(Prayer: Writ Appeal filed under Clause 15 of Letters Patent, praying to prefer this Memorandum of Grounds of Writ Appeal against the order of this Court dated 20.03.2024 in Writ Petition (MD). No.WP(MD). No.20305 of 2023.)

Dr. G. Jayachandran, J.

1. This appeal is directed against the order passed by the learned single Judge in W.P(MD)No.20305 of 2023, dated 18.10.2024.

2. The appellant joined as Electrical Helper(NMR) under the fourth respondent at Nagercoil Government Polytechnic College in the Technical Education Division of Public Works Department on 21.07.1998. He was later directed to discharge his duty as Electrical Helper NMR at Government Engineering College, Tirunelveli. He along with few others sought for regularisation by filing O.A.D.No.8777 of 1999 before the Tamil Nadu Administrative Tribunal. Pending application, the appellant was allowed to continue as NMR. The said O.A.D was disposed of on 06.07.1999. He again made a representation for regularisation on 01.09.2016 and 21.05.2018. Thereafter, he preferred a writ petition in W.P(MD)No.13290 of 2018 to consider his representation. This Court, vide order dated 28.03.2019, directed the respondents to consider his representation for regularisation and pass appropriate orders in accordance with law. His representation was disposed of on 25.07.2019 rejecting his claim.

3. Without challenging the said order, he again filed another writ petition in W.P(MD)No.17846 of 2022 seeking for regularisation. Taking note of the earlier order of rejection, this Court granted liberty to the appellant to challenge the rejection order dated 25.07.2019. In view of his appointment as NMR not through sponsored by the employment exchange and also in view of break in service, his request for regularisation was not considered, since he was not found eligible for regularisation as per G.O.Ms.No.385, School Education Department, dated 04.04.1989. The appellant without disclosing the earlier petition filed before the Tribunal, claiming as if he was fully eligible for regularisation, and preferred a writ petition in W.P(MD)No.20305 of 2023 claiming parity along with other NMRs whose services were regularised.

4. The prayer of the said writ of Certiorarified Mandamus seeking to quash the proceedings dated 25.07.2019, was considered by the learned Single Judge. He after recording his service particulars, found that he is not eligible for regularisation in view of break in service as well as the entry into the service through the back door. From June 2022, he had left the department and working under private contractor of Public Works Department. Therefore, this Court dismissed the writ petition with the following observations:

                     14.This Court has no hesitation to observe that the petitioner has not approached this Court with clean hands for the sole reason that the petitioner has never disclosed the fate of O.A.D.No.8777 of 1999, which was filed by him along with six other NMRs before the learned Tamil Nadu Administrative Tribunal, at Chennai. However, his entire employment has been a litigious employment, since he filed O.A.D.No.8777 of 1999 within a period of one year from the date of his engagement as NMR under the fourth respondent unit. Referring to the interim order passed by the learned Tamil Nadu Administrative Tribunal at Chennai, in M.A.No.3476 of 1999 in O.A.D.No.8777 of 1999 dated 06.07.1999, the fourth respondent vide proceedings dated 20.09.2001 had permitted the petitioner along with six others to continue as NMRs under the fourth respondent unit. The proceedings of the fourth respondent dated 17/20 https://www.mhc.tn.gov.in/judis WP. (MD).No.20305 of 2023 20.09.2001 itself would be a conclusive proof that the petitioner's employment has been a litigious employment. The Constitutional Bench of the Honourable Supreme Court in the case of Secretary, State of Karnataka v. Uma Devi and others reported in 2006 (4) SCC 1, held that the litigious employment would not provide any ground for the persons to claim regularization or permanent absorption. Hence, regularization cannot be certainly claimed by the petitioner merely based on his employment which can be definitely construed as litigious employment for the sole reason that he was permitted to continue as NMR under fourth respondent unit after 20.09.2001 only by the proceedings of the fourth respondent dated 20.09.2001. Having failed to challenge the earlier rejection order dated 21.08.2014 passed by the second respondent, the petitioner's initiative to challenge the first respondent's impugned letter by his proceedings dated 25.07.2019 will not serve any purpose.

                     15.With the efflux of time that is at least after a passage of more than 9 years from the date of rejection of the petitioner's request for regularization by the second respondent, which came to be passed on 21.08.2014, now the petitioner's claim is hit by delay and latches as well.

5. Challenging the order of dismissal, the present writ appeal is filed on the ground that the learned single Judge has failed to consider the fact that the appellant's appointment as Electrical Helper NMR was made through sponsored by employment exchange. Even though he was working in the Engineering College, it was initially under Public Works Department later came under the control of Directorate of Technical Education, which falls under the Higher Education Department. He, in fact, joined as NMR in the Technical Education Division of Public Works Department and continued to be a staff of Public Works Department and governed by Adhoc Rules vide G.O.Ms.No.385, Education Department, dated 04.04.1989, which provides for regularisation of NMR, who have completed 5 years/10 years of service in Technical Division under the control of Directorate of Technical Education. The nondisclosure of dismissal of O.A.D.No.8777 of 1999 on the file of the Tamil Nadu Administrative Tribunal, has no relevance to the considering the writ of Certiorarified Mandamus filed challenging the impugned order dated 25.07.2019.

6. The learned counsel appearing for the appellant submitted that having served as NMR since 1998, the appellant deserves to be regularised. The reason for rejecting his request is against the settled principle of law. Even if there was break in service, there is no legal impediment to regularise the appellant under G.O.Ms.No.385.

7. Heard the submissions made by the respective learned Counsels. The records were carefully perused.

8. The daily wagers, who were serving as NMR continuously for a period of 10 years, were regularised under G.O.Ms.No.22, dated 28.02.2006 without any qualifying conditions. However, when such regularisation was questioned as giving premium to the persons, who had joined as NMR through back door, the said G.O., was struck down by the Hon'ble Supreme Court and only the persons, who were employed through sponsorship of employment exchange and had served as full time daily wage employment continuously for a period of 10 years, were considered for regularisation as per G.O.Ms.No.74 dated 27.06.2013.

9. G.O.Ms.No.85, Department of School Education, referring to the earlier G.O on regularisation, speaks about the Ad hoc Rules for the provisionalized service of NMR workers in Technical Education Division. In respect of Ad hoc Rules framed in Government service for regularisation of NMR in Technical Education Department already regularised. This G.O is not applicable to the appellant herein, since his service was not regularised in view of the disqualifcation. The impugned order dated 25.07.2022 speaks in detail why his representation for regularisation rejected. For clarity, the relevant portion of the impugned order which provides reasoning for rejection is extracted below:

                     “(ii)In his letter dated 14.06.2019, the Executive Engineer, Technical Education Division, Tirunelveli, has stated that the petitioner Thiru.T. Murugan has joined on 21.07.1998 F.N. as Daily Wage Employee (Nominal muster Roll) (Electrical Helper). The individual has not been appointed properly through Employment exchange. Moreover, it is also submitted that his appointment do not satisfy the. conditions laid down in G.O. (Ms). No.74, P & AR Department, dated 27.06.2013.

                     (iii)There was no encadred post (sanctioned) to appoint the daily wage employee. Hence, the request of the Petitioner for regularizing his service cannot be considered, since his appointment do not satisfy the conditions laid down in G.O.(Ms). No.74, P & AR Department, dated 27.06.2013 (Revised orders for regularization of services of full time daily wage employees working in all Government Departments).

                     (iv)As on 01.01.2006, the petitioner Thiru.T.Murugan has not completed 10 years of service.”

10. As pointed out by the learned single Judge, the appellant has chosen to challenge the order dated 25.07.2019 in the year 2023 and he has taken multiple stand and conflicting facts in his earlier litigations.

11. Having found not qualified for regularisation either under G.O.Ms.No.74, dated 27.06.2013 or under G.O.Ms.No.385 dated 04.04.1989, the appellant, in his writ petition, has attempted to get regularisation of service relying on G.O.Ms.No.385, which is not applicable to the facts of his service particulars.

12. With the above observation, the order of the learned single Judge dated 20.03.2024 passed in W.P(MD)No.20305 of 2023, is confirmed and this Writ Appeal stands dismissed. No order as to costs. Consequently, connected miscellaneous petitions is closed.