R.Manikantan v. The Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21.08.2009CORAM:THE HONOURABLE MR. JUSTICE V.DHANAPALANW.P.No.5539 OF 2000R.Manikantan... Petitionervs.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,atNagercoil.3.The Block Development Officer,Melpuram Panchayat Union,Pacode Post, Kanyakumari District.4.The President,Village Panchayat,Devicode, Melpalai Post,Kanyakumari District.... RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorarified mandamuscalling for the records of the second respondent passed in hisproceedings Na.Ka.No.Va.3/39651/97, dated 03.09.1999, quash the sameand direct the respondents to regularise the services of thepetitioner as Water Supply Assistant/Attender from 29.03.1993 in thetime scale of pay and all attendant benefits. For Petitioner :Mr.K.RavichandrabaabuFor Respondents:Mr.V.Viswanathan, for R1 & R2 Additional Government Pleader Mr.Sampath Leah Mirnalini, for R3 & R4 https://hcservices.ecourts.gov.in/hcservices/ O R D E RThis writ petition is filed challenging the proceedings of thesecond respondent in Na.Ka.No.Va.3/39651/97, dated 03.09.1999 and fora direction to the respondents to regularise the services of thepetitioner as Water Supply Assistant/Attender from 29.03.1993 in thetime 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 Supplyand Drainage Board, Kulasekaram from 1990-1992. He was givenexperience certificate by the Assistant Executive Engineer, TWADBoard, Sub-division Kulasekaram. Later, on 29.03.1993, he wasappointed as Water Supply Attender in the third respondent PanchayatUnion and he joined duty at Gholadi under the Devicode Panchayat. On22.04.1994, he was transferred to Punnakarai Water Supply Schemelaunched by Devicode Panchayat, wherein, he was given additionalcharge for plumbing work. Since 01.04.1993 till date, he is workingas a Water Supply Attender of Devicode Village Panchayat. He hasfurther stated that he is treated as a contingent staff by therespondents and consequently, he is getting only daily rated wages.2a.The petitioner's transfer as Pump Operator of PunnakkaraiWater Supply Scheme was challenged by one Shibu in W.P.No.8966 of1994 and this court, by an order dated 28.03.1995 dismissed the saidwrit petition. Further, the petitioner has submitted a representationfor regularisation of his service as a Water Supply Attender on14.12.1996 on the basis that he is serving in the Panchayat Union asa daily rated paid employee for the past 5 years continuously,without any interruption. The petitioner's request was forwarded bythe District Panchayat Officer on 18.12.1996; however, the thirdrespondent through his letter No.A3/92/97, dated 10.01.1997 statedthat there is no Government Order to regularise the services of WaterSupply Attender. Hence, the petitioner made a further representationto the third respondent on 12.03.1997 for re-consideration of hiscontinuous service in the Panchayat Union; despite the same, no orderof regularisation was passed in favour of the petitioner.2b.It is also stated by the petitioner that the PanchayatUnion Commissioner, Munchirai, by his order No.A3/9497/86, dated28.09.1997 ordered appointment of one P.Nirmal Nesakumar as a fulltime Water Supply Attender, who previously worked as part-time WaterSupply Attender with retrospective effect from 15.11.1984 with thescale 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 Departmentsto bring the regular establishments on completion of five yearsservice for all the contingent staff and ordered creation of posts https://hcservices.ecourts.gov.in/hcservices/ for absorption of the contingent staff. It is also made clear in theGovernment Order that the age Rule prescribed in the Special Rulesfor Tamil Nadu Basic Service shall not apply to the contingent staffwho is to be given regular appointment. It is further mentioned inthe Government Order that break in service upto 180 days may beallowed in recurring 5 years services. It is the case of thepetitioner that all the contingent staff who have put in 5 years ofservice are directed to be given regular appointment and therefore,he is entitled to get his service regularised or atleast entitled toget appointment as Water Supply Attender full time with the regularscale of pay attached to the post from the date of completion of fiveyears of service, i.e. 01.04.1998. On the above claim, thepetitioner submitted various representations, of which his lastrepresentation was made on 12.03.1997. 2d.According to the petitioner, the respondents are supplyingwater to the public on payment of water charges and therefore, therespondents are not doing free water service to the public. Hence,even under Section 3 of the Tamil Nadu Industrial EstablishmentConferment of Permanent Status Act, 1981 (hereinafter referred to asthe 'Act'), the petitioner is entitled to get his serviceregularised. 2e.It is the further case of the petitioner that in theElectricity Board Offices, part-time sweepers were appointed on dailyrated basis and this court applying the said Act, ordered the Boardto give regular appointment within three months. According to thepetitioner, he is a similarly placed person with the qualificationrequired for being appointed as a full-time water supply attender andhe claims redressal of his grievance on having put more than fiveyears of experience as part-time Water Supply Attender.2f.Having no other alternative, the petitioner has approachedthis court in W.P.No.6220 of 1998 and this court, by an order dated29.04.1998 directed the respondents to pass orders on therepresentation of the petitioner within 5 months. Pursuant to thesaid order, the second respondent by his proceedings dated 03.09.1998gave a reply by stating that the fourth respondent has issuedG.O.No.193 Rural Development Department dated 10.06.1997 fixing thesalary and stating that persons working in the morning or evening forcertain hours only need not be given full time employment, as thereis no finance in the Panchayat for giving them benefits andtherefore, the full time water supply attender post cannot be givento the fourth respondent Panchayat and the petitioner will be on parttime post and his services cannot be regularised. Challenging thesaid order, the petitioner is once again before this court.3.The respondents have filed counter affidavit stating thatthe petitioner, as Water Supply Attender of Devicode Village https://hcservices.ecourts.gov.in/hcservices/ Panchayat in Melpuram Panchayat Union has filed a petition beforethis court in W.P.No.5539 of 2000, demanding to regularise hisservice from 29.03.1993, i.e. from the date of his appointment inVillage Panchayat. According to the respondents, Water SupplyAttender post is only a part time post; Water Supply Attender workonly for a few hours in a day and they are paid consolidated pay fromthe concerned Village Panchayat fund and that the Water SupplyAttender post is not covered by any service rules and so, thequestion of giving regular appointment to the petitioner does notarise.3a.It is further stated in the counter that in respect ofKanniyakumari District, the Water Supply Attenders absorbed to theVillage Panchayats from re-classified Town Panchayats during 1970 andthereafter are continued to be paid on daily wage basis and all otherVillage Panchayat Water Supply Attenders are eligible forconsolidated pay fixed by the Government from time to time. Areference to G.O.(Ms) No.192, Rural Development Department, dated10.06.1997 is made in the counter, wherein the Government has orderedthe enhancement of consolidated pay paid to the part time employeesin 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, dated31.08.1998 and the said pay has been further enhanced to Rs.350/-p.m. vide G.O.(2D) No.148, Rural Development Department, dated09.07.1999. Again, there was an enhancement of the consolidated payto Rs.400/- p.m. vide G.O.(Ms.) No.119, Rural Development (E5)Department dated 10.05.2000. As such, Water Supply Attenders ofVillage Panchayats in Kanniyakumari District are eligible only forthe consolidated pay of Rs.400/- per month. Hence, the petitioner'sappointment as Water Supply Attender on daily wage basis by theVillage Panchayat President is without jurisdiction and againstGovernment Order.3b.The respondents would further state that the petitioner'sappointment in Tamil Nadu Water Supply and Drainage Board,Kulasekaram in 1990-92 is irrelevant to the case on hand and he haswrongly stated that he was appointed as Water Supply Attender in thethird respondent Panchayat Union, which picturises him as PanchayatUnion employee and that he is not doing any plumbing work also. Withreference to the averments made in the affidavit, the respondentswould state that no plumber post is sanctioned in any of the VillagePanchayats in Kanniyakumari District. According to the respondents,mere passing of resolutions in Village Panchayats creating new postsis not suffice to create new posts and make appointments and it isonly a part of process for creation of new posts and specific ordersof the Inspector of Panchayats and the District Collector has to beobtained for creation of posts under Section 101(3) of the Tamil NaduPanchayats Act, 1984 and also Rules and Government Orders issuedthereunder. https://hcservices.ecourts.gov.in/hcservices/ 3c.It is specifically stated in the counter that thepetitioner is a Village Panchayat employee and not a Panchayat UnionEmployee, which fact has been admitted by the petitioner himself inthe affidavit that he is working as a Water Supply Attender inDevicode Village Panchayat from 01.04.1993 till date; there is norule or order to regularize the service of part time VillagePanchayat employee irrespective of number of years of service aspart-time worker; hence, the Block Development Officer, Melpuram hadbeen correct in rejecting the request of the petitioner to regularizehis service. 3d.The respondents have further stated that the appointment ofone P.Nirmal Nesakumar as full time Water Supply Attender by theMunicipal Panchayat Union Commissioner could not be cited as anexample since the said appointment is also incorrect for whichcorrective action is underway and on which, an Original Applicationis pending before the Tamil Nadu Administrative Tribunal. In all,the respondents have taken a stand that the petitioner is only tryingto confuse this court by citing baseless examples and hence, prayedfor dismissal of the writ petition.4.Learned counsel for the petitioner would submit that thepetitioner is a Water Supply Attender working from 01.04.1993 tillthe date of filing of the writ petition and thereafter, by virtue ofthe order of this court, he is continuing in the said post for thepast 16 years. Therefore, as per the Government Orders cited above,he is entitled for regularization of service. In support of hiscase, learned counsel for the petitioner has relied on an unreporteddecision 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 beregularized with such benefits as provided under law absorbing him asa basic servant in the third respondent Union, provided thepetitioner is not otherwise become dis-entitled for such appointment.The said decision of this court has been confirmed by a DivisionBench 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 thepetitioner is only an employee of the Village Panchayat and he is nota Panchayat Union employee would submit that the petitioner is onlyentitled to have the consolidated pay of Rs.400/- per month as perthe Government Orders and there is no power to regularize theservices of the employees without creation of new posts.6.On the same line, learned counsel appearing for respondents3 and 4, would submit that there is no power to create any new postand the petitioner's post as Water Supply Attender is only a part-time post and hence, he is entitled to consolidated payment only as https://hcservices.ecourts.gov.in/hcservices/ ordered by the Government and that the respondents Panchayat arebound to follow the Government Orders and instructions and there isno question of regularization of service. 7.I have heard the learned counsel for the parties andperused the relevant materials on record and the decisions relied onby the learned counsel for the petitioner.8.It is seen that the petitioner is working as Water SupplyAttender of Devicode Village Panchayat from 01.04.1993 till date andafter considerable period of service, he made an application to therespondents for regularization of his service. However, it isreported by the third respondent vide his letter dated 10.01.1997that there is no Government Order to regularize the services of WaterSupply Attender. Pursuant thereto, the petitioner submitted afurther representation on 12.03.1997 to the third respondent. Sincethere was no response to his representations for regularization ofservice, 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 claimvide impugned proceedings dated 03.09.1998, stating that as per theGovernment Orders, the salary is fixed for the employees working onlyfor certain hours in a day and they cannot be given full timeemployment, as there is no such provision in the Department forgiving them such benefits.9.At this juncture, it would be worth referring to thedecisions relied on by the learned counsel for the petitioner,wherein, an issue similar to the case on hand arose forconsideration. Relevant portion of the unreported judgment dated03.12.2004 passed in W.P.No.15827 of 1996 is extracted hereunder :"9.In consideration of the facts pleaded, havingregard to the materials placed on record and uponhearing the learned counsel for the petitioner and therespondents as well, what this Court is able to assessfrom all sources is that the petitioner has beenworking as a Pump Operator under the third respondentPanchayat right from the year 1980 till the date onwhich the above writ petition was filed and on the partof the respondents, there is no denying of this factand in such a situation, the petitioner has comeforward to allege that the third respondent has been inthe habit of appointing others on permanent basiswithout considering the case of the petitioner in spiteof the petitioner's many representations to the thirdrespondent to absorb him in any one of the permanentvacancies in the Union. https://hcservices.ecourts.gov.in/hcservices/

10.The petitioner would also claim under theprovisions of the Tamil Nadu Industrial Establishments(Conferment of Permanent Status to Workmen) Act, 1981since according to the petitioner, he is fullyqualified for being considered for such permanentstatus. This claim is also not specifically denied onthe part of the respondents and therefore not onlyunder the relevant provisions of this Act but alsogiving effect to the judgments cited supra, at anycost, the petitioner becomes entitled for a directionto the third respondent for conferment of permanentstatus by appointing him in anyone of those posts suchas the one in which he has already been serving as atemporary hand or on daily wage basis for the past morethan 16 long years. 11.The arguments of the third respondent is tothe effect that since the petitioner is working only inthe Village Panchayat, he cannot claim any right withthe Panchayat Union is totally wrong since thatPanchayat only falls under the third respondent Unionand therefore it is the bounden duty of the thirdrespondent to consider the reasonable request made onthe part of the petitioner on legal basis and hence thefollowing order :In result,(i)the above Writ Petition stands allowed.(ii)The second and third respondents are directedto regularise the petitioner's services as the PumpOperator from such period on such terms and with suchbenefits as provided under law absorbing him as a basicservant in the third respondent Union provided thepetitioner is not otherwise become disentitled for suchappointment.(iii)Till such time that the petitioner is inducted into, inthe manner aforementioned, no further appointment ofsuch nature shall be made by the second and thirdrespondents in the third respondent Panchayat Union." https://hcservices.ecourts.gov.in/hcservices/ Also, the judgment dated 25.03.2008 passed by a Division Benchof this court in W.P.No.334 of 2006, is reiterated as under:"This writ appeal is directed against the order ofthe learned single Judge in allowing the writ petition.This writ petition is filed to direct the respondentsto regularise the services of the petitioner as PumpOperator from 01.09.1980 with all attendant benefits orabsorb him as a basic servant in the third respondentunion with all benefits from 01.09.1980. The writpetitioner was working from the year 1980 continuously,was admitted in the counter affidavit. The dispute iswith regard to regularisation whether by the VillagePanchayat or by the Panchayat Union. The learnedsingle Judge, on consideration of the facts andcircumstances of the case and following the authoritiesrelied on by the writ petitioner, granted the relief.It is not in dispute that the petitioner was incontinuous service in the above said organisation forabout 20 years. Therefore, on consideration of theabove, if the learned single Judge directed therespondents to regularise the services of thepetitioner, we see no reason to interfere with theorder of the learned single Judge. Accordingly, thewrit appeal is dismissed. No costs. "10.In the case on hand, it is seen that the petitioner claimsregularisation of service based on the Government Orders. A perusalof the Government Orders would show that the petitioner is entitledto a enhanced consolidated pay of Rs.400/- per month. However, thequestion of regularisation of the petitioner's service has to bedecided in the light of the principle laid down by this court in thecases referred to above, similar to the case of the petitioner herein.11.It is seen that an issue similar to the case on hand hasbeen decided by a learned single Judge of this court and the standtaken therein has been upheld by a Division Bench of this court. Theratio laid down by this court in the judgments referred to above willhave bearing on the case on hand also. Therefore, considering thepeculiar facts and circumstances of this case and applying the saidratio to the case on hand, the impugned order dated 03.09.1999 passedby the second respondent is set aside and the matter is remanded tothe respondents for fresh consideration. Applying the principleslaid down by this court to the case of the petitioner, therespondents are directed to pass appropriate orders after giving anopportunity of hearing to the petitioner within a period of twelve(12) weeks from the date of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/ The writ petition is allowed with the above direction. Nocosts. abe Sd/- Asst.Registrar/True Copy/ Sub.Asst.RegistrarTo :1.The Secretary, Government of Tamil Nadu,Rural Development Department,Fort St. George, Chennai 600 009.2.The District Collector,Kanyakumari District, at Nagercoil.3.The Block Development Officer,Melpuram Panchayat Union,Pacode Post, Kanyakumari District.4.The President,Village Panchayat,Devicode, Melpalai Post,Kanyakumari District.+ 1 cc to Mr. K. Ravichandrababu, Advocate SR.40457+ 1 cc to Mr. N. Sampath, Advocate SR.40591+ 1 cc to the Government Pleader High Court, Madras,SR.40866Order in W.P.No.5539 of 2000BVN(CO)EU 9.09.2009.