IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 24..3..2008 Coram: The Honourable Mr.Justice P.K. MISRA and The Honourable Mr.Justice K.CHANDRU W. P. No. 24221 of 2001 R. Arunachala Vadivu ... Petitioner -vs- 1. The Director of Municipal Administration Chennai 2. The Municipal Commissioner Kadayanallur Municipality, Tirunelveli District 3. The District Employment Officer District Employment Exchange, Tirunelveli 4. The Registrar Tamil Nadu Administrative Tribunal Chennai – 104 ... Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus to quash the impugned order passed by the Tamil Nadu Administrative Tribunal in O.A. No. 4231 of 1997 dated 26.9.2001 and consequently, direct the second respondent to consider the representation of the petitioner dated 28.02.1997 for the post of Maternity Aaya. For Petitioner : Mr. A. Nister Hakeem for M/s.R.Karuppan For Respondent 1 : Mr. M. Dhandapani, Spl. GP For Respondent 2 : Mr. P.P. Shanmuga Sundaram For Respondent 3 : Mr. S. Rajasekar, GA https://hcservices.ecourts.gov.in/hcservices/ ORDER K. CHANDRU, J. Heard Mr. A. Nister Hakeem, learned counsel appearing for the petitioner, Mr. M. Dhandapani, learned Special Government Pleader representing the first respondent, Mr.P.P.Shanmuga Sundaram, learned counsel for the second respondent and Mr. S. Rajasekar for the third respondent and have perused the records. 2. The writ petition is filed by the petitioner against the order dated 26.9.2001 passed by the Tamil Nadu Administrative Tribunal made in O.A. No. 4231 of 1997 wherein and by which, the Tribunal rejected the prayer of the petitioner for giving a direction to the second respondent Municipality to grant her an appointment. 3. The petitioner went before the Tribunal with her Original Application seeking for a direction to appoint her as a Maternity Aayah in the Municipality on the ground that she had already served in that post. The petitioner stated that she was appointed as a Maternity Aayah in the scale of pay of Rs.750 – 940 for 89 days vide proceedings of the second respondent Commissioner dated 27.6.1995. Further, it was extended twice and she had continued in service till 01.01.1996. Subsequently, the first respondent permited the Municipality to fill up the post of Maternity Aayah by a communication dated 27.01.1997 since the post had fallen vacant ever since 01.7.1994. 4. Accordingly, the second respondent called for a list from the Employment Exchange sponsoring candidates. However, her name was not sponsored. The petitioner who initially registered with the District Employment Exchange, Tuticorin got it transferred to the Tirunelveli District Employment Exchange in the year 1990. As she had undergone the 'DIAS' training, the said experience was recorded with the Exchange on 05.11.1992. When the Municipal Commissioner notified the vacancy for the post of Maternity and Child Health Aayah, the said vacancy was reserved for Open Competition / Priority, viz., widows and 10 candidates were sponsored by the Employment Exchange. Since the petitioner belonged to the non-priority group, her name did not come within the zone of consideration. It was stated that her claim to have gained experience through temporary orders can have no effect when regular sponsorship was sought for from the Exchange. Initially, she was not appointed through employment exchange and it was only a private arrangement made by the Municipality under rule 8(a). https://hcservices.ecourts.gov.in/hcservices/ 5. The Tribunal, based upon these facts, refused to accede to the request made by the petitioner and rejected the O.A. The petitioner moved this Court and got an interim order on 12.12.2001 preventing the Municipality from appointing any other person in the post of Aayah. 6. Learned counsel for the petitioner submitted that his client is a poor lady and she cannot be deprived of her employment on the sole ground that her name was not sponsored by the Employment Exchange. 7. We are not persuaded to accept the contention raised by the learned counsel for the petitioner and this Court cannot consider the case of the petitioner only on the ground of sympathy. In fact, by filing the present writ petition and getting an order dated 12.12.2001, the petitioner had successfully prevented the Municipality from appointing any other person. Her initial appointment was not through Employment Exchange but under Rule 8(a) of the Tamil Nadu Municipalities Employees' Service Rules and on that score, she cannot get any regularisation or preference in appointment. 8. In this context, it is relevant to refer to the judgment of the Supreme Court in Ashwani Kumar v. State of Bihar, [(1997) 2 SCC 1]. It is worthwhile to refer to the following passage found in paragraph 14 of the said judgment, which reads as follows: Para 14: "In this connection it is pertinent to note that question of regularisation in any service including any government service may arise in two contingencies. Firstly, if on any available clear vacancies which are of a long duration appointments are made on ad hoc basis or daily-wage basis by a competent authority and are continued from time to time and if it is found that the incumbents concerned have continued to be employed for a long period of time with or without any artificial breaks, and their services are otherwise required by the institution which employs them, a time may come in the service career of such employees who are continued on ad hoc basis for a given substantial length of time to regularise them so that the employees concerned can give their best by being assured security of tenure. But this would require one precondition that the initial entry of such an https://hcservices.ecourts.gov.in/hcservices/ employee must be made against an available sanctioned vacancy by following the rules and regulations governing such entry. The second type of situation in which the question of regularisation may arise would be when the initial entry of the employee against an available vacancy is found to have suffered from some flaw in the procedural exercise though the person appointing is competent to effect such initial recruitment and has otherwise followed due procedure for such recruitment. A need may then arise in the light of the exigency of administrative requirement for waiving such irregularity in the initial appointment by a competent authority and the irregular initial appointment may be regularised and security of tenure may be made available to the incumbent concerned. But even in such a case the initial entry must not be found to be totally illegal or in blatant disregard of all the established rules and regulations governing such recruitment. In any case back-door entries for filling up such vacancies have got to be strictly avoided. However, there would never arise any occasion for regularising the appointment of an employee whose initial entry itself is tainted and is in total breach of the requisite procedure of recruitment and especially when there is no vacancy on which such an initial entry of the candidate could ever be effected. Such an entry of an employee would remain tainted from the very beginning and no question of regularising such an illegal entrant would ever survive for consideration, however competent the recruiting agency may be." 9. The aforesaid decision also came to be noted in Umadevi's case [2006 (4) SCC 1]. Subsequently, in the judgment in State of Jharkhand v. Manshu Kumbhkar [2007 (8) SCC 249], the passage found in Ashwani Kumar's case (cited supra) also came to be quoted with approval. 10. In the light of the above legal principles and the factual findings recorded by the Tribunal, we are not persuaded to interfere with the order passed by the Tribunal impugned in this writ petition. Accordingly, the writ petition will stand dismissed. https://hcservices.ecourts.gov.in/hcservices/ Taking into account the status of the petitioner, we are not imposing any costs. Connected Miscellaneous Petition will also stand dismissed. gri Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. To 1. The Director of Municipal Administration Chennai 2. The Municipal Commissioner Kadayanallur Municipality Tirunelveli District 3. The District Employment Officer District Employment Exchange Tirunelveli 1 cc to Mr.P.P.Shanmugasundaram, Advocate, SR.15996 ng (co) dv/1.4. Order in W. P. No. 24221 of 2001 https://hcservices.ecourts.gov.in/hcservices/