Madras High Court
M.Amjath Basha vs State Of Tamil Nadu on 22 December, 2015
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 06.11.2015 Decided on : 22.12.2015 CORAM The Hon'ble Mr.Justice K.KALYANASUNDARAM W.P.No.4141 of 2015 M.Amjath Basha ... Petitioner Vs 1.State of Tamil Nadu Rep.by its Secretary, Rural Development & Panchayat Raj Department, Fort St. George, Chennai 600 009. 2.The Director of Rural Development Panagal Buildings, Saidapet, Chennai 600 015. 3.The District Collector, Villupuram District, Villupuram. 4.The District Employment Exchange, Villupuram. ... Respondents (Impleaded as 4th respondent as per order of this court dated 22.12.2015) Prayer : Writ Petitions filed under Article 226 of the Constitution of India for issue of writ of mandamus directing the respondents to extend first priority to the petitioner while recruiting fresh candidates for the post of overseer or any other equivalent post in existing and future vacancies. For Petitioner : Dr.R.Sampathkumar For Respondents : Mr.S.Gunasekaran, Govt. Advocate for R1 to R3 Mr.R.Ravichandran for R4 O R D E R
The writ petition is filed for issuance of a writ of mandamus directing the respondents to extend first priority to the petitioner while recruiting fresh candidates for the post of Overseer or any other equivalent posts in the existing and future vacancies.
2. According to the petitioner, he obtained diploma in Civil Engineering and thereafter undergone one year apprenticeship training in Civil Engineering at State Public Works Department at Tiruvallur. He registered the said qualification in the District Employment Exchange, Villupuram on 13.05.2002. During the year 2013, the Government of Tamilnadu launched a special scheme for Thane cyclone affected areas in the name of Thane Housing Scheme for the benefit of people affected by Thane Storm in the rural areas and earmarked Rs.1000 Crores to replace damaged houses in the Thane cyclone affected Districts of Cuddalore and Villupuram. Under the said scheme, houses were constructed to the people who lost there houses. In order to implement the scheme, the Government sought for eligible candidates from the employment exchange who have possessed diploma in Civil Engineering including technical assistants. The Government conducted written tests to identify best among the eligible candidates and the candidates who successfully completed the written tests were appointed as technical assistants for construction of houses in the Cyclone affected areas in Villupuram and Cuddalore Districts.
3. The petitioner would contend that he was one among the selected candidates for the post of technical assistant on consolidated pay of Rs.12,000/- per month and an appointment order was issued in the month of January 2013 and he joined the services on 25.10.2013. Thereafter, the petitioner's seniority in the employment exchange has been closed. While so, the petitioner was relieved from the services on 07.11.2014 without any notice. It is the case of the petitioner that the termination without giving opportunity to the petitioner is illegal and arbitrary and therefore he sent representation to the respondent on 12.01.2015.
4. It is the specific case of the petitioner that there are 385 vacancies available in the post of overseer out of which 25 vacancies are available in Villpuram District. The Government is also taking steps to fill up the posts by calling candidates from employment exchange. Though the petitioner has already been selected for the post of technical assistant after selection in the written examination, which is equivalent to the post of overseer, his claim was not considered by the respondents. Hence, the present writ petition.
5. In the counter affidavit, it is stated that the Government in G.O.Ms.No.79 Rural Development and Panchayat Raj (SGS-II) Department dated 27.08.2012 had sanctioned a special scheme for construction of one lakh houses to Thane affected Cuddalore and Villpuram Districts and the Commission of Rural Development and Panchayat Raj sent a proposal to the Government to create a separate staff pattern so as to effectively implement the scheme and ensure early completion of the works. G.O.Ms.No.105 Rural Development and Panchayat Raj (SGS.II) Department dated 09.11.2012 was issued for appointment to the post of technical assistants through employment exchange on consolidated pay for a period of one year from the date of order and these posts would be disbanded automatically and by G.O.(2D) No.1 Rural Development and Panchayat Raj (E5) Dept. dated 06.01.2014, the period was extended till 07.11.2014.
6. It is further stated that totally 18 technical assistants were appointed in nine blocks in Villpuram District who were deputed from employment seniority-cum-roaster. The written test was conducted by the District Administration to select eligible candidates and to avoid malpractice in the selection process. The requisition of the petitioner for appointment to the post of overseer cannot be ensured as the appointment of overseer is governed by Special Rules and employment seniority would be followed for each posts. The construction work of houses for Thane affected people has been completed in Villpuram District and so the respondent terminated the petitioner from services and therefore there is no illegality in termination and prayed for dismissal of the writ petition.
7. Heard the learned counsels appearing for the petitioner and the learned counsel appearing for the respondents and perused the records.
8. Considering the prayer sought for in the writ petition, this Court, suo moto impleaded the District Employment Exchange, Villupuram as the fourth respondent.
9. It is not in dispute that the petitioner had obtained diploma in Civil Engineering and had registered his name and qualification in the employment exchange. The name of the petitioner was sponsored by the Employment Exchange pursuant to G.O.Ms.No.65 Rural Development and Panchayat Raj (SGS II) Department dated 03.07.2013 issued by the 1st respondent. Even in the counter, the respondent has not disputed the qualification of the petitioner and his appointment to the post of technical assistant. The stand taken by the respondent is that the petitioner was appointed on consolidated payment for a period of one year only for implementation of Thane Housing Scheme and he was terminated after completion of the work. It is not their case that the petitioner was removed from service for the proved misconduct.
10. In a judgment of this Court reported in CDJ 2009 MHC 2559 [T.Selvam & Others v. State of Tamil Nadu], a batch of writ petitions were filed by the diploma holders in Civil Engineering questioning G.O.Ms.No.96, Rural Development and Panchayat Raj dated 06.06.2008 contending that they were already employed as Technical Assistants under the National Rural Employment Guarantee Scheme (NREGS) on consolidated pay through outsourcing agencies and therefore they should be recruited for the post of Overseers and they cannot be discriminated from the persons who were recruited as Technical Assistants through Employment Exchange, since they were absorbed by issuing G.O.Ms.No.153 R.D. & P.R. Dept., dated 20.10.2006.
11. This Court, while holding that the persons appointed through outsourcing agencies cannot be treated on par with the Technical Assistants appointed through Employment Exchange, observed that they should be considered while making future recruitments. The learned Single Judge, following the judgment of the Division Bench of this Court in W.A Nos.776 and 777 of 2008 dated 06.08.2008, has held as follows -
18. In such view of the matter, both the writ petitions are dismissed and it is held that G.O.Ms.No.96, Rural Development and Panchayat Raj (E3) Department dated 6.6.2008 is valid, however, it is made clear that while making future recruitment to the posts of Overseers from the Cuddalore and Villupuram Districts including Thiruvannamalai and Dindigul Districts as directed by the Division Bench, those writ petitioners who continue to remain on the rolls of Employment Exchange, should be given opportunity to participate in the process of recruitment for the posts of Overseers created in G.O.Ms.No.51. While considering the same, the case of such petitioners shall not be rejected on the ground of age limit, if their names still remain on the rolls of Employment Exchange and by giving age relaxation they may be permitted to participate in the selection process which may include written test, seniority in the Employment Exchange, etc.
19. It is also made clear that if the petitioners are found equal with other persons, the experience gained by the petitioners in W.P.No.15250 of 2008 as Technical Assistants from December, 2006 has to be given weightage. The recruitment process in respect of said Districts viz., Cuddalore and Villupuram shall be completed as stated above within a period of six weeks from the date of this order. As observed by the Division Bench, the experience gained by those petitioners who were appointed through Outsourcing Agencies as Technical Assistants is directed to be considered by virtue of clause 4(3) of G.O.Ms.No.96, Rural Development and Panchayat Raj (E3) Department dated 6.6.2008.
12. It is to be noted that, in the case on hand, the petitioner has completed diploma in Civil Engineering during April 1998 and thereafter he has undergone one year apprenticeship training in Civil Engineering at State Public Works Department at Tiruvallur. The petitioner was appointed in the year 2013 through Employment Exchange and terminated from the services in the year 2014. After the appointment, his name was removed from the roll of the employment exchange.
13. In view of the above undisputed facts, the prayer of the petitioner that he should be given first priority while recruiting the fresh candidates for the post of overseer or other equivalent posts cannot be considered in view of the stand taken by the respondent that appointment of overseer is governed by special rules. However, this court is of the considered opinion that the petitioner should be given opportunity in the existing as well as in future vacancies, if he is otherwise qualified. Appointment to the petitioner cannot be denied merely because his name is transferred from live order register to dead order register.
14. In view of my above finding, the writ petition is allowed on the following terms (a) the fourth respondent viz. District Employment exchange, Villupuram is directed to restore the seniority of the petitioner and (b) the respondents are directed to consider the name of the petitioner for appointment in existing and future vacancies by giving necessary age relaxation, if he is otherwise qualified. No costs.
22.12.2015
rgr (6/12)
Index : Yes
K.KALYANASUNDARAM, J.
rgr
To
1.The Secretary,
State of Tamil Nadu
Rural Development & Panchayat
Raj Department, Fort St. George,
Chennai 600 009.
2.The Director of Rural Development
Panagal Buildings,
Saidapet, Chennai 600 015.
3.The District Collector,
Villupuram District,
Villupuram.
4.The District Employment Exchange,
Villupuram.
Pre-delivery Order in
W.P.No.4141 of 2015
22.12.2015
(6/12)