In W.P.No.18615 of 2005, the petitioner seeks for the issuance of a writ of mandamus directing the respondents to make appointments on daily rated/NMR basis in all the departments and quasi-Governmental organisations and other local bodies through selection process prescribed by the Government and the Compulsory notification of Vacancies Act.
2. In W.P.No.596 of 2006 the petitioner seeks for the issuance of a writ of Mandamus to direct the respondents to make appointments in the regular posts and stop-gap appointments only through employment exchange and selection process in the Government departments, local bodies, Government organisations and Co-operative Societies in the same manner.
3. In W.P.No.10134 of 2009, the petitioner by way of amended prayer seeks for issuance of a Certiorarified Mandamus to call for the records relating to G.O.Ms.No.22 dated 27.2.2009 and the consequential draft list for full time casual labourers of the fourth respondent as per list dated 30.6.2009 and to quash the same and consequently direct the respondents to regularise the services of the employees, who are sponsored through employment exchange.
4. In W.P.No.14784 of 2009 the petitioner seeks for the issuance of a writ of Certiorari to call for the records of the first respondent/Chief Secretary, Government of Pondicherry in respect of G.O.Ms.No.22 dated 27.2.2009 and to quash the said Government Order.
5. In W.P.No.24640 of 2009 the petitioner seeks for the issuance of a writ of certiorari to call for the records of the first respondent/Government of Pondicherry in G.O.Ms.No.22 dated 27.2.2009 as well as the list dated 30.6.2009 and to quash the same.
6. As the issue involved in all these writ petitions is one and the same, the same have been dealt with by this common order.
7. In these writ petitions, an interim order was passed by a Division Bench on 28.3.2006 in W.A.No.2326 of 2005 and W.P.No.596 of 2006, wherein a direction was issued to the respondents not to appoint daily rated workers for the Public Works Department or any other Government Department, except in accordance with the circular of the Central Government dated 7.8.1998 and that of the Lt.Governor, Pondicherry dated 20.6.2005. The order also stated that irrespective of the nature of work and duration, the daily rated workers or casual workers shall be drawn through Employment Exchange. The respondents were also directed not to renew the employment of the existing daily rated workers on the expiry of their period and fresh appointments shall be made only as per the first direction. A further direction was issued not to regularise or absorb any of the daily rated workers engaged by the Administration, without prior permission of this Court. A further clarification was made to the effect that in case, the daily rated workers, who are already engaged or registered with the Employment Exchange, they will be considered along with other eligible candidates.
8. Subsequently by an order dated 30.4.2008, the Division Bench passed further orders to the effect that "having regard to this short submission, we are of the view that framing regulation or any other Rules is within the legislative domain of the respondents' Union Territory in which the Court would never interfere. It is up to the respondents' wisdom to make any Regulations to suit the needs of welfare State." Writ Appeal No.2326 of 2005 came up for further orders before a Division Bench on 29.4.2009 and the following order came to be passed :
"Having heard the submission so made on either side, the matter is adjourned after vacation, however by observing that it is open to the respondent Union Territory of Pondicherry to proceed with the Regulation, if so advised. Liberty given to the appellant vide order of this Court dated 30.4.2008 to ventilate their grievances, if they feel aggrieved by the regulation framed and gazetted as stated above, remains intact."
9. Since Writ Appeal No.2326 of 2005 had been preferred against the interim order in W.P.No.18615 of 2005, by order dated 16.4.2010, the writ appeal itself was dismissed stating that the main writ petition itself will be taken up for hearing. It is in the above stated background, the claims of the petitioners as well as the stand of the respondents will have to be examined.
10. According to the petitioners, while the petitioners in W.P.Nos.596 of 596 of 2006, 14784 of 2009 and 10134 of 2009 are associations, the petitioner in W.P.No.24640 of 2009 is an individual. The issue raised in all these writ petitions concerns the action of the Union Territory of Pondicherry in seeking to absorb the daily rated employees into the regular services. In fact, at the very outset it will have to be pointed out that similar such writ petitions were preferred in W.P.Nos.5517 and 5538 of 2008 by another association, which came to be heard by the First Bench of this Court and by order dated 19.3.2010, those writ petitions were dismissed on the ground that the prayers are nothing but issues concerning the services of the persons in the respondent Government and having regard to the decision of the Honourable Supreme Court in Gurupal Singh v. State of Punjab {2005 (5) S.C.C.136}, such writ petitions relating to services of the respondent State cannot be entertained by way of Public Interest Litigation.
11. Be that as it may, on behalf of the petitioners Mr.Ajayakumar, learned counsel would contend that the issue is not purely concerning the services of the State, though it relates to absorption of temporary employees in the regular service of the State. According to the learned counsel, as a matter of policy, when large scale induction of persons into various posts under the guise of daily rated employment is made according to the whims and fancies of the respondent State, without resorting to the induction either through employment exchange or by way of any other prescribed selection process, that would deprive the rights of very many other unemployed persons, who are waiting in the queue by getting their names registered with the employment exchange and therefore, the attempt of the petitioners is only to prevent the respondent State from resorting to such illegal induction of persons into the employment of the State service. Learned counsel would further contend that G.O.Ms.No.22 dated 27.2.2009 by which the respondent Union Territory of Pondicherry attempt to regularise the services of very many daily rated employees by specifically providing a clause in clause 11, which states that irrespective of the source of engagement their regularisation would be considered, is constitutionally invalid. Such attempt of the respondent State to regularise very many employees, is contrary to the decision of the Honourable Supreme Court in 2006 (4) SCC 1 (Secy. State of Karnataka v. Umadevi). The learned counsel would further contend that earlier, when such regularisation was sought for at the instance of some of the daily rated employees, a Division Bench of this Court in the decision reported in 2004 Writ Law Reporter 433 (Union of India & 2 others v. Ilango) deprecated such a claim and held that the Union Territory of Pondicherry cannot be directed to resort to such regularisation. Learned counsel would, therefore, contend that the respondents should be issued with a direction to resort to any recruitment for appointment only by resorting to sponsorship of candidates through employment exchange or any other prescribed procedure laid down by the State. The learned counsel referred to one such directions issued by the Union of India dated 5.12.1986. The learned counsel further pointed out that the respondents themselves have furnished details of engagement of Casual Labourers between the years 2000 and 2009, which disclose that, out of 4062 such daily rated employees, 2006 were employed through employment exchange, another 363 employees were employed on compassionate basis and 1693 persons were employed otherwise than by way of employment exchange. The learned counsel would contend that even assuming such persons employed otherwise than through employment exchange up to the year 2005 can be considered while implementing G.O.Ms.No.22 dated 27.2.2009, since the Division Bench in its order dated 28.3.2006 specifically directed the respondents not to resort to such engagement pending writ petition and also without the permission of the Court, such engagement after 2006 cannot be allowed tobe considered as per the scheme formulated in G.O.Ms.No.22 dated 27.2.2009. The learned counsel would also contend that since such engagement of employees was wholly illegal, having regard to the directions of the Hourable Supreme Court in Umadevi's case 2006 (4) SCC 1, any regularisation resorted to in respect of such employee, is liable to be set aside.
12. As against the above submissions, Mr.V.T.Gopalan, learned Senior Counsel appearing for the respondents in his submissions at the outset contended that the writ petitions are not maintainable inasmuch as it relates to services of the State and having regard to
Sections 14 and
19 of the Administrative Tribunals Act, the remedy of the petitioners is to approach the Central Administrative Tribunal. In support of the said submission, the learned Senior Counsel relied upon the decision reported in 1994 Writ Law Reporter 690 ( Government of Tamil Nadu Etc. & 2 others v. P. Hepzi Vimala Bai) and 2010 (4) SCC 554 (Rajivkumar and another v. Hemrajsingh Chauhan and Others). The learned Senior Counsel also contended that the petitions preferred by the association relating to service matters are not maintainable as held by this Court in the unreported judgment in W.P.No.36731 of 2006 etc. Dated 11.6.2007. The learned Senior Counsel would contend that even the scheme formulated in G.O.Ms.No.22 dated 27.2.2009 can be challenged only before the Tribunal. According to the learned Senior Counsel clause 11 of the Scheme contained in G.O.Ms.No.22 should be read in conjunction with clauses 12,13 and 14, in which event the same would be valid. The learned Senior counsel also relied on the decisions reported in 2008(10) SCC 1 (Official Liquidator v. Dayanand and Others) and para 53 of Umadevi's case (2006 (4) SCC 1) to contend that the Honourable Supreme Court itself provided for regularisation of such irregular appointments as one time measure and therefore issuance of G.O.Ms.No.22 dated 27.2.2009 cannot be called in question. According to the learned Senior Counsel under Section 3 of the Employment Exchange Act as well as
Section 2(i) of the Act in respect of unskilled labourers, the question of recruitment through employment exchange does not arise.
13. Mr.T.P.Manoharan, learned counsel appearing for the Pondicherry Agro Services Industrial Corporation contended that under clause 3 of the Government Order dated 27.2.2009 the scheme which is applicable to the Government department has been specifically excluded from its application to the Local Bodies and Co-operative Societies and therefore, the grievance of the petitioner as against other respondents other than Government departments will have to be rejected.
14. Having heard the learned counsel for the petitioners as well as respondents, we find force in the submissions of the learned Senior Counsel appearing for the respondent State.
15. At the outset, when we perused the orders passed in Writ Appeal No.2326 of 2005 dated 28.3.2006, 30.4.2008, 29.4.2009 and 16.4.2010, we find that while in the order dated 28.3.2006, certain directions were issued, by the subsequent order dated 30.4.2008, the Division Bench recognised the power of the first respondent-Union Territory of Pondicherry to frame any regulations or rules to suit the needs of the State as regards the engagement of daily rated workers by the Administration by pointing out that even the earlier order dated 28.3.2006 only stated that absorption should not be resorted to without prior permission of this Court. In the subsequent order dated 29.4.2009, the Division Bench made it clear that the first respondent-Union Territory of Pondicherry was at liberty to proceed with the regulations already framed and issued in G.O. Ms. No.22 (DP & AR) dated 27.2.2009 and that it was open for the petitioners to work out their remedy as regards their grievances as against the said G.O. Subsequently, by order dated 27.7.2009 passed in M.P. No.4 of 2009 in W.P. No.10134 of 2009, the Division Bench held that any regularisation made should be subject to the final orders to be passed in the writ petition. A cumulative consideration of the above orders, in effect, has validated the action of the first respondent-Union Territory of Pondicherry in resorting to appropriate methodology to be followed in regard to the employment of daily rated workers in Public Employment and also continuation of such employment.
16. When we perused G.O. Ms. No.22 dated 27.2.2009, the various clauses contained in the said G.O., which has been framed as a Scheme called the Puducherry Casual Labourers (Engagement and Regularisation) Scheme, 2009, we find that the attempt of the first respondent-Union Territory of Pondicherry is to rule out the possibility of the engagement of casual labour in future by adopting any haphazard method. To quote a few, in Clause-5, it is specifically provided that no casual labourer will be engaged for attending to the work of a regular nature, for which a regular post exists or can be created. In Clause-7, it is specifically provided that there will be a complete ban on engagement of casual workers for performing duties of Group 'C' posts. Clause-8 states that no casual labourer will be engaged for work beyond 200 days in a year. Clause-10 states that the remuneration of casual labourers will be debited to the Contingent Head of Expenditure in the Budget. Clause-18 makes it clear that no casual labourer, either full-time or part-time, should be recruited for the work of a regular nature, for which posts in regular pay scale exist or can be created after prescribed procedure of work study etc. It also gives a word of caution that violation of the provision would constitute sufficient ground for making adverse entry in the confidential reports of the officials concerned, apart from initiating suitable disciplinary action against them. Clause-19 reiterates that in future, engagement of part-time casual labourers is strictly banned and that such part-time engagement should henceforth be out-sourced. In fact, even the learned counsel for the petitioners were aggrieved only in regard to Clause-11 of the Scheme, which reads as under :-
"11. The list of full time as well as part-time casual labourers under engagement irrespective of the source of engagement on the date of notification of this scheme performing the functions of Sanitary Assistant, Sanitary Helper and Watchman shall be prepared by the DP & AR. Similar list shall be prepared by all the departments in respect of the full time and part-time casual labourers under their engagement performing the functions of the respective departmental works. The draft list shall be published calling for objections if any, within a period of fifteen days and thereafter, such a list will be finalized with the approval of the Lieutenant-Governor. Such final list hereinafter referred to as the 'list' shall be published within 3 months from the date of notification of this scheme."
The grievance of the petitioners is that if such a course to be adopted is allowed to be proceeded with, it would deprive other eligible persons from getting into the services of the Union Territory of Pondicherry who are waiting in the queue by getting themselves registered in the Employment Exchange.
17. To counter the said submission, Mr. V.T. Gopalan, learned senior counsel for the respondents-State, in his submissions, contended that if Clauses-12, 13 and 14 are read in conjunction with Clause-11, it would be clear that sufficient safeguards are indeed provided while implementing the Scheme contemplated under Clause-11. The said submission of the learned senior counsel for the respondents-State is quite convincing. Under Clause-11, it is specifically provided that the absorption in the existing vacancies can be made only from out of eligible full-time casual labourers of the department concerned. Clause-13 states that full-time casual labourers should possess the required qualification prescribed for the post under the relevant recruitment rules and that they should also fulfil the age restriction at the time of their initial engagement. Any relaxation of age and educational qualification in respect of meritorious candidates alone would be considered by the competent authority. Under Clause-14, it is again stipulated that even such absorption can be restricted to not more than 25% of the vacancies arising in future in the appropriate Group 'D' posts (initial category) and that 75% of the vacancies should be filled up by direct recruitment. The said clause, however, provides for the full-time casual labourers to compete with the open category candidates based on their educational qualifications and only in regard to the age, it states that any relaxation can be provided by the Lieutenant-Governor of Pondicherry. The said clause also mandates necessary amendment to the rules for implementation. Therefore, when such stringent conditions have been imposed in Clauses-12, 13 and 14, the stand of the first respondent-Union Territory of Pondicherry as regards Clause-11 is perfectly justified and therefore, we do not find any scope to meddle with the said Clause-11 based on the contentions advanced on behalf of the petitioners.
18. Further, if in the implementation of the Scheme any violation takes place, it is always open to the aggrieved parties to work out their remedies before the Administrative Tribunal inasmuch as the Division Bench of this Court, in the decision reported in 1994 Writ Law Reporter 690 (Government of Tamil Nadu Etc. & 2 others v. P. Hepzi Vimala Bai), has held that even induction into the service could be a subject matter of challenge as falling under the category of service matters. Therefore, the said submission of the learned counsel for the petitioners does not merit any consideration.
19. The other contentions raised by the learned counsel for the petitioners about non-holding of work study are all not within the province of this Court to examine, inasmuch as that would be a matter which would require a detailed examination of fact and materials, which will have to be worked out by any aggrieved person before the Administrative Tribunal.
20. Inasmuch as we do not find any vitiating factors in the issuance of G.O. Ms. No.22 (DP & AR) dated 27.2.2009, we are not inclined to interfere with the same. For the very same reason, we do not propose to interfere with the draft list of full-time casual labourers published by the fourth respondent. We, however, make it amply clear that if in respect of any individual case appearing in the list there is any illegality or serious infirmity conflicting with the provisions contained in the various clauses of the aforesaid Scheme, it will always be open to any aggrieved person to approach the Administrative Tribunal for working out his grievance.
21. The writ petitions are, therefore, dismissed with the observations referred to above. All interim orders shall stand merged with this final order passed in the writ petitions.
22. As far as Writ Petition No.18615 of 2005 is concerned, inasmuch we have upheld G.O. Ms. No.22 dated 27.2.2009, there is no scope for issuing the writ as prayed for therein, inasmuch as the Scheme will operate, which provides sufficient safeguards in the matter of employment in the offices of the first respondent-Union Territory of Pondicherry. This writ petition is also, therefore, dismissed.
In the circumstances of the case, there shall be no orders as to costs. Consequently, all the connected miscellaneous petitions are closed.
(F.M.I.K., J.) (M.M.S., J.)
23..12..2010 tr/ab Index : Yes Website : Yes F.M. Ibrahim Kalifulla, J.
and M.M. Sundresh, J.
Pre-delivery Order in W.Ps.18615 of 2005, 596 of 2006, 10134, 14784 and 24640 of 2009 Delivered on
23..12..2010