IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21-10-2008 CORAM THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.No.25109 of 2008 and M.P.No.1 of 2008 M. Sreekumar .... petitioner vs 1. The Government of Tamil Nadu rep. By the Secretary to Government, Rural Development and Panchayat Raj Department, Fort St.George,Chennai.9 2. The Director of Rural Development and Panchayat Raj, Panagal Buildings, Saidapet, Chennai.15. 3. The Collector, Nagercoil, Kanyakumari District 4. The Block Development Officer, Thovalai Panchayat Union Tholvalai, Kanyakumari District ... Respondents Writ Petition filed Under Article 226 of the Constitution of India praying this Court to issue a Writ of Certiorarified Mandamus to call for the records relating to the impugned order of the second respondent in Rc.No.12513/08/EE3 dated 12.4.2008 and quash the same and direct the respondents to consider the petitioner for absorption as Road Inspector Grade II treating the petitioner as a qualified candidate for such absorption and absorb him as Road Inspector Grade II and grant all consequential benefits to the petitioner. For petitioner : Mr.P. Rajendran For respondents: Ms.Lita Srinivasan, GA https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioner seeks for a Writ of Certiorarified Mandamus to call for the records relating to the impugned order of the second respondent in Rc.No.1251/08/EE3 dated 12.4.2008 and quash the same and direct the respondents to consider the petitioner for absorption as Road Inspector Grade II treating the petitioner as a qualified candidate for such absorption and absorb him as Road Inspector Grade II and grant all consequential benefits to the petitioner. 2. The petitioner in the writ petition, though appointed as Technical Assistant on daily wages basis in Thovalai Panchayat Union, no appointment order was given to him. His names was entered in the muster role, but he was not regularised. On 12.9.1997, the 2nd respondent has informed all the Collectors that new appointments on part time/NMR/full time/temporary basis of Helpers, Technical Assistants etc., should not have been made after 1.4.1997 and directed the Collectors to order recovery of the amounts paid to such persons from the Block Development Officers/Additional Block Development Officers besides taking stringent disciplinary action and even suspension. The petitioner has filed O.A.No.1635 of 1998 to regularise his service in the post of Technical Assistant with effect from the date of his initial appointment. The Tribunal admitted the Original Application and granted an order of interim injunction. The petitioner has been put in 11 years of service, but not on regular basis. 3. The Government issued an order in G.O.Ms.No.70, Rural Development (E4) Department, dated 20.03.2000 merging the categories of "Overseer", "Junior Draughting Officer" in the Rural Development Engineering Wing into one category as "Overseer" with effect from 25.05.1998. The Government also issued orders to constitute a separate service viz. "Tamil Nadu Panchayat Development Engineering Subordinate Service" for the four categories of viz., "Senior Draughting Officer", "Junior Engineer", "Overseer" and "Road Inspector" and issued special Rules for the same. The mode of appointment for the post of Road Inspector is direct recruitment. The Educational qualification for appointment to the post of Road Inspector is I.T.I Certificate in Civil Draughtsmenship from a Government Recognised Institute. The petitioner has also possessed Diploma in Electrical and Electronics Engineering 4. After the issuance of the above said Government Order, the daily wagers working as Technical Assistants in the Panchayat Union were absorbed provided, they possessed the essential qualifications. But the petitioner was not absorbed. 5. The Government issued G.O.(D) No.609, Rural Development and Panchayat Raj Department dated 19.10.2006 with direction to the Collectors to fill up 50% of the vacancies in the posts of https://hcservices.ecourts.gov.in/hcservices/ Overseer, Junior Draughting Officer and Road Inspector Grade II in the Rural Development and Panchayat Raj Department pending approval of the Committee. The said G.O came to be challenged in the batch of Writ Petitions in Madurai Bench of this Court in W.P. (MD) Nos.11660 to 11668 of 2007 etc., and final order has been passed on 9.5.2007 directing the absorption of the daily rated employees in the vacancies available in three categories viz., Overseer, Junior Draughting Officer and Road Inspector Grade II provided they possess the required qualification and were in service on the date of issue of the above said Government Order. 6. Even though the name of the petitioner was found place in Collector's Order, he has not been included as a candidate for Road Inspector Grade II. He filed a writ petition in W.P.No.5029 of 2008 which was disposed of on 27.2.2008 directing the second respondent to consider the representation of the petitioner dated 21.1.2008 and subsequent to that the 2nd respondent has passed the present impugned order dated 12.4.2008 rejecting the representation. 7. The learned counsel for the petitioners would submit that the petitioner was appointed as Technical Assistant on daily wages basis on 01.06.1994. He would submit that the impugned order is liable to be set aside. 8. The learned Government Advocate appearing for the respondents would submit that as per Tamil Nadu Rural Development and Panchayat Development Engineering Subordinate Rules framed in G.O.Ms.No.70 Rural development (E4) Department dated 20.03.2000, the qualification prescribed for the post of Road Inspector Grade II is an I.T.I. Certificate in Civil Draughtmanship from a Government recognised Institute. Since the petitioner does not have such qualification, the impugned order rejecting the request of the petitioner came to be passed. The learned Government Advocate would further submit that the impugned order is perfectly valid in law and the same cannot be set aside. It is also submitted by the learned Government Advocate that since overseers have been permitted as Road Inspector Grade II, there is no vacancy possible for next 15 years from today, as it has been stated in G.O.Ms.No.96 Rural Development and Panchayat Raj (E3) Department dated 6.6.2008. Therefore, according to her, the relief claimed in this writ petition cannot be granted. 9. I have considered rival submissions. 10. A glance through G.O.Ms.70, Rural Development (E4) Department dated 20.03.2000 would make it clear that the essential qualification for the post of Road Inspector through direct appointment is I.T.I Certificate in Civil Draughtsmanship from a Government Recognised Institute. Admittedly, the petitioner does not possess any such I.T.I Certificate in Civil Draughtsmanship. The contention of the petitioners that Diploma in https://hcservices.ecourts.gov.in/hcservices/ Electronics and Communication Engineering possessed by him, can be treated par with I.T.I Certificate in Civil Draughtsmanship, cannot be accepted. 11. The learned counsel would submit that the petitioner was working from the year 1997 as Technical Assistant and gained experience, so as to be absorbed as Road Inspector. In my considered opinion, when the special Rule prescribes that candidate should possess I.T.I Certificate in Civil Draughtsmanship, the third respondent cannot violate the same, to absorb the petitioner, who does not possess such basic qualification. Thus the impugned order is sustainable and the same does not require any interference at the hands of this Court. 12. The learned counsel for the petitioner would rely on a judgment of the Hon'ble Supreme Court in the case of State of U.P. And others VS Putti Lal reported in(2006) 9 Supreme Court Cases 337, wherein the Hon'ble Supreme Court in paragraph 6 has held as follows: " Sofaras the State of Uttaranchal is concerned, a scheme for regularisation of daily workers has been produced before us which prima facie does not appear to be objectionable excepting the provision regarding qualification for regularisation. Be it stated that the qualification essential for being regularised would be the qualification as was relevant on the date a particular employee was taken in as a daily wager and not the qualification which is being fixed under the scheme. The fact that the employees have been allowed to continue for so many years indicates the existence of the necessity for having such posts. But still it would not be open for the Court to indicate as to how many posts would be created for the absorption of these daily wage workers. Needless to mention that the appropriate authority will consider the case of these daily wager sympathetically who have discharged the duties for all these years to the satisfaction of their authority concerned. So far as the salary is concerned, as we have stated in the case of the State of Uttar Pradesh a daily wager in the State of Uttaranchal would be also entitled to the minimum of the pay scale as is available to his counterpart in the Government until his services are regularised and he is given regular scale of pay. 13. Relying on the same, the learned counsel would submit that there may be a direction, atleast to consider the case of the petitioner sympathetically. In my considered opinion, it is beyond the purview of this Court to issue any direction to absorb the petitioner in violation of the special rules or to give any https://hcservices.ecourts.gov.in/hcservices/ special relaxation in favour of the petitioner. However, the petitioner is at liberty to make a representation to the Government in this regard seeking for special relaxation. If any such representation is made, it is for the Government to consider the same in the light of the Judgment of the Hon'ble Supreme Court cited supra and pass appropriate orders. It is made clear that it should not be misconstrued as if this Court has issued any direction to the Government to issue any special relaxation in respect of the petitioner. It is absolutely for the Government to decide the issues independently in accordance with law. 14. In view of the above, the writ petition is dismissed, however with liberty to the petitioner to make representation to the Government and if any such representation is made, the 1st respondent shall consider the same and pass suitable orders as observed supra, within a period of three months from the date of receipt of the representations of the petitioners. No costs. Consequently, the connected M.P is closed. sr Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To 1. The Secretary to Government, Rural Development and Panchayat Raj Department, Fort St.George,Chennai.9 2. The Director of Rural Development and Panchayat Raj, Panagal Buildings, Saidapet, Chennai.15. 3. The Collector, Nagercoil, Kanyakumari District 4. The Block Development Officer, Thovalai Panchayat Union Tholvalai, Kanyakumari District 1 cc to Mr.P.Rajendran, Advocate, SR.58653 1 cc to the Government Pleader, SR.58730 rj (co) dv/6.11. W.P.No.25109 of 2008 https://hcservices.ecourts.gov.in/hcservices/