E. Balasubramani v. The Commissioner, Corporation of Chennai, Rippon Building, Chennai & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.07.2009THE HONOURABLE MR. JUSTICE R. SUDHAKAR W.P.No. 22025 of 2001.......E. Balasubramani .... Petitioner VsThe Commissioner, Corporation of Chennai, Rippon Building, Chendnai.3.2.The Superintending Engineer (Mechanical), Corporation of Chennai, Rippon Building, Chennai.3.3.The Secretary to Government,Municipal Administration and Water Supply Department, Competent Authority.(R3 impleaded Suo Moto as per order dated 6.7.2009 in W.P.22025/01).... Respondents Prayer: Petition filed under Article 226 of the Constitution ofIndia to issue a Writ of Mandamus directing the respondents toregularise the services of the petitioner in the cadre of LoaderOperator with effect from the date of initial appointment as LoaderOperator and grant seniority, pay, special pay, arrears of pay,allowances and all other consequential benefits. For Petitioner : Mr.R.Amernath Rao Khande For Respondents : Mr.V.BharathidasanORDERThe petitioner joined the services of Corporation of Chennaias a permanent driver by an order dated 30.4.1987. A memorandum wasissued by the Zonal Officer on 11.3.1994 stating that the petitionerwas given a training as front end loader at the Zone-I lorry stationand posted on duty without any financial commitments. On 22.7.1998, https://hcservices.ecourts.gov.in/hcservices/ a circular was issued to all the drivers stating that they canparticipate in the tests so as to enable them to qualify themselvesas front end loader operator. The said circular was communicated tothe petitioner on 27.7.1998. The Corporation conducted a test inNovember 2000 and the petitioner was qualified and ranked atSl.No.14. The Assistant Executive Engineer, Corporation of Chennaiposted the petitioner as a loader-cum-driver in the morning shift.The order states that it is a temporary posting and the petitionershould not claim seniority. On 5.3.2001, the Superintending Engineerpassed the following order:-@ nkw;go fojj;jpy; jpU ,. ghyRg;gpukzp. Xl;Leu; 10 Mz;L fhykhf kz;lyk;?1y;nyhlh; Xl;o tUtjhft[k; nyhlh; Xl;Leh; cj;jput[ tH';Fk;go ntz;oa[s;shh;/ eph;thf eyd;fUjp jpU ,/ghyRg;gpukzp. epue;ju Xl;Ldh;. kz;lyk;?1 mth;fs; jw;fhypf nyhlh; Xl;Leuhfgzpg[hpa Miz tH';fg;gLfpwJ/ kz;ly mYtyh;?1d; njitf;nfw;g nyhlh; Xl;Leh; gzptH';fg;gLk;/,th; Xl;Leh; rk;gsnk bgWthh;/ ,th; nyhlh; Xl;Leh;fSf;fhd Kjepiy gl;oay;jahhpf;Fk;bghGJ ve;j Kd;Dhpika[k; mspf;fg;glkhl;lhJ/@2. In effect, the petitioner has been temporarily appointedas loader-operator and that he will draw the salary of a regulardriver. Further, the petitioner will not be entitled to claim anyseniority in the loader-operator post.3. The petitioner submits that since the SuperintendingEngineer has already appointed the petitioner as a loader-operatorand having passed the qualifying tests and completed more than 10years of service, he is entitled to be posted as loader-operator.The respondents have failed to consider the various representationsof the petitioner and grant the benefit in spite of the fact thatthe petitioner has been continuously performing the duty as a loaderoperator. 4. In the counter filed by the respondents in paragraph 2,it is stated as follows:-" I submit that in Corporation of Chennai Class IIIServices, there was no Bulldozer/Loader Operator post is inexistence. After purchasing of some Bulldozer/Loadervehicle, some of the drivers, who are having valid heavyvehicle licence, and with their consent were asked to operatethe Bulldozer/Ladder Operator, with the approval of thegovernment for the existing fleet of equipments."5. Learned counsel for the respondent on instructionssubmitted that necessary action will be taken to create posts in thecadre of Bulldozer/ loader-operator . He also stated that theCorporation has sent a proposal with recommendations for creating the https://hcservices.ecourts.gov.in/hcservices/ posts and the orders of the Government will be obtained . As andwhen the posts are approved, the eligible persons will be promoted tosuch posts. 6. The learned counsel for the petitioner brought to theattention of the Court The (Chennai) City Municipal (Corporation) website extract wherein, it has been shown that there are 8 Bulldozerfor handling garbage. He also referred to the memorandum of the year1991 issued on 27.6.1991 where the Corporation of Madras called forwillingness from permanent drivers to work in the post of BulldozerDrivers/Loader Drivers. Another memorandum of same nature was issuedon 10.10.1999. He also pointed out similar memorandum issued bythe Superintending Engineer of Corporation on different dates viz.,on 29.6.2000, 9.5.2001 and 4.7.2001. In all these memorandum,permanent drivers of the Corporation were asked to give theirwillingness to work as Bulldozer drivers/Loader drivers. The learnedcounsel for the petitioner also pointed out a chart where the payscale of Bulldozer drivers/ loader drivers working in the variouszone have been indicated. He therefore, pleaded before this Courtthat on and from the date of appointment of the petitioner as loaderoperator by the proceedings of the Superintending Engineer dated5.3.2001, his case should be considered for appointment to such poston regular basis with pay benefits. 7. It is contended that the petitioner in this case isentitled to the benefit of higher Pay as applicable to the higherpost if it is given to the similarly placed person. The payprotection to those who serve the higher post is affirmed by the ApexCourt in the decisions reported in (i) Selvaraj – Vs. - Lt. Governorof Island, Port Blair and Others (1998, 4, S.C.C. 291) and (ii)Secretary-cum-Chief Engineer, Chandigarh – Vs. - Hari Om Sharma andOthers (AIR 1998, S.C.C. 87).8. From the various proceedings, which have been referredto above, it is clear that the respondents have been issuingmemorandum from time to time stating that the permanent drivers canwork as drivers of bulldozers. One of the documents produced alsoshows that the pay scale has been fixed for driver of bulldozer andfront end load operator drivers. In certain cases, the salary hasbeen fixed on a higher scale than that of the regular drivers.As regards the fixation of pay is concerned, it has to be dealt withby the Corporation without any discrimination between one person orthe other depending on the nature of work done and the appointmentmade. The scope of the present writ petition is restricted toregularisation of the petitioner as driver of Bulldozer/ front endloader operator on and from the date of his appointment. TheCorporation has taken a stand that the proposal has been placedbefore the committee and it will be forwarded to the Government. Inthis case, the documents produced by the petitioner clearly show thatthe respondents have proceeded on the basis that loader operators https://hcservices.ecourts.gov.in/hcservices/ -cum- bulldozer drivers are a separate entity. The drivers of theCorporation were given the option to work in such posts. It is notclear as to why the petitioner in this case has not been regularisedor upgraded in the post of driver of bulldozer-cum front end loadoperator. If the petitioner qualifies due to his long years ofservice after having passed skill tests, he should be appointed asbulldozer/ front end loader operator driver. He is entitled to beregularised/upgraded in the said post. The respondents cannot denysuch right. The respondents claim that there is no such post appearsto be inconsistent with the document produced. In any event, ifthey do not have such a post as contended, respondents have to createappropriate posts and pay the salary applicable to such personsholding and performing the higher posts without any discrimination.The pendency of the proposal before the Government is not a reason todeny the petitioner's rightful entitlement. 9. In view of the various proceedings issued by theCorporation and the fact that the petitioner was appointed by theSuperintending Engineer as a Bulldozer-cum-front end operator driverand has been working as such from the date of his appointment, thepetitioner is entitled to be regularised/upgraded as a bulldozer-cum-front end operator driver on and from the date of suchappointment. He will be entitled to all the consequential benefitswithout any discrimination. This writ petition is ordered in theabove terms. No costs. Consequently, WP MP No. 386 of 2009 isclosed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarraTo1. The Commissioner, Corporation of Chennai, Rippon Building, Chendnai.3.2. The Superintending Engineer (Mechanical), Corporation of Chennai, Rippon Building, Chennai.3. https://hcservices.ecourts.gov.in/hcservices/

3. The Secretary to Government,Municipal Administration and Water Supply Department, Competent Authority.2 ccs To Mr.R.Amernath Rao Khande, Advocate, SR.303831 cc To Mr.V.Bharathidasan, Advocate, SR.30498 WP No. 22025 of 2001MDR(CO)SRA(04/08/2009)