Case Note & Summary
Five daily-wage Mazdoors were appointed in the Tamil Nadu Secretariat between 1989 and 1990. Under G.O.Ms.No.524 dated 06.06.1983, temporary daily-wage employees with more than five years of continuous service were to be regularised. Out of 49 such Mazdoors, 31 were regularised between 1997 and 2000 through separate government orders. The remaining, including the respondents, were proposed for regularisation in 2001 when vacancies existed. However, the state government imposed a ban on filling of vacancies through G.O.Ms.No.212 dated 29.11.2001. Citing this ban, the regularisation of the respondents was delayed. Their services were eventually regularised only on 21.09.2006 and 29.11.2007, after the Contributory Pension Scheme had been introduced with effect from 01.04.2003. Consequently, they were placed under the new pension scheme, losing the more beneficial old pension scheme. The respondents made a representation seeking regularisation from the date of proposal in 2001 to bring them under the old pension scheme, which was rejected by the Principal Secretary on 22.05.2020. They filed a writ petition (W.P.No.18248 of 2020). The single judge, by order dated 19.12.2023, set aside the rejection, noting that the ban could not have applied to regularisation and that similarly placed persons had been granted retrospective regularisation. The judge directed the state to regularise the respondents’ services with effect from the date of completion of 10 years of service with all consequential benefits. The state appealed. The division bench analysed the scope of the ban order, holding that it applied only to fresh appointments, not to regularisation of existing employees. The court observed that the respondents had been in continuous service, vacancies existed, and proposals were made before the ban. The delay was solely due to the state’s misinterpretation of the ban. The court also noted that the state had granted retrospective regularisation to other similarly placed Mazdoors, and denying the same to the respondents would be discriminatory. Upholding the single judge’s order, the division bench dismissed the writ appeal, confirming that the respondents were entitled to regularisation from the date of completion of 10 years of service with all consequential benefits.
Headnote
A) Service Law – Regularisation – Ban on filling vacancies – Government Order Ms. No. 212 dated 29.11.2001 – A government order imposing a complete ban on filling of vacant posts could apply only to fresh appointments and not to regularisation of existing daily-wage employees; the respondents continued in service and proposals for their regularisation had already been submitted before the ban; the ban could not be a valid ground to delay regularisation (Paras 19-21). Held that the ban was unjustly invoked to deny timely regularisation. B) Service Law – Regularisation – Right under Government Order – G.O.Ms.No.524 dated 06.06.1983 – Temporary daily-wage Mazdoors with more than five years of continuous service were entitled to regularisation; vacancies were available and proposals were sent in 2001; the state’s own delay in processing regularisation could not prejudice the employees; the court directed regularisation from the date of completion of ten years of service with all consequential benefits (Paras 15-17, 21). Held that the writ court’s direction was justified. C) Service Law – Pension – Discrimination – Similarly placed Mazdoors regularised earlier were granted old pension scheme benefits, while the respondents were placed under the contributory pension scheme due to delayed regularisation; the state had issued orders granting retrospective regularisation to others in comparable situations; denial of similar treatment to the respondents constituted impermissible discrimination (Paras 12-13, 17). Held that the state could not discriminate among identically situated employees. D) Service Law – Retrospective Regularisation – Delay by employer – Where the delay in regularising services was solely attributable to the employer’s action (i.e., citing a ban that did not apply), the employees cannot be made to suffer; regularisation can be granted with effect from the date the employees became eligible, not merely from the date of the eventual order; the court upheld the direction to regularise from completion of ten years of service (Paras 20-21). Held that retrospective regularisation was warranted to undo the injustice caused by the delay.
Issue of Consideration
Whether the ban on filling of vacancies under G.O.(Ms.)No.212 dated 29.11.2001 could be invoked to delay regularisation of daily-wage Mazdoors; whether the respondents were entitled to regularisation with effect from the date of completion of 10 years of service instead of the date of actual regularisation; and whether denial of old pension scheme benefits amounted to discrimination.
Final Decision
Writ appeal dismissed. The order of the single judge directing regularisation of the respondents' services with effect from the date of completion of 10 years of service with all consequential benefits was upheld.
Law Points
- Legal points not extracted
- Ban on filling vacancies not applicable to regularisation of existing employees
- retrospective regularisation when delay attributable to employer
- non-discrimination among similarly placed employees
- government orders create enforceable rights
