In this writ petition, the petitioner prays for the issue of a writ of mandamus directing the respondent to absorb the petitioner as permanent attender forthwith and award cost.

2. The respondent entered appearance and also filed counter besides taking out an application to vacate the interim stay. Heard Mr.N.G.R.Prasad, learned counsel appearing for the writ petitioner and Mr.R.Viduthalai learned counsel appearing for the respondent.

3. The petitioner claims that he had put in 13 years of service as attendar and he is

qualified to hold that the said post as he has studied upto 11th standard while the qualification prescribed being 8th standard. The petitioner further claims that he had joined the Madras Veterinary College on 25.4.1985 which college was attached to Tamil Nadu Agricultural University, as a casual Mazdoor. The Veterinary College was separated from the Agricultural University and a separate University was constituted and the petitioner had continued for two years i.e., 1985-86 and 1986-87 and continuously thereafter, the petitioner was given 20 days work in a month and he had worked for 240 days in a year and he had been paid Bonus for the years 1994-1996.

4. However, during 1995, the respondent had employed the petitioner for 59 days consecutively and thereafter gave a break. The petitioner is being paid a sum of Rs.1,420 per month for 20 days in a month. During the past 13 years there were three interviews and for all the interviews he was called. There are presently 40 Vacancies. On the three earlier occasions, the petitioner was not selected on various grounds. The petitioner states that he possess the prescribed qualification. The respondent has invited applications, to fill up the post from internal candidate and the petitioner was not called for interview as he had completed 35 years of service. As on 25.4.1985, being a crucial date on which date the petitioner joined the respondent/ University he was below 35 years and therefore he cannot be disqualified on that score.

5. The petitioner further claims that he had put in 13 years of service and he is qualified to hold the post. The respondent had been indulging in unfair labour practice in engaging the petitioner for 59 days in a period of three months and thereafter giving a break and the said action of the respondent is an unfair labour practice. According to the judgment of the Supreme Court of India in , (1990)1 L.L.J. 320and , A.I.R. 1990 S.C. 883, it is contended by the petitioner that direction should be issued to regularise the service of the petitioner. The petitioner had put in 13 years of service and if he is thrown out of employment at this point of time, he will be seriously prejudiced. The petitioner had raised various legal contentions contending that he is entitled to be regularised as the post is perennial in nature and he is qualified in all respects and there is no justification to send him out after a period of 13 years.

6. In the counter-affidavit filed on behalf of the respondent, it has been stated that the respondent is a University since 20th September, 1989. Constituted under the Tamil Nadu Act 42 of 1989. The respondent had admitted that the petitioner was engaged by the then Tamil Nadu Agricultural University during 1985 at Madras Veterinary Hostel, constituent under the Control of Tamil Nadu Agricultural University. The petitioner was engaged as Casual Labourer on the basis of need. The petitioner had not been appointed as a regular employee in accordance with the statutory rules and regulations.

7. After formation of the respondent/University it had conducted two interview for the post of basic servants and on both the occasions the petitioner was called for interview by inadvertence and it is a mistake. On both the occasions eligible candidates were selected after the due interview based on the selection committee reported constituted in this behalf. The respondent proposed to fill up certain vacancies for the post of Attendant and basic servants during 1998 and hence a circular was issued inviting applications. The educational qualifications for the post of Attendant is 8th standard and for the basic servant it is the ability to read and write part from the prescribed qualifications and experience. The age limit for the above post of attendant and basic servant are 30 years for O.C. and B.C. 32 years for M.B.C. and 35 years for S.C. and S.T.

8. The petitioner crossed 30 years even at the time of his entering into service casual labourer as he was born on 17.6.1950. The petitioner has joined before the formation of the respondent/University as casual labourer on 25.4.1985 and therefore he was ineligible for the appointment. According to the respondent where the minimum general educational qualification is S.S.L.C. the age limit prescribed shall be increased by 5 years in respect of S.C. and S.T. who possesses the general educational qualification which is higher that the minimum general educational qualification. The petitioner belong to the Backward Community and he is not eligible for age relaxation of 5 years and therefore he had not been called for interview.

9. The respondent further states that the engagement of the petitioner as a casual labourer between the year 1985-89 is not relevant and the continuous service claimed by the petitioner for 240 days is not correct. It is further pointed out that no deliberate break in service had been given as alleged. The two pronouncements of the Apex Court relied upon by the writ petitioner are clearly distinguishable and they have no application to the facts of the present case. The interim order granted by this Court has to be vacated and in any event the petitioner who is over aged, as he has crossed 35 years on the date of his first appointment, is ineligible to be appointed and therefore he is not entitled to the relief of mandamus.

10. Concedingly, as claimed by the writ petitioner he is being engaged casually as Mazdoor in the then Veterinary College since, 1985 onwards, The veterinary college which was under the Agricultural University was bifurcated and a separate University has been formed. Thereafter also, the petitioner continued in the Tamil Nadu Veterinary and Animal Science University. The service rendered by the petitioner before the formation of the Tamil Nadu Veterinary and Animal Science University as well as the Tamil Nadu Agricultural University has to be reckoned for all purposes as it is only a transfer of the establishment from one authority to another authority namely Agricultural University to Veterinary and Animal Science University.

11. Though in the counter affidavit, the claims of the petitioner had been disputed, it is clear that the writ petitioner had been working continuously since 25.4.1985 excepting for a break once in three months. During the last very many years, the petitioner had put in 240 days in a year. But the respondent for obvious reasons had just engaged the petitioner for a continuous period of 59 days and thereafter given a break which is a calculated one. It is evident that since 25.4.1985, the petitioner had been engaged by the respondent continuously excepting the artificial breaks given by the respondent and the petitioner was not employed any where also. This version of the petitioner deserves acceptance.

12. The petitioner who had put in more than 240 days in a year would be normally entitled for regularisation and if the statutory provisions of the Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workman) Act applied. But the respondent being a University, the Act has no application, However, the principle alone has to be extended. On more than three or four years, the petitioner had completed 240 days in a year and he had been given artificial break. In this respect the petitioner's claim had not been controverted and he was continuously engaged except but a break for a short while. The respondent/ University also continues and the petitioner was not engaged in all these years anywhere excepting with the respondent/ University.

13. The learned counsel for the writ petitioner in support of his claim relied upon the decision of the Apex Court reported in , (1990)1 L.L.J. 320 and , A.I.R. 1990 S.C. 883. While the learned counsel for the respondent not only sought to distinguish the said two pronouncement but also relied upon the decisions of the Apex Courts in Union of India v. Bishamber Dutt Union of India v. Bishamber Dutt Union of India v. Bishamber Dutt (1996)2 S.C.C. 34 and Ashwani Kumar and others v. State of Bihar and others Ashwani Kumar and others v. State of Bihar and others Ashwani Kumar and others v. State of Bihar and others (1997)2 S.C.C. 1 in support of his contention, while meeting the petitioner's claim.

14. The reliance placed upon the decision of Apex Court in Union of India v. Bishamber Dutt Union of India v. Bishamber Dutt Union of India v. Bishamber Dutt (1996)2 S.C.C. 34 is of no assistance as in the said case the employment was a part time employment, which is not the case here. On the other hand factually in this case, it is a full time employment. It is the contention of the petitioner that he has been working continuously for long number of years and as such he is entitled for regularisation.

15. The reliance placed upon the decision of the Apex Court in Ashwani Kumar and others v. State of Bihar and others Ashwani Kumar and others v. State of Bihar and others Ashwani Kumar and others v. State of Bihar and others (1997)2 S.C.C. 1 also as rightly considered by the learned counsel for the writ petitioner will have no application as in the present case, concedingly, the petitioner has not been appointed irregularly, nor it is the case of the respondent that there are no vacancy, much less a regular vacancy.

16. In the present case the initial entry is not unauthorised, nor it is against of sanctioned vacancy. The request for regularisation had been rejected in , (1997)2 S.C.C. 1, as the appointment was irregular, it was on ad hoc basis, it was unauthorised and it is not against any sanctioned vacancy. This is not the case here. The Apex Court in the said pronouncement, while analysing the case law on the subject and after referring to Jacob M.Puthuparambil v. Kerala Water Authority Jacob M.Puthuparambil v. Kerala Water Authority Jacob M.Puthuparambil v. Kerala Water Authority (1991)1 S.C.C. 28 held thus:

13. So far as the question of confirmation of these employees whose entry itself was illegal and void, is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given it would be an exercise in futility. It would amount to decorating a still born baby. Under those circumstance there was no occasion to regularise them or to give them valid confirmation. The so called exercise of confirming these employees, therefore, remained a nullity ..

14. In this connection it is pertinent to note that question of regularisation in any service including any Government service may arise in two contingencies. Firstly if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period of time with or without any artificial breaks, and their services are otherwise required by the institution which employs them a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularise them so that the employees concerned can give their best by being assured security of tenure. But this would require one precondition that the initial entry of such an employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularisation my arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed the procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by a competent authority and the irregular initial appointment may be regularised and security of tenure may be made available to the incumbent concerned. But even in such case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment. In any case back door entries for filling up such vacancies have got to be strictly avoided. However, there would never arise any occasion for regularising the appointment of an employee whose initial entry itself is tainted and is in total branch of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could ever be effected. Such an entry of an employee would remain tainted from the very beginning and no question of regularising such an illegal entrant would ever survive for consideration, however competent the recruiting agency may be. The appellants fall in this latter class of cases. They had no case for regularisation and whatever purported regularisation was effected in their favour remained an exercise in futility. The learned counsel for the appellant, therefore, could not justifiably, fall back upon the orders of regularisation passed in their favour by Dr.Mallick. Even otherwise for regularising such employees well established procedure had to be followed.

17. As seen from the above pronouncement when the initial appointment is not illegal and when the initial appointment is by the competent authority and the appointment not being irregular, the appointee had to be regularised. On the facts of the present case it cannot be said that the initial appointment or engagement is illegal or in blatant disregard of all the established rules and regulations governing such recruitment. In fact no such case has been put forward by the respondent. Though the petitioner was being paid a consolidated wages he had been paid bonus as well for more then three years. This aspect of the matter deserves to be considered and this Court holds that the petitioner is entitled to a direction as prayed for.

18. In Jacob M.Puthuparambil v. Kerala Water Authority Jacob M.Puthuparambil v. Kerala Water Authority Jacob M.Puthuparambil v. Kerala Water Authority (1991)1 S.C.C. 28 it was held that ad hoc employee who were employed for two years or more were entitled to be regularised subject to availability of vacancies. In the present case vacancies are available and therefore the petitioner had been continued in service since 1985 onwards, but subject to an artificial break. Therefore in the light of the decision of the Supreme Court in Jacob M.Puthuparambil v. Kerala Water Authority Jacob M.Puthuparambil v. Kerala Water Authority Jacob M.Puthuparambil v. Kerala Water Authority (1991)1 S.C.C. 28 the petitioner is entitled to the relief prayed for.

19. The controversy regarding over age also requires to be gone into. As the petitioner is in continuous employment for over 13 years excepting for an artificial break and after one and half decade it is not open to the respondent to say that the petitioner is ineligible or disqualified to be engaged or appointed as a Mazdoor.

20. The petitioner had been working to the satisfaction of the respondent and there is not controversy in this respect. In fact the petitioner was called for interview on the earlier two occasions during the said period of 13 years but has not been selected not on the ground that he is ineligible and two other persons have been selected who are identically placed. There is no justification at all to create the petitioner on that score differently and to deny him regular appointment after a lapse of 13 years.

21. In the light of the said pronouncements, referred to above this, court holds that the rule nisi issued has to be made absolute and a direction has to be issued to the respondents absorb the petitioner on a regular basis with all consequential beenfits, as prayed for.

22. The writ petition is allowed. The respondent is directed to regularise the service of the petitioner and pass orders at least with effect from 1st January, 1999 which would meet the ends of justice and any delay in regularisation of the service would result in intacting of Arts.14 and 21 of the Constitution. The respondent being a statutory authority is bound to carry out the Constitutional obligations besides it is expected to act fairly and reasonably.

23. In the circumstances, the writ petition is allowed. There will be a direction directing the respondent, to regularise the service of the petitioner in the cadre of attender with effect from 1.1.1999, and bring him to the time scale of pay with all arrears of wages.

24. Consequently, all the connected W.M.Ps. are closed as unnecessary. No costs.