COMMON PRAYER : These Writ Petitions are filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order of the 2nd respondent herein in ref. K.No.018900/603/N.P.3/Vu 1/Ko.Contract Labourer/2009-2 dated 06.10.2009 and quash the same and consequently direct the respondents herein to absorb the petitioner herein on permanent basis considering their long service of 17 years under the respondent Board.
The prayer in these Writ Petitions is for a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order of the 2nd respondent herein in ref. K.No.018900/603/N.P.3/Vu 1/Ko.Contract Labourer/ 2009-2 dated 06.10.2009 and quash the same and consequently direct the respondents herein to absorb the petitioners herein on permanent basis considering their long service of 17 years under the respondents Board.
2.The case of the petitioners is that the petitioner in W.P.(MD)No.1567 of 2010 had been engaged as Contract Labourer by the second respondent from 16.11.1991 and the petitioner in W.P.(MD) No.1568 of 2010 had been engaged as such from 19.01.1991. From the said dates, they had been continuously working as Contract Labourers for more than 17 years. Since the persons worked as Contract Labourers for longer years and in order to bring them as permanent employees, the respondent No.1 had appointed a committee to identify those who had been continuously working as Contract Labourers for more than five years. Accordingly, the committee was constituted in the year 1998 and the said Committee has identified thousands of people like the petitioners as contract labourers with the respondents board and accordingly identification report dated 09.08.1998 was given by the Committee, based on which, two decisions were taken by the respondents Board i.e., in Board Proceedings No.37 dated 29.10.2005 and subsequent Board Proceedings No.44 dated 06.09.2007. Pursuant to the decisions of the respondents Board as reflected in those Board proceedings, thousands of such Contract Labourers, who had been identified as Contract Labourers, have been observed, depending on the qualification of the employees. While so, the petitioner, though not paid ex- gratia payment during the year 2004 and 2005 and had been subsequently paid ex-gratia payment every year, had not been absorbed pursuant to the said Board Proceedings either in the year 2005- 2006 or subsequently in the year 2007-2008. Therefore, the petitioners had approached the respondents Board with a request for absorption, stating that upto 2003 they had been continuously in receipt of ex-gratia payments from the respondents Board. Subsequently, one of the petitioner i.e petitioner in W.P.(MD) No.1567 of 2010 since met with a major accident, he could not do hard work by way of contract Labour with the respondents Board and therefore, for two years, he could not be engaged for employment. Like that the other petitioner in W.P.(MD) No.1568 of 2010 had also not been in engagement in work after 2003 for two years because of his ill-health. Taking advantage of the break in service during 2004-2005 or 2005-2006, though thousands of persons had been absorbed by the respondents Board, pursuant to the said Board Proceedings, these petitioners had not been absorbed. Therefore, these two petitioners filed separate petitions for absorbing them, as they were already identified by the Board. Since the said petitions were not considered, they approached this Court by way of filing W.P.(MD) Nos.6869 and 6870 of 2009 respectively. This Court by order dated 27.07.2009, directed the respondents Board to consider the requests of the petitioners and take a decision thereon. In response to the said order passed by this Court, the second respondent has passed the present impugned orders separately for the petitioners, dated 06.10.2009. By these impugned orders, the second respondent has stated that they had been continuously engaged by the respondents Board as Contract Labourers from 1991 and had been paid ex-gratia upto 2003 and subsequently for the year 2004 and 2005 they had not been paid ex-gratia payment, since they had not reported for duty and therefore, the request for absorption pursuant to the Board Proceedings, referred to above, cannot be made against the petitioners. Therefore, their request for absorption were rejected. Challenging the said impugned orders both the petitioners have approached this Court with the aforesaid prayer.
3.Heard both sides.
4.The learned counsel appearing for the petitioners heavily relied upon two documents from the respondents one is dated 05.01.2004, issued by the Office of the Superintending Engineer, Thanjavur District, the second respondent herein. In the said proceedings the second respondent has requested some details which reads thus:
?The attention of the Executive Engineer/one/Thanjavur, Orathchacu, Pattukottai and Acquisition/Thanjavur and Acquisition/Kumbakonam is invited to the above reference cited and they are requested to send the final particulars (i.e., Date of Bith, Date of Joining, Total years of the service on 31.03.2003 as called for therein immediately.?
The learned counsel for the petitioners also relied upon the further proceedings of the respondents Board dated 26.08.2008, which has in fact paved the way for ex-gratia payment after identifying those who had already been left out, for getting ex-gratia payment, inspite of being continuously engaged by the respondents Board as Contract Labourers from 1997-1998 onwards. The relevant portion of the said proceedings is extracted hereunder:
?The Superintending Engineers of the Distribution circles, CCC etc, are informed that the employees unions have represented to consider the Contract Labourer who were identified on 08.08.98 and paid exgratia from 97-98 for certain years and subsequently payment discontinued but engaged continuously till date, for absorption in the Board. The Superintending Engineers of circles have also requested to consider the leftout cases for payment of exgratia and for absorption.?
5.The learned counsel appearing for the petitioners would also relied upon a further document dated 29.05.2009, issued by the Assistant Engineer, O & M/TNEB, Thuvarnkurichi and in the said document in which in tabular form, it is mentioned the name of the petitioner in W.P.(MD) No.1567 of 2010. According to the said document the initial engagement of the petitioner as Contract Labourer was shown as 16.11.1991 and he had completed 5 years continuous engagement as Contract Labourer on 15.09.1996. By relying upon all these documents, the learned counsel appearing for the petitioners would contend that the petitioners had been engaged initially in the year 1991 and the minimum requirement of completion of five years as Contract Labourers was completed by these petitioners in the year 1996 as certified by the concerned Field Officer. Thereafter, a Committee was appointed by the respondents Board for identifying several thousands of persons like the petitioners for absorption and the said Committee identified the petitioners also. Pursuant to the said identification, the petitioners had been paid ex-gratia payment continuously every year from 1997-98 onwards. The petitioner in W.P.(MD) No.1567 of 2010 received ex-gratia payment lastly in the year November, 2003, whereas the petitioner in W.P.(MD) No.1568 of 2010 received ex-gratia payment on 04.08.2004. Thereafter these petitioners could not get the ex-gratia payment because of the petitioner in W.P.(MD) No.1567 of 2010 met with an accident and the petitioner in W.P.(MD) No.1568 of 2010 became sick. Subsequently, after recovery from illness the petitioners have been engaged during the year 2007-08 and have been continuously working. This factor has been evidenced by the documents filed by them showing that the Assistant Engineer concerned of Thuvarankurichi region had given a certificate in the year 2009. By quoting all these documents the learned counsel appearing for the petitioners would submit that except two years, i.e., 2004-2005 and 2005- 2006, for all these years, right from 1991, both the petitioners had been continuously engaged as Contract Labourers with the respondents and the second respondent has admitted this in the impugned order itself. Therefore, the rejection now made by the second respondent for absorbing the petitioners, as has been done in respect of several thousands of Contract Labourers pursuant to the decisions taken by the respondents Board Proceedings, is bad under law and unjustifiable. Therefore, interference of this Court required in these matters.
6.Per contra, the learned Standing Counsel appearing for the respondents by relying upon the Board proceedings, namely B.P.(FB)No.37 dated 29.10.2005 and B.P.(FB) No.44 dated 06.09.2007, would contend that initially thousands of such Contract Labourers were identified by the Justice Khalid Commission and those who have identified by Justice Khalid Commission have already been absorbed into the Board services. Subsequently, those left out persons also have been identified by the Committee constituted by the Board in the year 1998. Thousands of Contract Labourers, who had been identified by the Committee on 08.08.1998 and continued to receive ex-gratia payment continuously till 2004-2005 were absorbed by the Board. Those who had been receiving ex-gratia payment continuously till 2005-2006 were directed to be absorbed either as Assessor Grade ? II, Helper-cum-Meter Reader, Mazdoor, depending upon their education qualification. So far as these two persons are concerned, they had been engaged initially from 1991 and had been identified by the committee on 08.08.1998 and subsequently had been receiving ex-gratia payment. As admitted by them, the petitioner in W.P.(MD) No.1567 of 2010 has lastly received ex-gratia payment in November, 2003 and the petitioner in W.P.(MD) No.1568 of 2010 has lastly received ex-gratia payment in August, 2004. Therefore, both the petitioners had not reported for duty, either to accept ex-gratia payment or to seek for absorption. Since the Board Proceedings Nos.37 and 44 enable those who had been receiving ex-gratia payment during the year 2004-2005 and 2005-2006 for absorption they alone were considered for absorption. Though in subsequent years, the left out candidates, who were not covered under the said Board Proceedings 37 were taken into account and those people also got in once, and they would be absorbed in phased manner and since the petitioners who did not report for duty, there is no question of making them permanent at this length of time for absorption. Therefore, what has been done by the respondents Board pursuant to the Board Proceedings 37 and 44, as referred to above, has been the basis for absorbing those contract labourers, who had been in continuous engagement up to 2004-2005 and 2005-2006. Since admittedly the petitioners had not been in service during 2004-2005 onwards, their request has been rightly turned down by the second respondent, through the impugned orders and these factors are clearly mentioned in the impugned order itself. There is absolutely no infirmity or illegality in the order passed by the respondents. Therefore, it requires no interference by this Court.
7.This Court considered the rival submissions made by the learned counsel on either side.
8.The admitted facts by both sides are that the petitioners had been engaged as Contract Labourers from the year 1991 and their completion of 5 years had been declared in the year 1996. Thereafter, these two petitioners had been identified by the Committee constituted by the respondent Board on 09.08.1998. Thereafter, pursuant to the said identification these petitioners had been continuously receiving ex-gratia payment i.e., the petitioner in W.P.(MD) No.1567 of 2010 till November, 2003 and the petitioner in W.P.(MD) No.1568 of 2010 till August, 2004. During the year 2004-2005 and 2005-2006 these petitioners were not in service as Contract Labourers. Resultantly they have not been paid any ex-gratia payment. According to them, even after that, they were reporting for duty and they have made claim for getting absorbed. However, their case is that during the year 2004-2005 the petitioner in W.P.(MD) No.1567 of 2010 met with an accident, resultantly, he was advised not to go for work for two years. Therefore, he was not able to work during 2004-2005 and 2005-2006. Subsequently, he was engaged by the Contractors and he had been continuously working as Contract Labourer. Like that the petitioner in W.P.(MD) No.1568 of 2010 did not report for duty during 2004- 2005 and 2005-2006 as he was not well and subsequently he has also been continuously engaged in all these years.
9.The respondents Board had taken a policy decision and the same is reflected in the two separate Board proceedings, namely, B.P. (FB) No.37 dated 29.10.2005 and B.P. (FB) No.44 dated 06.09.2007, where these petitioners come under the purview of the criteria fixed by the respondents Board for making them absorbed on permanent basis, through such decision taken by the Board as provided in the said Board Proceedings. Insofar as B.P.(FB) No.44 dated 06.09.2007, the same has been heavily relied on by the learned Standing Counsel appearing for the respondents. The respondents Board after having considering all the above said factors has issued the following orders in B.P.(FB) No.44 dated 06.09.2007:
?9. Accordingly, the Tamil Nadu Electricity Board hereby directs the following:-
1) The Contract Labourers already identified during 1998 by the committee consisting of officers of the Board not exceeding 6,000 Nos. shall be absorbed into Board's service immediately in the following manner:-
a) The contract labourers with S.S.L.C. and higher academic qualification shall be appointed as Assessors Grade-II in the Helper Time Scale of Pay of Rs.3050-5070, who will do the Meter Reading and Assessment Works for full month.
b) The contract labourers with I.T.I. Qualification in the Trades specified in the Service Regulations of the Board and those with Diploma qualification shall be appointed as Helper-cum-Meter Reader in the time scale of pay of Helpers. They will do the field work and also, according to need, the Meter Reading and Assessment Work.
c) The contract labourers with other qualification or Nil qualification shall be appointed as Mazdoors in the time scale of Pay of Rs.2570-3950.?
10.Like that in B.P.(FB) No.37 dated 29.10.2005, the respondents Board has passed the following order:
?Accordingly, the Tamilnadu Electricity Board hereby passes the following orders:
(a) 2,500 posts of Mazdoor Grade-II shall be created for the absorption of contract Labourers.
(b) Out of the Contract Labourers, who have completed 5 years as on 31.03.1997 and identified by the Committee of Officers on 8.8.98, 2,500 Contract Labourers shall be considered for permanent absorption based on the seniority with reference to date of enrollment as contract Labourer.
(c) These Contractors' Labourers shall be absorbed as Mazdoor (Trainee) on consolidated payment of Rs.2,500/- per month for a period of 2 years. On satisfactory completion of 2 years period of training they will be appointed as Mazdoor Grade-II.
(d) The absorption ordered above is subject to the specific conditions that these contract Labourers engaged by Contractors should have regularly reported for work in the respective section office in the last 12 months as on 30.09.05.
(e) The contract Labourers absorbed as Mazdoor (Trainee) as per these Proceedings shall not make any claim, what-so-ever, in future by virtue of their engagement as contract Labourers in the past.?
11.From the reading of the above orders passed by the respondents Board, it is found that, those who had been identified as Contract Labourers in the year 1998, by the Committee consisting of Officers of the Board, become eligible to be got absorbed in any one of the post, depending on their educational qualification. It is the admitted case of the respondents Board that these two petitioners have been identified by the Board in 1998. It is also pointed out that the petitioners are paid ex-gratia payment continuously from 1997 till 2003-2004. Therefore, the basic criteria as has been fixed by the Board for getting absorbed all these people like the petitioners, as has been reflected in the two Board proceedings, are primarily that they should have been worked/identified in 1998 and pursuant to such identification they should have been continuously engaged and receiving ex-gratia payment from the respondents Board continuously. Since the Board proceedings were issued in the year 2005 and 2007, probably 2004-2005 has been taken into account as cut of year. Accordingly, those who had been receiving ex-gratia payment during the year 2004-2005 were considered for absorption through B.P.(FB) No.37 dated 29.10.2005. Like that those who had been in receipt of ex-gratia during 2005-2006 were considered for absorption pursuant to B.P.(FB) No.44 dated 06.09.2007.
12.On a reading of the imports of these Board proceedings, this Court finds that there is no negative covenant available in the Board proceedings regarding those who have identified and continuously receiving ex-gratia payment for years together, but had not been received ex-gratia for short period or break-in period, especially the period 2004-2005 and 2005-2006. Even if such classificatory notification is available, the same, in the opinion of the Court, should be in nexus with the object to be achieved. It is to be in consonance with the settled propositions of law that when the very classification is made, such classification must have nexus with the object or the purpose for which the classification is made. If there is no nexus between the object and the classification, then certainly such classification is of no use and the same is impermissible in law. Here, there is no such classification has been made regarding those who had been continuously engaged and was in receipt of ex-gratia payment for several years, but were not in engagement or not in receipt of ex-gratia payment for a short period, namely 2004-2005, would not be entitled to get absorbed. In view of said factor and legal position, this Court is of the considered view that the present impugned orders of the second respondent denying the request of the petitioners for absorption is unjustifiable and cannot be sustained and therefore the same is liable to be quashed. Accordingly, the impugned orders herein are quashed.
13.Resultantly, the matter is remanded to the respondents for reconsideration. While making reconsideration the respondents must look into the fact that both the petitioners were engaged from the year 1991 continuously as contract Labourers and both petitioners were identified by the committee appointed by the Board on 08.08.1998 and subsequently both the petitioners are continuously receiving ex-gratia payment upto 2003-2004 and in respect of non-engagement/absence of duty on the part of the petitioner during 2004-2005 and 2005-2006 is concerned, their medical grounds, as claimed by the petitioners can also be considered objectively. In this regard, it is also open to the petitioners to give additional particulars or documents to show the genuineness of the medical treatments because of which they were not engaged during the relevant period i.e., 2004-2005 and 2005- 2006.
14.For such consideration as indicated above, further particulars required by the respondents Board can be asked by them from the petitioners and once such request is made by the respondents Board, the petitioners shall produce appropriate medical documents including supporting medical documents for not getting engaged during the said period and thereafter the request of the petitioners shall be objectively considered, in view of the decisions taken by the Board as reflected in the proceedings dated 29.10.2005 and 06.09.2007 and in the subsequent proceedings as well as the observations made by this Court in this order. Final order to that effect regarding absorption of the petitioners shall be passed by the respondents Board thereon. The above said exercise as indicated above shall be completed by the respondents within a period of three months from the date of receipt of a copy of this order and it is expected that the petitioners shall cooperate with the respondents by supplying any additional materials/documents including the medical documents as indicated above, so that a decision could be arrived at by the respondents Board within the time stipulated.
15.Accordingly, these Writ Petitions are allowed in the terms as indicated above. No costs. Consequently, connected Miscellaneous Petitions are also dismissed.
To
1.The Chief Engineer (Admn.), Tamil Nadu Electricity Board, No.800, Anna Salai, Chennai ? 600 002.
2.The Superintending Engineer, Thanjavur Electricity Distribution Circle, No.1, Vallam Road, Thanjavur..