(Common Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus after calling for the concerned records in his proceedings No.Memo.No.051371/02/G.44/ G.441/2002-4 dated 10.06.2008 passed by the respondent No.1 herein and to quash the same and consequently direct the respondents to appoint / absorb the petitioner as permanent employee of the Tamil Nadu Electricity Board (TNEB) in the same cadre with all consequential benefits from the date of termination of his service i.e, from 20.09.2005.)

Common Order

1. Since the challenge in all the three writ petitions is one and the same, they were heard together and are being disposed of, by this common order.

2. Heard the learned counsel for the petitioners and the learned counsel for the respondents 1 to 3 and learned Government Advocate for respondents 4 to 8 and perused the records.

3. For ease of convenience, the facts as set out in W.P.No.34891 of 2012 are being referred.

4. The case of the petitioner is that he was appointed as Helper by the Vandhavasi Rural Electrical Co-operative Society, on 02.03.2000 on temporary basis; that the said society was taken over by the Tamil Nadu Electricity Board (in short 'TNEB') subsequently; and that he has been working under the TNEB with effect from 06.04.2002.

5. It is the further case of the petitioner that as the erstwhile Society was having more than 35,000 consumers spread over 73-75 villages, had appointed persons on temporary on daily wage basis; that though he was appointed as Helper on temporary basis on daily wages, the wages were being paid on monthly basis; that he has been working on all working days like other permanent employees of the Society continuously without any break; that he was appointed by the erstwhile society as per the Rules applicable for the recruitment to the said post, except the fact that he was not appointed through District Employment Exchange; that he was fully qualified for regularisation in the post to which he was appointed; and that the 3rd respondent after taking over the erstwhile Society had terminated his services by the impugned proceedings dated 20.09.2005.

6. It is further contended by the petitioner that on the respondents issuing impugned proceedings terminating his services, he along with 4 others had approached this Court by filing writ petition vide W.P.No.32386 of 2005 and this Court by order dated 05.03.2008 while permitting the petitioners to submit a representation to the respondents, directed the respondents to consider the said representation on its merits and in accordance with law; that the petitioner and others had submitted representation to the Chief Engineer (Personnel) TNEB as directed by this Court on 09.05.2018; that the said representation was rejected by the respondents by the impugned proceeding dated 10.06.2006 stating that since, they were appointed based on the resolution of the Society on daily wage basis, and the appointment is made in excess of the cadre strength and not made through Employment Exchange as mandated by Rule 149(2) of the Tamil Nadu Co-operative Society Rules 1988, their request for reinstatement into the respondent Board services is not feasible for compliance; that the aforesaid rejection is contrary to the guidelines issued under G.O.Ms.No.86, Co-operative Food & Consumer Protection Department, dated 12.03.2001 and the order of the Division Bench of this Court in W.A.No.505 of 2002 dated 24.10.2002.

7. It is the further case of the petitioner that the benefit under G.O.No.86 dated 12.03.2001 was extended to some of the employees who had collectively approached this Court by filing W.P.No.21163 of 2002; that this Court vide order dated 03.08.2011 directed their services to be regularised; and that the rejection of the representation of the petitioner dated 09.05.2008 by the respondents by the impugned proceedings is illegal and suffers from arbitrariness resulting in violation of Articles 14 and 16 of the Constitution of India.

8. In support of the aforesaid submissions, reliance is placed on the decision of this Court in R.Ganagasabai vs. The District Collector and Others - W P.No.8110 & 14085 of 2009 dated 28.11.2011.

9. Contending as above, the petitioner seeks for setting aside the impugned proceedings and allowing the writ petition with consequential benefit of reinstatement into respondents service.

10. On behalf of the respondents, it is contended that the petitioner cannot take shelter under G.O.Ms.No.86 dated 12.03.2001, as the petitioner’s appointment was not against the sanctioned cadre strength, but was in excess of the cadre strength; and that if only the petitioner’s appointment had been made against the sanctioned cadre strength, such appointment would have been made through the Employment Exchange.

11. The respondents further contended that since, the petitioner had been appointed directly and in excess of the cadre strength, by the erstwhile Society in the year 2000 on temporary daily wage basis, the petitioner cannot seek for absorption into the services of the respondent Board; and that for the said reason, the respondents, by issuing proceedings dated 20.09.2005 terminated the services of the petitioner, who was initially engaged on temporary basis and whose services were continued by the respondent Board after taking over the erstwhile Society.

12. On behalf of the respondents, it is further contended that though the petitioner had approached this Court by filing W.P.No.32386 of 2005, along with other similarly placed temporary daily wage workers, challenging the proceedings dated 20.09.2005, on the writ petition being taken up for hearing on 05.03.2008, the petitioners, admitting that their engagement by the erstwhile Society was only on temporary daily wage basis, gave up the challenge to the order of termination and sought for limited relief of seeking liberty to approach the first respondent and submit a representation, and for a direction to the first respondent to consider the said representation and pass orders thereon; that on this Court granting such relief, submitted a representation dated 09.05.2008; and that the respondents had considered the said representation on its merits, and in accordance with law, and noting that the petitioner was not appointed against the sanctioned cadre strength and appointed contrary to Rule 149 of Tamil Nadu Co-operative Rules, 1988, and also on daily wage basis, rejected the said representation; that the present writ petition is filed assailing the said rejection order, while the order of termination dated 24.09.2005, has attained finality.

13. The respondents also contended that the petitioner, in the representation dated 09.05.2008, submitted pursuant to the liberty granted by this Court in the order dated 05.03.2008 in W.P.No.32386 of 2004, did not make his claim either on the basis of G.O.Ms.No.86 or on the basis of the order of the Hon'ble Division Bench of this Court in W.A.Nos.2501 & 2502 of 2001 dated 24.10.2002 as being claimed now.

14. The respondents further contended that the Hon'ble Division Bench of this Court, by order dated 24.10.2002 in W.A.Nos.2501 & 2502 of 2001, had held that G.O.Ms.No.86 shall not apply for regularisation of any employee recruited by the Society in violation of sub Rule (1) of Rule 149 Tamil Nadu Co-operative Societies Rules, as amended by G.O.Ms.No.212, Co-operative, Food and Consumer Protection Department, dated 04.07.1995; and that since, the petitioner had been appointed on temporary daily wage basis by the erstwhile Society without following the Tamil Nadu Co-operative Society Rules, 1988, the petitioner cannot be absorbed into the regular service of the respondent; and that, for the said reason, the respondents had rejected the representation of the petitioner dated 09.05.2008 by passing the impugned proceedings.

15. It is further contended by the respondents that one of the petitioners in W.P.No.32386 of 2005, who had approached this Court along with the petitioner herein, on his representation being rejected vide order dated 10.06.2008 had approached this Court by filing writ petition vide W.P.No.4011 of 2013; and that this Court, by order dated 08.07.2020, noting that the appointment of the petitioner therein was not against any sanctioned cadre post, but the appointment itself was irregular, rejected the claim made by the petitioner therein on the basis of G.O.Ms.No.86 dated 12.03.2001 and the order of the Division Bench of this Court; and that the petitioner herein also stands on the same footing, as the petitioner in the aforesaid case.

16. On behalf of the respondents, it is also contended that the impugned order having been passed by the respondents on 10.06.2008, the present writ petitions filed on 19.12.2012 after a lapse of four and a half years from the date of the impugned order, suffers from delay and laches.

17. Contending as above, the respondents seek for dismissal of the writ petition(s).

18. In reply, petitioner contended that after the respondents issuing the impugned proceedings dated 10.06.2008, the petitioner had been pursuing the matter by submitting representations, including a mercy petition and as such, the petitioner had been diligently pursuing the matter and thus, there is no delay in approaching this Court.

19. I have taken note of the respective contentions urged.

20. At the outset, it is to be noted that though the petitioner, while advancing arguments, contended that, on being appointed as ‘Helper’ in the erstwhile Co-operative Society on 02.03.2000 on temporary daily wage basis, his service was made permanent on 01.07.2000, the erstwhile society could not have regularised the services of the petitioner within a short span of four months as the petitioner appointment itself was on 02.03.2000. Further, in absence of any proceedings being placed on record to show that the services of the petitioner having been regularised by the erstwhile Society, there was no need for the petitioner to be claimed he was paid daily wages beyond 01.07.2000. Thus, the claim made by the petitioner to the above effect cannot be accepted as a valid claim.

21. It is also pertinent to note that the petitioner, while claiming that his appointment into the erstwhile Society is as per the Rules and Regulations, has neither filed any proceedings by which, he was appointed nor the proceedings by which, he was allegedly made a permanent employee. This aspect of the matter gains importance for the reason that the petitioner did not chose to implead the erstwhile Society as a party respondent either in the writ petition filed by him in the year 2005 or in the present writ petition. If only the petitioner was appointed as per the rules and regulations, such appointment should confirm to Rule 149 of the Tamil Nadu Co-operative Society Rules, 1988, in which case, on the respondents issuing the show cause notice dated 19.02.2005, the petitioner ought to have stated the said fact in his explanation submitted on 07.04.2005. Not only, did the petitioner fail to file a copy of the explanation given by him to the show cause notice along with the material papers, but also did not file any rejoinder when the 6th respondent, in its counter filed on behalf of itself and also on behalf of respondents 4, 5 & 7, had stated the said fact.

22. Further, the claim of the petitioner that his services were made permanent with effect from 01.07.2000 by the erstwhile Society, is selfcontradictory, as the petitioner is seeking regularisation of his services under G.O.Ms.No.86 dated 12.03.2001. If only the petitioner was a permanent employee of the erstwhile Society with effect from 01.07.2000, there is no necessity for him to rely on G O Ms.No.86, which was issued subsequently in the year 2001 providing for regularisation.

23. Further, the petitioner in the representation submitted on 09.05.2008 pursuant to the order passed by this Court dated 05.03.2008 in W.P.No.32386 of 2005, did not claim that his services were required to be regularised under G.O.Ms.No.86 dated 12.03.2001. It is only in the course of hearing of the present writ petition the said plea was taken by the petitioner by way of an additional affidavit, filed on 15.04.2024 and not before. Thus, the said plea now urged can only be considered as an afterthought.

24. It is also to be noted that the Hon'ble Division Bench of this Court, in its order dated 24.10.2002 in W.A.Nos.2501 & 2502 of 2001, having categorically held that the benefit of G.O Ms.No.86 cannot be extended to regularise the services of any employee recruited by the Co-operative Society in violation of sub Rule (1) of Rule 149 of Tamil Nadu Co-operative Society Rules, 1988, and the petitioner having failed to demonstrate, to the satisfaction of this Court, that his initial appointment is in accordance with the rules and regulations, mere assertion by way of additional affidavit, cannot be considered as petitioner having sufficiently established his right for being granted the relief.

25. It is also to be noted that the petitioner while laying a challenge to the impugned proceedings dated 10.06.2008 passed by the first respondent by filing the writ petition after a lapse of four and a half years, did not mention any reason for not approaching this Court at the earliest point of time, for this Court to appreciate the reason for the delay in approaching this Court, and such delay not adversely affecting the right of the petitioner. Though there is no period of limitation prescribed for filing the writ petition, it is the settled position of law that, even in absence of any prescribed period of limitation, an aggrieved party seeking enforcement of his fundamental rights by invoking the extraordinary jurisdiction of this Court under Article 226 of the constitution of India, must approach this Court within a reasonable time, as it is presumed that a person would not sleep over his rights,. This is by applying the principle that the Court would come to the aid of a diligent person and not for an indolent, as held by the Hon’ble Supreme Court in State of West Bengal and Others vs. B.B.M.Enterprises – 2026 SCC Online SC 980.

26. It is also equally the settled principle of law that if the aggrieved party does not approach the Court when his right is affected, even if he is entitled to succeed on merits, the Court can refuse to grant any relief invoking its extraordinary powers.

27. The Hon’ble Supreme Court in Mrinmoy Maity vs. Chhanda Koley and Others, (2024) 15 SCC 215, dealing with maintainability of writ petition with delay has held as under :-

                     9. “… This Court time and again has held that delay defeats equity. Delay or latches is one of the factors which should be born in mind by the High Court while exercising discretionary powers Under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action.”

                     11. “….. If it is found that the writ Petitioner is guilty of delay and latches, the High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction Under Article 226, the High Court will have to necessarily take into consideration the delay and latches on the part of the applicant in approaching a writ court.”

28. In the facts of the present case, as noted hereinabove, the petitioner not only approached this Court, after a lapse of four and a half years from the date of passing of the impugned order by the first respondent, without offering any explanation for delay, but has also miserably failed to demonstrate that he was appointed by the erstwhile Society by following the rules and regulations and that his services were made permanent on 01.07.2000 by placing any material on record, including his explanation dated 07.04.2005 submitted to the show cause notice dated 19.02.2005.

29. Insofar as the reliance placed by the learned counsel for the petitioner on the decision of this Court in W.P.No.8110 & 14085 of 2009 dated 28.11.2011 rendered in the case of R.Ganagasabai vs. The District Collector and Others - W P.No.8110 & 14085 of 2009, the facts of the said case relate to a claim for payment of compensation in respect of lands acquired under the Land Acquisition Act, 1894. Having regard to the facts of the said case, it was found that there was no delay on the part of the petitioner therein, as he had been regularly approaching the authority concerned seeking compensation. However, in the facts of the present case, the first respondent upon passing the impugned order dated 10.06.2008, became functus officio and is not vested with any power to reconsider his decision by entertaining any subsequent petition. Not only did the first respondent lack such power, the petitioner, except stating, he having been approached the said authority by submitting a mercy petition, did not choose to file any such petition along with the material papers in the present writ petitions for this Court to even look into the same, notwithstanding the fact that the same would not have any bearing on the adjudication of the present writ petition. It is the settled position of law that mere filing of a representation does not extend the period of limitation.

30. Further, a Co-ordinate Bench of this Court, having rejected a similar challenge to the proceedings dated 19.06.2008 filed by one of the co-petitioners in W.P.No.32386 of 2005, by its order dated 08.07.2020 in W.P No 4011 of 2013, wherein the petitioner therein was incidentally represented by the very same counsel as in the present case, this Court is of the view that the present writ petition(s), challenging the impugned proceedings, is (are) devoid of merits and are liable to be rejected.

31. Thus, considered from any angle, the challenge of the petitioner(s) to the impugned proceedings dated 10.06.2008 passed by the first respondent is wholly misplaced, misconceived and devoid of merit.

32. Accordingly these writ petition(s) are devoid of merit and are, therefore, dismissed. No order as to costs. Miscellaneous Petitions if any, stand closed.