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REPORTABLE

    IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3770  OF 2017

[Arising out of SLP (C) No. 17702 of 2014]

SECRETARY TO GOVT. COMMERCIAL  TAXES AND REGISTRATION  DEPARTMENT, SECRETARIAT AND ANR.  …. Appellants

                                             Versus

A. SINGAMUTHU               ….     Respondent

J U D G M E N T

R. BANUMATHI J.  

Leave granted.

2. This Civil Appeal arises out of the judgment of the High Court of

Judicature at Madras dated 04.07.2012 dismissing the Writ  Appeal

No.1209  of  2012  thereby  affirming  the  order  of  the

learnedSingleJudge directing togrant regularization to the respondent

from the date of completion of ten years of service with salary and

other benefits.

3. The  respondent  herein  was  appointed  as  a  part-time

Masalchithrough  Employment  Exchange  on  01.04.1989  and

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continued  to  work  there  and  as  part-time  Masalchi  attended  the

menial work in the appellant-department at District Registrar Office,

Trichy  in  the  State  of  Tamil  Nadu.The  respondent  completed  ten

years of service as part-time Masalchi on 31.03.1999.  In G.O. Ms.

No.22 Personnel and Administrative Reforms (F) Department, dated

28.02.2006, the State Government of Tamil  Nadu directed that the

services  of  the  fulltime  daily  wages  employees  working  in  all

Government Departments, who have rendered ten years of service

as on 01.01.2006 be regularized by appointing them in the time scale

pay of the post concerned subject to their being otherwise qualified

for the post.In furtherance to the above Government Order, G.O. (D)

No.659  Commercial  Taxes  and  Registration  (M2)  Dept.  dated

28.12.2006  was  issued  whereby  the  Government  directed  to  fill

vacancies  in  various  categories  in  the  Registration  Department

existing against  the Direct  Recruitment  through Tamil  Nadu Public

Service  Commission,  Employment   Exchange,  Commissioner  of

Technical  Education and on Compassionate  Grounds,  etc.  various

categories were considered and,interalia, among them 308 posts of

watchman were required to be filled.

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4. The respondent herein approached the High Court by filing W.P.

No.26702  of  2010  praying  for  regularization  of  his  service  on

completion of ten years of service from the date of his appointment

and to appoint him as Watchman in the regular time scale. Vide order

dated 26.11.2010, the learned Single Judge directed the Inspector

General  of Registration to extend the benefits of G.O. Ms. No. 22

dated 28.02.2006 and grant regularization to the respondent from the

date  of  completion  of  ten  years  of  service  with  salary  and  other

benefits.   

5. Being  aggrieved,  the  appellant-department  filed  writ  appeal

contending that G.O.Ms. No.22 dated 28.02.2006 is applicable only to

the  daily  wage  full-time  employees  and  not  applicable  to  the

respondent as the respondent was only a part-time Masalchi. During

the pendency of the Writ Appeal vide proceedings No.10425/A1/2012

dated  02.07.2012,  the  District  Registrar  appointed  the  respondent

and four others as a full-time employees in the post of Watchman by

regularisingthem and the services of respondent has been placed at

Sub-Registrar,  Uraiyur,  Trichy.   The  Writ  Appeal  filed  by  the

Department was dismissed by the High Court affirming the order of

the  Single  Judge.Aggrieved,  the  appellants  have  filed  this  appeal

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contending that the High Court has erred in directing regularization of

the service of the respondent herein from the date of completion of

ten years of his service with salary and other benefits.   

6. Mr.  Subramanium  Prasad,  learned  senior  counsel  for  the

appellants has assailed the impugned order by contending that there

is  no  provision  in  the  relevant  Rules  and  Government  Orders  to

regularise the service of temporarily appointed part-time Masalchis on

completion of ten years of service or otherwise. With regard to G.O.

Ms.  No.22  dated  28.02.2006,  the  learned  senior  counsel  Mr.

Subramonium  Prasad  argued  that  respondent  being  a  part-time

Masalchi who works only for two-three hours per day does not qualify

for the benefit,  as the Government Order directed regularisation of

services of full-time daily wage employees only.  The counsel also

contended  that  the  High  Court  failed  to  note  that  many  full-time

Masalchis serving in various departments of the State Government

were regularised only as a one-time scheme to bring them under the

time scale of pay andthe regularisation scheme was operative only

from the date of issuance of order.  The counsel further contended

that the High Court ought to have taken note of the fact that if the

regularisation  is  granted  retrospectively  to  the  respondent,  in  the

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absence  of  any  law,  it  will  have  serious  consequences  in  the

administration of the various departments and huge financial loss will

be caused to the State. The counsel brought to our notice that 72

persons out of 172 persons of the appellant-department have already

filed writ petitions before the High Court which are still pending and if

the impugned order is not set-aside, they will also approach the Court

for regularization with retrospective effect in which case the financial

burden cast  upon the appellant  would run to crores of rupees per

annum and the same would adversely affect the State as well as the

public exchequer. The counsel lastly contended that if the impugned

order  is  not  set  aside,  it  would  open  flood  gate  of  unwarranted

litigations.   

7. Per contra, the learned counsel for the respondent contended

that following G.O. Ms. No. 22 dated 28.02.2006, the High Court had

earlier allowed claims of many similarly situated employees and the

order  of  the  High  Court  was  also  confirmed  by  this  Court.   The

counsel  thus  contended  that  the  High  Court  rightly  directed  the

appellants to extend the benefit of G.O. Ms. No. 22 dated 28.02.2006

issued by Personnel and Administrative Reforms Department, to the

respondent, retrospectively from the date of completion of ten years

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of respondent’s service with salary and other benefits.  The counsel

also contended that the respondent should get the benefit  of G.O.

Ms. No. 505, Finance (AA-2) Department dated 14.10.2009 andthe

respondent sought parity with those 57 part-time employees, working

as  Masalchi  in  Treasury  Department,  whose  services  were

regularisedvide G.O.  Ms.  No.  32,  Finance  (Ka.  Ka  2)  Department

dated 26.03.2010.  

8. We have considered the submissions of the learned counsel for

both the parties and also perused the impugned judgment and the

documents available on record.   

9. Part-time  or  casual  employment  is  meant  to  serve  the

exigencies  of  administration.   It  is  a  settled  principle  of  law  that

continuance in service for long period on part-time or temporary basis

confers no right to seek regularisation in service.  The person who is

engaged on temporary or casual basis is well aware of the nature of

his employment and he consciouslyaccepted the same at the time of

seeking employment.   Generally, while  directing that  temporary  or

part-time appointments be regularised or made permanent, the courts

are swayed by the long period of service rendered by the employees.

However,  this  may  not  be  always  a  correct  approach  to  adopt

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especially when the scheme of regularisation is missing from the rule

book and regularisation casts huge financial  implications on public

exchequer.  

10. In  the  present  case,  it  is  available  on  record  that  the  State

Government  vide G.O. Ms. No.22 dated 28.02.2006, issued by the

Personnel  and  Administrative  Reforms  Department,  directed  the

services  of  daily  wage  employees  working  in  all  Departments  of

Government,  who  have  rendered  ten  years  of  service  as  on

01.01.2006 to be regularised by appointing them in the time scale of

pay of the post concerned subject to they being otherwise qualified

for  the post.  G.O.Ms.No.22 Personnel  and Administrative  Reforms

dated 28.02.2006 reads as under:-

“ABSTRACT Public Services Employees working on daily wages-Bringing into regular establishment on completion of ten years of service as on 01.01.2006-Orders issued.

PERSONNEL AND ADMINISTRATIVE REFORMS (F) DEPARTMENT

G.O. Ms. No.22  Dated 28.02.2006

ORDER:

The Hon’ble Chief Minister had announced during the Tamil Nadu Government  Officials  Union  and  Government  Servants  and Teachers  Associations  General  Conference  held  on  08.02.2006, that  the  services  of  employees  working  in  various  Government Departments on daily wages basis who have completed more than 10 years of service as on 01.01.2006 will be regularized.

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2. Based  on  the  announcement  made  by  the  Hon’ble  Chief Minister on 08.02.2006, the Government direct that the services of the daily wages employees working in all Government Departments who  have  rendered  10  years  of  service  as  on  01.01.2006  be regularized by appointing them in the time scale of pay of the post in accordance with the service conditions prescribed for the post concerned, subject to their being otherwise qualified for the post.

3. The Departments of Secretariat may therefore, be directed to  pursue  action  to  regularize  the  services  of  the  daily  wages employees  working  in  all  Government  Departments,  who  have rendered 10 years of service as on 01.01.2006 as ordered in para 2 above in  consultation with  the respective Heads of  Departments wherever necessary.  In special cases wherein relaxation of rules is required proposal shall be sent to Government.  

4. This  order  issues  with  the  concurrence  of  Finance Department vide its U.O. No.985/FS/P/2006 dated 28.02.2006.”  

11. In G.O. Ms.No.22 P & AR Dept. dated 28.02.2006, only full-time

daily wage employees were directed to be regularized on completion

of  ten  years  of  continuous  service  as  on  01.01.2006.   This  was

clarified  by  the  Government  in  the  Government  Order  passed

subsequently G.O.Ms.No.74 P &AR Dept. dated 27.06.2013 clarifying

that G.O.Ms.No.22 P & AR Dept. dated 28.02.2006 is applicable only

to the full-time daily wage employees, who had completed ten years

of  continuous  service  as  on  01.01.2006.   In  G.O.Ms.No.74  dated

27.06.2013, it was made clear that the part-time employees are not

entitled  for  regularization and that  full-time daily  wage employees,

who had completed 10 years of service after 01.01.2006 are also not

entitled for regularization of services.       G.O.No. 74, Personnel and

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Administrative  Reforms  Department,  dated  27.06.2013,  reads  as

follows:

“6) In supersession of the orders issued in the Government Order read  above,  the  Government  now  issue  revised  orders  on regularization of services of full time daily wage employees working in all Government departments as detailed below:

(i) This  Order  shall  be  deemed  to  have  been  come  into force with retrospective effect from 01.01.2006.

(ii) The services of the full time daily wage employees who were initially appointed on full time basis in consultation with the Employment Exchange  to discharge the function of the post in the Tamil Nadu Basic Service and complete 10 (ten) years  of  service  as  on  01.01.2006  shall  be  regularized against regular vacancies in the sanctioned cadre strength.

(iii) In cases of relaxation of service rules, the service rule relating  to  the  educational  qualification  and  mode  of recruitment shall not be relaxed.

(iv) In  cases,  where  relaxation  of  rules  are  involved, monetary benefit shall be allowed with effect from the date of issue of orders as per Rule 23 (a)(ii) of the General Rules for Tamil Nadu State and Subordinate Services;

(v) In  cases  where  relaxation  of  rules  are  not  involved, monetary benefit shall be allowed with effect from the date of regularisation;

(vi) The part-time and casual employees are not entitled to the concession referred to at para (ii) above;

(vii) The services of the full time daily wage employees who have completed 10 years of service after 01.01.2006 shall not be regularized;

(viii)  All  the  appointing  authorities  should  adhere  to  the above instructions scrupulously in future. Failing which, it will be viewed seriously and necessary disciplinary action will be initiated as per rules against the person who is responsible for  the  said  lapses.   All  the  Heads  of  Departments  are directed to  ensure that  all  the above said instructions are

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followed without fail  and lapses if  any found, responsibility will be fixed against them;

(ix) All the proposals for regularization of the services of full time  daily  wage  employees  should  be  sent  to  the Government even in cases where relaxation of rules are not involved.”

In  G.O.  Ms.  No.74,  it  was  thus,  made  clear  that  the  part-time

employees are not entitled for regularization and that full-time daily

wage employees,  who had completed  ten  years  of  service  as  on

01.01.2006  shall  be  regularized  against  regular  vacancies  in  the

sanctioned post.  It  was also made clear that the services of daily

wage  employees  who  have  completed  ten  years  of  service  after

01.01.2006 are not entitled for regularization.

12. In  the  present  case,  the  respondent  herein  was engaged to

fetch water, to sweep and other connected menial works for one or

two hours  in  a  day  as  part-time Masalchi.   The  post  of  part-time

Masalchi  is  not  included in  ClassIV or  V of  the Tamil  Nadu Basic

Service.   Further  a  part-time  Masalchi  cannot  be  treated  as

equivalent to the post of Masalchi (full-time) basis because the post

of  part-time Masalchi  does not come under the purview of  service

rules.   The  respondent  herein  was only  a  part-time Masalchi  and

hence the question of applying G.O.Ms.No. 22 P &AR Dept. dated

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28.02.2006,  which  is  applicable  only  to  the  daily  wage  full-time

employees,does not arise.

13. G.O.(Rt.)No.84  Commercial  Taxes  and  Registration  (M2)

Department  dated  18.06.2012  was  issued,by  which  172  part-time

Masalchis, who were working for more than ten years as part-time

Masalchis in Registration Department were regularized from the date

of issuance of G.O. providing the grant of monetary benefits from the

date of issuance of the Government Order. In G.O.(Rt) No.84 dated

18.06.2012, it  was clearly stated that G.O.Ms.No.22 P &A R Dept.

dated  28.02.2006  was  applicable  only  to  full-time  daily  wage

employees  and  that  the  same  was  not  applicable  to  part-time

Masalchis.  In the said G.O.(Rt.)No.84 dated 18.06.2012, it was made

clear that monetary benefits are only from the date of issuance of the

order  of  regularization.   The relevant  portion of  the said G.O.(Rt.)

No.84 Commercial Taxes and Registration (M2) Department, reads

as under:-

“Registration Department – Tamil Nadu Basic Service – 172 Part time Masalchis – Relaxation of Rules and Appointing them as full time Employees in the post of watchmen in Time Scale Pay and Regularisation of their services – Orders issued.

Commercial Taxes and Registration (M2) Department G.O. (Rt) No.84 Dated:  18.06.2012

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Based  on  the  Directions  of  the  Hon’ble  High  Court,  the  School Education  Department  and  the  Treasuries  and  Accounts Department  under  the  control  of  the  Finance  Department  have appointed  two  Full-time  Masalchis  and  57  Full-time  Masalchis, respectively,  in  regular  time  scale  of  pay  and  regularized  their services from the date of issue of the orders. In compliance to the orders  of  the  Hon’ble  High  Court,  the  services  of  6  Part  time Masalchis were appointed in this Department and regularized their services from the date of issue of the orders in the reference 3 rd and 5th cited.  Considering the Part-time Masalchis working for a long period in this Department and most of them had completed the age of 40 and certain employees have completed 50 years of age, it is not  possible to  seek jobs from outside and the employees were repeatedly sending representations to regularize their services, on a sympathetic consideration, the Inspector General of Registration sent  a  proposal  to  the  Government  to  appoint  the  Part-time Masalchis  in  the  post  of  Watchman  by  relaxing  the  necessary provisions in the Special Rules for the Tamil Nadu Basic Service from  the  date  of  issue  of  the  orders….…The  Government  has decided that, the remaining 172 Part time Masalchis, mentioned in the Annexure, may be appointed in Time Scale Pay, in the existing vacancy  of  watchmen  by  relaxing  the  Rule  3  (A)  (Community Rotation) and Rule 5 (1) (Age Qualification) and the services of the Part-masalchi be regularized and they may be awarded monetary benefit from the date of issue of the order…”

In  pursuance  of  the  above  said  Government  Order  and  vide

proceedings of the District Registrar, the respondent herein appointed

as full-time employee in the post of Watchman on 02.07.2012 and

has  been  placed  at  Sub-Registrar,  Uraiyur,  Trichy.   As  per  G.O.

Ms.No.84, the respondent can claim monetary benefits only from the

date of issuance of Government Order regularising his services and

not earlier.

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14. In a similar issue, concerning part-time sweepers, the State of

Tamil Naduhas filed an appeal before this Court, and those appeals

were  allowed  by  this  Court  byjudgment  dated  21.02.2014

inSecretaryto  Government,  School  Education  Department,

Chennai  vs.  Thiru.  R.  Govindasamy and Others  (2014)  4  SCC

769. After referring to various judgments on this issue, in paras (5) to

(7), this Court held as under:-

“5. The issue involved here remains restricted as to whether the services of the part-time sweepers could have been directed by the High Court to be regularised. The issue is no more res integra.

6. In State of Karnataka v. Umadevi (3) (2006) 4 SCC 1 this Court held as under: (SCC p. 40, para 48)

“48. … There is no fundamental right in those who have been  employed  on  daily  wages  or  temporarily  or  on contractual basis,  to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment  could  be  made  only  by  making appointments consistent with the requirements of Articles 14 and 16 of  the  Constitution.  The right  to  be  treated equally  with  the  other  employees  employed  on  daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have  never  been  selected  in  terms  of  the  relevant recruitment rules.”

7. In Union of India v. A.S. Pillai (2010) 13 SCC 448 this Court dealt with  the  issue  of  regularisation  of  part-time  employees  and  the Court refused the relief on the ground that part-timers are free to get  themselves  engaged  elsewhere  and  they  are  not  restrained from  working  elsewhere  when  they  are  not  working  for  the authority/employer.  Being  the  part-time  employees,  they  are  not subject  to  service  rules  or  other  regulations  which  govern  and

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control the regularly appointed staff of the department. Therefore, the question of giving them equal pay for equal work or considering their case for regularisation would not arise.”

15. In  State  of  Rajasthan  and  Others  Vs.  Daya  Lal  and

Others(2011) 2 SCC 429, this Court  has considered the scope of

regularisation of  irregular  or  part-time appointments  in  all  possible

eventualities and thisCourt clearly laid down that part-time employees

are not entitled to seek regularisation as they do not work against any

sanctioned  posts.  It  was  also  held  that  part-time  employees  in

government-run institutions can in no case claim parity in salary with

regular employees of the government on the principle of equal pay for

equal work. Relevant excerpt from the said judgment is as under:

“12.  We  may  at  the  outset  refer  to  the  following  well  settled principles relating to regularization and parity in pay, relevant in the context of these appeals:

(i) High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularization, absorption  or  permanent  continuance,  unless  the employees claiming regularization had been appointed in pursuance of  a  regular  recruitment  in  accordance with relevant  rules  in  an  open competitive  process,  against sanctioned vacant posts. The equality clause contained in Articles 14 and 16 should be scrupulously followed and courts should not issue a direction for regularization of services  of  an  employee  which  would  be  violative  of constitutional scheme. While something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process,  can  be  regularized,  back  door  entries, appointments  contrary  to  the  constitutional  scheme

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and/or  appointment  of  ineligible  candidates  cannot  be regularized.

(ii) Mere continuation of service by a temporary or ad hoc or  daily-wage  employee,  under  cover  of  some  interim orders of the court, would not confer upon him any right to be absorbed into service, as such service would be 'litigious employment'. Even temporary, ad hoc or daily- wage  service  for  a  long  number  of  years,  let  alone service  for  one  or  two  years,  will  not  entitle  such employee  to  claim  regularization,  if  he  is  not  working against  a  sanctioned  post.  Sympathy  and  sentiment cannot be grounds for passing any order of regularization in the absence of a legal right.

(iii) Even where a scheme is formulated for regularization with  a  cut-off  date  (that  is  a  scheme  providing  that persons who had put in a specified number of years of service and continuing in employment as on the cut-off date),  it  is  not  possible  to  others  who were  appointed subsequent to the cut-off date, to claim or contend that the scheme should be applied to them by extending the cut-off  date  or  seek  a  direction  for  framing  of  fresh schemes providing for successive cut off dates.

(iv)  Part-time  employees  are  not  entitled  to  seek regularization  as  they  are  not  working  against  any sanctioned  posts.  There  cannot  be  a  direction  for absorption, regularization or permanent continuance of part time temporary employees.

(v) Part time temporary employees in government run institutions cannot claim parity in salary with regular employees  of  the  government  on  the  principle  of equal  pay  for  equal  work.  Nor  can  employees  in private employment,  even if  serving full  time,  seek parity  in  salary  with  government  employees.  The right  to  claim a  particular  salary  against  the  State must arise under a contract or under a statute.

See: Secretary, State  of  Karnataka v. Uma Devi 2006 (4) SCC 1, M. Raja v. CEERI Educational Society, Pilani 2006 (12) SCC 636, S.C. Chandra v. State of Jharkhand  2007 (8) SCC 279, Kurukshetra Central Co-operative Bank Ltd v. Mehar Chand 2007 (15) SCC 680, and Official Liquidator v. Dayanand  2008 10 SCC 1.”             (emphasis added)

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16. The learned Single Judge of the High Court, while allowing the

writ filed by the respondent extended the benefit of the said G.O. Ms.

No.22  dated  28.02.2006  and  directed  the  appellants  to  grant

regularisation of respondent’s service from the date of completion of

ten years of service with salary and other benefits. The learned Judge

failed  to  take  note  of  the  fact  that  as  per  G.O.  Ms.No.  22  dated

28.02.2006,  the  services  of  employees  working  in  various

government  departments  on  full-time  daily  wage  basis,  who  have

completed  more  than  ten  years  of  continuous  service  as  on

01.01.2006 will  be regularised and not part-time Masalchis like the

respondent  herein.  In  G.O.Ms.  No.  84  dated  18.06.2012,  the

Government made it clear that G.O.Ms. No. 22 dated 28.02.2006 is

applicable only  to  full-time daily  wagers and not  to  part-time daily

wagers. Respondent was temporarily appointed part-time worker as

per  Tamil  Nadu  Finance  Code  Volume  (2)  Appendix  (5)  and  his

appointment  was  completely  temporary.   The  respondent  being

appointed as part-time Masalchi, cannot compare himself to full-time

daily wagers and seek benefit  of  G.O.Ms.No.22 dated 28.02.2006.

The Single Judge also failed to consider that the Government did not

grant  regularisation  of  services  of  any  part-time  employee  on

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completion  of  ten  years  of  his  service  as  envisaged  under  the

G.O.Ms. No.22 dated 28.02.2006.

17. The  learned  Single  Judge  erred  in  extending  the  benefit  of

G.O.Ms.No.22  dated  28.02.2006  to  the  respondent  that  too

retrospectively from the date of completion of ten years of service of

the respondent. The respondent was appointed on 01.04.1989 and

completed ten years of service on 31.03.1999.  As rightly contended

by the learned senior counsel for the appellants, if the respondent is

to  be given monetary  benefits  from the date  of  completion of  ten

years  of  service,  that  is  from  01.04.1999  till  the  date  of  his

regularization  that  is  18.06.2012,  the  financial  commitment  to  the

State would be around Rs.10,85,113/- (approximately)towards back

wages apart from pension which will have a huge impact on the State

exchequer.  That apart, the learned senior counsel for the appellant

submitted  that  in  respect  of  Registration  Department,  about  172

persons were regularized under various G.Os. and if the impugned

order is sustained, the Government will have to pay the back wages

to  all  those  persons  from the  date  of  completion  of  ten  years  in

service and this  will  have a huge impact  on the State exchequer.

Since the impugned order directing regularization of the respondent

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from the date of completion of their ten years would adversely affect

the State exchequer in a huge manner, the impugned order cannot be

sustained on this score also.

18. It is pertinent to note thateven the regularisation of services of

part-time  employees  vide G.O.(Rt.)  No.505  Finance  (AA-2)

Department  dated  14.10.2009  and  G.O.(2D)  No.32  Finance  (T.A.

2)Department dated 26.03.2010 was effectedby extending the benefit

of  G.O. dated 28.02.2006 only from the date of Government Orders

and not from the date of completion of their ten years of service. The

Division Bench also failed to take note that G.O.Ms.No. 22 P &AR

Dept.  dated  28.02.2006  is  applicable  only  to  full-time  daily  wage

employees and who had completed ten years of continuous service

as on 01.01.2006 and not to part-time employees.As per G.O.(Rt.)

No.84 dated 18.06.2012, the respondent is entitled to the monetary

benefits  only  from  the  date  of  issuance  of  Government  Order

regularizing his service that is 18.06.2012. The impugned order of the

Division  Bench  affirming  the  order  of  the  Single  Judge  granting

benefits to the respondent from the date of completion of ten years of

service is erroneous and the same is liable to be set aside.

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19. In the result, the impugned order is set aside and this appeal is

allowed. No costs.

     …….…………...………J. [KURIAN JOSEPH]

…………….……………J. [R. BANUMATHI]

New Delhi; March 07, 2017

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