Bartheepan vs The Executive Officer on 15 July, 2010

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:15.07.2010
CORAM
THE HONOURABLE MR. JUSTICE T.RAJA
W.P.Nos.27305 to 27309 of 2006 (T)
O.A.Nos.7239 to 7243 of 1995

Bartheepan			       			... Petitioner
								in W.P.No.27305/2006

M.Vijayan				       			... Petitioner
								in W.P.No.27306/2006

M.Rajendran				       			... Petitioner
								in W.P.No.27307/2006

A.Nachimuthu				       			... Petitioner
								in W.P.No.27308/2006

Gopal					       			... Petitioner
								in W.P.No.27309/2006
Vs.

1.The Executive Officer,
  Gudalur Town Panchayat,
  Gudalur, Madurai District.

2.The Collector,
   Madurai District.
									... Respondents
								         in all petitions

PRAYER IN ALL PETITIONS: Writ Petition came to be numbered by transfer of O.A.No.7239 to 7243 of 1995 respectively on the file of the Tamil Nadu Administrative Tribunal praying to quash the termination order dated 11.10.95 in Na.Ka.En.930/95/A2 passed by the 1st respondent, the Executive Officer, Gudalur Town Panchayat, Madurai District.
		For Petitioner 
		in all petitions	:Mr.K.Selvaraj

		For Respondents	:Mr.S.Gopinathan, AGP
					 for R2 in all petitions
					 No Appearance 
					 for R1 in all petitions



COMMON ORDER
	As the facts relating to all writ petitions are one and the same, they are disposed of by this common order.

	2. The petitioners were all appointed on temporary basis in the vacancies available in the office of the 1st respondent by order dated 01.07.94.  While the petitioners were working, a circular was issued by the Director of Town Panchayat, Chennai, directing all the Assistant Directors of Town Panchayats, who have to issue suitable instructions to the Executive Officers under their control to fill up the available vacancies of Sanitary Workers by the Executive Officer themselves after ensuring the following criteria:-
	a) i) The post is a regular and sanctioned post.
	  ii) The post confirms to the norms prescribed by the Government.
	  iii) The Town Panchayat is in a position to meat the financial burden.
	b) i) There vacancies should be filled up after following the rules and regulations in force.
	In reference to the circular dated 21.02.95, the names of the petitioners were sponsored by the employment exchange in Na.Ka.No.X2/140/95, dated 08.06.95 and the petitioners were appointed in the regular vacancies with the scale of pay of Rs.750-12-870-14-940 in the office of the Kadalur Town Panchayat.  When the petitioners were serving, all of a sudden, they were all terminated by a non speaking order issued by the Executive Officer, Kadalur Panchayat.  Challenging the said order, the petitioners have filed the Original Application on the file of the Tamil Nadu Administrative Tribunal.  The Tribunal, by order dated 23-11-95, granted interim stay against the termination order dated 11.10.95.  By virtue of the interim stay granted by the Tribunal, the petitioners are continuing even today  in the office of the 1st respondent.  

	3. In this background, learned counsel appearing for the petitioners submits that in pursuant to the circular dated 21.02.95 issued by the Director of Town Panchayats, the names of the petitioners were sponsored by the Employment Exchange in Na.Ka.No.X2/140/95, dated 08.06.95.  Therefore, when the petitioners were appointed through employment exchange against regular vacancies as Sweeper, the 1st respondent, without any prior intimation and without complying with the principles of natural justice, terminated the the services of the petitioners.  Immediately, the petitioners filed OA on the file of the Tribunal and the Tribunal granted interim stay of the order of termination from service passed by the 1st respondent.  Subsequently, they are working as Sweeper under the control of the 1st respondent.  
	In his further submission, it was submitted that the Government also in G.O.Ms.No.21, Municipal Administration and Water Supply (MC.3) Department, dated 23.02.2006, directed the appointing authorities, namely, Municipal Commissioners, Grade-III Municipal Commissioners and Commissioners of Municipal Corporations (except Chennai) to appoint the employees on consolidated pay and NMRs on daily wages on their roll as on 01.10.96 in respect of Municipalities and Municipal Corporations (except Chennai) and as on 31.12.1996 in respect of Grade-III Municipalities in the vacant posts and to regularise their services in the regular post from the date of issue of this order subject to the following conditions:-
	i. sanctioned posts should be available;
	ii. Persons should fulfill all educational and other qualifications; and
	iii. Establishment (pay and pension) expenditure of the Urban Local Body should not exceed 49% of revenue after filling up of posts.

	Therefore, the 1st respondent, by issuing proceedings Na.Ka.No.46/2006, dated 02.03.2006, passed an order regularising the services of 24 employees appointed on temporary basis.  Whileso, the 1st respondent should have regularised the services of the petitioners by taking into account that the petitioners were working from 1994 onwards.  
	4. Heard the learned counsel appearing on either side and perused the materials available on record.
	5. All the petitioners were appointed on temporary basis on 01.07.94.  Subsequently, in view of the circular dated 21.02.95, issued by the Director of Town Panchayats, Chennai, which mentions that all the Assistant Directors of Town Panchayats are requested to issue suitable instructions to the Executive Officers under their control that vacancies of Sanitary Workers' may be filled up by the Executive Officers themselves after ensuring the following criteria:-
		a) i) The post is a regular and sanctioned post.
	  ii) The post confirms to the norms prescribed by the Government.
	  iii) The Town Panchayat is in a position to meat the financial burden.
	Therefore, the 1st respondent, by calling for names from the employment exchange, got the names of the petitioners and appointed them against permanent vacancies on 25.06.95.  Immediately, thereafter, by order dated 11.10.95, within four months, as their services were terminated by a non-speaking order and without giving any opportunity to them, the petitioners filed the present Original Applications before the Tribunal.  The Tribunal, after considering the case of the petitioners, granted interim stay against  the termination order.  By virtue of the interim stay, the petitioners are still working in the said post under the control of the 1st respondent.  
	Subsequently, the Government also passed G.O.Ms.No.21, Municipal Administration and Water Supply (MC.3) Department, dated 23.02.2006, directing the appointing authorities, namely, Municipal Commissioners, Grade-III Municipal Commissioners and Commissioners of Municipal Corporations (Except Chennai) to appoint the employees on consolidated pay, subject to the condition that if there are sanctioned posts available and if the qualified persons are also available.  The 1st respondent, by proceedings No.Na.Ka.46/2006, dated 02.03.2006, passed an order regularising the services of 24 employees appointed on temporary basis.  Whileso, the petitioners, who are working from 1994 onwards against permanent vacancies, should also be allowed to continue, in view of their long length of services in the office of the 1st respondent.
	Useful reference can be had from the judgment of the Hon'ble Apex Court in the case of Union of India and Others V. K.P.Tiwari ((2003) 9 SCC 129), wherein it is held that in as much as the respondent having been appointed and continuing in service for more than five years, it would not be appropriate to disturb that state of affairs by making any other order resulting in uprooting the respondent from his livelihood.  Following the above said decision of the Supreme Court, this Court in W.P.No.19687 of 2006 by order dated 16.11.2006 has held that if any one appointed on compassionate ground is allowed to work for five years, after completion of five years, the said appointment cannot be cancelled, as it would otherwise affect the right of the person appointed and also his family by setting aside the impugned dismissal order issued further direction to regularise the service of compassionate appointment.  As this order was passed following a judgment of Supreme Court, I have also followed the aforesaid order in another similar writ petition No.42681 of 2006, dated 22.06.2010.

	6. In this view of the matter, this Court, by setting aside the impugned order, directs the respondents to regularise the services of the petitioners by taking into account the period of service rendered by the petitioners from 1994 onwards.  It is needless to mention that in view of the pendency of the matter, if the petitioners are not paid any increment, to which they are entitled, the same also should be considered.

										T.RAJA,J.

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With the aforesaid direction, the present writ petitions are allowed. No Costs.

Index : Yes/No 15.07.2010
Internet:Yes/No
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To

1.The Executive Officer,
Gudalur Town Panchayat,
Gudalur, Madurai District.

2.The Collector,
Madurai District.

W.P.Nos.27305 to 27309 of 2006