IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :10.03.2011 CORAM: THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.P.No.19447 of 2008 1. Mohan Raj 2. K.Prakasam 3. Kavidasan ... Petitioners vs. 1. The Secretary to Government of Tamil Nadu, Municipal Administration and Water Supply Department, Fort St. George, Chennai – 600 009. 2. The Commissioner, Municipal Administration, Chepauk, Chennai 600 005. 3. The Commissioner, Salem City Corporation, Salem. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus to call for the records of the 3rd respondent in his proceeding, Notice No.Na.Ka.No.C4/12258/2004 dated 14.09.2007 and to quash the same and further direct the respondents to appoint these petitioners as Drivers in the regular vacancy in Salem City Municipal Corporation with all other benefits. For Petitioners : Mr.N.Gangatharan For Respondents : Mr.R.Neelakandan, for R1 & R2 Government Advocate Mr.G.Sankaran, for R3 O R D E R Heard Mr.N.Gangatharan, learned counsel for the petitioners, Mr.R.Neelakandan, learned Government Advocate appearing for respondents 1 and 2 and Mr.G.Sankaran, learned counsel appearing for the 3rd respondent. https://hcservices.ecourts.gov.in/hcservices/ 2. Aggrieved by the order dated 14.09.2007 passed by the 3rd respondent rejecting the claim of the petitioners for consideration of their earlier service, the petitioners have come up with the present writ petition. 3. According to the petitioners, they are similarly placed persons employed as Tractor/Lorry Drivers in various Divisions of Salem City Municipal Corporation during the year 1996-2001. After the year 2001, the petitioners were employed in leave vacancies, only. It is their submission that they were not appointed in the regular vacancy though the Government of Tamil Nadu issued various Government Orders for appointment. Hence, a writ petition was filed by Salem Mavatta Vooraga Valarchi Ullatchi Thurai Oozhiar Sangam in W.P.No.4909 of 1998 praying to quash clause (u) of G.O. (Standing) No.21, Municipal Administration and Water Supply Department, dated 02.03.1998 and this court, by an order dated 15.06.2006 directed the petitioner therein to send a representation to the Government seeking relaxation of qualification and further directed the Government to consider the representation and pass orders taking note of the continuous service of the members of the Union. 3a. The Union represented on behalf of the members before the Government and the Commissioner of Salem City Municipal Corporation. Most of the Drivers who were members of the Union were left out from service and joined in other Departments. The petitioners are the only members without any employment after 2001. Though, they made a representation to the respondents in that regard, there is no reply. 3b. The petitioners would further submit that there was a ban order for new appointment. In the year 2006, the ban order was lifted by the Government. Immediately, after the orders of this court, the petitioners approached the respondents for appointment, but, there was no reply. The Government of Tamil Nadu issued G.O.Ms.Nos.21 and 22 to regularise the NMR Casual Labourers and Daily-waged employees. In the light of the said Government Orders and the earlier service rendered by them, the petitioners made a representation to the respondents for appointment. 3c. The respondents took steps for appointment of Tractor/Lorry Drivers and Sanitary Workers in Salem City Municipal Corporation and in that regard, the 3rd respondent called for candidates from the Employment Exchange. Having worked already in the 3rd respondent Corporation from the year 1996 till 2001 as NMR Tractor/Lorry drivers and having registered their names in Employment Exchange, since the petitioners are without employment now, to earn for their livelihood, they sought for employment as Tractor/Lorry Drivers and Sanitary Workers. https://hcservices.ecourts.gov.in/hcservices/ 3d. Thereafter, the petitioners filed a writ petition in W.P.No.22922 of 2007 before this court for a direction to the 1st and 2nd respondents therein to appoint them as Drivers/sanitary workers in the Salem City Municipal Corporation. The said writ petition was disposed of by this court on 06.07.2007 with a direction to the Commissioner, Salem City Municipal Corporation to consider the representation of the petitioners dated 21.04.2007 and pass orders on merit and in accordance with law within a period of six weeks from the date of receipt of a copy of the order. Pursuant thereto, the petitioners received a reply notice dated 14.09.2007, whereby, the 3rd respondent mechanically rejected the claim of the petitioners without considering their earlier service. Aggrieved by the said notice, the petitioners have come up before this court by way of the present writ petition. 4. Respondents have filed counter affidavit. The 3rd respondent, in his counter has stated that the petitioners were working as NMRs in Salem Corporation and they were not employed as Drivers in Salem Corporation. When a particular work is over, all the NMRs are terminated. The NMRs are working on daily wages in Salem Corporation under Nominal Muster Roll. None of the applicants are recruited through the Employment Exchange and appointed as per the appointment procedures laid down either in the Tamil Nadu Municipal Service Rule 1970 or Tamil Nadu Corporation Service Rule, 1996. They are not entitled for regularisation of their services. The casual labourers could be terminated when their services are not required and there is no need to continue the petitioners in leave vacancies although there will be sufficient number of Drivers already employed in Salem Corporation. It is also submitted that there is no specific Government Order issued for the appointment or regularisation of Nominal Muster Roll staffs, similar to the petitioners, who have served after the crucial date fixed in the Government Order, i.e. 01.10.1996. 4a. As per the Service Rules and G.O.No.21 Municipal Administration & Water Supply Department dated 02.03.1998, a person who has passed S.S.L.C. and obtained a Heavy Vehicle Licence is eligible for appointment as Driver. According to the 3rd respondent, he has followed the procedure for recruitment of the post of Driver strictly on the instructions given in the Corporation Employee Service Rules as well as the instructions contained in G.O.No.21, dated 02.03.1998. It is further submitted that G.O.No.21, M.A. & W.S. Department dated 02.03.1998 came to be passed in order to regularise the service of NMR Drivers working in the Corporation. The said Government Order specifically stated that the applicants who worked as N.M.Rs. after 01.10.1996 are ineligible to be appointed as Drivers and their services should be immediately dispensed with. Admittedly, in this case, all the petitioners were engaged only after 01.10.1996. Therefore, as per the said Government Order, they are not entitled for regularisation and further, they should not be https://hcservices.ecourts.gov.in/hcservices/ engaged hereafter. The 2nd respondent has adopted the counter filed by the other respondents. 5. Learned counsel appearing for the petitioners would submit that the petitioners worked as Lorry/Tractor Drivers for a long period and denial of appointment to them is highly arbitrary and unjust. He would contend that non-consideration of appointment for the petitioners is against Articles 14 and 16 of the Constitution of India and if employment is denied to the petitioners at this point of time, they will not be able to get any other job since they are over- aged for fresh appointment. In support of his case, learned counsel for the petitioners has relied on a decision of the Supreme Court rendered in Civil Appeal No.6582 of 2010, dated 13.09.2010, in the case of Tamil Nadu State Transport Corporation Ltd. vs. K.Kothandaraman, wherein, it is held as follows : "In the present case, the respondent-employee directly approached the High Court under Article 226 of the Constitution of India alleging violation of Sections 25-F, 25-H, etc. Hence, in fact, the writ petitions themselves should not have been entertained by the High Court. However, on the facts of this case and particularly since subsequent to the judgement of the High Court certain orders, e.g., order dated 13.07.2006, have been passed by the State Government, we uphold the direction of the High Court contained in paragraph 34(iii)(a) of the impugned judgment that those workmen who have completed 240 days of service within one year prior to the date of termination of service shall be reinstated. But the direction of the High Court contained in paragraph 34(iii)(b) of the impugned judgment that "those (writ petitioners) who worked less than 240 days shall also be given re-employment and their services will be regularised, only after completion of 240 days and subject to fulfilling other conditions, if any." is set aside. The appeal is disposed of accordingly. ..." 6. On the other hand, learned Government Advocate appearing for respondents 1 and 2 would submit that the petitioners are casual labourers coming under the Nominal Muster Roll and that they are not recruited through the Employment Exchange. They are appointed as per the appointment procedure laid down either in the Tamil Nadu Municipal Service Rules, 1970 or Tamil Nadu Corporation Service Rules, 1996 and hence, they are not entitled for regularisation of their service. He would further submit that casual labourers could be terminated when their services are not required and there is no need to continue them in leave vacancies. He would point out that there is no specific Government Order issued for the appointment or regularisation of Nominal Muster Roll staffs, similar to the petitioners herein, who have served after the crucial date fixed in https://hcservices.ecourts.gov.in/hcservices/ the Government Order, i.e. 01.10.1996. 7. I have heard the learned counsel on either side. Perused the Government Orders relevant to the case on hand and other materials on record. 8. The factual matrix of the case lies in a narrow compass: the petitioners were employed as Tractor/Lorry Drivers in various divisions of Salem City Municipal Corporation during the year 1996- 2001. After 2001, they were employed in leave vacancies. Their claim for appointment or regularisation was rejected by the respondents on the ground that there is no specific Government Order issued in the appointment or regularisation of NMR staffs, similar to the petitioners herein, who have served after the crucial date fixed in the Government Order, i.e. 01.10.1996. 9. Admittedly, the petitioners are NMR staff and they were employed as Tractor/Lorry Drivers in the 3rd respondent Corporation from 1996-2001 and from 2001, they were employed in leave vacancies only. As of now, they were without employment. In the light of the Government Orders issued in G.O.Ms.Nos.21 and 22 to regularise the NMR Casual Labourers and daily-waged employees, the petitioners made representations to the respondents claiming regularisation of their service. Since the respondents did not heed to the claim of the petitioners, on their behalf and on behalf of other similarly placed persons, Salem Mavatta Vooraga Valarchi Ullatchi Thurai Oozhiar Sangam preferred a writ petition in W.P.No.4909 of 1998 praying to quash clause (u) of G.O. (Standing) No.21, Municipal Administration and Water Supply Department, dated 02.03.1998 and this court, by an order dated 15.06.2006, passed the following order : "2. The grievance of the petitioner's Union is that the G.O. (Standing) No.21 Municipal Administration and Water Supply Department, dated 02.03.1998 ordered regularisation of Drivers, only if they possess the educational qualification and technical qualification. The learned counsel for the petitioner submits that since they have been appointed in the year 1996, the details contained in the Government Order cannot be applied to the members of the petitioner's Union. 3. The learned counsel for the third respondent states that the qualification of pass in S.S.L.C. and possession of heavy Vehicle licence are required under the Tamil Nadu Municipal Service Rules 1970. In the light of the above prescribed statutory rules, the members of the petitioner Union must possess the said qualification. The learned counsel also contended that the union members are not entitled to get https://hcservices.ecourts.gov.in/hcservices/ regularisation without qualification. Since the petitioners are not having the required qualification, their services cannot be regularised, unless the Government grants relaxation for not possessing the required qualification as stated in Tamil Nadu Municipal Service Rules, 1970. 4. The members of the petitioner Union are aged more than 35 years. They have put in service for about 10 years and they also possess heavy vehicle licence. The only qualification which is, lacking is, not having S.S.L.C. Qualification. 5. In the light of the above facts and in the peculiar circumstances of this case, interest of justice will be met by directing the members of petitioner Union to send a representation to the first respondent seeking relaxation for not possessing S.S.L.C. Qualification, as prescribed in the Tamil Nadu Municipal Service Rules, 1970, within four weeks from the date of receipt of copy of this order and on receipt of the said representation, the first respondent is directed to consider the said representation seeking relaxation of qualification and pass orders taking note of the continuous service of the members of the petitioner Union for about 10 years, within four months thereafter. Till the orders are passed by the first respondent, the services of the members of the petitioner Union shall not be terminated." 10. As per the above direction of this court, the petitioners sent a representation dated 21.04.2007 to the respondents to consider their claim for appointment. Since there was no reply from the respondents on the said representation, the petitioners once again approached this court in W.P.No.22922 of 2007 and this court, by an order dated 06.07.2007 directed the 3rd respondent herein to consider the said representation of the petitioners on merits and in accordance with law within a period of six weeks from the date of receipt of the order. Pursuant thereto, the 3rd respondent sent a notice dated 14.09.2007 to the petitioners rejecting their claim. Challenging the said impugned notice, the petitioners, for the third time, have approached this court to set aside the same and for a direction to the respondents to appoint them as Drivers in the regular vacancy in the 3rd respondent Corporation with all other benefits. 11. But, it is the case of the respondents that the petitioners were working on daily wages in the Salem Corporation under Nominal https://hcservices.ecourts.gov.in/hcservices/ Muster Roll and they were not recruited from the Employment Exchange and that they are not entitled for regularisation of their service. Since they are Casual Labourers, they could be terminated when their services are not required and there is no need to continue the petitioners in leave vacancies although there will be sufficient number of Drivers already employed in Salem Corporation. The respondents would mainly contend that there is no specific Government Order issued for appointment or regularisation of NMR staffs similar to the petitioners, who have served after the crucial date fixed in the Government Order, i.e. 01.10.1996 and that the Government Order in G.O.No.21, dated 02.03.1998 specifically states that the applicants who worked as NMRs after 01.10.1996 are ineligible to be appointed as Drivers and their service should be immediately dispensed with. Since the petitioners in the present case were appointed only after 01.10.1996, they are not entitled to regularisation of service. 12. In G.O.Ms.No.125 Municipal Administration and Water Supply Department, dated 27.05.1999, it is stated that Casual Labourers can be employed in consolidated pay by selecting them only from the list of Casual labourers working in the concerned Municipality/Panchayat and for the leave vacancies in a particular post, if no Casual labourers are available under the concerned Municipality/Panchayat, that leave vacancies should be filled up by selecting casual labourers employed in excess in other Municipalities/Panchayats and such condition is not applicable to Corporations. 13. In G.O.(Ms.) No.21, dated 23.02.2006, the Government has passed the following order : "4. ... Therefore, the Government have decided to accept the proposals of the Commissioner of Municipal Administration mentioned in para 3 above and to regularise the services of the 6058 employees on consolidated pay and NMRs on daily wages working in various Municipalities and other Municipal Corporations (except Chennai) and 674 employees on consolidated pay and NMRs on daily wages in Grade-III Municipalities (formerly upgraded Town Panchayats) by bringing them into regular time scale of pay, with immediate effect. 5. They, accordingly, direct the appointing authorities viz. Municipal Commissioners, Grade-III Municipal Commissioners and Commissioners of Municipal Corporations (Except Chennai) to appoint the employees on consolidated pay and NMRs on daily wages on their roll as on 01.10.1996 in respect of Municipalities and Municipal Corporations (except Chennai) and as on 31.12.1996 in respect of Grade-III Municipalities in the vacant posts and to regularise their services in the regular post, from the date of issue of this order, subject to the https://hcservices.ecourts.gov.in/hcservices/ following conditions : (i) sanctioned posts should be available (ii) persons should fulfill all educational and other qualifications and (iii) establishment (pay and pension) expenditure of the Urban Local Body should not exceed 49% of revenue after filling up of posts. 6. The appointing authorities are strictly advised not to appoint any person on daily wages or on consolidated pay in the Municipalities and in the Municipal Corporations in future." 14. The plea taken by the respondents is that the petitioners were not recruited through Employment Exchange and appointed as per the procedures. In the judgment dated 13.09.2010 made in C.A.No.6582 of 2010 in the case of Tamil Nadu State Transport Corporation relied on by the counsel for the petitioners, the Supreme Court has upheld the direction of the High Court that those workmen who have completed 240 days of service within one year prior to the date of termination of service shall be reinstated. Further, the petitioners claim that as per G.O.Ms.No.21, the appointing authorities, namely, the Municipal Commissioners, Grade-III Municipal Commissioners and Commissioners of Municipal Corporations (except Chennai) were directed to appoint employees on consolidated pay and NMRs on daily wages on their roll as on 01.10.1996 in respect of Municipalities and Municipal Corporations (except Chennai) and as on 31.12.1996 in respect of Grade-III Municipalities in the vacant posts and to regularise their services in the regular post from the date of issue of that order subject to the conditions that the sanctioned posts should be available; persons should fulfill all educational and other qualifications and establishment expenditure of the Urban Local Body should not exceed 49% of revenue after filling up of posts and that there cannot be any further appointment on daily wages or consolidated pay in future. 15. In the instant case, the petitioners claim that they were employed as Tractor/Lorry Drivers in various Divisions of Salem City Municipal Corporation from 1996 to 2001. But, the objections raised by the respondents are that (i) the petitioners were not sponsored through Employment Exchange (ii) they do not possess the required qualification and (iii) they were engaged as casual labourers only after 01.10.1996. However, the relaxation of qualification was earlier considered by the Government after approach of the Union (in which the petitioners were members) before this court in W.P.No.4909 of 1998 and this court, by an order dated 15.06.2006 inter alia directed the respondents therein to consider the representation of https://hcservices.ecourts.gov.in/hcservices/ the petitioner Union seeking relaxation of qualification and pass orders taking note of the continuous service of the members of the petitioner Union for about 10 years. As per the direction of this court, the members of the petitioner Union made representations to the Government seeking relaxation of qualification and pursuant to the same, most of the drivers/members of the petitioner Union joined the services of various Corporations, but the petitioners are the only members without any employment after 2001. Since the petitioners have not completed 10 years of service, their claim has been rejected in the impugned order. 15a. Whileso, taking advantage of the judgment passed in C.A.No.6582 of 2010 in the case of (Tamil Nadu State Transport Corporation vs. K.Kothandaraman), wherein, the Supreme Court has upheld the direction of the High Court that those workmen who have completed 240 days of service within one year prior to the date of termination of service shall be reinstated, the counsel for the petitioners claim that the petitioners have completed 240 days of service and hence, they are entitled for appointment. This aspect has to be considered by the respondents in the light of the above ruling of the Supreme Court. 16. This court is not inclined to quash the impugned order in view of the order of this court, dated 15.06.2006 made in W.P.No.4909 of 1998 coupled with the Government Order in G.O.Ms.No.21, dated 02.03.1998. As the petitioners have not fulfilled the conditions prescribed in G.O.Ms.No.21 in respect of qualification and have not completed 10 years of service as directed by this court, the claim of the petitioners cannot be entertained and the Writ Petition stands dismissed. However, the petitioners are at liberty to make fresh representations to the respondents in view of the ruling of the Supreme Court in the case of Tamil Nadu State Transport Corporation and if such a representation is made, it is for the respondents to look into the same in accordance with law and on merits and pass appropriate orders, as expeditiously as possible. No costs. Consequently, connected M.P.No.1 of 2008 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Abe https://hcservices.ecourts.gov.in/hcservices/ To : 1. The Secretary to Government of Tamil Nadu, Municipal Administration and Water Supply Department, Fort St. George, Chennai – 600 009. 2. The Commissioner, Municipal Administration, Chepauk, Chennai 600 005. 3. The Commissioner, Salem City Corporation, Salem. 1 cc To The Government Pleader, SR.18007 1 cc To Mr.N.Gangatharan, Advocate, SR.17497 1 cc To Mr.G.Sankaran, Advocate, SR.17699 W.P.No.19447 of 2008 LA(CO) PMK.28.3.2011 https://hcservices.ecourts.gov.in/hcservices/