IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:23-11-2009 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.Nos.23936 of 2004 R.Ramalingam ... Petitioner Versus 1.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. .... Respondents Writ Petitions filed under Article 226 of Constitution of India praying for the issuance of Writ of Certiorarified Mandamus to call for the records on the file of the first respondent in connection with the order passed by him in Na.Ka.No.12605/2004 A5 dated 5.8.2004 and quash the same and direct the respondents to regularise the service of the petitioner in the post of Driver. For Petitioner :Mr.R.Singaravelan For Respondents :Mr.R.Vijayakumar for R2 Mr.P.Gurunathan for RR 1 and 3. ORDER The writ petitioner was appointed as Sweeper through employment exchange in the second respondent Town Panchayat on 15.4.1988 and he was posted as a driver on 11.4.1997. As he possessed required qualification for appointment of driver, he was allowed to continue as a driver for seven years. 2. It is further averred that as per the first respondent's order dated 31.10.1997, it is necessary for https://hcservices.ecourts.gov.in/hcservices/ appointment/regularisation, the second respondent Town Panchayat has to pass a resolution. The second respondent Town Panchayat passed a resolution on 30.6.1997 to that effect. As per above resolution No.50, by an order dated 11.7.1997 the Executive Officer, second respondent stated that the petitioner could continue as driver by getting salary as sweeper. 3. The first respondent passed an order dated 31.10.1997 creating new post of Tractor driver subject to certain conditions. Condition-III, reads as follows: "(iii) In respect of Allapuram Town Panchayat necessary resolution should be got passed by the panchayat before making his appointment." 4. Since the petitioner was allowed to continue to work as a driver getting sweeper salary, he made a representation on 15.10.2003 to the Assistant Director, Town Panchayat, Vellore to appoint him permanently to the post of driver. The Assistant Director, Town Panchayat, Vellore passed an order rejecting the petitioner's claim on 10.11.2003 stating that the petitioner's claim could not be considered in view of government general ban for appointment and it was also mentioned therein that only after lifting of the general ban, the petitioner's claim would be considered. The said order dated 10.11.2003 was challenged by the petitioner before this court in W.P.No.13599 of 2004, which was disposed of by this court on 12.5.2004 by directing the first respondent to pass orders on the appeal filed by the petitioner on 20.1.2004, within a period of eight weeks. Pursuant to the order passed by this court, the first respondent passed the impugned order rejecting the petitioner's claim stating that as per the rules and regulations which are voque as on date the petitioner cannot be appointed as a tractor driver permanently and it could be done only on contract basis. 5. The learned counsel for the respondents filed a counter affidavit stating that the petitioner could not be appointed as a driver as he is serving as a sweeper and the driver post has to be filled up on the contract basis only. In paragraph 12 of the counter affidavit reads as follows: "12. It is submitted that in view of the proceedings issued by the first respondent dated 5.8.2004, one M.Krishnamurthy has been appointed as Tractor-Trailor Driver by transfer of service from Samalapuram Town Panchayat, Coimbatore District in the second respondent Town Panchayat by the proceedings Na.Ka.Ka.16629/2004/A5 dated 30.9.2004." 6. A perusal of the typed set of papers and the counter affidavit shows that the contentions of the respondents are contra to each 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 Town Panchayat and it was directed to be filled up after getting the resolution passed by the Panchayat. In this case a resolution was already passed on 30.6.1997 itself, which fact was acknowledged by the executive officer of the second respondent. When that is the position there cannot be no prohibition for the respondents to appoint/promote the petitioner as driver, as he was serving as sweeper. Curiously the Assistant Director, Panchayat Union, Vellore passed an order dated 10.11.2003 stating that in view of the general ban passed by the government for appointment, the petitioner's case could not be considered. When this court earlier directed the first respondent to pass orders on the appeal filed by the petitioner, the first respondent rejected the petitioner's claim showing that the petitioner cannot be appointed as a tractor driver permanently which could be done only on the contract basis. The said order is contra to the order passed by the first respondent himself on 31.10.1997. By virtue of the order dated 31.10.1997 a new post of Tractor Driver was created by the first respondent. When that is the position there is no question of any appointment of driver on contract basis. 7. Moreover by G.O.Ms.No. RT 23 MAWS Department authorises the concerned Town Panchayat to appoint driver from the regular office assistants who are working in the office and found to be possessed the qualification of the driver. The said G.O. was in vogue right from 3.3.1998. When that was the position there cannot be any prohibition neither for the first respondent nor for the second respondent to appoint the petitioner as driver on regular basis. One more contra aspect surfaced in this case is that in paragraph 12 of the counter affidavit it was stated that one Krishnamurthy was appointed on 5.8.2004 by which time, the general ban for appointment was in force. The respondents cannot justify the appointment of aforesaid Krishnamurthy on 5.8.2004 when they specifically took a stand that the petitioner could not be appointed as driver on permanent basis in view of the general ban. As stated above, the petitioner continued to work as sweeper right from 1988 and even as per the admission made by the department he continued to work as driver. However he has been paid only the salary of sweepers. Learned counsel for the respondents submitted that as the post was not filled up, the post got lapsed. As stated earlier the petitioner has been fighting and approaching this court for the said post and if the said post got lapsed the fault is not on the petitioner and the respondents alone have to be blamed for that. In view of that if the post got lapsed, the same post has to be created by the respondents and the petitioner should be appointed as driver. By communication dated 23.11.2009, the Executive Officer informed the learned counsel for the respondents stating that the petitioner is still working as tractor driver temporarily drawing the salary of the sweeper which is extracted 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;Lduhf jw;fhypf gzpahsuhf gzpg[hpe;J tUfpwhh;" In view of that the first respondent cannot contend that there was no post of driver. For the reasons stated above, the writ petition is allowed directing the respondents to regularise the service of the petitioner as driver from 11.7.1997. Accordingly the writ petition is allowed. No costs. Consequently connected W.P.M.P.No.29037 of 2004 and W.P.M.P.No.2171 of 2004 are closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vk To: 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.63675 1 cc to Mr.R.Singgaravelan, Advocate, Sr.No.63092 W.P.No.23936 of 2004 BKY {CO} TP/28.1.2010. https://hcservices.ecourts.gov.in/hcservices/