A Larger Bench (comprising more than two judges) of the Madras High Court will now decide whether temporary government servants, appointed without following due process of recruitment, were entitled to regularisation of service from the date of their appointment after serving the departments concerned for 10 to 20 years.
Justice Vinod Kumar Sharma referred the matter to the Larger Bench after differing with a 2006 Division Bench (comprising two judges) judgement wherein it was held that temporary employees were entitled to regularisation of service from the date of appointment as otherwise their long service would not help them claim the desired terminal benefits.
Mr. Justice Sharma was of the view that such ruling of the Division Bench was not in consonance with the Constitutional mandate of ensuring equality in matters of public employment.
He also pointed out that in the State of Tamil Nadu services were being regularised merely on the basis of Government Orders without there being any statutory rules authorising the issuance of such G.O.s.
The judge directed the High Court Registry to place the matter before the Administrative Judge of the Madras High Court Bench in Madurai for constituting the Larger Bench at the earliest as a number of cases were pending in the court seeking regularisation from the date of appointment and not from the date when the G.O.s for regularisation were issued.
While coming across one such case from Tirunelveli district, the judge pointed out that the Supreme Court in a judgement rendered also in 2006 had categorically held that no orders could be issued to regularise or absorb on regular service those who were engaged in violation of the Constitutional mandate of filling up public posts through wide publicity.
The apex court had said that appointments made in contravention of mandatory statutory provisions and by ignoring essential qualifications would be illegal and could not be regularised by the State.
"The State could not invoke its power under Article 162 of the Constitution to regularise such appointments."
"Regularisation is not and cannot be a mode of recruitment by any State within the meaning of Article 12 of the Constitution or any body or authority governed by a statutory Act or the rules framed there under... The fact that some persons had been working for a long time would not mean that they had acquired a right for regularisation," the judgement read.
