BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 31/07/2007 CORAM THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR W.A.(MD) Nos.296 of 2006 W.A.(MD) Nos.297 to 298, 300, 302, 304 and 307 of 2006 W.A.(MD)No.296 of 2006: The Municipal Commissioner Nagercoil Municipality Nagercoil, Kanyakumari District .. Appellant 2nd respondent Vs 1.N.Saraswathy .. Respondent-1 Petitioner. 2.The Commissioner of Municipalities, Ezhilagam, Chepauk, Chennai-5. .. Respondent-2 1st Respondent Writ Appeal filed under Clause 15 of Letters Patent, against the order dated 21.06.2006 made in W.P.(MD)No.10942 of 2006. !For Appellant ... Mrs.S.Srimathy in all the W.As. ^For Respondent No.2 ... Mr.R.Janakiramulu, in all the W.As. Spl.Govt.Pleader. For Respondent No.1 ... Mr.K.P.Krishnadoss in WAs 296, 297, 300, 302and 397/2006 For Respondent No.1 ... Mr.T.Sekar in WAs 298 & 304/2006 :JUDGMENT
(Judgment of the Court was delivered by P.D.DINAKARAN, J)
Writ Appeal Nos.298 to 298, 300, 302 and 304 have been
preferred against the common order dated 21.06.2006 passed by the learned Single
Judge in W.P.(MD)NOs.10942 to 10946 and 10948 of 2006. Writ Appeal No.307 of
2006 has been filed against the order dated 21.06.2006 made in
W.P.NO.10947/2006. The prayer in all the writ petitions is for issuance of a
writ of mandamus directing the respondents therein to appoint the writ
petitioners in the post of Clerk in the Nagercoil Municipality on a permanent
basis with effect from the date of their appointment on NMR basis and
consequently to regularise their services from the said date of appointment
pursuant to G.O.No.125, Municipal Administration and Water Supply Department,
dated 27.05.1999.
2.The learned Single Judge, after considering the grievance of
the petitioners that even though in G.O.Ms.No.125, dated 27.05.1999, it is
provided that the persons appointed prior to 01.10.1996 should be absorbed on
permanent basis at the entry level post, their cases have not been considered
but several persons appointed along with them have been absorbed in the
appellant Municipality and after referring to the earlier orders of this Court
in W.P.No.32078 of 2005, dated 17.03.2006, directed the appellant Municipality
herein to implement the orders of the 2nd respondent respondent within a period
of one month. Aggrieved over the same, the present writ appeals are filed.
3.Heard the learned counsel for the appellant and the learned
counsel appearing for the respondents.
4.It is brought to the notice of this Court by the learned
counsel appearing for the appellant that in similar matters pertaining to the
same appellant Municipality, a Division Bench of this Court in its judgment
dated 05.12.2006 made in W.A.(MD)Nos.299, 301 and 303 of 2006 disposed of those
writ appeals with certain directions to the appellant Municipality and similar
direction may also be issued in these appeals also. The learned counsel for the
first respondent in all the W.As. are also agreeable to such a course of action.
In the Judgment dated 05.12.2006, the Division Bench has issued directions as
under:
“7…… In that case, it will only be proper and advisable for the Court
to direct the appellants herein to consider and pass orders on the request of
the respondents for regularisation of service by duly taking into consideration
of the fact of applicability of the G.O.Ms.No.125 dated 27.5.99. Hence the
orders of the learned single Judge in issuing the directions for regularisation
of the respondents in the post are unsustainable. Accordingly, the orders are
set aside and the appellants are directed to consider and pass orders on the
request of the respondents for regularisation considering the fact as to whether
the G.O.Ms.No.125 dated 27.5.99 is also applicable to them.
8.Before parting with the appeals, we would like to observe that the
Government, considering the plight of more than 6058 NMRs working in the
municipalities had directed the regularisation of their services. Section
Writers/ Record Clerks, 14 in number, are working in the appellant municipality
and they are in service at least between 1989 and 1994 continuously and no
materials are produced before the Court as to the fact that the respondents are
employed elsewhere in the interregnum. The letter of the Commissioner of
Municipal Administration dated 21.8.2006 also refers to the fact that these
Record Clerks are to be considered only as daily rated employees. When the
Government had taken a policy decision to regularise more than 6000 employees,
it will be in the nature of safeguarding the interest of these Section
Writers/Record Clerks also in the event their services are also considered for
regularisation. Of course, the learned counsel for the appellants had brought
to our notice of the Government Order in G.O.Ms.No.21, Municipal Administration
and Water Supply Department dated 23.2.2006. That Government Order was passed
after the review of the earlier orders and after lifting the ban order. Of
course, it is also directed in the said order that the regularisation of the
employees shall be subject to (1) sanctioned posts should be available, (2)
persons should fulfil all educational and other qualifications and (3)
establishment (pay and pension) expenditure of the Urban Local Body should not
exceed 49% of revenue after filling up of posts. By placing reliance on the
above, the learned counsel for the appellants submitted that already the
percentage of expenditure has gone beyond 49% and therefore, there is no scope
for any more regularisation. Whatever be the submission of the learned counsel
for the appellants as well as the respondents, in view of our direction, the
same shall be considered only by the appellants. Further, it is made clear that
while such consideration is made, the appellants have to give due weightage to
the observation made in this order as to the employment of the respondents in
the municipality for quite long number of years and their entire livelihood is
depending only on the employment in question. The orders for consideration of
regularisation shall be passed by the appellants within a period of two months
from the date of receipt of a copy of this order. With these observations, the
writ appeals are disposed of. ….”
5.In line with the above judgment of this Court, these writ
appeals are also disposed of with a direction to the appellant and the second
respondent to consider the claim of the first respondent in all the writ
appeals, as already directed by this Court in the judgment dated 05.12.2006 in
W.A.Nos.299, 301 and 303 of 2006. No costs. Connected M.P.No.2 of 2006 in
W.A.Nos.296 to 298, 300, 302 and 304 of 2006 and M.P.No.1 of 2006 in W.A.No.307
of 2006 are closed.
gb.
To
1. The Commissioner of Municipalities
Ezhilagam
Chepauk
Chennai 600 005
2. The Municipal Commissioner
Nagercoil Municipality
Nagercoil, Kanyakumari District