Madras High Court
M.Senthil Arumugam vs The Commissioner on 8 December, 2021
W.P(MD) No.15319 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.12.2021
CORAM:
THE HONOURABLE MRS.JUSTICE S. SRIMATHY
W.P(MD) No. 15319 of 2014 and
MP(MD).No.1 of 2014
M.Senthil Arumugam :Petitioner
.vs.
The Commissioner,
Tirunelveli Municipal Corporation,
Tirunelveli. : Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of to
issue a Writ of Certiorarified Mandamus to call for the records of the
impugned proceeding vide Na.Ka.No.C1/5231/1998, dated 17.07.2014
passed by the respondent and quash the same and consequently, direct the
respondent to promote the petitioner as Technical Assistant.
For Petitioner :Mr. D. Saravanan
For Respondent : Mr. Ayairam K. Selvakumar
1/12
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W.P(MD) No.15319 of 2014
ORDER
This petition has been filed to quash the impugned
proceeding passed by the respondent in Na.Ka.No.C1/5231/1998, dated
17.07.2014 and consequently, direct the respondent to promote the
petitioner as Technical Assistant.
2. The petitioner was appointed as Tap Inspector on
12.08.1991 in the erstwhile, Thirunelveli Municipality Corporation and the
post is governed under the Tamil Nadu Municipal General Service Rules,
1970. According to the said Rules, Tap Inspectors and Drainage Inspectors
were kept in the same cadre vide G.O.Ms.No.1353 Health dated
13.04.1955 and both Tap Inspectors and Drainage Inspectors were kept in
the superior service. Thereafter, the Thirunelveli Municipality was
upgraded into Municipal Corporation and the same came into existence
from 1998. The Government issued G.O.Ms.No.237, Municipal
Administration and Water Supply (Election) Department, dated
26.09.1996. As per the said G.O. the Engineering and Water Supply
Service Rules were framed, wherein the erstwhile Inspectors were
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W.P(MD) No.15319 of 2014
designated in the new service rules as Technical Assistants in the Scale of
Pay of Rs.1350/- 2,200/-. Likewise the erstwhile Electricians, Fitters,
Meter Reader, Work Inspectors, Mechanics etc., were categorized as
skilled Assistant Grade-1, in the scale of pay of Rs.1100-1660. But
inadvertently, the post of Tap Inspector was not dealt with
in any service in the Corporation Rules.
But the petitioner and the similarly persons were allowed to continue as
Tap Inspector in Corporation. Thereafter to resolve this issue a clarification
was issued in G.O.Ms.No.140, Municipal Administration and Water
Supply Department, dated 27.05.1997, wherein the post of Tap Inspector is
designated as Skilled Assistant, Grade -II, in the Corporation Service
Rules. The petitioner's request to keep the post as Grade I and grant
seniority in the post of Technical Assistant and other benefits was rejected
by the Corporation vide proceedings dated 13.01.2000. Aggrieved over the
petitioner filed Writ Petition in W.P(MD).No.3855 of 2000 and this Court
vide order dated 30.07.2009 has allowed the Writ Petition and has held as
follows:
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W.P(MD) No.15319 of 2014
“4. Admittedly, as per the Municipal Service
Rules applicable to erst while Thirunelveli Municipality,
the post of Drainage Inspector and Water Tap Inspector
were kept in the same cadre. When the corporation
came into being, unfortunately, there was no post
provided in the service Rules of the Corporation for the
erstwhile Tap Inspectors, Rightly the Government issued
G.O.Ms.No.140, providing service for Tap Inspector in
the Corporation service Rules. But, while doing so, as
rightly contended by the petitioner, the Government has
filed to take note of the fact that under the Municipal
Service Rules, Drainage Inspectors and Tap Inspectors
were of the same cadre. When Drainage Inspectors were
posted a Technical Assistants, the post of Tap Inspector
should have also been provided as Technical Assistant.
The learned counsel for the petitioner would submit that
at least the Tap Inspectors should have been treated as
skilled Assistant Grade -I, as it was done in the case of
fitters and others.
5. The grievance of the petitioner is
justifiable. The order of the second respondent is
consequent upon the Government order. Therefore, the
order of the 2nd respondent as well as the Government
are not sustainable and accordingly, they need to be
interfered with.
6. In the result, the Writ Petition is allowed.
G.O.Ms.No.140, Municipal Administration and Water
Supply Department dated 27.05.1997 to the extent it
status that the post of Tap Inspector shall be treated as
Skilled Assistant Grade -II, in the 2nd respondent
Corporation is set aside and instead the Government is
directed to issue appropriate orders designating the
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W.P(MD) No.15319 of 2014
post of Skilled Assistant Grade -I, for the petitioner and
give him all consequential service benefits such as
seniority, promotion etc., in accordance with law, within
a period of three months from the date of receipt of a
copy of this order. No costs.”
3. The Government considered the order passed in the W.P.
(MD) No. 3855 / 2000 and has issued G.O. Ms. No. 165 MAWS
Department dated 08.04.2010 wherein the petitioner was considered in
Skilled Assistant Grade – I and granted all monetary benefits. However the
respondent have not granted placed the petitioner in the seniority list and
grant further promotion in the post of Technical Assistant and therefore the
petitioner had submitted representation. Since the same was not considered
the petitioner preferred writ petition in W.P. (MD) No. 2916 / 2014 and this
Court vide order dated 21.02.2014 has directed the respondent to consider
and pass order. Hence the respondents have considered as passed the
impugned order dated 17.07.2014. Aggrieved over the present writ petition
is filed.
4. The respondent filed counter and it has been contented that
the petitioner does not possess Diploma in Engineering. A Disciplinary
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W.P(MD) No.15319 of 2014
proceeding were initiated against the petitioner wherein stoppage of
increment for 3 years was imposed for shortage of articles in stores for
which he was imposed recovery of sum of Rs.5,53,831/- by 138
installment for a sum of Rs.4000/- with effect from October 2010 which
extends upto April 2022. and therefore, he is not entitled to the promotion.
5. Heard the learned counsel appearing on either side and
perused the materials available on record.
6. Admittedly, as per Municipal Service Rules applicable to
the erstwhile Thirunelveli Municipality the post of Drainage Inspector and
Water Inspector were in the same cadre. When the Corporation came into
existence unfortunately, there was no post of “Tap Inspectors” in
Corporation service. The Government has issued G.O.Ms.No.140
providing service for Tap Inspector in the Corporations service Rules. In
fact, in the Municipal Service Rules, both the Drainage Inspectors and Tap
Inspectors were kept as Technical Assistant. But, unfortunately, the Tap
Inspectors were not kept as Technical Assistant. The petitioner in fact
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W.P(MD) No.15319 of 2014
requested, atleast the Tap Inspectors should have been treated as Skilled
Assistant Grade -I. But the respondents have placed them as Skilled
Assistant Grade-II and hence the petitioner lost his Seniority and his
juniors were promoted. The petitioner submitted representation to keep the
post as Grade I and grant seniority in the post of Technical Assistant and
other benefits was rejected by the Corporation vide proceedings dated
13.01.2000. Aggrieved over the petitioner filed Writ Petition in W.P(MD).
No.3855 of 2000 and this Court vide order dated 30.07.2009 directed the
respondents to place the petitioner under Grade – I. Hence the Government
issued G.O. Ms. No. 165 and granted the relief. However the government
has not placed the petitioner in the seniority list for further promotion to
the post of Technical Assistant. Hence the petitioner filed W.P. (MD) No.
2916 / 2014 and this Court has directed the respondent to consider and
pass order. The respondent have passed an order dated 17.07.2014 denying
promotion on two grounds, the petitioner is not possessing Diploma in
Engineering and there is punishment against the petitioner. Aggrieved over
the petitioner has preferred this Writ Petition with the prayer to quash the
impugned order dated 17.07.2014 and consequently promote him as
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W.P(MD) No.15319 of 2014
Technical Assistant. The petitioner Counsel relied on G.O. Ms. No. 140,
dated 27.05.1997, wherein in Appendix 6 Sub Clause 3(1) it is stated as
follows:
“1) The Tap Inspectors, work Inspectors, Line
Inspectors, Meter Readers, Meter Mechanics who have
completed 20 years of service on the date of issue of this
order may be promoted as Skilled Assistant Grade-I, i.e., in
the scale of pay of Rs.1100/- 1660/-. After completion of a
minimum of one year service in the post of Skilled Assistant
Grade-I, they may be promoted as Technical Assistants in the
Scale of Pay of Rs.1350/- - 2200. The qualification that a
pass in Diploma for the post of Technical Assistant need not
be insisted on them.”
7. Therefore, when the G.O. itself states that the past
Technical Assistant need not be insisted on them, the impugned order
rejecting the claim of the petitioner that he has no qualification is
erroneous.
8. The second reason the respondents have stated that the
petitioner has undergone punishment during the period of consideration
and relied on Government Letter No. 52312 / S / 2000-14, dated
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W.P(MD) No.15319 of 2014
03.03.2013. The petitioner relied on the full Bench Judgment of this Court
reported in 2011 MLJ 4 in the case of Deputy Inspector General of
Police, Thanjavur Range, Thanjavur and another Vs. V. Rani, wherein
the said letter was quashed and therefore, the rejection order ought to be
set aside and the respondent cannot quote the quashed letter and deny the
claim. The respondent counsel submitted that recovery of Rs.5,53,831/- is
ordered on the petitioner and therefore, he is not entitled to the promotion.
This Court in Full Bench Judgment has held that the government letters
have no statutory force and hence the Government Letter No. 52132 / S /
2000-14 Personnel and administrative Reforms (S) Department dated
03.03.2003 cannot be held against the government employee, stating that
the promotion cannot be granted until the recovery of the amount is over.
In this case the petitioner is awarded with a punishment of stoppage of
increment for 3 years without cumulative effect and has ordered for
recovery of amount of Rs. 5,53,831/-. There are two aspects in the order,
one is stoppage of increment and another one is recovery. For recovery, an
installment is granted to the petitioner. In cases of recovery, the
installments may run beyond the superannuation period also and during
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W.P(MD) No.15319 of 2014
that time the pension amount would be modified. Likewise if promotion is
granted, there will be increase in the salary amount and the respondents
have power to modify the installment based on the increase in salary in the
promoted post. Moreover the respondents have power to collect from the
terminal benefits also. Therefore the respondent cannot deny the promotion
beyond the period of three years by showing the recovery is still pending.
Moreover the Government Letter No. 52132 / S / 2000-14 Personnel and
administrative Reforms (S) Department dated 03.03.2003 has no statutory
force as held in Rani's case. Therefore this Court is of the considered
opinion that the respondent cannot deny the promotion for the above stated
reasons.
9. Therefore, on both the grounds impugned order passed by
the respondent is set aside and accordingly, the Writ Petition is allowed.
The respondent is directed to grant promotion to the petitioner in
accordance to law without denying by showing the qualification and
recovery of amount. The respondent is at liberty to modify the installment
amount based on the increase in salary in the promotion post. No costs.
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W.P(MD) No.15319 of 2014
Consequently, the connected Miscellaneous Petition is closed.
08.12.2021
Index:Yes/No
Internet:Yes/No
trp
To
The Commissioner,
Tirunelveli Municipal Corporation,
Tirunelveli.
https://www.mhc.tn.gov.in/judis
W.P(MD) No.15319 of 2014
S. SRIMATHY, J.,
trp
W.P(MD) No. 15319 of 2014 and
MP(MD).No.1 of 2014
08.12.2021
https://www.mhc.tn.gov.in/judis
