IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.09.2009 CORAM: THE HON’BLE MR.JUSTICE K.CHANDRU W.P.No.32045 of 2006 (O.A.No.3388 of 1998) N.VENKATESAN ...PETITIONER Vs 1 THE DIRECTOR OF TOWN PANCHAYAT KURALAGAM CHENNAI-108 2 THE ASST. DIRECTOR OF TOWN PANCHAYATS CUDDALORE ZONE CUDDALORE 3 THE EXECUTIVE OFFICER KOTTAKUPPAM TOWN PANCHAYAT VILLUPURAM DIST. .. RESPONDENTS Prayer :Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified mandamus, to call for the entire records relating to the impugned order passed by the 3rd respondent in RC.No. 57/98 dated 1.4.1998 and quash the same and consequently direct the respondents to reinstate the petitioner in to service and grant the continuity of service back wages and all other attendant benefits to the petitioner from the date of his removal from service till the reinstatement. For Petitioner : Mr.S.Ramesh For Respondents: Mr.R.Neelakantan, G.A. - for R1&R2 Mr.G.Sankaran for R3 O R D E R The petitioner was appointed by the third respondent as Pump Operator by an order dated 19.08.1986 and he was paid a consolidated salary of Rs.60/- per month. After serving for four years, the petitioner was promoted as Office Assistant and appointed on a regular basis. His appointment was also approved by the Appointment Committee of the Town Panchayat by resolution No.1 dated 18.05.1990. Subsequently, the post of Office Assistant was regularised by proceedings dated 05.01.1994. By the impugned order dated 01.04.1998 the petitioner's services were sought to be ousted. The Tribunal by an order dated 24.04.1998 granted an order of interim stay. Since the order of termination did not precede with any notice, it is opposed to the principles of natural justice. Subsequently, the interim order came to be https://hcservices.ecourts.gov.in/hcservices/ extended until further orders by a subsequent order dated 01.07.1998. 2. In the reply affidavit, the third respondent had stated that the petitioner was appointed purely on a temporary basis as office assistant on 18.05.1990 and the appointment was made without consulting the employment exchange. When it was sent for rectification by the second respondent, he directed his termination by the memo dated 26.03.1998. Therefore, the petitioner was terminated and action was also taken against the then Executive Officer. It was the policy of the Government to make such appointments that it should not come within the purview of TNPSC though the name being sponsored by the Employment Exchange and therefore, the petitioner's appointment was irregular. Reliance was placed upon the judgment of this Court in S.Thangappan v. Government of Tamil Nadu reported in 1986 WLR 204 rendered by Sathiadev,J. (as he then was). In paragraphs 4 and 5, it was observed as follows: "4. Therefore, the point which arises for consideration is, does the third respondent have the power to "terminate the services" of permanently appointed members of Tamil Nadu Municipal Last Grade Service in this manner? Under Rule 6 of the Tamil Nadu Municipal Last Grade Service Rules, 1975, the Recruting Authority is the Appointment Committee and the Appointing Authority is the Commissioner of the Municipality concerned. The said procedure had been followed in appointing petitioners. Under the said rule, the second respondent has no part to play. The statutory rules do not contemplate any prior approval. On appointment made by the Appointing Authority, second respondent, has no authority to direct the third respondent, to terminate their services. Except in accordance with rules their services cannot be dispensed with. The communication sent by the second respondent on 19.12.1984 does not disclose as to what are the rules which have not been followed in appointing the petitioners. It is claimed that there was an audit objection. Even then, so long as it is not pleaded by the third respondent that the respective petitioners have misrepresented before him and secured the appointments, once valid orders of appointment were made and that too by exercising powers under the said rules, they have acquired a right to the post. Thereafter, their services cannot be dispensed with, except as known or prescribed under the rules. 5. If there had been any irregularity committed by the Appointing Authority, it is the Appointing Authority, who should be proceeded against. It is because of the failure of the concerned superior https://hcservices.ecourts.gov.in/hcservices/ authority in not taking stern action against irregular appointments made by the Appointing Authorities, it results in innocent persons, who secured employment against considerable stress and odds being later on dispensed with as if the Appointing Authority, could at any time, arbitrarily terminate their services. The second respondent, having found that the third respondent had appointed the petitioner contrary to the rules, ought to have taken disciplinary proceedings against the third respondent. For errors and omissions committed by him, persons like that of the petitioners, who have secured the last grade posts on permanent basis, cannot be dealt with, as if they could be dropped like hot cakes. Their future cannot be treated so light-heartedly. It is in this view, this Court considering that, even if the appointments had not been made through the Employment Exchange, or due to any other irregularity, by taking note of the difficulties to which the petitioners would be placed by being throwing out of their employment arbitrarily these petitions are allowed. Constituted authority could have exercised its powers of exempting the rules which they do not satisfy. Such orders of exemption are not rarity. Therefore, instead of taking action against the person who is responsible for passing orders, he had been allowed to arbitrarily and contrary to rules terminate the services of the petitioners. There is no rule enabling the third respondent to terminate the services of a permanently recruited municipal servant. He does not touch upon any rule to justify his order. The rules do not confer upon him such a power. He had acted in a manner, which cannot find acceptance." 3. Even at the time of filing of the Original Application, the petitioner was 32 years old and under the strength of the interim order had served 11 more years and at present, he must be around 43 years. 4. In the light of the above, the writ petition stands allowed and the impugned order will stand set aside. No costs. Svki Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1 THE DIRECTOR OF TOWN PANCHAYAT KURALAGAM CHENNAI-108 2 THE ASST. DIRECTOR OF TOWN PANCHAYATS CUDDALORE ZONE CUDDALORE 3 THE EXECUTIVE OFFICER KOTTAKUPPAM TOWN PANCHAYAT VILLUPURAM DIST. + 1 cc to Mr.S.Ramesh, Advocate SR No.49580 BKY(CO) SR/8.10.2009 W.P.No.32045 of 2006 (O.A.No.3388 of 1998) https://hcservices.ecourts.gov.in/hcservices/