CHIEF SECRETARY TO GOVT Vs. D EKMAN CHELLIAH

JUDGEMENT

(1.) THE present writ petition has been filed by the State Government against the order of the State Administrative Tribunal in O. A. No. 9356 of 1998 dated 2. 2. 2001, directing that the present contesting respondents 1 to 8 shall be absorbed in the existing vacancies.

(2.) THE facts giving rise to the present writ petition are as follows:-In the Secretariat of the State Government, if three permanent office assistants were absent in a day, one mazdoor would be appointed in their place and if five office assistants were absent, two mazdoors would be appointed from the list maintained in each department of the Secretariat. Minimum qualification to be appointed as mazdoor was pass in VIII Standard and a particular age limit was prescribed. The present respondents 1 to 8, who had the necessary qualification, worked as mazdoors in various Departments of the Secretariat having joined as such on various dates during the years 1987 to 1989. While the matter stood thus, the Government issued Letter No. 13840/89-8 dated 5. 3. 1991 providing that mazdoors on daily wages should be recruited only through employment exchange and mazdoors, who are already working in various Departments, recruited without consulting the employment exchange, should be replaced by the candidates recruited through employment exchange. Such order was challenged by the mazdoors, who were not recruited through employment Exchange, in O. A. Nos. 846 and 847 of 1991. The aforesaid O. As along with O. A. No. 1199 of 1991 were disposed of by the Tribunal by judgment dated 12. 5. 1992. While dismissing such Applications, the Tribunal observed : -. . . Having allowed such persons to continue on the rolls of casual workers it would be unfair to dispense with their services, even while conferring on the category, the right to regular employment in future vacancies. Since the employment is casual and intermittent, it cannot be said that persons on the rolls for the longest period have also been employed for the longest period in view of the inherently arbitrary nature of the entire arrangement. Any right to regular employment should be with reference to the actual period, for which they had been engaged even though that also may not have been strictly in accordance with their entitlement and not to the period for which they have been on the rolls of waiting casual workers, awaiting engagement. We would consider, that consistent with the principle incorporated in the Industrial Disputes Act, 1947, a person who has been engaged on a casual basis for 240 days in all should therefore be considered as eligible for continuance in the roll of persons eligible for casual employment irrespective of whether or not they had been engaged earlier, through the employment exchange. We would strongly urge the Government to consider, giving up this arrangement altogether at the earliest. In the meantime those who have completed 240 days of work on a casual basis during the period when they had been kept on the rolls of persons eligible to be engaged may be continued, subject to the eventual appointment against vacancies arising in the basic service. With this modification to sub para 8 of para 3 of a letter of Pandar Department, No. 13830/89-8 dated 5. 3. 91, the application is dismissed.

(3.) ON the basis of the aforesaid observation, the Government subsequently issued G. O. Ms. No. 398 Personal and Administrative Reforms (Personal-F) Department dated 18. 12. 2002 containing a list of 162 persons who had completed 240 days on 12. 5. 1992, i. e. , the date on which the Tribunal has passed the judgment. It was indicated that the persons, whose names were found in such G. O. , would be absorbed on permanent basis whenever vacancy arose in future. However, inspite of the observation of the Tribunal that such practice should be discontinued, respondents 1 to 8 had been continued to be engaged even after the date of judgment of the Tribunal and they have completed 240 days on or before 18. 12. 1992, the date on which the Government had issued G. O. Ms. No. 398. Since the name of the Respondents 1 to 8 did not find place in the G. O. Ms. No. 398 dated 18. 12. 1992, they filed O. A. No. 4419 of 1993 and other connected O. As before the Tribunal with a prayer to direct the State Government to regularise their services as they had completed 240 working days, as indicated in the earlier judgment of the Tribunal in O. A. No. 846 of 1991 and other connected matters. However, such O. As were dismissed on 4. 12. 1995. Review Application No. 94 to 102 of 1996 were also dismissed on 7. 5. 1997. Respondents 1 to 8 filed W. P. No. 9878 of 1998 and other connected writ petitions. The relevant portion of the order dated 24. 7. 1998 passed in W. P. No. 9878 of 1998 is as follows:-2. It is not possible for us to say that the impugned order made in review application suffers from any infirmity having regard to the scope of the review. If the petitioner is aggrieved by the original order of the Tribunal, it is for him to challenge the said order. But, the learned counsel for the petitioner states that subsequently, the Government have passed an order without properly understanding the orders of the Tribunal and contrary to the orders of the Tribunal passed in O. A. Nos. 846, 847 and 1199 of 1991. If the petitioner is aggrieved by the said G. O. No. 398 dated 18. 12. 1992, it is equally open to him to challenge the said order. (Emphasis added)Similar orders were passed in other connected writ petitions. Thereafter, the respondents 1 to 8 filed O. A. No. 9356 of 1998 for quashing G. O. Ms. No. 398 dated 18. 12. 1992 so far as it related to fixing the cut-off date as 12. 5. 1992 and for a direction to the State Government to provide permanent appointment to the applications in any of the vacancies existing or arising in future under the Tamil Nadu State Government service in the Secretariat. Such Application has been allowed by the Administrative Tribunal by order dated 2. 2. 2001 and direction has been issued to absorb the present respondents 1 to 8 in any existing vacancy and if sufficient number of vacancies are not available, they should be absorbed as per the seniority among them.