IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.07.2011 CORAM THE HONOURABLE Mr.JUSTICE D.HARIPARANTHAMAN W.P.No.11855 of 2007 and M.P.No.1 of 2002 (O.A.No.5713 of 2002) A.Syed Abdul Khader ... Petitioner Vs 1.The Assistant Executive Engineer, WRO (PWD), Officer of Vaippar Vadinela Sub-Division, Aruppukottai, Virudhunagar District. 2.The Executive Engineer, WRO (PWD), Vaippar Vadinela Division, Virudhunagar. 3.The Chief Engineer, Public Works Department, Water Resources Organisation, Madurai Region, Madurai-625 002. 4.The Principal Chief Engineer cum Chief Engineer (General), Water Resources Organisation, Chepauk, Chennai-600 005. 5.The State of Tamil Nadu rep. by its Joint Secretary, Public Works (C2) Department, Fort St. George, Chennai-600 009. ... Respondents PRAYER: This Writ petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.5713 of 2002 on the file of Tamil Nadu Administrative Tribunal, to issue a writ of certiorarified mandamus to call for the records from the first respondent relating to his proceedings Letter No.3/2002, dated 07.09.2002 and quash the same and consequently further direct the respondents 1 to 5 to reinstate the petitioner in the post of Night https://hcservices.ecourts.gov.in/hcservices/ Watchman in the first respondent's office with backwages and all other attendant benefits and to regularise his service from the date of his initial appointment (i.e.) 09.11.1990. For Petitioner : Mrs.Vijayakumari Natarajan For Respondents : Mr.R.Ravichandran, Additional Government Pleader. ORDER The Original Application in O.A.No.5713 of 2002 before the Tamil Nadu Administrative Tribunal is now W.P.No.11855 of 2007 before this Court. 2.The petitioner was appointed by the first respondent on 05.01.1990 as Night Watchman, on daily wage basis, subsequent to the sponsorship made by the Employment Exchange. The first respondent has recommended to regularise the service of the petitioner in his letter dated 02.01.2001, to the second respondent. Based on the said recommendation, the second respondent made a recommendation in his letter dated 01.03.2001 to the Superintending Engineer, Vaippar Vadinela Division, Virudhunagar for regularisation of the service of the petitioner. It was stated by the second respondent that the petitioner has rendered more than 10 years of service as daily wage employee and the service of the petitioner was required for the safety of the materials in the office of the first respondent. Thereafter, the Superintending Engineer has also made recommendations to the third respondent for regularisation of the service of the petitioner. Based on all those recommendations, the third respondent sent a letter dated 09.05.2002 to the fourth respondent for regularisation of the service of the petitioner stating that the petitioner was appointed in the first respondent office on daily wages basis and the necessity to appoint him as Night Watchman. It is also stated by the third respondent in his recommendation that the petitioner was appointed for the safety of the materials in the office of the first respondent and requested to get approval for the post of Night Watchman. Thereafter, the fourth respondent sent a letter dated 22.06.2002 to the 5th respondent requesting to regularise the service of the petitioner and for approval for the post of Night Watchman in the first respondent's office. It is stated by the fourth respondent that the petitioner was recruited through Employment Exchange and also, he has completed more than 10 years of service and possessed requisite qualifications for the said post. But, the 5th respondent sent a reply to the proposal dated 22.06.2002 stating that the petitioner could not have been appointed as a contingent employee as there was a ban of appointment of contingent employee after 31.03.1997 as per G.O.Ms.No.107, P&AR Department, dated 05.02.1987. The 5th respondent has also stated in his letter dated https://hcservices.ecourts.gov.in/hcservices/ 02.08.2002 as to what action that has been taken against the person, who appointed the petitioner in an irregular manner and the fourth respondent was directed to send a report in this regard. 3.Thereafter, the third respondent sent a letter dated 20.08.2002 enclosing the aforesaid order dated 02.08.2002 of the 5th respondent, seeking the report on the irregular appointment of the petitioner and the action that has to be taken against the person, who appointed the petitioner as Night Watchman. Thereafter the Superintending Engineer sent a letter dated 28.07.2002 to the second respondent for further action, based on the letter dated 02.08.2002 of the 5th respondent. 4.The second respondent sent a letter dated 05.09.2002 to the first respondent for further action based on the letter dated 02.08.2002 of the 5th respondent. In these circumstances, the first respondent issued a show cause notice dated 07.09.2002 to the petitioner asking as to why he should not be terminated from service based on the letter dated 02.08.2002 of the 5th respondent. On the same day, the first respondent passed the order dated 07.09.2002, removing the petitioner from service. Aggrieved by the said order, the petitioner has filed Original Application before the Tamil Nadu Administrative Tribunal, Chennai, praying to quash the order of the first respondent dated 07.09.2002. 5.The respondents filed reply affidavit refuting all the allegations. 6.According to the respondents, the petitioner was terminated pursuant to the direction issued by the 5th respondent by letter dated 02.08.2002, as he was appointed contrary to G.O.Ms.No.107, P&AR Department, dated 05.02.1987. It is stated that the regular post got lapsed on 04.08.1982 and the Government did not sanction the said post. Therefore, the appointment of the petitioner was irregular and his termination was in accordance with the appointment order wherein he was informed that he would be terminated at any time, without assigning any reason. 7.Heard the submissions made by Mrs.Vijayakumari Natarajan, learned counsel for the petitioner and Mr.R.Ravichandran,, learned Additional Government Pleader for the respondents. 8.The petitioner was appointed as Night Watchman by the first respondent on 05.11.1990, subsequent to the sponsorship made by the Employment Exchange, on daily wage basis. The petitioner rendered his service for more than 10 years. Thereafter, the first respondent made a recommendation dated 01.03.2001 to the second respondent for regularising the service of the petitioner stating that the service of the petitioner is necessary for the safety of the materials in the office of the first respondent. The second respondent also sent a https://hcservices.ecourts.gov.in/hcservices/ proposal dated 01.03.2001 to the Superintending Engineer for regularisation the service of the petitioner and in turn, the Superintending Engineer made a recommendation dated 10.04.2002 to the third respondent seeking regularisation of the service. In his letter, he has stated that the petitioner was appointed for the safety of the materials in the office of the first respondent. The said letter dated 09.05.2002 is extracted hereunder. ",Jnghd;w xg;gspg;g[ fhyhtjpahd fhtyh; gjtpf;F murpd; Kiwahd xg;gspg;g[ Miz fpilf;Fk; tiu mYtyf ghJfhg;gpid fUj;jpw;bfhz;L ntiytha;g;g[ mYtyfk; Kyk; jpdf;Typ mog;gilapy; gzpahsh;fis gzpakh;j;jpf; bfhs;syhk; vd muR foj vz;.36908 / 77-8(gp & V) Jiw ehs; 23.01.1979y; mwptpf;fg;gl;L mjd; mog;gilapy; jpU.nf.b$auhkd; vd;gtiu khtl;l ntiytha;g;g[ mYtyfk; Kyk; njh;t[ bra;ag;gl;L mUg;g [f;nfhl;il cgnfhl;l vz;.378 / 82 ehs; 29.10.1982d;go cgnfhl;lj;jpy; 01.11.1982 Kjy; jpdf;Typ mog;gilapy; rpy;yiur; brytpdf; fhtyuhf gzpg [hpe;J te;Js;shh;. mth; bjhlh;e;j gzpahw;wpjid fzf;fpy; bfhz;L murhiz vz;.241gp/ v.Mh;.ehs; 18.04.88 kw;Wk murhiz vz;.528; gp/ v.Mh; Jiw ehs; 10.10.88y; Rl;of;fhl;lg;gl;l mwpt[iufspd;go Kiwahd fhtyh; gjtpapy; mg;nghija tpUJefh; nfhl;lr; bray;Kiwf; foj vz;.,v / 11166 / 90 ehs; 07.03.1990d;go gzpakh;t[ bra;ag;gl;L Kiwahd fhtyh; gzpaplj;jpw;F khWjy; bra;ag;gl;L 8.03.90 gpw;gfypy; gzp tpLtpf;fg;gl;ljhy; mUg;g[f;nfhl;il cgnfhl;lj;jpy; fhtyh; gjtp fhyp Vw;gl;lJ vdt[k; mg;nghija NH;epiyapy; cgnfhl;l Mtz';fs; kw;Wk; jsthl bghUs;fis ghJfhf;f xU ,ut[ fhtyh; gzp mtrpaj;ij fUj;jpy; bfhz;L mUg;g[f;nfhl;il tl;lf;fz;fhzpg;g[ bghwpahsuJ bray;Kiw foj vz;.10222-90 ,4-ehs; 09.10.90y; tHf;fpa mwpt[iufspd;go jpU.m.bra;aJ mg;Jy;fhjh; khtl;l ntiy tha;g;gfk; Kyk; bjhpt[ bra;ag;gl;L mUg;g [f;nfhl;il cgnfhl;lj;jpw;F gzpakh;t[ bra;ag;gl;L 9.11.90 Kw;gfy; Kjy; rpy;yiwr; brytpdj;jpy; jpdf;Typ mog;gilapy; gzpg[hpe;J tUfpwhh;. ,tuJ gzptptu mwpf;if- bgah; - jpU. m.bra;aJ mg;Jy;fhjh; gpwe;j njjp - 21.11.1961 gzpapy; nrUk; nghJ taJ - 29 jha;bkhHp - jkpH; gphpt[ - K!;yPk; (byg;ig) epakdKiw - khtl;l ntiytha;g;g[ mYtyf\yk; fy;tpj;jFjp - 8k; tFg;g[ njh;r;rp gzpnaw;w ehs; - 9.11.90 https://hcservices.ecourts.gov.in/hcservices/ nkw;Fwpg;gpl;Ls;s tptu';fspd; mog;gilapy; bghJg;gzpj;Jiwapy; ePz;l fhykhf gzpg[hpe;J tUk; jpU.m.bra;aJ mg;Jy;fhjh; jpdf;Typ mog;gilapy; rpy;yiur;brytpdf; fhtyh; gjtpapy; 9.11.90 Kjy; gzpakh;t [ bra;ag;gl;likf;Fk; bjhlh;e;J gzpahw;wp tUtjw;Fk;/ murpd; gpd;ndw;g[ Mizapid bgw;Wj;juf;nfhhp chpa fUj;JU ,j;Jld; mDg;gitf;fg;gLfpwJ." 9.Based on the letter of the 4th respondent dated 22.06.2002 addressed to the 5th respondent for regularisation of the service of the petitioner, the 5th respondent issued a reply dated 02.08.2002 stating that the very appointment of the petitioner was irregular and the same was contrary to G.O.Ms.No.107, P&AR Department, dated 05.02.1987 and therefore, action should be taken against the Officer, who recruited the petitioner and the 5th respondent sought an action taken report. 10.In these circumstances, the letter dated 02.08.2002 was forwarded by the third respondent to the Superintending Engineer in his letter dated 02.08.2002 and in turn, the Superintending Engineer forwarded the same to the second respondent for further action. Ultimately, the second respondent sent a letter dated 05.09.2002 to the first respondent for further action. In these circumstances, the first respondent issued the show cause notice dated 07.09.2002. The show cause notice dated 07.09.2002 issued by the first respondent to the petitioner is extracted hereunder: "ghh;it vz; 1y; nkny Rl;of;fhl;lg;gl;l bray;Kiw foj vz; \yk; jh';fs; ntiy tha;g;g[ mYtyfk; Kyk; ,ut[ fhtyh; gzpf;F jpdf;Typ mog;gilapy; gzpakh;t[ bra;j nghjpYk;/ ,e;j gzp jw;fhypfkhdJ kw;Wk Kd;dwptpg;g[ ,d;wp gzpapdpd;W ePf;ft[k; cjtp braw;bghwpahsUf;F chpik cz;L vd bjhptpf;fg;gl;L ,Ue;jJ. vdpDk; gzpapd; mtrpaj;ij Kd;dpl;L jh';fs; ,Jehs; tiu bjhlh;e;J ,Ue;Js;sPh;fs;. ghh;it vz;.2y; Rl;of;fhl;lg;gl;l muR brayh; fojj;jpy; 31.03.1987f;F gpd; jil bra;ag;gl;l rpy;yiw brytpd gzpaplj;jpy; j';fis epakdk; bra;jJ Kiwaw;w epakdk; vd bjhptpg;gjhYk;/ ,jw;Fwpa fhuzkhd mjpfhhpfs; kPJ eltof;if vLf;fg;gl ntz;Lk; vd bjhptpj;Js;s fhuzj;jpdhy; jh';fis kPz;Lk; gzpapy; itj;J bfhs;s ,ayhJ vd;gjhy; ,jd;kPJ j';fsJ tpsf;f';fis bjhptpf;FkhW nfl;Lf;bfhs;fpnwd; ." 11.Before getting explanation, from the petitioner, to the show cause notice, the first respondent has sought to terminate the service of the petitioner on 07.09.2002. Hence, the impugned order dated 07.09.2002, terminating the service of the petitioner, without getting his explanation to the show cause notice, is violative of principles of natural justice. Furthermore, the petitioner was not furnished the https://hcservices.ecourts.gov.in/hcservices/ letter dated 02.08.2002 referred to in the show cause notice dated 07.09.2002, regarding his termination. 12.In fact, the show cause notice dated 07.09.2002 acknowledges that the service of the petitioner is required for the safety of the materials in the office of the first respondent. It is stated that there was sanctioned post of Watchman in the first respondent office, but the said post got lapsed on 04.08.1982. Hence, as per Government Order, if a watchman post is lapsed, the competent authority, considering the safety of the materials in the office, can appoint casual labourers on daily wages basis, through Employment Exchange anticipating the order of the Government for revival of the post. The petitioner also possessed the requisite qualifications. The petitioner rendered 12 years of service without any break. In these circumstances, the third respondent in his recommendation dated 09.05.2002 recommended for regularisation of the service of the petitioner and the relevant passage is also extracted above. In his recommendation, the third respondent has categorically stated that the service of the petitioner was required for the safety of the materials in the office of the first respondent and he gave a detailed report as to how the service of the petitioner is required in the office of the first respondent. 13.In these circumstances, I am of the view that the termination of the petitioner, that too after rendering 12 years of service, and more particularly, when all the authorities recommended for absorption of the petitioner, is improper, illegal, arbitrary and violative of Article 14 of the Constitution of India. Furthermore, as rightly contended by the learned counsel for the petitioner, the Government has regularised the services of all the daily wage employees by issuing various orders. As per G.O.Ms.No.107, P&AR Department, dated 05.02.1987, the employees who were in employment as on 30.06.1987 were regularised. Thereafter, the Government issued G.O.Ms.No.680, Public Works Department, dated 16.08.1995, regularising the service of NMR employees, who have rendered more than 10 years of service. In fact, the petitioner should have been regularised to the said post in the light of the said Government Order. Likewise, the Government issued another order in G.O.Ms.No.22, Personnel and Administrative Reforms (F) Department, dated 28.02.2006, regularising the service of the daily wage employees, who have rendered 10 years of service as on 01.01.2006. The Government also issued G.O.Ms.No.334, Public Works (C2) Department, dated 19.10.2007, regularising the service of the daily wage employees in the Public Works Department. Further, the Government issued another order in G.O.Ms.No.134, dated 07.05.2010, regularising the service of the daily wage employee, who have rendered 10 years of service. From the above, it is evident that the Government had issued various orders, regularising the services of the daily wage employees. But, in the case of the petitioner, he was terminated, after 12 years of service, https://hcservices.ecourts.gov.in/hcservices/ irrespective of the recommendations made by all the authorities for absorption. The authorities also recommended for regularisation of the service of the petitioner on the ground that the petitioner was appointed for the safety of the materials in the office of the first respondent. But, the first respondent simply passed an order dated 02.08.2002 stating that the appointment of the petitioner was irregular, without adverting to the above said relevant aspects. The first respondent did not consider that the petitioner has rendered 12 years of service as Night Watchman. According to the petitioner, he was terminated and the termination was only based on the direction of the 5th respondent. 14.In these circumstances, the impugned order is quashed. The writ petition is allowed. However, the respondents are directed to reinstate the petitioner forthwith in the post of Night Watchman in the first respondent's office with continuity of service and and all other attendant benefits, but without backwages and the respondents are also directed to regularise the service of the petitioner from the date of his initial appointment. Consequently, connected Miscellaneous Petition is closed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar mps To 1.The Assistant Executive Engineer, WRO (PWD), Officer of Vaippar Vadinela Sub-Division, Aruppukottai, Virudhunagar District. 2.The Executive Engineer, WRO (PWD), Vaippar Vadinela Division, Virudhunagar. 3.The Chief Engineer, Public Works Department, Water Resources Organisation, Madurai Region, Madurai-625 002. https://hcservices.ecourts.gov.in/hcservices/ 4.The Principal Chief Engineer cum Chief Engineer (General), Water Resources Organisation, Chepauk, Chennai-600 005. 5.The Joint Secretary, The State of Tamil Nadu Public Works (C2) Department, Fort St. George, Chennai-600 009. +1cc to Mr.S.Natarajan, Advocate Sr 44287 +1cc to Govt. Pleader Sr 44072 NSM(CO) km/26.7. W.P.No.11855 of 2007 and M.P.No.1 of 2002 (O.A.No.5713 of 2002) https://hcservices.ecourts.gov.in/hcservices/