B.Muthukrishnan v. The District Collector Perambalur District Perambalur

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 12.08.2009CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE V.DHANAPALANW.P. NOS. 23847 & 23848 OF 2008B.Muthukrishnan.. Petitioner in W.P. No.23847/08R.Govindaraj.. Petitioner in W.P. No.23848/08- Vs -1. The District Collector Perambalur District Perambalur 621 212.2. The Divisional Engineer (Highways) Ariyalur.3. The District Collector Ariyalur District Ariyalur... Respondents 1 to 3 in both WPs4. The Principal District Judge Perambalur District Court Perambalur... 4th Respondent in WP.No.23847/084. The Principal District JudgeFast Track Court, Ariyalur, Ariyalur District... 4th Respondent in WP.No.23848/08Writ petitions filed for the issuance of a writ ofcertiorarified mandamus calling for the records on the file of the1st respondent in Proc. No.Na.Ka.A3/32017/2007 dated 11.6.07 signedon 12.6.08 and quash the same and direct the respondent to reallotthe petitioner to the officer of the 2nd respondent in the light ofthe 2nd respondents letter in Na.Ka.No.778/2006/A3 dated 30.7.08 asstated therein.For Petitioners: Mr. R.SingaravelanFor Respondents: Mr. D.Sreenivasan, AGP for RR-1 to 3 Mr. V.Ayyathurai for R-4 https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDERS.J.MUKHOPADHAYA, J.In both the writ petitions as common relief has been sought forand common question of law involved, they were heard together anddisposed of by this common judgment.2. The petitioners were in the service of the State in itsHighways Department. The petitioner, Govindaraj was appointed onregular basis on compassionate grounds as Office Assistant in theHighways Department, Perambalur, where he joined service on 16thMarch, 1995. Similarly, the other petitioner, Muthukrishnan wasalso appointed on regular basis on compassionate grounds in theHighways Department, Perambalur and joined on 20th Oct., 1995. Theywere declared surplus by the Highways Department, by order dated 26thJuly, 2006, but they were not disturbed and, later on, by orderdated 6th Feb., 2008, they were transferred under the PrincipalDistrict Judge, Perambalur, in view of order dated 26th July, 2006.The grievance of the petitioner is that the respondent, DistrictCollector, passed the order of transfer on 6th Feb., 2008 withoutnoticing that there were posts under Divisional Engineer, Highways,Ariyalur, to accommodate them and they were not excess to thestrength for transferring them to other Department.3. According to the 1st respondent, District Collector,Ariyalur, the Finance Department, vide G.O. Ms. No.128 dated 21stFeb., 2006, and the Divisional Engineer, Highways, Ariyalur, byletter dated 24th April, 2006, had sent a list of 14 surplus OfficeAssistants, including the petitioners. Accordingly, by order dated26th July, 2006, the petitioners and others, including two persons ofSurvey and Settlement Department were drafted in the list as surplusOffice Assistants and copies were communicated to individualconcerned.In the meantime, the Chief Judicial Magistrate, Perambalur,called for names for appointment of 5 Office Assistants through theemployment exchange. Since, surplus Office Assistants wereavailable the 5 surplus Office Assistants were allotted to the ChiefJudicial Magistrate by proceeding dated 10th Oct., 2007 according totheir seniority and it was informed to the Chief Judicial Magistrateon 10th Oct., 2007.The Principal District Judge, Perambalur, by his letter dated9th Jan., 2008, had also called for names to appoint 4 OfficeAssistants through employment exchange. Already 11 remainingsurplus Office Assistants were in the list and instead of forwardingfresh candidates, the petitioners and 2 others were allotted to thePrincipal District Judge Court by proceeding dated 6th Feb., 2008.Accordingly, the Principal District Judge, Perambalur, has givenposting to the Office Assistants in his Court. The petitioners wererelieved from the previous station on 31st March, 2008 and joined https://hcservices.ecourts.gov.in/hcservices/ their new post on 20th April, 2008. Similar stand has been taken bythe 4th respondent, Principal District Judge, Perambalur.4. We have heard the learned counsel for the parties andperused the record. It is not in dispute that the Mofussil Courts(Civil & Sessions) have separate cadre(s) of its own. PresidingOfficers of the Courts concerned (Principal District Judge herein)is the appointing authority. It is not a combined cadre post withthe State Government, and has nothing to do with the HighwaysDepartment of the State. The Collector of any District, includingthe District Collector, Perambalur, has no jurisdiction to makeappointment or posting against one or other post of ministerialstaff, including Office Assistants in any of the Moffusil Courts ofthe State.6. In fact, similar matter fell for consideration before thisCourt from time to time wherein this Court, having noticed G.O. Ms.Nos745 and 746, both dated 22nd Sept., 1995 in and by which the StateGovernment made provisions for allotment of surplus OfficeAssistants working in various Government Offices in the Districts toother departments. The Court held that the same has no relevancywith the Mouffsil Courts in the light of the rules applicable to theMouffsil Courts. Under the Tamil Nadu State Subordinate ServiceRules, for appointment against ministerial staff, names are to becalled for from the employment exchange. Appointment can be madeonly by direct recruitment or by transfer from other departmentswithin the same Mouffsil Court or from other Mouffsil courts. Thus,according to us, there was no occasion for the District Collector,Perambalur, to forward the list of surplus Office Assistants,including the petitioners to the Principal District Judge,Perambalur, for their appointment. However, their appointments bytransfer under the Principal District Judge, Perambalur, being notunder challenge, we are not declaring the same illegal in thepresent case.7. It has been brought to our notice that the State Government,by an order issued by the Governor of State in G.O. Ms. No.128 dated21st Feb., 2006, revised the fixation of norms for employment ofOffice Assistants in all Government Offices. As per the previousGovernment Order, one Office Assistant used to be allotted for 15ministerial staff, excluding Office Assistant attached to officers.Under new norms circulated vide G.O. Ms. No.128 dated 21st Feb.,2006, it was decided to allot one office assistant, excluding theoffice assistant attached to the officers, for 12 ministerialstaffs, i.e., in the ratio of 12:1.8. The Divisional Engineer, Highways, Ariyalur, under whom thepetitioners were working, by his letter Na.Ka. No.778/2006/A3 dated30th July, 2008, has intimated the District Collector, Perambalur,that as per the latest norms intimated vide G.O. Ms. No.128 dated21st Feb., 2006, more Office Assistants are required in his officeand thus there is no excess. It appears, for the same very reason,though the petitioners were declared surplus on 26th July, 2006, but https://hcservices.ecourts.gov.in/hcservices/ they were allowed to continue in their parent office for more than 1½ years and were provided with salary. Though the aforesaid factwas brought to the notice of the District Collector, Perambalur, butby impugned order dated 11th/12th June, 2008, without taking intoconsideration the revised norms of Office Assistants fixed by G.O.Ms. No.128 dated 21st Feb., 2006, the impugned order dated 11th/12thJune, 2008 was issued.The aforesaid act on the part of the District Collectorreflects non-application of mind. We, accordingly, set aside theimpugned order dated 11th/12th June, 2008, and remit the matter tothe District Collector, Perambalur, for fresh consideration. Thesaid officer will take into consideration the letter dated 30th July,2008, written by the Divisional Engineer, Highways, Ariyalur andwill pass appropriate order within one month from the date ofreceipt/production of a copy of this order. The petitioners mayfile a fresh representation enclosing a copy of letter dated 30thJuly, 2008 written by the Divisional Engineer, Highways, Ariyaluralong with a copy of this order. The Principal District Judge, inhis turn, will pass consequential orders, if any. Both the writpetitions are allowed with the aforesaid observations anddirections. There shall be no order as to costs.GLNSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1. The District Collector Perambalur District Perambalur 621 212.2. The Divisional Engineer (Highways) Ariyalur.3. The District Collector Ariyalur District Ariyalur.4. The Principal District Judge Perambalur District Court Perambalur. https://hcservices.ecourts.gov.in/hcservices/

5. The Principal District JudgeFast Track Court, Ariyalur, Ariyalur District.Copy to: The Section Officer,VR Section, High Court,Madras.+ 2 ccs to Mr. R. Singaravelan, Advocate SR No.38454+ 1 cc to Government Pleader, SR No.38381CK(CO)SR/2.9.2009 ORDER IN W.P. NOS.23847 & 23848 OF 2008