CORAMTHE HONOURABLE MR v. The Director of Town Panchayat

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:23-11-2009CORAMTHE HONOURABLE MR.JUSTICE N.KIRUBAKARANW.P.Nos.23936 of 2004R.Ramalingam... PetitionerVersus1.The Director of Town Panchayat, Kuralagam, Chennai-108.2.The Allapuram Town Panchayat, Rep. by the Executive Officer, Allapuram, Vellore-1.3.The State of Tamilnadu rep. by its Secretary to Govt., Rural Development Department, Secretariat, Chennai-9. .... RespondentsWrit Petitions filed under Article 226 of Constitution of Indiapraying for the issuance of Writ of Certiorarified Mandamus to callfor the records on the file of the first respondent in connectionwith the order passed by him in Na.Ka.No.12605/2004 A5 dated 5.8.2004and quash the same and direct the respondents to regularise theservice of the petitioner in the post of Driver. For Petitioner :Mr.R.SingaravelanFor Respondents :Mr.R.Vijayakumar for R2 Mr.P.Gurunathan for RR 1 and 3. ORDERThe writ petitioner was appointed as Sweeper through employmentexchange in the second respondent Town Panchayat on 15.4.1988 and hewas posted as a driver on 11.4.1997. As he possessed requiredqualification for appointment of driver, he was allowed to continueas a driver for seven years.2.It is further averred that as per the first respondent'sorder dated 31.10.1997, it is necessary for https://hcservices.ecourts.gov.in/hcservices/ appointment/regularisation, the second respondent Town Panchayat hasto pass a resolution. The second respondent Town Panchayat passed aresolution on 30.6.1997 to that effect. As per above resolutionNo.50, by an order dated 11.7.1997 the Executive Officer, secondrespondent stated that the petitioner could continue as driver bygetting salary as sweeper. 3.The first respondent passed an order dated 31.10.1997creating new post of Tractor driver subject to certain conditions.Condition-III, reads as follows:"(iii) In respect of Allapuram Town Panchayatnecessary resolution should be got passed by the panchayatbefore making his appointment."4.Since the petitioner was allowed to continue to work as adriver getting sweeper salary, he made a representation on 15.10.2003to the Assistant Director, Town Panchayat, Vellore to appoint himpermanently to the post of driver. The Assistant Director, TownPanchayat, Vellore passed an order rejecting the petitioner's claimon 10.11.2003 stating that the petitioner's claim could not beconsidered in view of government general ban for appointment and itwas also mentioned therein that only after lifting of the generalban, the petitioner's claim would be considered. The said order dated10.11.2003 was challenged by the petitioner before this court inW.P.No.13599 of 2004, which was disposed of by this court on12.5.2004 by directing the first respondent to pass orders on theappeal filed by the petitioner on 20.1.2004, within a period of eightweeks. Pursuant to the order passed by this court, the firstrespondent passed the impugned order rejecting the petitioner's claimstating that as per the rules and regulations which are voque as ondate the petitioner cannot be appointed as a tractor driverpermanently and it could be done only on contract basis.5.The learned counsel for the respondents filed a counteraffidavit stating that the petitioner could not be appointed as adriver as he is serving as a sweeper and the driver post has to befilled up on the contract basis only. In paragraph 12 of the counteraffidavit reads as follows:"12. It is submitted that in view of the proceedingsissued by the first respondent dated 5.8.2004, oneM.Krishnamurthy has been appointed as Tractor-Trailor Driverby transfer of service from Samalapuram Town Panchayat,Coimbatore District in the second respondent Town Panchayatby the proceedings Na.Ka.Ka.16629/2004/A5 dated 30.9.2004."6.A perusal of the typed set of papers and the counteraffidavit shows that the contentions of the respondents are contra toeach other. As per order dated 31.10.1997 passed by the first https://hcservices.ecourts.gov.in/hcservices/ respondent, the tractor driver post was created for Allapuram TownPanchayat and it was directed to be filled up after getting theresolution passed by the Panchayat. In this case a resolution wasalready passed on 30.6.1997 itself, which fact was acknowledged bythe executive officer of the second respondent. When that is theposition there cannot be no prohibition for the respondents toappoint/promote the petitioner as driver, as he was serving assweeper. Curiously the Assistant Director, Panchayat Union, Vellorepassed an order dated 10.11.2003 stating that in view of the generalban passed by the government for appointment, the petitioner's casecould not be considered. When this court earlier directed the firstrespondent to pass orders on the appeal filed by the petitioner, thefirst respondent rejected the petitioner's claim showing that thepetitioner cannot be appointed as a tractor driver permanently whichcould be done only on the contract basis. The said order is contra tothe order passed by the first respondent himself on 31.10.1997. Byvirtue of the order dated 31.10.1997 a new post of Tractor Driver wascreated by the first respondent. When that is the position there isno question of any appointment of driver on contract basis.7.Moreover by G.O.Ms.No. RT 23 MAWS Department authorises theconcerned Town Panchayat to appoint driver from the regular officeassistants who are working in the office and found to be possessedthe qualification of the driver. The said G.O. was in vogue rightfrom 3.3.1998. When that was the position there cannot be anyprohibition neither for the first respondent nor for the secondrespondent to appoint the petitioner as driver on regular basis. Onemore contra aspect surfaced in this case is that in paragraph 12 ofthe counter affidavit it was stated that one Krishnamurthy wasappointed on 5.8.2004 by which time, the general ban for appointmentwas in force. The respondents cannot justify the appointment ofaforesaid Krishnamurthy on 5.8.2004 when they specifically took astand that the petitioner could not be appointed as driver onpermanent basis in view of the general ban. As stated above, thepetitioner continued to work as sweeper right from 1988 and even asper the admission made by the department he continued to work asdriver. However he has been paid only the salary of sweepers. Learnedcounsel for the respondents submitted that as the post was not filledup, the post got lapsed. As stated earlier the petitioner has beenfighting and approaching this court for the said post and if the saidpost got lapsed the fault is not on the petitioner and therespondents alone have to be blamed for that. In view of that if thepost got lapsed, the same post has to be created by the respondentsand the petitioner should be appointed as driver. By communicationdated 23.11.2009, the Executive Officer informed the learned counselfor the respondents stating that the petitioner is still working astractor driver temporarily drawing the salary of the sweeper which isextracted as follows: https://hcservices.ecourts.gov.in/hcservices/ "3. my;yhg[uk; ngU:uhl;rp Jg;g[ut[ gzpahsh; jpU/R/,uhkyp';fk; vd;gth;ehsJ tiu Jg;g[ut[ gzpahsh; Cjpa tpfpjj;jpnyna ouhf;lh; Xl;Lduhfjw;fhypf gzpahsuhf gzpg[hpe;J tUfpwhh;"In view of that the first respondent cannot contend that there was nopost of driver. For the reasons stated above, the writ petition isallowed directing the respondents to regularise the service of thepetitioner as driver from 11.7.1997. Accordingly the writ petition isallowed. No costs. Consequently connected W.P.M.P.No.29037 of 2004and W.P.M.P.No.2171 of 2004 are closed. Sd/-Asst. Registrar//true copy//Sub Asst.RegistrarvkTo:1.The Director of Town Panchayat, Kuralagam, Chennai-108.2.The Executive Officer, Allapuram Town Panchayat, Allapuram, Vellore-1.3.The Secretary to Govt., State of Tamilnadu Rural Development Department, Secretariat, Chennai-9.1 cc to Mr.R.Vijaya Khumar, Advocate, Sr.No.636751 cc to Mr.R.Singgaravelan, Advocate, Sr.No.63092W.P.No.23936 of 2004BKY {CO}TP/28.1.2010.