IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.06.2010 CORAM: THE HON'BLE MR.JUSTICE D.HARIPARANTHAMAN W.P.No.13752 of 2009 R.Amudha ... Petitioner Versus 1. The Secretary to Government Commercial Tax Department, Fort St. George, Chennai – 09. 2. The District Collector of Chennai, Singaravelar Maligai, No.32, Rajaji Salai, Chennai – 01. 3. The Registrar, Tamil Nadu Taxation Special Tribunal, Singaravelar Maligai, No.32, Rajaji Salai, Chennai – 01. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Mandamus, to direct the respondents to regularize the services of the petitioner in the post of Sweeper with effect from 04.04.1999 pursuant to the recommendations of the third respondent in Proceeding Rc.No.1584/2000/E4 dated 21.04.2005 and consequently direct the respondent to absorb the petitioner in any other department in the post of Sweeper with all monetary and consequential service benefits. For Petitioner : Mr.S.M.Subramaniam For Respondents: Mrs.Lita Srinivasan Government Advocate https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner was initially employed as part-time sweeper from 02.11.1997 and the wages were paid at the rate of Rs.9/- per day from the Contingencies, by the Third respondent Tribunal. Later, the Tribunal sought permission of the Government for appointment of one full-time scavenger for the purpose of maintenance of Court Halls, Chambers, Office and Toilets, etc., to keep clean and in hygienic condition. Accordingly, the Government permitted the third respondent Tribunal to employ one full-time scavenger, by its letter dated 02.08.2000, against one sanctioned post on daily wage basis at the rate fixed by the Collector, Chennai, from time to time till regular appointment is made. Accordingly, the petitioner was appointed as full-time scavenger from 14.08.2000. 2. While so, the Government sanctioned one post of sweeper in the scale of pay of Rs.2550-55-2660-60-3200. The third respondent, by an order dated 03.04.2001, appointed the petitioner herein as sweeper in the aforesaid scale. 3. In the mean time, the Tamil Nadu Taxation Special Tribunal Service Rules, 2000 were framed vide G.O.Ms.No.110, Commercial Taxes Department, dated 10.07.2000. According to Rule 8 read with Sl.No.20 of the Table under Schedule-II of the TNTST Service Rules, the mode of appointment of Sweeper is by direct recruitment and the prescribed qualifications to be eligible for appointment as Sweeper are as under:- i) the person must be able to read and writ Tamil and ii) the person must not have completed the age of thirty years on the first day of July of the year in which the selection for appointment is made. 4. However, without resorting to direct recruitment, the petitioner was appointed by the aforesaid order dated 03.04.2001. In these circumstances, the third respondent sent a proposal to the Government to relax the Rule for regularising the service of the petitioner referred to above in its letter in Rc.No.1584/2000/E4 dated 21.04.2005. 5. Though two Chowkidars viz., Mr.B.Rajasekaran and Mr.M.Devaraj and one Watchman viz., Mr.V.Sivanandam were also appointed contrary to the Rules, they were regularised by relaxing the Rules, by G.O.Ms.No.17, Commercial Taxes and Registration Department, dated 18.01.2006. But, the services of the petitioner was not regularised. One Office Assistant viz., Mr.Vivek approached this Court and this Court passed an order in W.P.No.34968 of 2005 on 24.07.2007 to regularise his service, who was also appointed contrary to the Rules. https://hcservices.ecourts.gov.in/hcservices/ 6. In these circumstances, the petitioner has come up with this writ petition seeking for a direction to the respondents to regularise her service as sweeper with effect from 04.04.1999 and consequently direct the respondents to absorb the petitioner in any other department in the post of sweeper with all monetary and consequential service benefits. 7. Notice of motion was ordered on 21.07.2009. 8. Heard Mr.S.M.Subramaniam, learned counsel for the petitioner and Mrs.Lita Srinivasan, learned Government Advocate for the respondents. 9. The learned counsel for the petitioner submits that when the Government issued G.O.Ms.No.17, Commercial Taxes and Registration Department, dated 18.01.2006, regularising two Chowkidars and one Watchman who were appointed contrary to the Rules, there is no reason to deny the same benefit to the petitioner. The learned counsel for the petitioner also brought to my notice, the order of this Court made in W.P.No.34968 of 2005 on 24.07.2007. The learned counsel for the petitioner also brought to my notice, the recommendation letter of the third respondent dated 21.04.2005 sent to the first respondent for regularising the service of the petitioner by relaxing the Rules. 10. On the other hand, the learned Government Advocate states that in spite of her letter dated 09.06.2010 and 24.06.2010, there is no response from the first and second respondents. 11. In my considered view, admittedly, the petitioner has been in service from 1997. Now, she has put in more than 14 years of service. She was initially appointed as part-time sweeper and later as full-time scavanger on 14.08.2000 and she was further appointed as sweeper on 03.04.2001. The method of recruitment contemplated under Rule 8 read with Sl.No.20 of the Table under Schedule-II of the TNTST Service Rules, was not complied with while making her appointment. But in the case of Chowkidars and Watchman, the Government thought to relax the Rules and regularise their services by G.O.Ms.No.17, Commercial Taxes and Registration Department, dated 18.01.2006. The other Office Assistant, viz., Mr.Vivek approached this Court and this Court in W.P.No.34968 of 2005 on 24.07.2007, issued a direction to regularise his services. 12. The third respondent sent a request letter dated 21.04.2005 seeking regularisation of the service of the petitioner as sweeper by granting necessary relaxation to the Service Rules and the same is extracted here-under: https://hcservices.ecourts.gov.in/hcservices/ "Tmt.R.Amudha was initially employed as part-time sweeper from 02.11.1997 and the wages were paid at the rate of Rs.9% per day from the contingencies. Since framing of separate Service Rules for this Tribunal were under consideration by the Government, the direct appointment of sweepers against the sanctioned posts could not be made. The attempt made by this Tribunal to appoint Sweepers on deputation basis had also failed. Therefore, for the purpose of maintenance of Court Halls/ Chambers / Office / Toilets, etc. i.e. to have them in a very clean hygienic condition, the appointment of a full time scavenger was though necessary and therefore, permission of the Government for appointment of one full-time scavenger was sought. Accordingly, the Government, by its Letter No.4797/C2/2000-4 CT Department dated 02.08.2000, permitted this Tribunal to employ one full-time scavenger against one sanctioned post on daily wage basis at the rates fixed by the Collector of Chennai from time to time till regular appointment of sweeper is made. Accordingly, Tmt.R.Amudha was appointed as full time scavenger from 14.08.2000. The Tamil Nadu Taxation Special Tribunal Service Rules 2000 were framed vide G.O.Ms.No.110, Commercial Taxes, dated 10.07.2000. According to Rule 8 read with Sl.No.20 of Table under Schedule-II of the TNTST Service Rules, the mode of appointment of sweeper is by direct recruitment and the prescribed qualifications to be eligible for appointment as sweeper are as under:- i) Must be able to read and write Tamil and ii) Must not have completed the age of thirty years on the first day of July of the year in which the selection for appointment is made. In view of the above requisite qualifications for appointment of Sweeper and considering the satisfactory work of Tmt.R.Amudha from 02.11.1997 inthis Tribunal as scavenger, who was working under the permission of the Government, the Then Acting Chairman of this Tribunal, Hon'ble Mr.Justice V.Rengasamy thought fit to appoint Tmt.R.Amudha as Sweeper instead of searching for a new sweeper through Employment Exchange. Accordingly, Tmt.R.Amudha was appointed as Sweeper against a sanctioned post in the time scale of pay of Rs.2550-55-2660-60-3200. Request: In such circumstances, I request the appointment of Tmt.R.Amudha as sweeper by the then Chairman of this Tribunal, Hon'ble Mr.Justice V.Rengasamy, may be ratified and the provision of https://hcservices.ecourts.gov.in/hcservices/ "direct appointment" appearing in Sl.No.20 of Table under Schedule-II (Rule 8) of the TNTST Service Rules 2000, may be relaxed in favour of Tmt.R.Amudha, sweeper so as to enable this Registry to regularise her services in this Tribunal." 13. I have also perused G.O.Ms.No.17, Commercial Taxes and Registration Department, dated 18.01.2006 regularising two Chowkidars and one Watchmen who were appointed contrary to the Rules. This Court also passed an order dated 24.07.2007 in W.P.No.34968 of 2005, directing the respondents to regularise one Office Assistant viz., Mr.Vivek. 14. In the prayer, it is stated that the petitioner is entitled to regularisation as Sweeper from 04.04.1999. But, the petitioner was appointed as Sweeper from 03.04.2001. 15. In these circumstances, considering the nature of the case, a direction is issued to the first respondent to regularise the service of the petitioner by giving necessary relaxation to the Service Rules, as done in the case of other persons referred to above. It is made clear that since, the petitioner is appointed as a Sweeper against sanctioned post from 03.04.2001, regularisation has to take effect from 03.04.2001. 16. The first respondent is directed to pass appropriate order within a period of eight weeks from the date of receipt of a copy of this order. After abolition of the Tribunal, the staff members were absorbed in some other Department. The first respondent should also consider to transfer the petitioner to any other Department. 17. With the above direction, the writ petition is disposed of. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. r n s To 1. The Secretary to Government Commercial Tax Department, Fort St. George, Chennai – 09. https://hcservices.ecourts.gov.in/hcservices/ 2. The District Collector of Chennai, Singaravelar Maligai, No.32, Rajaji Salai, Chennai – 01. 3. The Registrar, Tamil Nadu Taxation Special Tribunal, Singaravelar Maligai, No.32, Rajaji Salai, Chennai – 01 1 cc to the Government Pleader, Sr. 46977 1 cc to Mr.S.M. Subramaniam, Advocate, Sr. 47068 W.P.No.13752 of 2009 SGL (CO) kk 12/7 https://hcservices.ecourts.gov.in/hcservices/