State Can’t Pick & Choose: Supreme Court Restores Order Directing Watchman’s Regularization
The Supreme Court was considering an appeal by special leave directed against a judgment passed by the Division Bench of the Madras High Court.
Justice Dipankar Datta, Justice Sheel Nagu, Supreme Court
While granting relief to a watchman who worked in a Government Department by restoring an order directing his regularisation from the date of completion of ten years of service, the Supreme Court has held that the State cannot pick and choose by giving one employee only prospective absorption and giving his peers retrospective regularisation after 10 years of service.
The Apex Court was considering an appeal by special leave directed against a judgment passed by the Division Bench of the Madras High Court.
The Division Bench of Justice Dipankar Datta and Justice Sheel Nagu held, “Moving on to the decision in S. Dhanasekaran (supra), what we find is that, factually, the Full Bench was called upon to deal with dailywage or consolidated-pay engagements lacking statutory sanction, i.e., classic 'backdoor entries' where initial appointments bypassed open competition and recruitment rules. Juxtapose this decision with the case of the appellant before us: his initial induction in 1992 was neither clandestine nor informal, having been channelled through the local employment exchange against a sanctioned post. The State cannot pick and choose – give one employee only prospective absorption and give his peers retrospective regularisation after 10 years of service – and then hide behind the decision in S. Dhanasekaran (supra) to avoid Article 14. To permit a rule of policy conceived for illegal appointments to subvert the accrued equitable rights of an employee recruited upon substantial compliance with the relevant service rules would be to mistake form for substance.”
Senior Advocate S. Nandakumar represented the Appellant while AOR Jayasree Narasimhan represented the Respondent.
Factual Background
The name of the appellant, along with others, was sponsored by the local employment exchange for appointment as a watchman in the office of the third respondent. Having succeeded in the process of selection, on August 26, 1992, the appellant was appointed as “daily wages watchman” on a purely temporary basis. The Appellant joined the post and continued to serve as watchman without any blemish. G.O. No. 22 dated February 28, 2006, was issued by the Personnel and Administrative Reforms (F) Department in the Government of Tamil Nadu. The G.O. was clear that daily wage employees, working in all the government departments having rendered at least ten years of service as on January 1, 2006, be regularised, but the appellant’s service was not regularised immediately upon issuance thereof. However, his service was regularised in terms of Government Order No. 187 dated September 17, 2010, that is, after 18 years of continuous service rendered by the appellant.
Aggrieved by the omission and/or neglect of the respondents to regularise his service on completion of ten years with effect from August 26, 1992, the appellant approached the Madras High Court. His writ petition was allowed by a Single Judge. The Judge noted that writ petitions of several other similarly placed daily-wages employees were allowed by coordinate Benches which, in appeal, were upheld by Division Benches and such orders were also not disturbed by the Apex Court, resulting in regularisation upon completion of ten years’ service. Accordingly, the Single Judge directed the respondent to pass orders regularising the services of the petitioner from the date of completion of ten years of service with time scale of pay applicable at the relevant period and pay arrears of salary to him.
The order of the Single Judge upon being carried in appeal by the respondents, was challenged before the Division Bench, and the respondents argued that G.O. (MS) No. 74 dated June 27, 2013, ought to be considered. The Appellant contended that on the date the writ petition was allowed, G.O. No. 74 was not in existence and, thus, need not be considered. The Division Bench allowed the appeal and set aside the order of the Single Judge. Aggrieved thereby, the appellant approached the Apex Court.
Reasoning
On a perusal of G.O. 74, the Bench noted that the same was issued not only after regularisation of the appellant’s service with effect from September 17, 2010 but also at a point of time when his writ petition stood disposed of by the Single Judge. “Law is well-settled that the right of a party is determined by the facts as they exist on the date the action is instituted unless the statute or equity otherwise requires. Issuance of G.O. No. 74 after 9 (2017) 4 SCC 113 6 the appellant entered the portals of this Court cannot and did not curtail his right”, it added.
The Bench found the reliance on G.O. 74 to be completely misplaced as the same was issued to regulate the services of daily wage employees yet to be regularised. The Bench also noticed that his initial induction in 1992 was neither clandestine nor informal, having been chanelled through the local employment exchange against a sanctioned post.
Thus, noting that G.O. 74 was inapplicable, the Bench set aside the impugned judgment and restored the order of the Single Judge. “Appellant shall be entitled to all the benefits in terms thereof, which have to be released in his favour within three months from date”, the Bench ordered.
Cause Title: A. Velayutham v. The State of Tamil Nadu (Neutral Citation: 2026 INSC 801)
Appearance
Appellant: Senior Advocate S. Nandakumar, Advocates Deepika Nandakumar, Advocate Kanimozhi J., AOR Naresh Kumar
Respondent: AOR Jayasree Narasimhan, Advocates R Sarabeshvaran, Siddheesh Yadav