BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08/08/2007
CORAM:
THE HONOURABLE MR. JUSTICE K.CHANDRU
WRIT PETITION (MD) No.3436 of 2004
and
WRIT PETITION (MD) No.10322 of 2005
Mohammed Kasim .. Petitioner in the
above Writ Petitions
vs.
1.The State of Tamilnadu,
rep., by Secretary to Government,
Rural Development Department,
Fort St.George, Chennai - 9.
2.The Director,
Rural Development Department,
Chepauk, Chennai - 5.
3.The District Collector,
Tirunelveli District,
Tirunelveli. .. Respondents in the
above Writ Petitions
4.The Block Development
Officer Cum Commissioner,
Cheranmadevi,
Tirunelveli District. .. 4th respondent in
W.P.(MD)No.10322 of 2005
Writ Petition (MD)No.3436 of 2004 filed under Article 226 of the
Constitution of India to issue a Writ of Certiorarified Mandamus calling for the
records pertaining to the order of the 3rd respondent proceedings
No.3/85242/2004 dated 26.8.2004 and quash the same and consequently, regularise
the services of the petitioner as Night Watchman as per the order of the 3rd
respondent dated 8.3.1999 conferring all other consequential benefits such as
annual increment.
Writ Petition (MD)No.10322 of 2005 filed under Article 226 of the
Constitution to issue a Writ of Mandamus directing the respondents to give
annual increment from the year 2000 till now and continue to sanction by
considering the representation dated 3.3.2005.
!For petitioner ... Mr. C.Selvaraj
Senior Counsel
for Mr.V.Kasinathan
^For respondents ... Mrs.V.Chellammal,
Special Government Pleader
:ORDER
Heard Mr. C.Selvaraj, learned Senior Counsel for Mr. V.Panneer Selvam and
Mrs. V.Chellammal, learned Special Government Pleader appearing for the
respondents and have perused the records.
2. In W.P.(MD)NO.3436 of 2004, the writ petitioner is challenging the
order in which the petitioner’s service as night Watchman was to be regularised
only from the date of 26.8.2004, the date on which he had completed 10 years of
service and orders in this regard from the Government is awaited.
3. In W.P.(MD) No.10322 of 2005, the petitioner seeks for a direction to
the respondents to give annual increments from the year 2000 till the date of
filing of the Writ Petition and continue to sanction the same by considering his
representation dated 3.3.2005.
4. The petitioner was working as a night Watchman on contingency basis in
a Panchayat union High School at Cheranmadevi. He was appointed on
compassionate grounds. He made an application for bringing him on a scale of
pay. Thereafter, he filed an Original Application being O.A.No.9803 of 1998
before the State Administrative Tribunal, which directed the respondents to
consider his representation. Thereafter, the third respondent/District
Collector passed an order to the effect that the petitioner’s appointment was
regularised and the appointment on compassionate ground was also proper and a
further direction was given to the Panchayat Union Commissioner to pay at the
scale of pay of Rs.750-12-870-14-940. Accordingly, the Commissioner by a letter
dated 31.3.1999 granted the scale of pay to the petitioner and the petitioner
was also directed to be paid his annual increment from 1.7.1992 and his arrears
was also directed to be paid by a communication dated 31.3.1999.
5. But, subsequently, in the course of an audit, an objection was raised
by the L.F.Audit and therefore, the petitioner was directed to give an
undertaking that if there was any audit objection, he will refund the amount
paid to him. It is this communication, which is under challenge in the first
petition as stated already.
6. This Court while admitting the Writ Petition (MD)No.3436 of 2004
granted an order of interim stay in W.P.M.P.No.3486 of 2004, which was also made
absolute on 29.12.2004. It was thereafter, the petitioner sent a representation
seeking for fixation of pay scale and also arrears of salary payable on account
of such fixation. In the Second Writ Petition viz.,10322 of 2005, a direction
was sought to consider his representation.
7. The third respondent on behalf of the respondents have filed a counter
affidavit in the first Writ Petition in the month of February 2005 in which it
is stated that necessary proposals have been sent to the Director, Rural
Development Department for the creation of a post and as the orders are awaited,
on receipt of the same, his service will be regularised with effect from
26.8.2001.
8. Even though the Director of Rural Development Department is a party to
the Writ Petition, till now, no counter affidavit has been filed on his behalf.
The petitioner has been working on contingency basis for the last 26 years. The
ground raised by the respondents was that as per G.O.Ms.No.878 RD & LA
Department dated 15.5.1981, no new post in the category of contingent
establishment after 1.4.1981 should be created and after 1.4.1981, vacancies
should not be filled up. It was because of the ban order, the petitioner’s case
was not considered even though the other respondents have strongly recommended
his case.
8. It is not the question of respondents’ considering the relief to the
petitioner for being brought on regular establishment especially when the
petitioner had completed silver jubilee service under the third respondent. The
inaction on the part of the respondents cannot be condoned.
9. Under the circumstances, both the Writ Petitions will stand allowed. No
costs. The second respondent is directed to grant necessary post in respect of
the petitioner’s contingency establishment and direct that the petitioner’s
services to be brought on regular establishment as proposed by the third
respondent. The second respondent shall pass such orders within a period of
three weeks from the date of receipt of copy of the order in that regard. After
such approval is granted by the second respondent, the third respondent is
directed to bring the petitioner into the regular establishment with effect
from 26.8.2001 on which date the petitioner had completed 10 years service and
also all the arrears of salary attached to the said posts within a period of
four weeks thereafter.
asvm
To
1.The State of Tamilnadu,
rep., by Secretary to Government,
Rural Development Department,
Fort St.George, Chennai – 9.
2.The Director,
Rural Development Department,
Chepauk, Chennai – 5.
3.The District Collector,
Tirunelveli District,
Tirunelveli.
4.The Block Development
Officer Cum Commissioner,
Cheranmadevi,
Tirunelveli District.