Madras High Court
K.Gnanasundaram vs The State Of Tamil Nadu on 3 December, 2014
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS CAV ON 09/04/2014 DATED: 03/12/2014 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN W.P.No.15949 of 2008 & M.P.No.2 of 2008 K.Gnanasundaram ... Petitioner vs. 1.The State of Tamil Nadu, rep.by the Secretary to Government, Environment & Forest Department, Secretariat, Chennai-9. 2.The Principal Chief Conservator of Forests, 15, Jeenis Road, Panagal Building, Saidapet, Chennai-15. 3.The Conservator of Forests, Chennai Circle, Chennai-600 006. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus to call for the records on the file of the respondents 3 and 2 in connection with the orders passed by them in their proceedings in Na.Ka.No.5001/2007 Pa3, dated 07.06.2007 and Ref.No.AB3/60385/2007, dated 03.01.2008 respectively and to quash the same and to direct the respondents to consider the case of the petitioner for regularization in the light of G.O.Ms.No.64, Environment & Forests (Va.2), dated 08.03.1999. For Petitioner : Mr.R.Singaravelan For Respondents : Mr.Hidayathullah Khan, G.A. * * * * * O R D E R
The prayer in the writ petition is for issuance of a writ of certiorarified mandamus to quash order dated 03.01.2008 passed by the second respondent and to quash the order dated 07.06.2007, passed by the third respondent respectively and to direct the respondents to consider the case of the petitioner for regularization in the light of G.O.Ms.No.64, Environment & Forests (Va.2), dated 08.03.1999.
2. The short facts of the case are as follows:
The petitioner submits that he was selected for appointment to the post of Plot Watcher on merits and he was in service from 01.05.1982 to 31.03.2003. As he became seriously ill, he was unable to attend the duty from 01.04.2003 to 31.12.2006 and from 01.01.2007 onwards again he is in service. As per G.O.Ms.No.64, Environment & Forests (Va.2) Department, dated 08.03.1999 and the consequential order of the rule to that effect, he should have been considered for regularization as Forest Watcher along with others. As per the said Government Order, his name should have been included in the State Seniority List and on the basis of the seniority, he should have been regularized. The persons appointed after him were regularized on the basis of the above Government Order and the rules and it is not known as to why he was not considered for such regularization at all. Already, The Tamil Nadu Administrative Tribunal, by order dated 22.11.2002, in a batch of cases, has upheld the validity of the said Government Order and hence he is entitled to the benefit of the said Government Order also as it has been passed for all. However, the third respondent gave a reply that his case could not be considered because of his absence from 2003. But, that was not absence but it was a medical leave and hence that cannot be a bar for consideration.
3. Further, the petitioner submits that he filed a writ petition in W.P.No.27614 of 2007 before this Court to quash the order dated 07.06.2007 passed by the third respondent and to direct the first respondent to consider his case for regularization in the light of G.O.Ms.No.64, dated 08.03.1999 and the order dated 22.11.2002, passed by the Tamil Nadu Administrative Tribunal in a batch of cases and this Court, by order dated 21.08.2007, directed the second respondent to consider his appeal dated 08.08.2007 on merits and in accordance with law within a period of four weeks from the date of receipt of a copy of the order. The second respondent, based on the order passed by this Court, passed an order, dated 03.01.2008, rejecting his request on the ground that he has not worked from 01.04.2004 and hence his name could not be included in the State Seniority List for regularization.
4. The petitioner further submits that he was on medical leave from 01.04.2004 onwards and there was no order dismissing him from service on the ground of long absence under Fundamental Rule 18(3). Since there is no order terminating his service, he must be deemed to have been in service and hence the benefit of the said G.O.Ms.No.64, dated 08.03.1999, G.O.Ms.No.90, dated 27.04.2002 and rules passed by the Government of Tamil Nadu could not be denied to him. As the benefits conferred on all the similarly situated candidates are denied to him, unjustifiably the order of the second respondent is liable to be set aside as unconstitutional and ultra vires being violative of Articles 14, 16, 21 and 300A of the Constitution of India. Therefore, he has filed this writ petition seeking the relief as stated above.
5. The second respondent filed his counter affidavit stating that the petitioner was engaged as a Nursery Watcher and Plot Watcher in various ranges of Thiruvallur Forest Division from 01.05.1982 to 31.03.2003 with a break period of nine months from 01.11.1984 to 31.07.1985 and five months from March 2002 to July 2002. Again he had worked as Plot Watcher from 01.09.2003 to 31.03.2004 in 1997 Moolamadhur Consolidation Plot of TAP Range II, Thiruvallur and he was paid Rs.817/- as monthly wages as per entries made in the cash book of TAP Range III. The petitioner had not worked as Plot Watcher during the period from 01.04.2003 to 31.08.2003 and from 01.04.2004 to till date. As per G.O.Ms.No.64, Environment and Forests (FR.II) Department, dated 08.03.1999, State wide seniority list of Plot Watchers/Village Societal Forestry Workers, who were continuously working are to be prepared and they are to be appointed as Forest Watcher/Mail in existing and future vacancies in the Department. Further, the Government vide G.O.Ms.No.90, Environment and Forests (FR2) Department, dated 27.04.2002, issued amendment to the Special Rules for the Tamil Nadu Forest Subordinate Service cancelling the minimum general education qualification for the purpose of regular absorption of Village Social Forestry Worker and Plot Watchers. Since the petitioner has not worked as Plot Watcher continuously from the date of joining on 01.05.1982 his name was not included in the State wide Seniority List Plot Watchers/Village Social Forestry Workers prepared by the second respondent. The third respondent, vide letter dated 07.06.2007, informed the said reason to the petitioner for not recommending his name for inclusion in the State wide seniority list. On receipt of the same, the petitioner preferred an appeal, dated 08.08.2007, to the first respondent requesting to appoint him as Forest Watcher in regular post based on G.O.Ms.No.64, dated 08.03.1999 and order, dated 22.11.2002, passed by the Tamil Nadu Administrative Tribunal. In the meanwhile, the petitioner approached this Court by filing a writ petition in W.P.No.27614 of 1997 to quash the order, dated 07.06.2007 passed by the third respondent and to direct the first respondent to consider his case for regularization of his service. This Court, by order dated 21.08.2007, directed the second respondent to consider his appeal on merits and in accordance with law.
6. Further, the second respondent submits that in compliance of the order passed by this Court, he examined the matter in detail with all connected records and Government orders in existence and informed the petitioner vide reference, dated 03.01.2008 that since he has not worked continuously as Plot Watcher, he is not entitled for inclusion of his name in the State wide Seniority List of Plot Watchers/Village Social Forestry Workers and also for regular appointment and hence the request of the petitioner for appointment as Forest Watcher cannot be complied with. Aggrieved by the said order, the petitioner has filed this writ petition. The petitioner was engaged as Nursery Watcher to protect the nursery orally by the Forest Ranger, Social Forestry Range, Tiruthani, with effect from 01.05.1982. He was not selected for appointment as Plot Watcher through Employment Exchange on merits. He worked as Nursery Watcher and Plot Watcher in various Ranges of Tiruvallur Forest Division to protect the nurseries and plantations raised by the Forest Department from 01.05.1982 to 31.03.2003 with a break period of nine months from 01.11.1984 to 31.07.1985 and five months from March 2002 to July 2002 and again he had worked as Plot Watcher from 01.09.2003 to 31.03.2004 and he has not worked as Plot Watcher during the period from 01.04.2003 to 31.08.2003 and from 01.04.2004 to till date. Therefore, the contention of the petitioner is not true.
7. The second respondent further submits that as per G.O.Ms.No.64, Environment and Forests (FR.II) Department dated 08.03.1999, State Wide Seniority List of Plot Watchers/Village Social Forestry Workers, who were continuously working are to be prepared and they are to be appointed as Forest Watcher/Mail in the existing or future Vacancies in the Department. Accordingly, State Wide Seniority List of Plot Watchers/Village Social Forestry Workers, who were continuously working without break was prepared by the second respondent and they are selected for appointment as Forest Watcher in the order of seniority. Since the petitioner has not worked as Plot Watcher continuously from the date of joining on 01.05.1982, his name is not entitled for inclusion in the State Wide Seniority list of Plot Watchers/Village Social Forestry Workers and also for regular appointment as Forest Watcher. His absence from 01.04.2004 cannot be treated as medical leave as per rules in force as the post of Plot Watchers/Village Social Forestry Workers are not governed in any service rules as applicable to other Government Servants. Further, Fundamental Rules are also not applicable to the petitioner. Hence, there is no necessity to issue order dismissing the petitioner from service and he cannot be deemed to have been in service. Since the petitioner has not worked continuously as Plot Watcher, he is not entitled to get the benefit of G.O.Ms.No.64, dated 08.03.1999 and G.O.Ms.No.90, dated 27.04.2002 as these two Government Orders are applicable only to the Plot Watchers, who are continuously working and whose names have been included in the State Wide Seniority List of Plot Watchers/Village Social Forestry Workers. Therefore, he prays to dismiss the writ petition filed by the petitioner.
8. The highly competent counsel Mr.R.Singaravelan appearing for the petitioner submits that the petitioner had been selected for appointment to the post of Plot Watcher on merits. He had rendered services for about 21 years without any break. Due to his illness, he had not attended duty from 01.04.2003 to 31.12.2006. the same was proved through medical certificates which had been issued by the practicing doctor. Further, as per the Government Order in G.O.Ms.No.64, Environment & Forests (Va.2), dated 08.03.1999, the petitioner has been considered for regularization as Forest Watcher, along with co-employees who were regularized. But, the petitioner's name has not been included for regularization. Hence, the highly competent counsel entreats the Court to allow the above writ petition.
9. The highly competent Government Advocate Mr.Hidayathullah Khan appearing for the respondents submits that the petitioner was engaged as Nursery Watcher from 01.05.1982 to 31.03.2003 with a break period of nine months. As per G.O.Ms.No.64, Environment & Forests (Va.2), dated 08.03.1999, statewide seniority list of plot watchers, who had worked continuously are to be appointed as Forest Watchers. In the instant case, the petitioner was unauthorizedly absent for a long time. The impugned order has been passed after well considering the merits of the case as per this Court's earlier order passed in a writ petition. Therefore, the above writ petition is not maintainable.
10. On considering the facts and circumstances of the case and arguments advanced by the highly competent counsels on either side and on perusing the impugned order of the respondents, this Court is of the view that the second respondent had not discussed the period of absence of the petitioner i.e., from 01.04.2003 to 31.12.2006 to show whether during that period, he was medically unfit. Further, the respondents had not produced a copy of the appointment order to prove whether he was initially appointed as Nursery Watcher or Plot Watcher / Village Social Forest Worker. Therefore, this Court directs the second respondent to once again conduct a comprehensive enquriy in the presence of the petitioner on the basis of service records pertaining to the petitioner after prior notice to the petitioner and give findings on that issue within a period of three months from the date of receipt of a copy of this order.
11. With the above direction, the writ petition is disposed of. There is no order as to costs. Consequently, connected miscellaneous petition is closed.
03/12/2014
Index : Yes.
Internet : Yes.
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To:
1. The the Secretary to Government,
Government of Tamil Nadu,
Environment & Forest Department,
Secretariat, Chennai-9.
2.The Principal Chief Conservator
of Forests,
15, Jeenis Road, Panagal Building,
Saidapet, Chennai-15.
3.The Conservator of Forests,
Chennai Circle,
Chennai-600 006.
C.S.KARNAN, J.
r n s
Pre-Delivery Order in
W.P.No.15949 of 2008 &
M.P.No.2 of 2008
03/12/2014