R. Arunachala Vadivu v. The Director of Municipal Administration Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 24..3..2008Coram:The Honourable Mr.Justice P.K. MISRAandThe Honourable Mr.Justice K.CHANDRUW. P. No. 24221 of 2001R. Arunachala Vadivu... Petitioner -vs-1.The Director of Municipal Administration Chennai2.The Municipal CommissionerKadayanallur Municipality,Tirunelveli District3.The District Employment OfficerDistrict Employment Exchange, Tirunelveli4.The RegistrarTamil Nadu Administrative TribunalChennai – 104... RespondentsPetition under Article 226 of the Constitution of Indiapraying to issue a writ of Certiorarified Mandamus to quash theimpugned order passed by the Tamil Nadu Administrative Tribunal inO.A. No. 4231 of 1997 dated 26.9.2001 and consequently, direct thesecond respondent to consider the representation of the petitionerdated 28.02.1997 for the post of Maternity Aaya.For Petitioner : Mr. A. Nister Hakeem for M/s.R.KaruppanFor Respondent 1: Mr. M. Dhandapani, Spl. GPFor Respondent 2: Mr. P.P. Shanmuga SundaramFor Respondent 3: Mr. S. Rajasekar, GA https://hcservices.ecourts.gov.in/hcservices/ ORDERK. CHANDRU, J.Heard Mr. A. Nister Hakeem, learned counsel appearing for thepetitioner, Mr. M. Dhandapani, learned Special Government Pleaderrepresenting the first respondent, Mr.P.P.Shanmuga Sundaram,learned counsel for the second respondent and Mr. S. Rajasekar forthe third respondent and have perused the records.2.The writ petition is filed by the petitioner against theorder dated 26.9.2001 passed by the Tamil Nadu AdministrativeTribunal made in O.A. No. 4231 of 1997 wherein and by which, theTribunal rejected the prayer of the petitioner for giving adirection to the second respondent Municipality to grant her anappointment. 3.The petitioner went before the Tribunal with her OriginalApplication seeking for a direction to appoint her as a MaternityAayah in the Municipality on the ground that she had already servedin that post. The petitioner stated that she was appointed as aMaternity Aayah in the scale of pay of Rs.750 – 940 for 89 daysvide proceedings of the second respondent Commissioner dated27.6.1995. Further, it was extended twice and she had continuedin service till 01.01.1996. Subsequently, the first respondentpermited the Municipality to fill up the post of Maternity Aayah bya communication dated 27.01.1997 since the post had fallen vacantever since 01.7.1994. 4.Accordingly, the second respondent called for a list fromthe Employment Exchange sponsoring candidates. However, her namewas not sponsored. The petitioner who initially registered withthe District Employment Exchange, Tuticorin got it transferred tothe Tirunelveli District Employment Exchange in the year 1990. Asshe had undergone the 'DIAS' training, the said experience wasrecorded with the Exchange on 05.11.1992. When the MunicipalCommissioner notified the vacancy for the post of Maternity andChild Health Aayah, the said vacancy was reserved for OpenCompetition / Priority, viz., widows and 10 candidates weresponsored by the Employment Exchange. Since the petitionerbelonged to the non-priority group, her name did not come withinthe zone of consideration. It was stated that her claim to havegained experience through temporary orders can have no effect whenregular sponsorship was sought for from the Exchange. Initially,she was not appointed through employment exchange and it was only aprivate arrangement made by the Municipality under rule 8(a). https://hcservices.ecourts.gov.in/hcservices/

5.The Tribunal, based upon these facts, refused to accedeto the request made by the petitioner and rejected the O.A. Thepetitioner moved this Court and got an interim order on 12.12.2001preventing the Municipality from appointing any other person in thepost of Aayah. 6.Learned counsel for the petitioner submitted that hisclient is a poor lady and she cannot be deprived of her employmenton the sole ground that her name was not sponsored by theEmployment Exchange. 7.We are not persuaded to accept the contention raised bythe learned counsel for the petitioner and this Court cannotconsider the case of the petitioner only on the ground of sympathy.In fact, by filing the present writ petition and getting an orderdated 12.12.2001, the petitioner had successfully prevented theMunicipality from appointing any other person. Her initialappointment was not through Employment Exchange but under Rule 8(a)of the Tamil Nadu Municipalities Employees' Service Rules and onthat score, she cannot get any regularisation or preference inappointment. 8.In this context, it is relevant to refer to the judgmentof the Supreme Court in Ashwani Kumar v. State of Bihar, [(1997) 2SCC 1]. It is worthwhile to refer to the following passage foundin paragraph 14 of the said judgment, which reads as follows:Para 14:"In this connection it is pertinent to note thatquestion of regularisation in any service includingany government service may arise in twocontingencies. Firstly, if on any available clearvacancies which are of a long duration appointmentsare made on ad hoc basis or daily-wage basis by acompetent authority and are continued from time totime and if it is found that the incumbentsconcerned have continued to be employed for a longperiod of time with or without any artificialbreaks, and their services are otherwise required bythe institution which employs them, a time may comein the service career of such employees who arecontinued on ad hoc basis for a given substantiallength of time to regularise them so that theemployees concerned can give their best by beingassured security of tenure. But this would requireone precondition that the initial entry of such an https://hcservices.ecourts.gov.in/hcservices/ employee must be made against an availablesanctioned vacancy by following the rules andregulations governing such entry. The second type ofsituation in which the question of regularisationmay arise would be when the initial entry of theemployee against an available vacancy is found tohave suffered from some flaw in the proceduralexercise though the person appointing is competentto effect such initial recruitment and has otherwisefollowed due procedure for such recruitment. A needmay then arise in the light of the exigency ofadministrative requirement for waiving suchirregularity in the initial appointment by acompetent authority and the irregular initialappointment may be regularised and security oftenure may be made available to the incumbentconcerned. But even in such a case the initial entrymust not be found to be totally illegal or inblatant disregard of all the established rules andregulations governing such recruitment. In any caseback-door entries for filling up such vacancies havegot to be strictly avoided. However, there wouldnever arise any occasion for regularising theappointment of an employee whose initial entryitself is tainted and is in total breach of therequisite procedure of recruitment and especiallywhen there is no vacancy on which such an initialentry of the candidate could ever be effected. Suchan entry of an employee would remain tainted fromthe very beginning and no question of regularisingsuch an illegal entrant would ever survive forconsideration, however competent the recruitingagency may be." 9.The aforesaid decision also came to be noted in Umadevi'scase [2006 (4) SCC 1]. Subsequently, in the judgment in State ofJharkhand v. Manshu Kumbhkar [2007 (8) SCC 249], the passagefound in Ashwani Kumar's case (cited supra) also came to be quotedwith approval. 10.In the light of the above legal principles and thefactual findings recorded by the Tribunal, we are not persuaded tointerfere with the order passed by the Tribunal impugned in thiswrit petition. Accordingly, the writ petition will stand dismissed. https://hcservices.ecourts.gov.in/hcservices/ Taking into account the status of the petitioner, we are notimposing any costs. Connected Miscellaneous Petition will alsostand dismissed. griSd/-Asst. Registrar./true copy/Sub Asst. Registrar.To1.The Director of Municipal Administration Chennai2.The Municipal CommissionerKadayanallur MunicipalityTirunelveli District3.The District Employment OfficerDistrict Employment ExchangeTirunelveli1 cc to Mr.P.P.Shanmugasundaram, Advocate, SR.15996ng (co)dv/1.4. Order in W. P. No. 24221 of 2001