006PTC154572

    W.A. No. 82 of 2020

    Decided On, 23 September 2020

    At, High Court of Judicature at Madras

    By, THE HONOURABLE CHIEF JUSTICE MR. A.P. SAHI & THE HONOURABLE MR. JUSTICE SENTHILKUMAR RAMAMOORTHY

    For the Appellants: C. Munusamy, Spl. Government Pleader (Education). For the Respondents: R1, S.N. Ravichandran, Advocate.



Judgment Text

(Prayer: Appeal under Clause 15 of the Letters Patent against the order dated 22.3.2018 passed by the learned Single Judge in W.P.No.27986 of 2013.)A.P. Sahi, CJ.1. The Director of School Education is in appeal questioning the impugned judgment dated 22.3.2018, whereby the first respondent/writ petitioner, who was a Part Time Scavenger in a Higher Secondary School, has been extended the benefit of regularisation by stating that now the first respondent/petitioner has completed ten years of service and, therefore, entitled to regularisation.2.1. The contention of Mr.C.Munusamy, learned Special Government Pleader is to the effect that the benefit of regularisation was never meant to be extended to such part time employees, and for that he has relied on the judgment in the case of the Secretary to Government, State of Tamil Nadu v. A.Singamuthu, (2017) 4 SCC 113. In the said decision, the Apex Court, while referring to G.O.(Ms.) No.74, Personnel and Administrative Reforms (F) Department, dated 27.6.2013, had ruled as under in paragraphs (11) and (12):“11. In GOMs No. 74, it was thus, made clear that the part-time employees are not entitled for regularisation and that full-time daily-wage employees, who had completed ten years of service as on 1-1-2006 shall be regularised 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 1-1-2006 are not entitled for regularisation.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 Class IV 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 GOMs No. 22 P & AR Dept. dated 28-2-2006, which is applicable only to the daily-wage full-time employees, does not arise.”2.2. Mr.Munusamy has further relied on a Division Bench judgment of this Court dated 21.1.2020 in W.A.No.73 of 2020 [The State of Tamil Nadu and others v. V.K.Shanmugam], which is extracted herein under, to substantiate his submissions:“Despite service of notice, none appears for the respondent.2. Learned Special Government Pleader for the appellants states that the impugned judgment is contrary to the law laid down by the Hon’ble Supreme Court in Secretary to Government, Commercial Taxes and Registration Department, Secretariat and another v. A.Singamuthu, reported in (2017) 4 SCC 113. The Hon’ble Supreme Court in the said judgment has stated that the benefit of service under G.O.Ms.No.22, Personnel and Administrative Reforms (F) Department, dated 28.2.2006 can be given only from the date of regularization, but not from a date anterior to the date of regularization.3. In the present case, the respondent/writ petitioner has claimed benefit of regularization after completing ten years of service. The learned Single Judge has granted the relief and directed the appellants to regularize the respondent/writ petitioner’s service from the date of completion of ten years of initial appointment. This is clearly contrary to the dictum of the Supreme Court in Singamuthu case (supra).The writ appeal is allowed and the order passed by the learned Single Judge is set aside. The respondent is entitled to the benefit of regularization only from the date of issuance of the government order and not prior to it. Consequently, C.M.P.No.1027 of 2020 is closed.”2.3. Mr.Munusamy has also invited the attention of the Court to the judgment in the case of the Secretary to Government v. R.Govindasamy and others, (2014) 4 SCC 769, where he has emphasized on the observations of the Apex Court in paragraphs (5) to (8) that are extracted herein 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 : 2006 SCC (L&S) 753 : AIR 2006 SC 1806] this Court held as under:‘48. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals 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 : (2011) 1 SCC (L&S) 399] 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 authority/employer. Being the part-time employees, they are not subject to service rules or other regulations which govern and control the regularly appointed staff of the department. Therefore, the question of giving them equal pay for equal work or considering their case for regularisation would not arise.8. This Court in State of Rajasthan v. Daya Lal [State of Rajasthan v. Daya Lal, (2011) 2 SCC 429 : (2011) 1 SCC (L&S) 340 : 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: (SCC p. 435, para 12)‘(i) The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regularisation 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 regularisation of services of an employee which would be violative of the 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 regularised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.(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 would be ‘litigious employment’. Even temporary, ad hoc or daily-wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.(iii) Even where a scheme is formulated for regularisation 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 for successive cut-off dates.(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.2.4. On facts, the learned Special Government Pleader has pointed out, with the aid of the documents supplied by the learned counsel for the first respondent/petitioner, that the description of the strength of the teaching and non-teaching staff of the institution vide letter dated 7.7.1970 of the Inspectress of Girls Schools, Chingleput, prescribes one post of Scavenger under the heading of Non-Teaching Staff, while fixing the strength of the staff as a part time Scavenger. This is further substantiated by the fact that the then appointee Mrs.S.Padma was appointed against the said post and on her retirement, the first respondent/petitioner was appointed against the same post with effect from 1.4.2000, that was approved on 29.9.2000 by the following order:“Approved for appointment as Part Time Scavenger w.e. from 01.04.2000 in the place of Tmt. Padma retired. Consolidated pay Rs.335/- is fixed w.e. from 01.04.2000.”2.5. He, therefore, submits that in the above background it is evident undoubtedly that the first respondent/petitioner was appointed as a Part Time Scavenger, which status of appointment was never challenged upon being appointed in the year 2000. It is further submitted that the benefit sought by the first respondent under G.O.(Ms.) No.22, Personnel and Administrative Reforms (F) Department, dated 28.2.2006, on completing ten years of service is not applicable at all, in as much as the benefit has been extended to those who had completed ten years of service as on 1.1.2006. It is further submitted that G.O.(Ms.) No.74, Personnel and Administrative Reforms (F) Department, dated 27.6.2013 has clarified this position that such a benefit under G.O.(Ms.) No.22, Personnel and Administrative Reforms (F) Department, dated 28.2.2006 was not available to part time and casual employees, for which he relied on Clauses 6(ii) and (vi) thereof, which are extracted herein under:“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 all Government departments as detailed below:(i) ....(ii) The services of the full time daily wage employees who were initially appointed on full time basis in consultation with the Employment Exchange to discharge the function of the post in the Tamil Nadu Basic Service and completed 10 (ten) years of service as on 01.01.2006 shall be regularized against regular vacancies in the sanctioned cadre strength;(iii) ....(iv) ....(v) ....(vi) The Part-time and casual employees are not entitled to the concession referred to at para (ii) above; ......”2.6. To further fortify his submissions, he has invited the attention of the Court to the statement of fact made by the first respondent/petitioner herself in paragraph (3) of the affidavit in support of the writ petition, which is extracted herein under:“3. I submit that in the 4th Respondent school one post of Part Time Scavenger was sanctioned and by virtue of the said order the post is being filled up and continuing as such. One Tmt. Padma, Part Time Scavenger, who retired on 31.03.2000 and in that resultant vacancy, I was appointed as a part time scavenger w.e.f. 01.04.2000, in the fixed pay of Rs.335/- per month and the same was approved by the District Educational Officer vide Proceeding R.C.No.8061/A4/2000, dated 29.08.2000. I belong to Adi Dravidar Schedule Caste Community. At present I am receiving the pay of Rs.1020 in toto, fixed pay per month and with this meager amount I am running my family consisting of husband and children. I have been sending representations to the Authority to regularize my service as full time scavenger and to bring into regular establishment, in the pay applicable to that post, but in vain. I met the officials at the D.E.O. Office and requested them to regularize my service, but it is unresponsive. Therefore, I have submitted a several representations to the Respondents herein. But in vain. The last representation dated 02.09.2013 through the 4th Respondent and the same was forwarded to the 1st Respondent. In this representation I have sought for the approval of full time scavenger from part time scavenger in the regular scale of pay and to regularize my service w.e.f. 01.04.2000. Therefore, having left with no other effective, efficacious and speedy alternative remedy, the petitioner humbly invokes the extraordinary jurisdiction of this Hon’ble Court under Article 226 of the Constitution of India for the redressal of her grievances. Law is well settled that the Hon’ble High Courts while exercising jurisdiction under this Article have the power to reach injustice wherever found and to mould the relief according to the peculiar and complicated requirements of the country.”3.1. Mr.Ravichandran, learned counsel for the first respondent/petitioner has refuted these submissions and has urged that firstly this is not a case of back door entry or illegal appointment. It is evident from the letter fixing the strength issued way back in the year 1970 itself that there is a sanctioned post of a Part Time Scavenger. The relief sought by the answering respondent/petitioner was to convert the said post into a full time regular post and thereby extend the benefit of G.O.(Ms.) No.22, Personnel and Administrative Reforms (F) Department, dated 28.2.2006 to the first respondent/petitioner, which was admissible keeping in view the fact that the post has remained in existence for more than half a century. He submits that the services of a Scavenger are required, that too even after covering a span of 50 years, on a full time basis and should not be treated as an exploited service, keeping in view the nature of the functions that are to be performed by a Scavenger.3.2. His second submission is that similarly situate employees, who worked on part time basis, were extended the benefit of regularisation by the State Government itself by issuing relevant government orders. This benefit, according to the allegations made in the writ petition itself, was extended to almost 618 part time employees and, therefore, the first respondent/petitioner cannot be discriminated and has to be extended the said benefit, or else the same would violate Article 14 of the Constitution of India. He has invited the attention of the Court to G.O (Rt) No.111, School Education (R1) Department, dated 9.5.2012 to substantiate his submissions. Paragraphs (3) to (6) of the said government order are extracted herein under:“3. In the matter of Writ Petition filed by 618 persons numbering 19 writ petitions directing the Government to regularize services of those appointed thro’ Employment Exchange and not thro’ employment exchange in various Government High/Hr Sec School’s/Officers under School Education dept., the Hon’ble High Court in order dt. 23.12.2010 in W.P.29412/10 issued orders as follows:‘The writ petition is disposed with a direction against the petitioners to send individual representations to the second respondent within one week from the date of receipt of a copy of this orders and thereafter the second respondent shall consider the representation’s of the petitioner’s in the light of the judgment of P.Subramani, supra, the order of this Court in M.Kumar v. The Director of School Education and others, supra, and taking notes of the Government Orders which enable the regularisation of services where the person has been employment for long period and pass appropriate order within eight weeks. No costs. Consequently, M.P.No.1 of 2010 is closed.’4. In the letter (6th) cited Director of School Education has stated that over 800 employees serving in School Education Department for over 15 Years, 618 employees who filed 19 writ petition and got order’s in their favour. Orders may be issued for regularizing their services on completion of 10 years of service and appoint them in regular time scale of pay and award monetary benefit from the date of regular appointment and in case of retired employees, their services may be regularized on completion of 10 years and monetary benefit may be awarded to them from the date of regular appointment and sanction pension benefit to them if eligible and requested the Government to issue suitable orders in this regard.5. Government considered the proposal of Director of School Education carefully and on the basis of the orders passed by the Hon’ble Supreme Court in the SLP filed by M.Kumar and B.Subramani and G.O.’s issued accordingly and on the basis of legal opinion offered by Advocate General and to avoid contempt proceedings Government decided to implement the orders to the balance 614 Part-Time Employees out of 618 employees and except those 4 against whom orders issued already from the date of completion of 10 years of service in the sanctioned posts lying vacant and to sanction monetary benefit from the date of issue of orders and to those who retired, sanction penesionary benefits, by effecting suitable relaxation to necessary provisions in Basic Service Rules particularly to Rules 3(A) (Communed Rotation) 4(a) (Method of Appointment) 5(1) (Age Rules) and 5(2) (Educational Qualification) etc.6. Accordingly, as per the provisions empowered under General Rule 48 of the Tamil Nadu State and Subordinate Rules to Governor of Tamil Nadu Government decided to regularize the services of 614 part time employees on completion of 10 years of service in the sanctioned posts lying vacant by issuing appointment orders and sanction monetary benefit from the date of issuance of Government orders, and in case of retired employees sanction pensionary benefit from the date of retirement by issuing suitable amendments for relaxation to Tamil Nadu Basic Service Special Rules more particularly to Rule 3(A) (Communal Rotation) 4(a) (Method of Appointment) 5(1) (Age Rules) 5(2) (Educational Qualification) etc. and Government ordered accordingly.”3.3. His contention is that the said government order was issued pursuant to G.O.(Ms.) No.22, Personnel and Administrative Reforms (F) Department, dated 28.2.2006 coupled with orders passed by the High Court and supported by the opinion of the then learned Advocate General of the State of Tamil Nadu. He, therefore, submits that a different treatment cannot be given to the answering respondent. He urged that this aspect of the matter was neither considered nor decided in the case of A.Singamuthu (supra), where G.O (Rt) No.111, School Education (R1) Department, dated 9.5.2012 was neither examined, nor any opinion expressed thereon.3.4. He submits that the judgment in the case of R.Govindasamy (supra) would also not apply, as it is not a case of back door appointment, and to the contrary it is against a sanctioned post. He submits that the case of R.Govindasamy (supra) categorically held that part time employees not working against any sanctioned post cannot be extended the benefit of regularisation and, therefore, the said judgment is not relevant for the present controversy.3.5. He has then cited the judgment of Amarkant Rai v. State of Bihar and others, (2015) 8 SCC 265 contending that the Apex Court clarified the distinction between irregular and illegal appointments, and to ensure security of employment of those persons who had served the State for more than ten years, the Apex Court applied the said rule of exception in the case of Amarkanth (supra) and also noted that services of similarly situated persons who are working on daily wages had been regularized.3.6. Mr.Ravichandran also urged that there was ample material to demonstrate that the post was a confirmed sanctioned post and in the background aforesaid, the learned Single Judge was justified in extending the benefits of regularisation under the impugned judgment.4. We have considered the submissions and examined the contentions in the light of the judgments referred to above.5. On the legal plane, the fact that remains undisputed is that the first respondent/petitioner was admittedly appointed against a post, the strength whereof is acknowledged by the appellant department in the letter dated 7.7.1970. Thus, the post was very much in existence and the appointment of the first respondent/petitioner is not de hors such sanction or against the non existing post. The post, however, since its inception has been described as a part time post. This status of the post and the acceptance of the first respondent/petitioner of having been appointed against the said post on the said terms on part time basis is not denied. The first respondent/petitioner also did not choose to question the status of her appointment as a Part Time Scavenger and rather joined the post and started functioning. In this background, there is no doubt that the status of employment is that of a part time employee.6. The question of extending any benefit of regular engagement to part time employees has been set at rest by G.O.(Ms.) No.74, Personnel and Administrative Reforms (F) Department, dated 27.6.2013 that has not been challenged by the first respondent/petitioner. The conditions of the said government order squarely apply on the facts of the present case and, therefore, the first respondent/petitioner does not have the protection of any statutory provision seeking regularisation.7. Then comes her status as that of a part time employee working for long. This, by itself, cannot be a ground to claim regular services, when to the contrary a government order has been issued denying the said benefit. The said government order, namely G.O.(Ms.) No.74, Personnel and Administrative Reforms (F) Department, dated 27.6.2013, as observed above, has not been challenged.8. The primal attack by the learned counsel for the first respondent/petitioner to the arguments raised on behalf of the appellants is in respect of a similar treatment having been given to part time employees and for which reliance has been placed on G.O (Rt) No.111, School Education (R1) Department, dated 9.5.2012. On a close examination of the said government order, it is evident that as a matter of policy, keeping in view the orders passed from time to time in writ petitions filed before the High Court, which were almost 19 in number, covering 618 employees, the Government extended a sort of one time benefit to those employees who had been extended the benefits of orders of the High Court and which had not been contested any further. To that extent the argument of Mr.Ravichandran does appeal, but to extend a benefit on that count would not be possible for the simple reason that the Government having realised this excessive burden increasing issued G.O.(Ms.) No.74, Personnel and Administrative Reforms (F) Department, dated 27.6.2013 to insulate itself from any further financial liability and, accordingly, declared that part time employees would not get the benefit of regularisation. Thus, when an executive order having the force of law came into existence in the shape of G.O.(Ms.) No.74, Personnel and Administrative Reforms (F) Department, dated 27.6.2013 and the same was not challenged by the first respondent/petitioner, then in that event, extending a benefit against the said government order by the High Court would amount to issuing a mandamus against law. The learned Single Judge, therefore, in our opinion was not justified in issuing a mandamus without even noticing the said government order.9. In the wake of the aforesaid facts and more particularly, G.O.(Ms.) No.74, Personnel and Administrative Reforms (F) Department, dated 27.6.2013 having been discussed in the case of A.Singamuthu (supra) by the Apex Court, we do not find it appropriate for this Court to have issued a mandamus in total disregard of the above. To understand the law in this regard, it would be appropriate to refer to the judgment in the case of Chandigarh Administration and another v. Jagjit Singh and another, (1995) 1 SCC 745, where the Apex Court in paragraph (8) held as follows:“8. We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law — but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners’ case is similar to the other persons’ case. But then why examine another person’s case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person’s case, which other person is not before the case nor is his case. In our considered opinion, such a course —barring exceptional situations — would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world. (What is the position in the case of orders passed by authorities in exercise of their quasi-judicial power, we express no opinion. That can be dealt with when a proper case arises.)The next decision that would throw light on the said principle is in the case of Basawaraj and another v. Special Land Acquisition Officer, (2013) 14 SCC 81, where in paragraph (8), the Apex Court held as under:“8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be stretched too far for otherwise it would make functioning of administration impossible. (Vide Chandigarh Admn. v. Jagjit Singh [(1995) 1 SCC 745 : AIR 1995 SC 705], Anand Buttons Ltd. v. State of Haryana [(2005) 9 SCC 164 : AIR 2005 SC 565], K.K. Bhalla v. State of M.P. [(2006) 3 SCC 581 : AIR 2006 SC 898] and Fuljit Kaur v. State of Punjab [(2010) 11 SCC 455 : AIR 2010 SC 1937].)”10. The learned counsel cited the Division Bench judgment in the case of the Home Secretary and others v. G.Sugumaran, (2019) IV LLJ 451 (Mad.) : MANU/TN/6631/2019. We find that the said judgment, after noticing R.Govindasamy (supra) and A.Singamuthu (supra) judgments in paragraph (32), observed that social justice is also constitutionally mandated to be considered by the State Government. After noticing a plethora of judgments, the Division Bench in paragraph (45) held as under:“45. Inasmuch as 5014 posts have already been sanctioned, contention that the Parent Teachers Association, have appointed sweepers, attendants and watchmen etc., against, not sanctioned posts cannot be accepted. At this juncture, it is to be noted that the Government have not filled up those posts. Even taking for granted that the sweepers, watchmen and attendants have not been appointed by the method contemplated, having sanctioned full time posts of basic service, Government could have very well applied the same yardstick, as done in the case of Vocational Instructors, who were appointed by the Parent Teachers Association, to the case of sweepers, watchmen and attendants post, required to be filled up. In view of the contention that 5014, have been sanctioned, in basic service, Government cannot contend that there were no sanctioned posts. It is the case of the government, that there was a stay, in filling up the posts and only in G.O. (Ms) No. 47 School Education (R1) Department dated 2.3.2012, government have stated that in view of creation of 5000 posts in basic service, in schools, 5014 basic service posts, already sanctioned, have been surrendered. Therefore, it cannot be contended that the appointment of the respondents as sweepers, watchmen etc. were part time. Such contention goes contrary to the surrender of 5014 posts and creation of 5000 posts.”In the instant case, the posts that have been sanctioned are part time posts and there is no material on record to demonstrate that the said posts have been converted into full time posts. It is evident from paragraph (45) of the judgment cited by the learned counsel delivered by the Division Bench, as extracted herein above, that the posts on permanent basis were sanctioned and then the Court came to the conclusion that once the posts have been sanctioned, there is no occasion to discriminate the petitioners therein for accommodating them against such posts. There is no such contingency existing in the present matter. Hence, the ratio of the said judgment would not be applicable on the facts of the present case.11. Learned Special Government Pleader (Education) has cited the Division Bench judgment in the case of The State of Tamil Nadu, rep. by Secretary to Government, School Education Department, Chennai and others v. M. Seeniammal and others, 2014-4-LW-657, where the same issue came up for consideration and the Court came to the conclusion in paragraphs 23 to 25 as follows:“23. We have already dealt with the third contention, in a previous paragraph. At the cost of repetition, it should be pointed out that in many of the cases, (i) the writ petitions were allowed at the admission stage on the ground that they were covered by G.Os. as well as by previous decisions, (ii) the writ appeals filed by the State were dismissed at the admission stage or at the stage of condonation of delay, and (iii) the orders of regularisation were passed by the Government under threat of contempt proceedings. Therefore, it is futile to contend that one set of employees have already reaped the benefit and the denial of benefit to the respondents before us would lead to hostile discrimination.24. Mr. R. Lakshmanan, one of the learned counsel for the contesting respondents, contended that the decision of the Supreme Court in Secretary to Government, School Education Department vs. Thiru. R. Govindasamy and others r

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eported in CDJ Law Journal 2014 SC 146 came only on 21.02.2014 and that therefore, it cannot have retrospective application to cases already decided. But, the said contention does not have legal basis. The judgment of the Supreme Court, dated 21.02.2014, is only declaratory in nature and which only reiterated and reinforced the law that was always in force. The judgment did not evolve a new proposition of law, so as to apply the principle of prospective over ruling. Therefore, the said contention is also to be rejected.25. Therefore, the State is entitled to succeed in all these writ appeals and review applications. However, we also wish to record the statement made by the learned Additional Advocate General to the effect that if orders of regularisation have already been passed in respect of any of the individuals, those orders will not be recalled or cancelled, by virtue of the decision that we take in these batch of cases.”This judgment therefore, in our opinion, also goes in favour of the State Government. The said judgment has again been followed by another Division Bench of this Court in C. Lakshmi v. Government of Tamil Nadu, rep. by Secretary to Government, Home Department, Chennai and others, (W.A. Nos.2911 of 2012, etc., decided on 10-07-2014).12. Learned counsel for the respondents, however, cited a Division Bench judgment of this Court in the case of The Director of School Education, Chennai and others v. M. Kumar, (W.A. No.230 of 2009, decided on 03-08-2009) to submit that the same G.O.(Ms.) No.22, Personnel and Administrative Reforms (F) Department, dated 28.2.2006 came to be interpreted and the appeal filed by the State Government had been dismissed.13. Suffice it to say that much water has flown thereafter with the coming in of G.O.(Ms.) No.74, Personnel and Administrative Reforms (F) Department, dated 27.6.2013, as discussed herein above and therefore, the said judgment cannot support the case of the respondents as observed in the judgments in The Home Secretary, Chennai v. G.Sugumaran (supra); The State of Tamil Nadu and others v. M.Seeniammal and others (supra); and C.Lakshmi v. Government of Tamil Nadu and others (supra).14. The Court, therefore, has no option but to set aside the impugned judgment dated 22.3.2018.15. At the same time, we find that there is another plea raised by the first respondent/petitioner of the substantive nature of continuance of the post even though described as a part time post for more than half a century. The State Government should, therefore, consider transforming the status of such posts, may be keeping in view the nature of function of a Scavenger, which in today’s context is a necessity keeping in view the substantial increase in the volume of students in the schools during the past half a century. To imagine an institution to have a Part Time Scavenger in higher secondary institutions that are overflowing with students and to continue such an employee only on part time basis may not be an acceptable state of affairs, but the same being a matter of policy and investigation by the Education Department, has to be left to the State Government to take a decision on that score.16. We, therefore, while setting aside the impugned judgment dated 22.3.2018, direct the first appellant to bring this order to the notice of the State Government for taking appropriate steps to consider revising the status of such part time employees in higher secondary schools, who are not just a mere requirement, but continue to be an absolute necessity, as in the present case for more than half a century.17. The State Government shall take a decision preferably within three months and inform the respondents accordingly.The appeal stands disposed of accordingly. No costs. Consequently, C.M.P.No.1194 of 2020 is closed.
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