Madras High Court
S.Ganesh vs The Commissioner Of Town Panchayats on 18 February, 2011
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/02/2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL W.P(MD)No.9252 of 2008 and M.P(MD)Nos.1 and 2 of 2008 S.Ganesh ... Petitioner Vs. 1.The Commissioner of Town Panchayats, O/o.Commissioner of Town Panchayats, Kuralagam, Chennai - 108. 2.The District Collector, Dindigul District, Dindigul. 3.The Assistant Director of Town Panchayats, Collectorate, Dindigul. 4.Sahaya Antony Eugene, Assistant, Town Panchayat Office, Nilakkottai. ... Respondents Prayer Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus to call for the records relating to the proceedings in Na.Ka.No.2951/2008/Peru.2 dated 14.08.2008 issued by the 2nd respondent and quash the same on the basis of the petitioner's representation dated 22.08.2008 to the first respondent and consequently, direct the second respondent to restore the petitioner's original seniority above the fourth respondent and appoint him as Assistant in any one of the Town Panchayat. !For Petitioner : Mr.K.Mahendran For Respondent : Mr.D.Sasikumar, Govt. Advocate for R1 to R3 Mr.S.Vijaya Shanthi for R4. * * * * * :ORDER
The petitioner has filed the present writ petition seeking the relief of Writ of Certiorarified Mandamus to call for the records relating to the proceedings in Na.Ka.No.2951/2008/Peru.2 dated 14.08.2008 issued by the 2nd respondent and quash the same on the basis of the petitioner's representation dated 22.08.2008 to the first respondent and consequently, direct the second respondent to restore the petitioner's original seniority above the fourth respondent and appoint him as Assistant in any one of the Town Panchayat.
2. The petitioner has been appointed as a Bill Collector through Tamil Nadu Public Service Commission Group IV service on 02.12.1994 in the Ayyampalayam Town Panchayat, Dindigul. He has been transferred to Nilakkotai Town Panchayat as Bill Collector on 11.05.1998. On 18.11.1999, he has been transferred to the Office of the third respondent/the Assistant Director of Town Panchayat, Dindigul, as Junior Assistant. As a matter of fact, both the posts of Bill Collector and Junior Assistant are interchangeable. On 08.12.2000, he has been transferred to Chinnalapatti Town Panchayat and on 09.06.2003, he has been transferred to Oddanchatram Town Panchayat. On 09.05.2007, he has been transferred to Nilakottai Town Panchayat as Junior Assistant.
3. In the seniority list issued by the second respondent/District Collector, Dindigul District dated 28.10.2004, the petitioner's name finds a place in Sl.No.30. As per the seniority list upto Sl.No.29, all the Junior Assistants or Bills Collectors have been promoted either as Executive Officer Grade II or Assistant. As such, from serial No.30, the persons are waiting for the due promotions.
4. Whenever vacancies arise that in the cadre of Executive Officer Grade II or the Assistant, the third respondent/Assistant Director of Town Panchayats, Dindigul, is prepared a panel for promotion list from the existing seniority list and sent it for approval to the first respondent/Commissioner of Town Panchayats, Kuralagam, Chennai - 108. After approval of the same, the second respondent/District Collector promoted the individuals who are waiting in the list for promotion. In view of the vacancy that has arisen in the cadre of Executive Officer Grade II and as per the above seniority, the petitioner has been asked to give his consent letter for promotion to Executive Officer Grade II. Since there is no other vacancy in the cadre of the Executive Officer Grade II, the petitioner's junior namely the fourth respondent has been asked to give consent for promoting her as Junior Assistant. The fourth respondent has given the consent letter for promoting her as Junior Assistant. The second respondent/District Collector, Dindigul, promoted the petitioner as the Executive Officer Grade II and posted him at Eriyodu Town Panyachat on 11.02.2008. The petitioner's Junior namely the fourth respondent has been promoted as Assistant and transferred and posted at Nilakkottai Town Panchayat. The post of Executive Officer Grade II and the post of Assistant are equal cadres.
5. The petitioner has been promoted subject to any person being posted as Executive Officer Grade II from the Combined Subordinate Service Examination conducted by the Tamil Nadu Public Service Commission, the junior most Executive Officer Grade II will be reverted back to his original position. Likewise, in the fourth respondent's promotion order also, it has been mentioned that the promotion shall be subject to reversion. The petitioner after getting his promotion worked as Executive Officer Grade II, Eriyodu Town Panchayat from 11.02.2008. However, the second respondent in his proceedings in Na.Ka.No.2951/2008/Peru.2 dated 14.08.2008, reverted the petitioner to the post of Junior Assistant and posted him at Batlagundu Town Panchayat because of the fact that one M.Vijayanath has been appointed through the Tamil Nadu Public Service Commission as Executive Officer Grade II allotted for Dindigul District.
6. The stand of the petitioner is that the second respondent without reverting back the fourth respondent passed the impugned order dated 14.08.2008 reverting the petitioner alone and directed him to join as Junior Assistant. Further, if the petitioner has joined in the cadre of Junior Assistant, he has to serve as a junior to the fourth respondent who is junior in the seniority list issued on 28.10.2004 and therefore, his future promotion will be affected. Also, he has given a representation to the first respondent dated 22.08.2008 requesting to appoint him in the post of Head Clerk or Exeuctive Officer Grade II, but till date, it has not been considered.
7. The learned Government Advocate for the respondents 1 to 3 submits that the petitioner has submitted a letter of consent dated 12.12.2007 agreeing to the terms and conditions as per Section 39(A)(1) of the Tamil Nadu Town Panchayat Subordinate Service Rules and that the first respondent by his proceedings dated 07.01.2008, passed an order of promotion with certain terms and conditions and that the second respondent/District Collector, Dindigul, based on the terms and conditions appointed the petitioner as Executive Officer Grade II temporarily and as such, the petitioner cannot claim any right and as per the conditions, he can be reverted back without any notice by the respondents by adhering to the Tamil Nadu Town Panchayat Subordinate Service Rules and also that he cannot claim any promotion based on the appointment.
8. The learned Government Advocate for the respondents 1 to 3 contends that the petitioner has been promoted subject to the condition that any individual posted as Executive Officer Grade II from the Combined Subordinate Services Examination conducted by the Tamil Nadu Public Service Commission, the junior most Executive Officer Grade II will be reverted back to his original position.
9. Moreover, the fourth respondent has been appointed as Assistant on promotion only on 04.07.2008 from serial No.31 in the Seniority List. Admittedly, the petitioner has already been promoted as 30th person in the seniority list to the post of Executive Officer Grade II which comes within the purview of of Tamil Nadu Town Panchayat Subordinate Service Rules whereas the services of the Assistant comes under the Tamil Nadu Ministerial Service Rules. Therefore, the services of the Executive Officer Grade II and Assistant are different from each other as per the said Service Rules.
10. In short, the learned Government Advocate for the respondents 1 to 3 takes a plea that the petitioner has no right to be appointed as Assistant reverting the fourth respondent to the post of Junior Assistant.
11. The fourth respondent in the counter, has stated that she has been appointed as Junior Assistant in the Town Panchayat at Ottanchatram on 20.02.1995 on compassionate grounds and that she is qualified upto Plus 2 level. Also, she has been transferred to Chinnallapatti Town Panchayat on 08.06.1998. Later, she has been transferred to Sriramarpuram Town Panchayat on 08.08.2002. On 25.02.2008, she has been transferred to Vattalagundu Town Panchayat. Her service has been regularised as per G.O.Ms.No.111 dated 21.03.2002.
12. The fourth respondent, as per the seniority list, has been promoted as Assistant from the post of Junior Assistant. The writ petitioner has given his consent for promoting him as an Executive Officer Grade II. As per his option, he has been promoted as Executive Officer Grade II by knowing the condition that any person posted as Executive Officer Grade II from the Combined Subordinate Services Examination conducted by the Tamil Nadu Public Service Commission, the junior most Executive Officer Grade II will be reverted back to his original post. Since the writ petitioner has already been promoted as 30th person in the seniority list to the post of Executive Officer Grade II, the fourth respondent has been promoted as Assistant only on 04.07.2008 from the seniority list serial No.31. The petitioner has no right to seek reversion of the fourth respondent as per Rules.
13. The petitioner as per the proceedings of the District Collector, in Na.Ka.No.4569/2007/Peru.2 dated 06.02.2008, has been promoted as Executive Officer Grade II temporarily subject to the conditions stipulated therein. As per Rule 39(A)(1) of the Tamil Nadu Town Panchayat Subordinate Service Rules. Even in the proceedings of the second respondent dated 06.02.2008, it is clearly mentioned that the promotion of the petitioner from the post of Junior Assistant to the Executive Officer Grade II, is purely a temporary one and he cannot claim any right and also that without any notice or assigning any reason, he can be reverted at any point of time and also because of the temporary promotion, he is not entitled to claim any seniority on the basis of the temporary promotion and also, it has been mentioned in the proceedings of the second respondent dated 06.02.2008 that as per ratio, if the post of Executive Officer Grade II is filled up through the Tamil Nadu Public Service Commission, then the junior most Executive Officer Grade II will be reverted back to his original post. Therefore, it is quite clear that the promotion of the petitioner as per proceedings of the second respondent dated 06.02.2008 to the post of the Executive Officer Grade II is purely temporary one in and by which the petitioner cannot claim any service right by this promotion.
14. The adhoc appointment is made without reference to the recruitment rules and by way of stop gap arrangements for a brief period, by which time a regular appointment is expected to take place. Admittedly, the adhoc appointments are precarious in nature. Indeed, the adhoc or local promotion does not confer any vested right as per the decision of the Honourable Supreme Court in Inderpal Yadav v. Union of India reported in (2006) Supreme Court Cases (Labour and Service) 119.
15. The appointment on adhoc basis can, therefore, be made only in exceptional circumstances to meet exigencies of public service. Such appointments are valid only for a limited period and such appointee is bound to be replaced by a regular employee.
16. It is useful for this Court to refer to the Rule 4 of the Tamil Nadu Town Panchayat Subordinate Service Special Rules which runs as follows:
Posts Methods of Appointment Qualification Executive Officer Gr.II Direct Recruitment
a)A degree
b)Must not have completed or will not complete the age of 30 years on the 1st day of July of the year in which selection for appointment to the post is made.
Recruitment by transfer
a)Must have served as Junior Assistant or Revenue Inspector or Typist or Steno-
Typist in the Directorate of Town Panchayat Offices for the period of not less than 2 years.
b) Must have passed the Departmental Tests for Officers of the Panchayat Development Department, Panchayat Development Account Test and District Office Manual Test.
17. One M.Vijayanath has been appointed as the Executive Officer Grade II based on the Combined Subordinate Service Examination conducted by the Tamil Nadu Public Service Commission and as such, the petitioner has been reverted as per the impugned order dated 14.08.2008 in and by which the petitioner has been transferred and appointed to the vacant post of Junior Assistant at the Batlagundu Town Panchayat.
18. At this stage, the learned Counsel for the petitioner submits that as per the tentative seniority list of the Executive Officer Grade II as on 01.01.2008 (Recasting of seniority as per the amendment issued in G.O.(Ms)62 MA & WS (TPI) Department, dated 18.04.2009, the petitioner's name figures in serial No.27. In the tentative seniority list of Executive Officer Grade II as on 01.01.2009, the petitioner's name figures in serial No.14.
19. In G.O.(Ms)No.62 Municipal Administration and Water Supply (TPI) Department, dated 18.04.2009 at paragraphs 4 and 5, it is mentioned as follows:
"4.The Government after careful examination have decided to implement the orders of the TAT as stated in para 2 above as upheld by the Supreme Court of India. Accordingly, the Government have not decided that necessary amendments issued to the Special rules for the Tamil Nadu Town Panchayats Subordinate Service.
5.The appended Notification, shall be published in the Tamil Nadu Government Gazette."
In Appendix, Notification - II, it is stated in paragraph 2, as hereunder:
"2.The amendments hereby made shall be deemed to have come into force on the 7th May 1981.
AMENDMENTS In the said Rules (1)In rule 2, in the Table under sub-rule(a) for the proviso in column(2), against the category 3 in column (1) thereof the following proviso shall be substituted namely:-
"Provided that appointment to the post of Executive Officer Grade I or Executive Officer(Accounts) by promotion from the post of Executive Officer, Grade II and recruitment by transfer from the post of Head Clerks of Town Panchayats or Assistant in Town Panchayats offices Directorate of Town Panchayats in the Tamil Nadu Ministerial Service in the ration of 1:1 shall be made with reference to their state-wide seniority. (2)for rule 6, the following rule, shall be substituted, namely:-
"Unit for appointment reversion, discharge of probationers/approved probationers and full members:-
For the purpose of appointment, reversion or discharge for want of vacancies and reappointment of probationers and approved probationers and appointment as full members, the State shall be the unit for all the categories".
20. The learned Counsel for the petitioner submits that the petitioner in the tentative seniority list of Executive Officer Grade II as on 01.01.2009, figures in serial No.14 and if the State is construed to be in one unit, then in that event, instead of reverting the petitioner, the authorities may transfer him to other Districts in which there are vacancies for the post of Executive Officer Grade II. Also, the learned Counsel for the petitioner brings it to the notice of this Court that in Erode, seven Executive Officer Grade II posts are vacant and in Thiruppur, one Executive Officer Grade II post is vacant and in Coimbatore, one Executive Officer Grade II post is vacant and therefore, the petitioner may be considered in any one of the vacancies for the post of Executive Officer Grade II.
21. Further, the learned Counsel for the petitioner submits that the petitioner has given his representation dated 22.08.2008 to the first respondent and again, he has given another representation dated 31.08.2008 to the first respondent in this regard.
22. Inasmuch as the State shall be one unit for all the categories as per G.O.(Ms)No.62 Municipal Administration and Water Supply (TPI) Department, dated 18.04.2009 and since the petitioner figures in serial No.14 in the tentative seniority list of the Executive Officer Grade II as on 01.01.2009, this Court directs the first respondent to consider the representations of the petitioner dated 22.08.2008 and 31.08.2008 respectively submitted by the petitioner to the first respondent in a dispassionate manner and dispose of the same in accordance with law and in the manner known to law within a period of six weeks from the date of receipt of a copy of this order uninfluenced and untramelled by any of the observations made by this Court in this writ petition.
23. With the above direction, this writ petition is disposed of leaving the parties to bear their own costs. Consequently, the connected Miscellaneous Petitions are closed.
rsb To
1.The Commissioner of Town Panchayats, O/o.Commissioner of Town Panchayats, Kuralagam, Chennai - 108.
2.The District Collector, Dindigul District, Dindigul.
3.The Assistant Director of Town Panchayats, Collectorate, Dindigul.
4.Sahaya Antony Eugene, Assistant, Town Panchayat Office, Nilakkottai.