Madras High Court
V.Dhanraj vs The District Collector on 1 November, 2010
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.11.2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.44890 OF 2006 (O.A.NO.5092 OF 2000) V.Dhanraj .. Petitioner Versus 1.The District Collector Kancheepuram District, Kancheepuram. 2.The Commissioner Panchayat Union Office Maduranthagam, Kancheepuram District. .. Respondents PRAYER: This writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of Original Application in O.A.No.5092 of 2000 from the file of the Tamil Nadu Administrative Tribunal with a prayer to declare the termination of the petitioner from 02.07.2000 without any order as null and void and consequently direct the respondents to repost the petitioner as Night Watchman and regularise the service in the cadre of Night Watchman from 14.07.1995 or at an appropriate date with all attendant benefits. (Prayer amended as per order dated 01.11.2010 in M.P.No.1 of 2010 in W.P.No.44890 of 2006 (O.A.No.5092 of 2000) For Petitioner : Mr.M.Hidyathullah Khan For Respondent-1 : Mrs.Lita Srinivasan Government Advocate For Respondent-2 : Mr.C.Kalaichelvan O R D E R
The petitioner was appointed as Nursery Gardener (N.M.R) in the year 1984 in the second respondent Panchayat Union. He was continuously employed, without any break, on daily wages basis. While so, when the regular Night Watchman Mr.Raghavan died in the year 1995, the petitioner was appointed as Night Watchman, on daily wages basis, in the place of Mr.Raghavan. He continued to work as Night Watchman in the cement godown of the second respondent Panchayat Union from 14.07.1995 onwards. The first respondent issued a circular dated 31.07.1997, directing the Commissioners of all Panchayat Unions to furnish the details of the daily wages employees employed as Night Watchman; whether the posts are sanctioned; whether the Panchayat Unions have the financial capacity to pay to those Night Watchman and also to give reason for creating Night Watchman post. The second respondent gave a reply dated 26.08.1997 stating that the petitioner has been working from 14.07.1995 as Night Watchman, on daily wages basis and that the second respondent has financial capacity to pay salary, if a regular post is created. The second respondent further stated therein that the valuable properties of the Panchayat Union have to be safeguarded and that therefore, the post of Night Watchman is essential.
2.In this regard, the circular dated 31.07.1997 of the first respondent is extracted hereunder:
"ghh;itapy; Fwpg;gpl;Ls;s fojj;jpd; efy; xd;W midj;J Cuhl;rp xd;wpa Mizah;fSf;Fk; mDg;gg;gLfpwJ. mjpy; Cuhl;rp xd;wpa';fspy; ,ut[ fhtyh; gzpapl';fisg; g[[jpjhfj; njhw;Wtpg;gJ bjhlh;ghd Kd;bkhHpt[fis mDg;g[khW nfhug;gl;Ls;sJ. vdnt chpa Kd;bkhHpit muRf;F mDg;g[k; bghUl;L gpd;tUk; tptu';fis 15.8.97f;Fs; khtl;l Ml;rpah; mYtyfj;Jf;F mDg;gp itf;FkhW midj;J Cuhl;rp xd;wpa Mizah;fSk; nfl;Lf;bfhs;sg;gLfpwhh;fs;.
1.Cuhl;;rp xd;wpaj;jpd; bgah;
2.Cuhl;;rp xd;wpaj;jpy; fhyr; rk;gs Vw;w Kiwapy; ,ut[f;fhtyh; gzpaplj;jpw;F mDkjp cs;sjh ? (Fwpg;g[. rpy;yiw brytpdj; jiyg;gpy; gj;J tUlg;gzp Koj;j ,ut[f; fhtyhpd; gzp tud;Kiw bra;ag;gl;L mtUf;F fhyr;rk;gs Vw;w Kiwapy; Cjpak; tH';fg;gl;L te;jJ vdpd; mij fhyr; rk;gs Vw;w Kiw gzpaplj;jpw;fhd mDkjpahf fUjf;TlhJ)
3.jpdf;Typ my;yJ bjhFg;g[ Cjpaj;jpy; vtnuDk; ,ut[f;fhtyuhfg; gzpg[hpfpd;whuh ?
4.fhyr;rk;gs Vw;w Kiwapy; ,ut[ fhtyh; gzpaplk; Vw;gLj;jg;gl;lhy; mjdhy; Mz;blhd;Wf;F Vw;gLk; TLjy; bryt[ vt;tst[?
5.nkw;go TLjy; bryit Vw;wpf;bfhs;s Cuhl;rp xd;wpaj;jpw;F epjp trjp cs;sjh?
6.,ut[f; fhtyh; gzpaplk; njhw;Wtpf;fg;gl ntz;oajd; mtrpak.;"
The relevant passage from the reply dated 26.08.1997 of the second respondent is extracted hereunder:
"3.jpdf;Typ my;yJ bjhFg;g[ Cjpaj;jpy; vtnuDk; ,ut[f;fhtyuhfg; gzpg[hpfpd;whuh ? - Mk; jpU. jd;uh$; vd;gth; jpdf;Typ mog;gilapy; 14.7.95 K.g. Kjy; gzpg[hpe;J tUfpwhh;.
.....
5.nkw;go TLjy; bryit Vw;wpf;bfhs;s Cuhl;rp xd;wpaj;jpw;F epjp trjp cs;sjh? - epjp trjp cs;sJ
6.,ut[f; fhtyh; gzpaplk; njhw;Wtpf;fg;gl ntz;oajd; mtrpak; - jsthl';fs; kw;Wk; mYtyf jsthl';fs; kw;Wk; mYtyf bgl;lfj;jpy; itf;fg;gLk; gzk; Mfpait ghJfhf;f ntz;oa[s;sJ."
3.Thereafter, when the Government issued order in G.O.Ms.No.93, Rural Development Department, dated 26.03.1997 directing the Local Bodies not to employ any employees on daily wages basis, from the date of the said G.O., the second respondent wrote a letter dated 17.11.1997 to the first respondent seeking certain clarification. In the said letter, the second respondent stated that the petitioner was appointed as Night Watchman, pursuant to the resolution passed by the second respondent Panchayat Union. It is also stated that two Office Assistant posts are vacant and the Divisional Development Officer has also approved the appointment of the petitioner as Night Watchman. The second respondent further pointed out that G.O.Ms.No.93 did not direct the Local Bodies to terminate the already serving daily wages employees and it was only directing the Local Bodies not to appoint employees, on daily wages basis from 26.03.1997 onwards. While so, the petitioner was abruptly denied work from 02.07.2000, without assigning any reason.
4.Hence, the petitioner filed Original Application in O.A.No.5092 of 2000 (W.P.No.44890 of 2006) to declare his termination as null and void and for a consequential direction to repost him as Night Watchman and to regularise his services with effect from 14.07.1995 with all monetary benefits.
5.Heard the submissions made on either side and perused the materials available on record. The respondents filed reply affidavit.
6.The aforesaid facts make it clear that the petitioner worked for 16 years continuously. The second respondent wrote a letter dated 26.08.1997 to the first respondent that the Night Watchman post was essential and the same was required to secure the valuable properties of the second respondent Panchayat Union. The letter also disclosed that the second respondent had a financial capacity to bear the cost towards salary payable to the post. The second respondent wanted sanction of the post of Night Watchman.
7.In the another letter dated 17.11.1997, the second respondent stated that the petitioner was working from 1984 onwards without any break and that there was two vacancies for the post of Office Assistant. It is further stated therein that the Panchayat Union passed a resolution to appoint the petitioner as Night Watchman and the Divisional Development Officer has also approved his appointment. All the aforesaid facts would make it clear that the second respondent could not terminate the services of the petitioner arbitrarily.
8.The respondents filed reply affidavit stating that the second respondent could not regularise the services of the petitioner, as he has no power to do the same. In fact, it is admitted in the reply affidavit that the petitioner was employed from 14.07.1995 as Night Watchman, in the place of one Mr.Raghavan, as he died on 14.05.1995. There is not even a word in the reply affidavit about the denial of work arbitrarily from 02.07.2000 by the second respondent.
9.The aforesaid facts make it very clear that once the respondents have recommended for regularisation of the services of the petitioner, the second respondent is not justified in simply denying work from 02.07.2000. When the petitioner had rendered 16 years of service, without interruption as stated by the second respondent himself, the action of the second respondent in denying work from 02.07.2000 is highly arbitrary and violative of Articles 14 and 21 of the Constitution of India.
10.As rightly contended by the learned counsel for the petitioner, the petitioner is also entitled to regularisation as per G.O.Ms.No.125, Municipal Administration and Water Supply Department, dated 27.05.1999. As per this G.O. the daily wages employees who are in service as on 01.10.1996, are to be regularised. In any event, as stated above, the second respondent wrote a letter dated 26.08.1997 stating that the post of Night Watchman was required for the second respondent to safeguard the valuable properties of their Panchayat Union and that the second respondent had financial capacity to bear the cost of salary payable to the post of Night Watchman, the petitioner is entitled to regularisation.
11.In these circumstances, it is declared that the termination of the services of the petitioner from 02.07.2000 is illegal and a direction is issued to the respondents to reinstate the petitioner in service as per G.O.Ms.No.125, Municipal Administration and Water Supply Department, dated 27.05.1999, within a period of eight weeks from the date of receipt of a copy of this order. However, it is made clear that the petitioner is not entitled to any backwages. The writ petition is disposed of accordingly. No costs.
01.11.2010 Index : Yes Internet : Yes TK To
1.The District Collector Kancheepuram District, Kancheepuram.
2.The Commissioner Panchayat Union Office Maduranthagam, Kancheepuram District.
D.HARIPARANTHAMAN, J.
TK W.P.NO.44890 OF 2006 (O.A.NO.5092 OF 2000) 01.11.2010