BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:05/11/2009 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Writ Petition (MD).No.7063 of 2007 & M.P.No.2 of 2007 1.M.Sankar 2.P.Ananthan 3.M.Nagendran .. Petitioners Vs. 1.The Commissioner, Palani Municipality Municipal Office, Palani, Dindigul District. 2.The Regional Director of Municipalities Thena School Compound Race Course Road, Madurai. 3.The Commissioner, Municipal Administration, Ezhilagam, Chepauk, Chennai. 4.The Secretary to Government of Tamil Nadu Municipal Administration and Water Supply Department, Fort St. George, Chennai-600 009. 5.The District Collector, Office of the Collectorate, Dindigul. .. Respondents Prayer Writ petition is filed under Article 226 of the Constitution of India to issue a writ of Mandamus directing the respondents numbers 3 and 4 to implement the G.O.Ms.No.21 dated 23.02.2006, on the file of the fourth respondent and also give suitable directions to the respondents 1 and 2 to regularise the service of the petitioners as per time scale of pay in accordance with the above said Government Order. !For Petitioner ...Mr.N.S.Ponniah ^For Respondents...Mr.J.Parekhkumar for R1 Mr.K.Balasubramanian for R2 to R4 AGP :ORDER
The petitioners claim that they were engaged as scavengers by the
Commissioner, Palani Municipality, in the year 1996 and they have been
continuously working. They further state that though initially they were paid
daily wages at the rate of Rs.17/-, practically they are paid once in a month at
the rate of Rs.2,000/- i.e. consolidated pay. They have come forward with this
writ petition seeking a direction to the Commissioner, Palani Municipality to
regularise their service as per G.O.Ms.No.125, Municipal Administration and
Water Supply Department, dated 27.05.1999 and another Government Order in
G.O.Ms.No.21, Municipal Administration and Water Supply Department, dated
05.05.1998.
2. In the counter filed by the Commissioner, Palani Municipality, it is
contended that the petitioners were not all engaged by the Palani Municipality.
According to the first respondent, during the year 1990, the Revenue Divisional
Officer, Palani, had requested the Palani Municipality, vide letter in
Na.Ka.No.A6/7780/90, dated 10.09.1990, to arrange for providing basic amenities
for the Ceylon refugees Camp at Sivagiripatti. It is in accordance with the said
request made, the petitioners were engaged and accordingly they were paid daily
wages. Later on, it was converted into a consolidated pay of Rs.2,000/- per
month. It is further stated that since Palani Municipality was directed by the
Revenue Department to manage the Ceylon refugees Camp in so far as the basic
amenities are concerned, the petitioners were engaged and if once the refugees
camp is closed, the petitioners service may not be required. It is further
stated that the Government Orders relied on by the petitioners are not
applicable to the facts of the present case.
3. The Revenue Divisional Officer, Palani has not chosen to file any
counter. However, on instructions from him, the learned Additional Government
Pleader would submit that the petitioners were appointed by the Palani
Municipality and the Revenue Divisional Officer never gave any such request or
direction to the Municipality to appoint the petitioners herein as scavengers.
According to him, the request made by the Revenue Divisional Officer was only to
provide basic amenities and not to appoint the petitioners. Therefore, the
Revenue Department is not liable to regularise the services of the petitioners.
4. I have considered the rival submissions and also perused the records
carefully.
5. Here is a classic case where poor people, who have been working as
scavengers for many years, rendering yeoman service to the society, have been
driven from pillar to post for no fault on their part, when they seek for
regularisation. Admittedly, as per G.O.Ms.No.528, Personnel and Administrative
Reforms Department (Per.F.), dated 10.10.1988, the Government has directed that
all part time employees who have been working in local bodies for more than 10
years should be regularised. When a plea was taken before this Court in a batch
of writ petitions in W.P.(MD).Nos.6700 to 6705/2008 stating that the scavengers
are only daily wages, who are not entitled to be regularised as per the said
Government Order, I had an occasion to hold that even these scavengers, who are
working either as daily wages or as part time employees, are entitled for such
regularisation as per G.O.Ms.No.528, Personnel and Administrative Reforms
Department (Per.F.), dated 10.10.1988. After having considered the rival
submissions made therein, similar to the contentions which are raised in this
writ petition, in paragraph 13 of the said judgment this Court has issued the
following directions;
“13. In view of all the above, all the writ petitions are allowed and the
impugned orders are quashed. The respondents are directed to issue suitable
orders of appointment to the petitioners, appointing them on regular time scale
of pay, in accordance with G.O.ms.Nos.528, Personnel and Administrative Reforms
(Per.F) Department, dated 10.10.2008.”
6. In view of the settled position, since, indisputably the petitioners
have been working for more than the required period of 10 years, they are
entitled for regularisation. Now, the question is, who has to regularise?
whether it is Palani Municipality or the Revenue Department. As of now, no
record has been produced before this Court to show that the Revenue Divisional
Officer has given any directions to appoint these petitioners as scavengers,
instead the letter relied on by the first respondent would go to show that the
Revenue Divisional Officer requested Palani Municipality to provide basic
amenities in the refugees camp. It cannot be construed as though a direction was
issued to the Palani Municipality to appoint the scavengers either as daily
wages or as part time employees. Admittedly, the camp is not situated within the
Palani Municipality limit. There was no need for Palani Municipality to accept
any such request made by the Revenue Divisional Officer to provide basic
amenities in the refugees camp. Taking a sympathetic view, the Palani
Municipality thought it fit to extend help to the refugees by providing basic
amenities. When they do so, it goes without saying that the Palani Municipality
has done this on its own accord by engaging its own men. Therefore, though it is
contended by the Palani Municipality that the petitioners were engaged on the
directions by the Revenue Divisional Officer, I am at loss to accept the said
contentions of the learned counsel appearing for the Palani Muncipality.
7. From the materials available on record and from the specific stand
taken by the Revenue Divisional Officer and also from the fact that all along
wages were paid only by Palani Municipality, I hold that it is only the Palani
Municipality which is liable to regularise the petitioners. But, the learned
counsel appearing for the Palani Municipality would submit that the Municipality
is in a great financial stress and strain. He would further submit that the
total amount to be spent on salary should not exceed 49% of the income derived
by the Municipality and therefore the petitioners cannot be regularised.
8. The said contention of the learned counsel for the Palani Municipality
is only to be summarily rejected. It is unfortunate that when these poor men,
who have been working as scavengers for many years, request for regularisation,
the Municipality claims its finiancial position as an impediment for the
regularisation of these petitioners. In my considered opinion, because these
petitioners are regularised, the financial condition of the Municipality is not
going to fall to the ground. Above all, the financial position of the
Municipality is totally immaterial to decide the issue involved in the writ
petition. It is also not the case of the Palani Municipality that it does not
require the services of these petitioners for scavenging works. It is admitted
by the learned counsel for the Palani Municipality, on instructions from the
Manager of the Municipality, who is present in Court and assisting, that all
these petitioners have been working in Ward No.3 of the Palani Municipality for
quite some time. It is not as though the services are not required. It is not
only that any Municipality like Palani Municipality will need number of
scavengers to maintain cleanness, within the municipality limit. Therefore,
having regard to all the above aspects, I deem it appropriate to direct the
Commissioner, Palani Municipality to regularise the services of the petitioners.
At this juncture, the learned counsel appearing for the Palani Municipality
would submit that before issuing order of regularisation appropriate prior
permission needs to be obtained from the Government. If it is so, I deem it
proper to direct the Commissioner, Palani Municipality to write to the
Government, within 15 days from today requesting the Government to regularise
the petitioners. On receipt of such request from the Commissioner, Palani
Municipality, the Government is directed to consider the same and issue
necessary permission, within two months thereafter. It is made clear that there
shall not be any delay in issuing regularisation order in this matter, within
the time frame as stipulated above. The writ petition accordingly stands
allowed. No costs. Consequently, the connected miscellaneous petition is closed.
JIKR
To
1.The Commissioner,
Palani Municipality
Municipal Office,
Palani,
Dindigul District.
2.The Regional Director of Municipalities
Thena School Compound
Race Course Road,
Madurai.
3.The Commissioner,
Municipal Administration,
Ezhilagam,
Chepauk, Chennai.
4.The Secretary to Government of
Tamil Nadu Municipal Administration and
Water Supply Department,
Fort St. George,
Chennai-600 009.
5.The District Collector,
Office of the Collectorate,
Dindigul.