Madras High Court
P.Nallasivam vs The Secretary To The Government on 23 February, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.02.2012 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P.No.28123 of 2011 & M.P.No.1 of 2011 P.Nallasivam .. Petitioner Vs. 1.The Secretary to the Government Government of Tamil Nadu Agriculture Department Fort St.George, Chennai-600 009 2.The Chief Engineer Agricultural Engineering Department 328, Anna salai, Nandanam Chennai-600 035 3.The Executive Engineer, Agricultural Engineering Department Villupuram District .. Respondents. Writ petition is filed under Article 226 of Constitution of India for the issuance of a writ in the nature of certiorari, to quash the order passed by the 1st respondent vide letter No.22427/AA3-04-13 dated 04.02.2008 and the letter of the 2nd respondent vide No.P&A2/16198/2010 dated 06.05.2010 with consequential relief for issuance of a writ in the nature of mandamus, directing the respondents to appoint the petitioner as Assistant Agricultural Engineering Foreman or Assistant Soil Conservation Officer or any other suitable post in the Agricultural Engineering Department. For Petitioner : Mr.C.K.M.Appaji For Respondents : Mr.R.Ravichandran, A.G.P **** O R D E R
The prayer in this writ Petition is for issuance of a writ in the nature of certiorari, to quash the order of the first respondent No.22427/AA3-04-13 dated 04.02.2008, and the order of the 2nd respondent P&A2/16198/2010 dated 06.05.2010. The prayer is also made for issuance of writ, in the nature of mandamus, to direct the respondents to appoint the petitioner as Assistant Soil Conservation Officer or to other suitable post.
2 Petitioner was appointed as Irrigation Community Organizer, on 28.10.1991, in the Agriculture Engineering Department, under Command and Development Programme at Thanjavur. Being a diploma holder. The petitioner worked under the Scheme till 11.01.1993.
3 The petitioner thereafter worked as Technical Assistant in the Jawahar Velaivaippu Thittam, Panrutti from 02.04.1993 to 15.04.1994. On 01.08.1996, the petitioner joined as Technical Assistant under the Tubewells Scheme, Villupuram, and worked there till 08.12.1998.
4. The submission of the petitioner is that the Scheme introduced by the Government of Tamilnadu was on regular basis to preserve and keep intact the soil conservation. The petitioner was therefore retained in service as Irrigation Community Organiser/Technical Assistant. The petitioner was entrusted to carry out the works of percolation ponds, standardization of minor irrigation works and renovation of temple tanks in addition to his other regular works. The petitioner was also entrusted with the job of selection of suitable site, survey for implementation of the execution works.
5 The petitioner though appointed on a consolidated salary of Rs.1200/- (Rupees One thousand two hundred only) per month which was later on enhanced to Rs.2400/- (Rupees Two thousand four hundred only) per month, in view of the revision of pay N.M.R. workers.
6 In view of the long standing service of the petitioner, the Executive Engineer vide letter dated 28.12.1998, called the petitioner for an interview on 08.01.1999, to consider his candidature for the post of Assistant Driller. Though the petitioner was shown at Serial No.1 in the list of candidates sponsored by the Employment Exchange, but the petitioner was not selected. The petitioner did not challenge this selection.
7 The submission of the petitioner is that he is deemed to be a regular employee, as he had worked for more than 470 days in 24 English Calendar months and is also entitled to appointment under the Industrial Disputes Act.
8 The petitioner filed O.A.No.2743/2001, before the learned Tamilnadu Administrative Tribunal for regular appointment. The learned Tribunal disposed of the application with direction to the respondent to consider the claim of the petitioner for regular appointment, as and when vacancy arises, and to pass order as per the rules.
9 The petitioner accordingly filed application along with copy of the order, with the respondent to regularise his service. The application was rejected in view of the decision of the State Government to ban new recruitment in Government service. The petitioner however, continued to work as N.M.R. Employee under the District Rural Development Agency (DRDA) from 19.07.2002 till 30.03.2009.
10 Thereafter, from 01.04.2010, the petitioner is working as WDT Engineer, Integrated Watershed Management Programme, Joint Director of Agriculture, Villupuram and fixed a salary of Rs.5400/- (Rupees Five thousand Four hundred only).
11 The petitioner thereafter, made repeated representation for regularisation of his service. It is pleaded case of the petitioner that in compliance to the order passed by the learned Administrative Tribunal, 20 persons were regularized by relaxing rule qua age vide G.O.Ms.No.452 of 2000. Similarly, one Thiru Balaraman was also given appointment in compliance with the order passed by the learned Tamilnadu Administrative Tribunal in O.A.No.7037 of 2001.
12 The case of the petitioner is, that being a Diploma holder in Agriculture Engineering, is eligible to be appointed to the following posts:
1) Assistant Agricultural Engineering Foreman
2) Assistant Soil Conservation Officer
3) Assistant Driller and
4) Air Compressor Driver.
13 It is the submission of the petitioner that vide G.OMs.No.1829, issued by the Agricultural Department dated 09.12.1998, a direction was issued to prefer the candidates with Diploma in Agricultural Engineering for future appointment to the post of Assistant Soil Conservation Officer.
14 It is pleaded case of the petitioner that the respondents are regularly recruiting Diploma holders in Agricultural Engineering in an arbitrary manner. However, the petitioner has not challenged the appointment of any person appointed in violation of the statutory rules and by denying the right of consideration to eligible persons. These vague allegation deserve to be ignored.
15 The submission of the petitioner is that inspite of the order of the learned Tamil Nadu Administrative Tribunal, dated 20.06.2001, passed in O.A.No.2743 of 2001, the petitioner is being deliberately ignored because of the lethargic attitude of the respondents.
16 The petitioner claims, to have filed a representation, on 25.02.2010, requesting the respondents to appoint the petitioner as Assistant Agriculture Engineering Foreman or any equivalent post available in the Department. This request of the petitioner was again rejected on 11.05.2010, on the ground that post of Assistant Agriculture Engineering Foreman is promotional post, which can only be filled up by promotion from the feeder category and not by direct recruitment.
17 The petitioner challenged the impugned order by filing W.P.No.8316 of 2006, with the prayer for issuance of a writ in the nature of mandamus, to direct the respondents to consider the petitioner for appointment in pursuance to the representation filed by him. This writ petition was dismissed. However, the reason for dismissal of the writ petition was that the petitioner should have challenged the order of rejection, by filing a writ in the nature of Certiorari, and that the writ, as framed was not competent.
18 The petitioner thereafter approached the respondents to pursue his claim for appointment, but he was informed that the petitioner cannot be given appointment in view of the letter No.22427/1 WA 3-04-13, dated 04.02.2008, vide which it was informed that no regular post of Irrigation Community Organizer or Technical Assistant were available.
19 The order dated 04.02.2008 reads as under:
Agriculture (AA3) Department Secretariat, Chennai-9 Letter No.22427/AA3-04-13 dated 04.02.2008 From Thiru Surjit K. Chaudhary, I.A.S Agricultural Production Commissioner and Secretary to Government To The Chief Engineer (Agricultural Engineering) Chennai-35 Sir, Sub: Agricultural Engineering Temporary irrigation Community Organizers (ICOS) Regularization of Services Orders of TAT Consolidated proposals Regarding Ref: 1) Your letter No.EE4/59630/2001 dated 29.08.2001
2) Government letter No.11560/AA3/2001-7 Agriculture dated 15.7.2004
3) Your letter No.HRM2(2)/596301 dated 29.11.04.
4) Government letter No.28572/AA3/2004-3 dated 3.2.05
5) Your letter No.HRM2/59630/2001 dated 12.7.05
6) Government letter No.22427/AA3/04-5 dated 22.3.06
7) Your Letter No.Ma.Pa2/59630/2001 dated 29.08.06
8) Your Letter Ma.Pa2/59630/01 dated 19.09.06
9) Government Letter No.22427/AA3/04-8 dated 29.09.06
10) Your letter No.Mapa2/59630/01 dated 23.10.06, 28.11.06
11) Government Letter No.22427/AA/04-9 dated 22.12.06
12) Your Letter No.Mepa2/59630/01 dated 29.12.06 and 26.3.07.
I am directed to invite your attention to the references cited and to state that you have sent a proposal to give regular appointment to the ICOS who worked temporarily on daily wages during 1989-96 and whose services were terminated consequent on the closure of the scheme mentioned in your proposal.
2. In this connection I am directed to state that the TAT has not given specific direction to give regular appointment and passed orders to consider their claims for regular appointment as per Rules. It is seen that the post of AEs/JEs are within the purview of the TNPSC. As per the Rules, the persons who were engaged as Irrigation Community Organizer on daily wages cannot be appointed as AEs/JEs on regular basis, since the above posts are within the purview of the TNPSC and no regular post of Irrigation Community Organizer of Technical Assistant are available in Agricultural Engineering Department.
3. I am therefore, directed to state that your proposal to give regular appointment to the ICOs who worked temporarily, on daily wages during 1989-96 and whose service were terminated consequent on the closure of the schemes cannot be complied with.
20 The petitioner challenged this letter on the ground, that it is totally illegal and void. It is also submitted that the impugned order is arbitrary and passed in violation of principle of natural justice.
21 The ground raised are totally misconceived. The reading of the letter shows that the Secretary to the Government, rejected the recommendation made by the Chief Engineer, (Agricultural Engineering), on the ground that post of AEs/JEs fall within the purview of the TNPSC. The person who was engaged as Irrigation Community Organizer on daily wages therefore, cannot be appointed on regular basis, it also conveys that no regular post of Irrigation Community Organiser or Technical Assistant are available in the Agricultural Engineering department.
22 The learned counsel for the petitioner contends that the reasons recorded for the rejection of the recommendation are totally arbitrary, and show non application of mind, as the respondent No.1 treated the proposal of regularisation, as promotion to the post of A.Es/J.Es. This contention is again misconceived, the proposal submitted by the Chief Engineer for regular appointment has been rejected by giving good reasons. The claim of the petitioner is otherwise totally misconceived as in absence of any instructions or rules providing for regularisation.
23 It was next contended by the learned counsel for the petitioner that the respondents have committed an error in coming to the conclusion, that there are no regular post of Irrigation Community Organiser or Technical Assistant. This contention again cannot be accepted, for lack of pleadings and documents on record showing availability of regular post in the department. It may further be noticed here that by way of impugned letter, the Secretary to the Government has rejected the recommendation being contrary to rules.
24 It was vehemently contended that vide letter dated 26.03.2007, a proposal was sent for regular appointment of 122 N.M.R. employees in different categories. Out of 122 employees recommended for regular appointment, 61 employees were diploma holders who were not eligible to be appointed as Assistant Engineer. The respondents without scrutinizing or analyzing the eligibility, made the recommendations which has resulted in miscarriage of justice.
25 This contention on the face of it is misconceived, as the petitioner has not challenged the appointment of the employees, nor the persons whose services is said to be wrongly regularised are party to this writ petition. The averments are otherwise vague, as it does not even mentioned, whether the recommendations were accepted or not.
26 It was also contended by the learned counsel for the petitioner, that the impugned order is contrary to the letter dated 04.02.2008, recording that the post of Assistant Agricultural Engineering Forman was promotional post and were required to be filled up from the feeder category and that there is no provision for direct recruitment. This letter is not under challenge in this writ petition, furthermore, service rules have not been placed on record, to show whether Assistant Agricultural Engineering Forman is a promotional post or not. In absence of any material, the contention of the learned counsel for the petitioner cannot be accepted.
27 The final contention of the learned counsel for the petitioner was, that the impugned order is discriminatory, as some of the employees were given appointment, whereas the petitioner is discriminated. The rejection of the claim of the petitioner for regular appointment therefore, is hit Article 14 and 16 of the Constitution of India.
28 For the reason best known to him, the petitioner he has not chosen to implead the persons appointed against rules or to challenge their appointment. Even otherwise, it is now well settled law that a person cannot invoke the provisions of Article 14 and 16 of the Constitution of India to force the respondents to pass an order contrary to service rules.
29 The reading of the affidavit filed in support of the petition shows, that the petitioner has raised all types of contentions without basing them on the rules or regulations. The petitioner is seeking appointment without showing his eligibility, and proposal of the Government to fill up vacancies. It is well settled law that in public appointment, the post has to be filed up in accordance with law, by giving right of consideration to all eligible persons. The right of regularisation can be claimed only under Govt. Instructions and not merely on the ground that the petitioner is working on the department, or that certain posts are available.
30 It is also not disclosed, as to why the impugned letter was not challenged in the previous writ petition, though the previous writ petition was filed after passing of the impugned order by the respondent No.1. The writ therefore also deserves to be dismissed on the principle of constructive resjudicata.
31 For the reasons stated hereinabove, no case is made out warranting interference by this Court, in exercise of equitable writ jurisdiction under Article 226 of the Constitution of India.
32 No merit, dismissed. Connected miscellaneous petition is also dismissed.
No costs.
vaan To
1.The Secretary to the Government Government of Tamil Nadu Agriculture Department Fort St.George, Chennai-600 009
2.The Chief Engineer Agricultural Engineering Department 328, Anna salai, Nandanam Chennai-600 035
3.The Executive Engineer, Agricultural Engineering Department Villupuram District