The Secretary to government& ors. v. V. Marisamy & ors.
writ petition was filed before a single judge bench, seeking to quash the order of the State which rejected the plea to regularize the pay scale after completion of 3 yrs from the date of appointment. The petition was approved by the judge. Aggrieved state filed appeal before a divisional bench which referred the judgment of another divisional bench of Municipal Administration and Water Supply Dept. The latter held to regularize the service of the writ petitioners on completion of 3 yrs. Further an appeal was made to a Full judge Bench which held that the facts of the department are not applicable in this case and the sanitary workers are entitled to regularized pay only from 23.02.2006. A revision appeal was filed by the sate the recall the order of the divisional bench and by a sanitary worker to review the order of the full judge bench. Thus all the review applications were clubbed and heard together.
In all the review applications, the core issue which needs to be addressed is whether the sanitary workers employed in the municipality of the State are entitled to be regularized with time scale of pay on completion of 3 yrs of service?
The leading question is whether from the date of appointment or from the date of completion of 3 yrs or from 23.02.2006?
The Additional Advocate General, appearing on behalf of the State, contented that the Full Bench overruled the order of the divisional bench as it is not applicable to the employees in municipalities. According to the judgment of Full Bench regularization can be made only from 23.02.2006 and it cannot be from completion of 3 yrs of service. The regularization of few employees will not give right to others. Thus the council seeks dismissal of review application of other applicants.
Senior counsel Mr.R.Singaravelan, appearing on behalf of the individual applicants, pointed out the difficulties face by sanitary workers from the judgment of the SC in Delhi Jal Board V. National Campaign for Dignity & Rights of Sewerage & Allied Workers. Also the Full Bench failed to consider the instructions for regularization. Countering the arguments of the State CIT V. Vatika Township(p)Ltd was referred. According to Shivdeo Singh V. State of Punjab, HC has power to review its orders under Article 226 of the Constitution, when orders affect rights of parties.
Counsel Mr.V.Ajay Khose argued that the Full Bench travelled beyond the scope of reference. The petitioners are entitled to regularized pay after completion of 3 yrs from date of appointment. The Full Bench has travelled far beyond the facts and gave a third view, contrary to the facts.
Having heard all the parties and analyzing the records the court is of the view that the mere overruling of the order of divisional bench by the Full Bench is not a ground for review. The SC in Kamlesh Verma V. Mayawati and others, laid down the circumstances when the court can review its own judgment.
The other reasons were interpreted in Chhajju Ram V. Neki and Moran Mar Basselios Catholicos V. Most Rev.Mar Poulosde Athanasius & others
The ground raised by the State would not fall under any of the circumstances under which review is maintainable. There is no merit in the review application filed by the State and it is should be dismissed.
Based on the Government Order additional posts of Sanitary Workers were created in Municipalities. According to the above mentioned Government order, pay is consolidated on completion of 3 yrs but the question of regularization of pay is not discussed. Government order has no relevance to Sanitary Workers appointed through Employment Exchange.
There are 3 categories of Sanitary Workers, who are appointed- against permanent vacancies, through Employment Exchange, against newly created posts. For the purpose of this issue only the last 2 categories are important. Government order is very crucial for determining the pay scale.
The Court here is of the view that the Municipal Administration and Water Supply Dept cannot be applied to sanitary workers of newly created posts in Municipality. This point was not brought to the notice of the Divisional Bench. Thus the view of the Divisional bench in this point cannot be considered.
The contention of the learned council is true which says that the Full Bench failed to consider the difference in applicability of regularization to Panchayats and Municipalities.
The regularization of the sanitary workers with time scale of pay should be within 3 yrs from appointment and not from 23.02.2006. Sanitary workers have to be treated alike in fixing the pay scales whether they work in Panchayats or Municipalities.
To understand the plight of the sanitary workers the court in this point referred to the SC judgment in Delhi Jal Board V. National Campaign for Dignity & Rights of Sewerage & Allied Workers.
Also, “Article 16 of the Constitution guarantees equality of opportunity in matters of employment to any office under the state. Despite the fact that, all the workers are sanitary employees a discrimination is sought to be made as though it is applicable only to employees in Panchayats and persons appointed prior to 1996, which cannot be permitted and such action cannot be termed as reasonable classification as merely the place of work and date of appointment differs and if it is allowed, it will only amount to arbitrariness, defeating the salient protection guaranteed under Article 14 and 16 of the Constitution”
The Honorable SC of a Constitutional Bench in E.P.Royappa V. State of Tamil Nadu and others considered the scope of Article 14 and 16 in this provision. In The Manager Govt. Branch Press and Anr. V. D.B.Belliappa, the SC observed that the protection under Article 14 and 16(1) of the Constitution is available even to a temporary government servant. Accordingly the act of an employer should be invalidated if it is found to be arbitrary.
From the various judgments of the SC, the rights guaranteed under Article 14 and 16 of the Constitution are violated if the employees in the Town Panchayats and Municipalities are treated differently. Thus, these errors have affected the outcome of the Full Bench
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– Priyadharshini R
