IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.08.2009 CORAM: THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.P.No.5539 OF 2000 R.Manikantan ... Petitioner vs. 1. The Government of Tamil Nadu, rep. by its Secretary, Rural Development Department, Fort St. George, Chennai 600 009. 2. The District Collector, Kanyakumari District, Nagercoil. 3. The Block Development Officer, Melpuram Panchayat Union, Pacode Post, Kanyakumari District. 4. The President, Village Panchayat, Devicode, Melpalai Post, Kanyakumari District. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records of the second respondent in his proceedings Na.Ka.No.Va.3/39651/97, dated 03.09.1999, quash the same and direct the respondents to regularise the services of the petitioner as Water Supply Assistant/Attender from 29.03.1993 in the time scale of pay and all attendant benefits. For Petitioner : Mr.K.Ravichandrabaabu For Respondents : Mr.V.Viswanathan, for R1 & R2 Additional Government Pleader Mr.Sampath Leah Mirnalini, for R3 & R4 O R D E R
This writ petition is filed challenging the proceedings of the second respondent in Na.Ka.No.Va.3/39651/97, dated 03.09.1999 and for a direction to the respondents to regularise the services of the petitioner as Water Supply Assistant/Attender from 29.03.1993 in the time scale of pay and all attendant benefits.
2. The petitioner has stated that he studied up to S.S.L.C. and he was working as a Water Supplier in the Tamil Nadu Water Supply and Drainage Board, Kulasekaram from 1990-1992. He was given experience certificate by the Assistant Executive Engineer, TWAD Board, Sub-division Kulasekaram. Later, on 29.03.1993, he was appointed as Water Supply Attender in the third respondent Panchayat Union and he joined duty at Gholadi under the Devicode Panchayat. On 22.04.1994, he was transferred to Punnakarai Water Supply Scheme launched by Devicode Panchayat, wherein, he was given additional charge for plumbing work. Since 01.04.1993 till date, he is working as a Water Supply Attender of Devicode Village Panchayat. He has further stated that he is treated as a contingent staff by the respondents and consequently, he is getting only daily rated wages.
2a. The petitioner’s transfer as Pump Operator of Punnakkarai Water Supply Scheme was challenged by one Shibu in W.P.No.8966 of 1994 and this court, by an order dated 28.03.1995 dismissed the said writ petition. Further, the petitioner has submitted a representation for regularisation of his service as a Water Supply Attender on 14.12.1996 on the basis that he is serving in the Panchayat Union as a daily rated paid employee for the past 5 years continuously, without any interruption. The petitioner’s request was forwarded by the District Panchayat Officer on 18.12.1996; however, the third respondent through his letter No.A3/92/97, dated 10.01.1997 stated that there is no Government Order to regularise the services of Water Supply Attender. Hence, the petitioner made a further representation to the third respondent on 12.03.1997 for re-consideration of his continuous service in the Panchayat Union; despite the same, no order of regularisation was passed in favour of the petitioner.
2b. It is also stated by the petitioner that the Panchayat Union Commissioner, Munchirai, by his order No.A3/9497/86, dated 28.09.1997 ordered appointment of one P.Nirmal Nesakumar as a full time Water Supply Attender, who previously worked as part-time Water Supply Attender with retrospective effect from 15.11.1984 with the scale of pay attached to the post.
2c. As per G.O.Ms.No.107, P & AR Department, dated 05.02.1987, the Government has issued general instructions to all the Departments to bring the regular establishments on completion of five years service for all the contingent staff and ordered creation of posts for absorption of the contingent staff. It is also made clear in the Government Order that the age Rule prescribed in the Special Rules for Tamil Nadu Basic Service shall not apply to the contingent staff who is to be given regular appointment. It is further mentioned in the Government Order that break in service upto 180 days may be allowed in recurring 5 years services. It is the case of the petitioner that all the contingent staff who have put in 5 years of service are directed to be given regular appointment and therefore, he is entitled to get his service regularised or atleast entitled to get appointment as Water Supply Attender full time with the regular scale of pay attached to the post from the date of completion of five years of service, i.e. 01.04.1998. On the above claim, the petitioner submitted various representations, of which his last representation was made on 12.03.1997.
2d. According to the petitioner, the respondents are supplying water to the public on payment of water charges and therefore, the respondents are not doing free water service to the public. Hence, even under Section 3 of the Tamil Nadu Industrial Establishment Conferment of Permanent Status Act, 1981 (hereinafter referred to as the ‘Act’), the petitioner is entitled to get his service regularised.
2e. It is the further case of the petitioner that in the Electricity Board Offices, part-time sweepers were appointed on daily rated basis and this court applying the said Act, ordered the Board to give regular appointment within three months. According to the petitioner, he is a similarly placed person with the qualification required for being appointed as a full-time water supply attender and he claims redressal of his grievance on having put more than five years of experience as part-time Water Supply Attender.
2f. Having no other alternative, the petitioner has approached this court in W.P.No.6220 of 1998 and this court, by an order dated 29.04.1998 directed the respondents to pass orders on the representation of the petitioner within 5 months. Pursuant to the said order, the second respondent by his proceedings dated 03.09.1998 gave a reply by stating that the fourth respondent has issued G.O.No.193 Rural Development Department dated 10.06.1997 fixing the salary and stating that persons working in the morning or evening for certain hours only need not be given full time employment, as there is no finance in the
Panchayat for giving them benefits and therefore, the full time water supply attender post cannot be given to the fourth respondent Panchayat and the petitioner will be on part time post and his services cannot be regularised. Challenging the said order, the petitioner is once again before this court.
3. The respondents have filed counter affidavit stating that the petitioner, as Water Supply Attender of Devicode Village Panchayat in Melpuram Panchayat Union has filed a petition before this court in W.P.No.5539 of 2000, demanding to regularise his service from 29.03.1993, i.e. from the date of his appointment in Village Panchayat. According to the respondents, Water Supply Attender post is only a part time post; Water Supply Attender work only for a few hours in a day and they are paid consolidated pay from the concerned Village Panchayat fund and that the Water Supply Attender post is not covered by any service rules and so, the question of giving regular appointment to the petitioner does not arise.
3a. It is further stated in the counter that in respect of Kanniyakumari District, the Water Supply Attenders absorbed to the Village Panchayats from re-classified Town Panchayats during 1970 and thereafter are continued to be paid on daily wage basis and all other Village Panchayat Water Supply Attenders are eligible for consolidated pay fixed by the Government from time to time. A reference to G.O.(Ms) No.192, Rural Development Department, dated 10.06.1997 is made in the counter, wherein the Government has ordered the enhancement of consolidated pay paid to the part time employees in Village Panchayats from Rs.150/- to Rs.250/- p.m. Subsequently, the consolidated pay has been enhanced from Rs.250/- to Rs.300/- p.m. vide G.O.(Ms) No.182, Rural Development (E5) Department, dated 31.08.1998 and the said pay has been further enhanced to Rs.350/- p.m. vide G.O.(2D) No.148, Rural Development Department, dated 09.07.1999. Again, there was an enhancement of the consolidated pay to Rs.400/- p.m. vide G.O.(Ms.) No.119, Rural Development (E5) Department dated 10.05.2000. As such, Water Supply Attenders of Village Panchayats in Kanniyakumari District are eligible only for the consolidated pay of Rs.400/- per month. Hence, the petitioner’s appointment as Water Supply Attender on daily wage basis by the Village Panchayat President is without jurisdiction and against Government Order.
3b. The respondents would further state that the petitioner’s appointment in Tamil Nadu Water Supply and Drainage Board, Kulasekaram in 1990-92 is irrelevant to the case on hand and he has wrongly stated that he was appointed as Water Supply Attender in the third respondent Panchayat Union, which picturises him as Panchayat Union employee and that he is not doing any plumbing work also. With reference to the averments made in the affidavit, the respondents would state that no plumber post is sanctioned in any of the Village Panchayats in Kanniyakumari District. According to the respondents, mere passing of resolutions in Village Panchayats creating new posts is not suffice to create new posts and make appointments and it is only a part of process for creation of new posts and specific orders of the Inspector of Panchayats and the District Collector has to be obtained for creation of posts under Section 101(3) of the Tamil Nadu Panchayats Act, 1984 and also Rules and Government Orders issued thereunder.
3c. It is specifically stated in the counter that the petitioner is a Village Panchayat employee and not a Panchayat Union Employee, which fact has been admitted by the petitioner himself in the affidavit that he is working as a Water Supply Attender in Devicode Village Panchayat from 01.04.1993 till date; there is no rule or order to regularize the service of part time Village Panchayat employee irrespective of number of years of service as part-time worker; hence, the Block Development Officer, Melpuram had been correct in rejecting the request of the petitioner to regularize his service.
3d. The respondents have further stated that the appointment of one P.Nirmal Nesakumar as full time Water Supply Attender by the Municipal Panchayat Union Commissioner could not be cited as an example since the said appointment is also incorrect for which corrective action is underway and on which, an Original Application is pending before the Tamil Nadu Administrative Tribunal. In all, the respondents have taken a stand that the petitioner is only trying to confuse this court by citing baseless examples and hence, prayed for dismissal of the writ petition.
4. Learned counsel for the petitioner would submit that the petitioner is a Water Supply Attender working from 01.04.1993 till the date of filing of the writ petition and thereafter, by virtue of the order of this court, he is continuing in the said post for the past 16 years. Therefore, as per the Government Orders cited above, he is entitled for regularization of service. In support of his case, learned counsel for the petitioner has relied on an unreported decision of this court dated 03.12.2004 made in W.P.No.15827 of 1996, wherein, the petitioner’s service as Pump Operator was directed to be regularized with such benefits as provided under law absorbing him as a basic servant in the third respondent Union, provided the petitioner is not otherwise become dis-entitled for such appointment. The said decision of this court has been confirmed by a Division Bench judgment of this court dated 25.03.2008 in W.A.No.334 of 2006.
5. Per contra, learned Additional Government Pleader, appearing for respondents 1 and 2, while pointing out that the petitioner is only an employee of the Village Panchayat and he is not a Panchayat Union employee would submit that the petitioner is only entitled to have the consolidated pay of Rs.400/- per month as per the Government Orders and there is no power to regularize the services of the employees without creation of new posts.
6. On the same line, learned counsel appearing for respondents 3 and 4, would submit that there is no power to create any new post and the petitioner’s post as Water Supply Attender is only a part-time post and hence, he is entitled to consolidated payment only as ordered by the Government and that the respondents Panchayat are bound to follow the Government Orders and instructions and there is no question of regularization of service.
7. I have heard the learned counsel for the parties and perused the relevant materials on record and the decisions relied on by the learned counsel for the petitioner.
8. It is seen that the petitioner is working as Water Supply Attender of Devicode Village Panchayat from 01.04.1993 till date and after considerable period of service, he made an application to the respondents for regularization of his service. However, it is reported by the third respondent vide his letter dated 10.01.1997 that there is no Government Order to regularize the services of Water Supply Attender. Pursuant thereto, the petitioner submitted a further representation on 12.03.1997 to the third respondent. Since there was no response to his representations for regularization of service, the petitioner filed a writ petition in W.P.No.6220 of 1998, wherein, this court had directed the respondents to pass orders. Thereafter, the second respondent rejected the petitioner’s claim vide impugned proceedings dated 03.09.1998, stating that as per the Government Orders, the salary is fixed for the employees working only for certain hours in a day and they cannot be given full time employment, as there is no such provision in the Department for giving them such benefits.
9. At this juncture, it would be worth referring to the decisions relied on by the learned counsel for the petitioner, wherein, an issue similar to the case on hand arose for consideration. Relevant portion of the unreported judgment dated 03.12.2004 passed in W.P.No.15827 of 1996 is extracted hereunder :
“9. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for the petitioner and the respondents as well, what this Court is able to assess from all sources is that the petitioner has been working as a Pump Operator under the third respondent Panchayat right from the year 1980 till the date on which the above writ petition was filed and on the part of the respondents, there is no denying of this fact and in such a situation, the petitioner has come forward to allege that the third respondent has been in the habit of appointing others on permanent basis without considering the case of the petitioner in spite of the petitioner’s many representations to the third respondent to absorb him in any one of the permanent vacancies in the Union.
10. The petitioner would also claim under the provisions of the Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 since according to the petitioner, he is fully qualified for being considered for such permanent status. This claim is also not specifically denied on the part of the respondents and therefore not only under the relevant provisions of this Act but also giving effect to the judgments cited supra, at any cost, the petitioner becomes entitled for a direction to the third respondent for conferment of permanent status by appointing him in anyone of those posts such as the one in which he has already been serving as a temporary hand or on daily wage basis for the past more than 16 long years.
11. The arguments of the third respondent is to the effect that since the petitioner is working only in the Village Panchayat, he cannot claim any right with the Panchayat Union is totally wrong since that Panchayat only falls under the third respondent Union and therefore it is the bounden duty of the third respondent to consider the reasonable request made on the part of the petitioner on legal basis and hence the following order :
In result,
(i) the above Writ Petition stands allowed.
(ii) The second and third respondents are directed to regularise the petitioner’s services as the Pump Operator from such period on such terms and with such benefits as provided under law absorbing him as a basic servant in the third respondent Union provided the petitioner is not otherwise become disentitled for such appointment.
(iii) Till such time that the petitioner is inducted into, in the manner aforementioned, no further appointment of such nature shall be made by the second and third respondents in the third respondent Panchayat Union.”
Also, the judgment dated 25.03.2008 passed by a Division Bench of this court in W.P.No.334 of 2006, is reiterated as under:
“This writ appeal is directed against the order of the learned single Judge in allowing the writ petition. This writ petition is filed to direct the respondents to regularise the services of the petitioner as Pump Operator from 01.09.1980 with all attendant benefits or absorb him as a basic servant in the third respondent union with all benefits from 01.09.1980. The writ petitioner was working from the year 1980 continuously, was admitted in the counter affidavit. The dispute is with regard to regularisation whether by the Village Panchayat or by the Panchayat Union. The learned single Judge, on consideration of the facts and circumstances of the case and following the authorities relied on by the writ petitioner, granted the relief. It is not in dispute that the petitioner was in continuous service in the above said organisation for about 20 years. Therefore, on consideration of the above, if the learned single Judge directed the respondents to regularise the services of the petitioner, we see no reason to interfere with the order of the learned single Judge. Accordingly, the writ appeal is dismissed. No costs. ”
10. In the case on hand, it is seen that the petitioner claims regularisation of service based on the Government Orders. A perusal of the Government Orders would show that the petitioner is entitled to a enhanced consolidated pay of Rs.400/- per month. However, the question of regularisation of the petitioner’s service has to be decided in the light of the principle laid down by this court in the cases referred to above, similar to the case of the petitioner herein.
11. It is seen that an issue similar to the case on hand has been decided by a learned single Judge of this court and the stand taken therein has been upheld by a Division Bench of this court. The ratio laid down by this court in the judgments referred to above will have bearing on the case on hand also. Therefore, considering the peculiar facts and circumstances of this case and applying the said ratio to the case on hand, the impugned order dated 03.09.1999 passed by the second respondent is set aside and the matter is remanded to the respondents for fresh consideration. Applying the principles laid down by this court to the case of the petitioner, the respondents are directed to pass appropriate orders after giving an opportunity of hearing to the petitioner within a period of twelve (12) weeks from the date of receipt of a copy of this order.
The writ petition is allowed with the above direction. No costs.
abe
To :
1. The Secretary, Government of Tamil Nadu,
Rural Development Department,
Fort St. George, Chennai 600 009.
2. The District Collector,
Kanyakumari District, Nagercoil.
3. The Block Development Officer,
Melpuram Panchayat Union,
Pacode Post, Kanyakumari District.
4. The President,Village Panchayat,
Devicode, Melpalai Post,
Kanyakumari District