Madras High Court
N.Sivasakthivel vs The Secretary To Government Of Tamil ... on 21 October, 2013
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.10.2013
CORAM:
THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN
Writ Petition No.3062 of 2009
& M.P.No.1 of 2009
N.Sivasakthivel ... Petitioner
vs.
1. The Secretary to Government of Tamil Nadu,
Municipal Administration and Water Supply Department,
Fort St. George, Chennai.
2. The Commissioner of Municipal Administration,
Chepauk, Chennai.
3. The Executive Officer,
Kurinchi Third Grade Municipality,
Kurinchi, Coimbatore. .. Respondents
* * *
Prayer: Writ Petition filed under Article 226 of the Constitution of India for the issuance of writ of Certiorarified Mandamus calling for the proceedings of the second respondent in N.K.No.14521/06/S4 dated 22.05.2008 and quash the same and consequently direct the respondents to regularize the services of the petitioner by appointing him as Junior Assistant/Bill Collector as per G.O.Ms.No.125 (MAWS Department), dated 27.05.1999.
* * *
For Petitioner : Mr.V.Vijay Shankar
For Respondents : Mr.K.V.Dhanapalan for RR 1 and 2
Mr.B.Balasubramanian, for R3
O R D E R
The issue that arises for consideration in this writ petition is as to whether the petitioner is entitled to regular appointment as per G.O.Ms.No.125, Municipal Administration and Water Supply Department, dated 27.05.1999 in anyone of the Town Panchayats in Coimbatore District.
2. The impugned order of the second respondent dated 22.05.2008 declines the regularization of the petitioner on the ground that he is not in employment after 2002.
3. The petitioner was appointed as Section Writer in the then Kurinchi Town Panchayat/the third respondent on 01.11.1996 after being sponsored by the employment exchange. He was an NMR employee receiving wages on daily rated basis. Now the Kurinchi town panchayat has become Municipality.
4. The Tamil Nadu Government issued G.O.Ms.No.125, Municipal Administration and Water Supply Department, dated 27.05.1999 providing regularization of services of all NMR employees in town panchayats in future vacancies, if they are in service as on 31.12.1996. The said G.O.Ms.No.125 also prohibits appointment of new NMRs till the NMRs, who were employed as on 31.12.1996, are regularized. It is not in dispute that the petitioner was in employment as on 31.12.1996 and therefore, he is entitled to the benefit of G.O.Ms.No.125.
5. In fact, the Assistant Director of Town Panchayat in Coimbatore Zone, prepared a list dated 01.06.2001 consisting of 29 employees belonging to various town panchayats in Coimbatore Zone, who are entitled to regularization, as per G.O.Ms.No.125. As far as Kurinchi town panchayat is concerned, employees in Sl.Nos.5 to 10 of the list were entitled to regularization. The name of the petitioner found place at Sl.No.10. Out of six employees, whose names found place from Sl.Nos.5 to 10, five employees from Sl.No.5 to 9 were regularized in service pursuant to the proceedings of the Assistant Director dated 26.12.2001 and the consequential proceedings of the third respondent in Na.Ka.No.1431/2001/A. Dated 18.01.2002. The same is not in dispute.
6. The Assistant Director of Town Panchayat, Coimbatore Zone, sent a communication dated 29.08.2002 in Na.Ka.No.779/2002/Pe.6 that contrary to G.O.Ms.No.125, Municipal Administration and Water Supply Department, dated 27.05.1999, new NMRs are employed by various town panchayats and if such NMRs are employed, disciplinary action would be taken against the erring Executive Officers.
7. It is the case of the petitioner that though the said proceedings of the Assistant Director of Town Panchayat, Coimbatore Zone, was for not employing new NMRs contrary to G.O.Ms.No.125, dated 27.05.1999, the third respondent did not engage him after the issuance of the aforesaid proceedings of the Assistant Director.
8. According to the petitioner, he is entitled to regularization as per G.O.Ms.No.125, dated 27.05.1999 in view of the proceedings of the Assistant Director dated 01.06.2001 and out of 29 employees, who were enlisted for regularization, 28 were regularized barring the petitioner. In the case of Kurnichi town panchayat, six persons were enlisted in the proceedings dated 01.06.2001 of the Assistant Director, which contains 29 names, and five out of six were regularized barring the petitioner.
9. In fact, the Assistant Director of Town Panchayat, Coimbatore Zone, sent a proceedings in Na.Ka.No.783/04/Pe4, dated 22.07.2004 to the second respondent recommending for regularization of the services of the petitioner in any one of the vacancies in the town panchayats in Coimbatore Zone. The third respondent also sent the proceedings in Na.Ka.No.28/2005/A4 dated 03.01.2005 to the second respondent recommending regularization of the services of the petitioner as per G.O.Ms.No.125, dated 27.05.1999. It is stated therein that the Assistant Director of Town Panchayat, Coimbatore Zone, prepared a list of 29 persons eligible for regularization as per G.O.Ms.No.125 and out of 29 persons, 28 persons were regularized barring the petitioner. The third respondent recommended for regularizing the services of the petitioner in any one of the vacancies in the town panchayats in Coimbatore Zone.
10. Though the Assistant Director issued the proceedings dated 22.07.2004 and the third respondent issued the proceedings dated 03.01.2005 recommending regularization of the petitioner, he was not regularized in service. Hence, the petitioner filed W.P.No.4989 of 2006 seeking for a direction to the respondents therein to regularise his service based on the proceedings of the third respondent dated 03.01.2005 in Na.Ka.No.28/2005-A4. This Court disposed of W.P.No.4898 of 2006 on 03.04.2006 directing the second respondent to absorb the petitioner in entry level post vacant in any one of the Town Panchayats/Municipalities in Coimbatore Zone within a period of four weeks.
11. The Government/the first respondent herein and the Commissioner, Municipal Administration/the second respondent herein preferred writ appeal in W.A.No.687 of 2006 and the Executive Officer, Kurinchi Municipality/the third respondent herein preferred W.A.No.789 of 2006 against the aforesaid order of the learned Single Judge dated 03.04.2006. The writ appeals were disposed of with a direction to the first and second respondents herein to consider the case of the petitioner for regularization as per G.O.Ms.No.21, Municipal Administration and Water Supply (MC.3) Department, dated 23.02.2006, within a period of twelve weeks from the date of receipt of a copy of that order.
12. While so, the second respondent passed the impugned order relying on the order dated 25.01.2008 in W.A.Nos.687 and 789 of 2006, refusing to absorb the petitioner in any one of the town panchayats in Coimbatore Zone.
13. A counter-affidavit is filed by the third respondent. The aforesaid facts are not disputed. It is stated that the absorption of the petitioner was declined in the impugned order on the ground that the petitioner was not employed after 2002.
14. It is not case of the respondents that the petitioner voluntarily absented from duty. It is the case of the petitioner that relying on the proceedings of the Assistant Director issued in Na.Ka.No.779/2002/Pe 6, dated 29.08.2002 that no municipality shall engage new NMRs, the petitioner was not engaged on misconception. According to him, the proceedings of the Assistant Director was relating to restraining the engagement of new NMRs as per G.O.Ms.No.125, and the same was not applicable to the persons already working as NMRs and that is not applicable to him.
15. The petitioner sent a representation dated 28.1.2004 stating that out of six persons mentioned in the proceedings of the Assistant Director dated 01.06.2001, who were employed Kurinchi town panchayat, five were regularized and the petitioner alone was not regularized. The Assistant Director, considering the said representation issued the proceedings in Na.Ka.No.783/04/Pe4, dated 22.07.2004 recommending the absorption of the petitioner in anyone of the vacancies in the town panchayats in Coimbatore Zone. That proceedings dated 22.07.2004 was addressed to the second respondent. The same was not considered by the second respondent, while passing the impugned order.
16. At this juncture, it is relevant to note that in Kurinchi town panchayat, five persons were absorbed as a regular workman as per G.O.Ms.No.125, and they initially joined in the services of the Kurinchi town panchayat between 01.04.1994 and 01.10.1996 on daily wage basis. The details of the said persons, who were working as NMRs in Kurinchi Panchayat, as per proceedings dated 01.06.2001 of the Assistant Director are given hereunder :
t/ vz;
ngU:uhl; ?rpapd; bgah; gzpahsh; bgah;
gzp tptuk;
fy;tpj; jFjp gpwe;j njjp jpdf;T ypahf nrh;e;j njjp khtl;l ntiy tha;g;gf gjpt[ vz;;- njjp bjhlh;e;J gzpg[hpe;J tUfpwhuh jw;nghJ bgWk; Cjpak; (bjhFg; g{jpak; my;yJ jpdf;T yp) 5 Fwpr;rp Vd;/RrPyh gphpt[ vGj;jh;
v!;/v!;/vy;/rp njh;r;rp 12674 1494 01129-96 Mk;
jpdf;Typ 6 Fwpr;rp gp/kndhd;kzp gphpt[ vGj;jh;
gps!; 2 njh;r;rp 12566 1794 lgps;a{/5043-74 Mk;
jpdf;Typ 7 Fwpr;rp nf/tujuh$d;
gphpt[ vGj;jh;
v!;/v!;/vy;/rp njh;r;rp 29/12/71 1894 gppgpV/9809-94 Mk;
jpdf;Typ 8 Fwpr;rp vk;/jpuhtplkzp gphpt[ vGj;jh;
v!;/v!;/vy;/rp njh;r;rp 5477 11096 1102-97 Mk;
jpdf;Typ 9 Fwpr;rp m/mfpyhz;lk;
gphpt[ vGj;jh;
gps!; 2 njh;r;rp 14/5/64 11096 lgps;a{/11083-84 Mk;
jpdf;Typ 10 Fwpr;rp vd;/rptrf;jp nty;
gphpt[ vGj;jh;
v!;/v!;/vy;/rp 27/12/75 11196 7261-92 Mk;
jpdf;Typ The aforesaid details make it clear that out of five persons, two persons joined as NMRs on 01.10.1996 and they were absorbed in service.
17. The petitioner joined as NMR on 01.11.1996 and his name was also inclined in the list of 29 persons, who are working as NMRs in various town panchayats in Coimbatore Zone and all others were absorbed barring the petitioner. The same is not in dispute.
18. It is also not disputed that the third respondent also sent the proceedings in Na.Ka.No.28/2005, dated 03.01.2005 for the absorption of the petitioner as per G.O.Ms.No.125 and paragraph 4 of the proceedings which is relevant for the purpose of this case reads as follows :
"31/12/96f;F Kd;dh; gzpg[hpe;j gzpahsh;fs; 29 egh;fs; tpgug;gl;oay; nfhit kz;ly ngU:uhl;rpfspd; cjtp ,af;Feh; mth;fshy; jahh; bra;ag;gl;L. mjpy; jw;nghJ 28 egh;fs; gzp epakdk; bra;ag;gl;Lk;. EiHt[g; gzp ,lk; fhyp ,y;yhj fhuzj;jhy; jpU/vd;/rptrf;jpnty; vd;gth; kl;Lk; gzp epakdk; bra;ag;glhky; cs;shh;/ nfhit kz;ly ngU:uhl;rpfspd; cjtp ,af;Feh; mth;fspd; fojk; e/f/vz;/723-04 ng/4 ehs; 22/7/04?d;go ,tiu gzpaplk; fhypahf cs;s ,lj;jpy; gzpepakdk; bra;a ghpe;Jiuf;fg;gl;Ls;sJ vd;w tpguKk; gzpe;J rkh;g;gpf;fg;gLfpwJ/"
This proceedings of the third respondent also was not considered by the second respondent.
19. In view of the aforesaid proceedings dated 22.07.2004 and 03.01.2005 of the third respondent, I am of the view that the petitioner is also entitled to absorption as per G.O.Ms.No.125, particularly when he was included in the panel of the Assistant Director dated 01.06.2001 which contains the names of 29 persons and 28 of them were absorbed barring the petitioner.
20. Further, as stated above, in view of the proceedings dated 22.07.2004 of the Assistant Director of Panchayats, Coimbatore, and the proceedings dated 03.01.2005 of the third respondent addressed to the second respondent, the petitioner is entitled to absorption. The second respondent while passing the impugned order declining the absorption has not taken into account the aforesaid proceedings dated 22.07.2004 of the Assistant Director and dated 03.01.2005 addressed to the Assistant Director by the third respondent. Hence, the impugned order is liable to be quashed. Accordingly, the impugned order is quashed.
21. The respondents are directed to absorb the petitioner in anyone of the future vacancies in anyone of the town panchayats or municipalities in Coimbatore Zone.
22. The writ petition is ordered in the above terms. No costs. Consequently, connected miscellaneous petition is closed.
gg 21.10.2013
Index : Yes
Internet: Yes
To
1. The Secretary to Government of Tamil Nadu,
Municipal Administration and Water Supply Department,
Fort St. George, Chennai.
2. The Commissioner of Municipal Administration,
Chepauk, Chennai.
3. The Executive Officer,
Kurinchi Third Grade Municipality,
Kurinchi, Coimbatore.
D.HARIPARANTHAMAN, J.
gg
Order in
W.P.No.3062 of 2009
& M.P.No.1 of 2009
21.10.2013