Madras High Court
V.Parvathi vs The Director Of Town Panchayat on 5 July, 2021
W.A.(MD)Nos.761 to 769 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.07.2021
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)Nos.761 to 769 of 2019
and
CMP(MD).Nos.6717,6721,6722,6725,6727,6731,6733,6738,6740,
10621,10604,10607,10609,10612,10614,10617,10618 and 10620 of 2019
W.A.(MD)No.761 of 2019
V.Parvathi ... Appellant/Petitioner
Vs.
1. The Director of Town Panchayat,
Kuralagam, Chennai.
2. The Collector,
Trichy District, Trichy.
3. The Assistant Director of Town Panchayat,
Trichy Zone, Trichy.
4. The Executive Officer,
Mettupalayam, Town Panchayat,
Trichy District.
5. A.Balakrishnan ... Respondents/Respondents
Prayer in W.A(MD).No.761 of 2019: Writ Appeal filed under Clause 15 of
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W.A.(MD)Nos.761 to 769 of 2019
Letters Patent, against the order of this Court made in W.P.(MD) Nos.20490 of
2013, dated 10.07.2019.
For Appellant : Mr.V.Vijay Shankar
(in all the W.As)
For Respondents : Mr.R.Baskaran,
Standing Counsel for Government
for R1 to R3
Mr.M.Rajarajan for R4
Mr.S.Anwar Sameem for R5
(in all the W.As)
COMMON JUDGMENT
[Judgment of the Court was delivered by T.S.SIVAGNANAM,J.]
Heard Mr.v.Vijay Shankar, learned counsel appearing for the
appellants; Mr.R.Baskaran, learned Government Counsel appearing for the
respondents 1 to 3; Mr.Rajarajan, learned counsel appearing for the fourth
respondent and Mr.S.Anwar Sameem, learned counsel appearing for the fifth
respondent.
2. These writ appeals have been filed by the writ petitioners
challenging a common order passed in W.P(MD).Nos.20490 to 20499 of 2013,
dated 10.07.2019.
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W.A.(MD)Nos.761 to 769 of 2019
3. With the consent of all the counsel, these petitions are taken up for
final disposal.
4. The appellants had challenged the order passed by the fourth
respondent-Executive Officer of Mettupalayam Town Panchayat, Trichy
District, dated 05.12.2013. By the said order, the appellants, who were working
as Sweeper in the fourth respondent Town Panchayat, were terminated from
service. It is not the first round of litigation before this Court, but it is the third
round of litigation. It is not in dispute that the names of the appellants were
sponsored by the employment exchange. Their suitability was assessed by the
appointment committee and thereafter, orders of appointment were issued on
27.04.2007, initially on temporary basis, in an existing vacancy in the post of
sweeper. By order dated 09.05.2008, the services of the appellants were
regularised and they moved into a time scale of pay. After about five months, by
proceedings of the fourth respondent dated 14.10.2008, the appointments were
cancelled on the ground that name of the eligible persons were not obtained
from employment exchange and therefore, the orders of appointment of the
appellants dated 27.04.2007 and 05.11.2007 are cancelled. The writ petitioners
challenging the said order filed W.P(MD).Nos.26071 to 26080 of 2008.
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W.A.(MD)Nos.761 to 769 of 2019
5. The learned Writ Court after elaborately considering the entire
matter and also taking note of the allegations made by the fifth respondent
before us, who also impleaded himself as a respondent in the said writ petition,
took note of the stand taken by the respondents that the proceedings cancelling
the appointment of persons pursuant to a discreet enquiry conducted by the
District Collector and after taking note of the said report, it came to light that
the then Executive Officer of the fourth respondent-Town Panchayat had
appointed the eleven appellants without following the guidelines and therefore,
the successor in office had passed the orders of termination. The Court on a
closer scrutiny of the facts, pointed out that in spite of the fact that the
appellants have become civil servants and entitled to the protection of the
Article 311 of the Constitution of India, non-issuance of the notice to the
appellants would vitiate the orders of termination.
6. Further, it was observed that the principles of natural justice require
that the appellants should be given reasonable opportunity of hearing in the
enquiry to be conducted and appropriate orders with reasons in support thereof
need to be passed. Further, it was pointed out that it is a settled legal position
that when an allegation is made against the employee assailing the order of
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W.A.(MD)Nos.761 to 769 of 2019
termination as one based on misconduct without affording any reasonable
opportunity of hearing to the staff terminated and without complying with the
mandatory procedures laid down under Article 311(2) of the Constitution, it is
incumbent on the Court to lift the veil and to see the real circumstances as well
as the basis and foundation of the orders complained of.
7. Ultimately, the Court held that the orders of termination were
illegal. The writ petitions were allowed, orders of termination were quashed and
the matter was remanded back to the fourth respondent-Executive Officer with
the direction to conduct an enquiry by following the procedure as contemplated
under law, by issuing show cause notice to the appellants calling upon the
explanation from them and affording opportunity of personal hearing, proceed
further in accordance with law. Pursuant to such directions, a show cause notice
dated 07.04.2011 was issued. In the show cause notice, the following are the
three charges:
1. ntiy tha;g;g[ mYtyfk; K:yk; 1 egUf;F 5 egh; vd;w
tpfpjj;jp;y; gl;oay; bgw;W jFjp tha;e;j egiu njh;t[ bra;jpUf;f ntz;Lk;.
2. cly; jFjp jpwd; mwpa xU kUj;Jt mYtyiu FGtpy;
epakdk; bra;jpUf;f ntz;Lk;.
3. neh;fhzypy; kjpg;bgz; ,lg;gl;oUf;f ntz;Lk;.
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W.A.(MD)Nos.761 to 769 of 2019
8. The appellants had submitted their reply/explanation dated
28.06.2011/25.07.2011. Thereafter, an Enquiry Officer was appointed, who
conducted enquiry and submitted a report holding that all the three charges are
not proved as against the appellants. Pursuant to such report, the fourth
respondent by order dated 09.08.2011, sustained the validity of the
appointments of the appellants dated 27.04.2007 and directed that their services
should be regularised from 02.05.2007. The fifth respondent herein, who is
neither an employee of the Town Panchayat nor an elected Councillor, but
appears to be a third party filed W.P(MD).Nos.112 to 121 of 2012 challenging
the order dated 09.08.2011, by which, the appointments of the appellants dated
27.04.2007 were held to be valid. The Court found that in the earlier round of
litigation, namely, in W.P(MD).Nos.26071 to 26080 of 2008, the locus standi of
the fifth respondent was considered and the claim was rejected and in spite of
the same, the fifth respondent once again was before this Court by way of writ
petitions challenging the appointments. The Court also took note of the decision
of the Honourable Supreme Court in the case of Duryodhan Sahu (Dr) v.
Jitendra Kumar Mishra, (1998) 7 SCC 273, wherein, it was held that if the
public interest litigation at the instance of strangers are allowed to be
entertained, the very object of speedy disposal of service matter would get
affected and ultimately held that the fifth respondent has no locus standi to
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W.A.(MD)Nos.761 to 769 of 2019
question either the appointments of the appellants before us or a consequential
decision taken by the Executive Officer, pursuant to the direction of the learned
Single Bench of this Court in the earlier batch of writ petitions.
9. Further, the Court held that after going into the grievances of the
contesting respondents, who are the appellants before us, found that their
termination was illegal and their services cannot be dispensed with except by
following due procedure and pursuant to the said direction, the Executive
Officer has undertaken exercise of conducting the enquiry and passing final
orders and has also recorded that there was no irregularities in the appointment
made in favour of the appellants before us for the post of sanitary workers
which is the lowest post in the Municipality.
10. Thus, the earlier order of cancellation of appointment, which was
impugned in W.P(MD).Nos.26071 to 26080 of 2008 was quashed. However, the
Court remanded the matter back to the Executive Officer to afford an
opportunity to the appellants, issue show cause notice, conduct an enquiry and
then pass orders on merits and in accordance with law. This exercise was
scrupulously followed and the appointments were held to be valid. The fifth
respondent was unsuccessful in the challenge, confirming the appointment of
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W.A.(MD)Nos.761 to 769 of 2019
the appellants. The writ petition filed by the fifth respondent in W.P(MD).Nos.
112 to 121 of 2012 had not only been dismissed on the ground of locus standi,
but the Hon'ble Court had gave its seal of approval to the order passed by the
fourth respondent dated 09.08.2011.
11. However, the matter did not rest there. Once again, the fourth
respondent, after a new Executive Officer took charge cancelled the appellants
appointment by orders dated 05.12.2013. These orders were put to challenge in
W.P(MD).Nos.20490 to 20499 of 2013. On account of the interim orders
granted in the writ petitions, the appellants are still continue in service as
Sweepers. These writ petitions have been dismissed by a common order dated
10.07.2019, which is impugned before us.
12. The learned Single Bench accepted the stand taken in the counter-
affidavit filed by the third respondent and held that the appointments were not
made in accordance with law and by following the procedures contemplated.
The legal issue would be as to whether the third respondent could exercise
powers and cancel the appointments, the validity of which was considered by
the Court and found to be valid. Secondly, the question would be whether the
fourth respondent had jurisdiction to pass the orders dated 05.12.2013. In the
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W.A.(MD)Nos.761 to 769 of 2019
said order, by which the appellants' appointment were cancelled, there is a
reference to the proceedings of the District Collector, Tiruchirappalli, dated
02.12.2013.Admittedly, the copy of the said proceedings was not furnished to
the appellants not the contents thereof were disclosed. That apart, the appellants
have become regular employees of the Town Panchayat, initiation of the
proceedings to cancel appointments cannot be done without following the
procedure contemplated under law. In fact, the very issue has been considered in
the appellants' own case in W.P(MD).Nos.26071 to 26080 of 2008, etc., batch
and it was held that the appellant could not have been terminated without
following the proper procedure. Once again, the fourth respondent has
committed the same mistake for which, he cannot be exonerated. That apart, the
three charges which have been framed against the appellants, nowhere indicts
the appellants. If the appointment authority has not called for requisite number
of candidates from the employment exchange, the applicant to the post cannot
said to have committed an illegality. If the appointment committee did not
include a Doctor as once of the panelist, the appellants cannot be blamed for the
same. Thirdly, if the appointment committee did not assign specific marks for
various parameters that by itself cannot vitiate appointment of the appellants.
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W.A.(MD)Nos.761 to 769 of 2019
13. Thus, the sixth respondent appears to have targeted the then
Executive Officer of the Town Panchayat and the other officers and staff of the
Town Panchayat, but not a word has been spoken against the appellants, whose
names were admittedly sponsored by the employment exchange, who attended
the interview and the appointment committee recommended their candidature
and they were selected and appointed and also regularised by orders dated
09.05.2008. Therefore, any amount of allegations against the then Executive
Officer can have no impact on the appellants' appointment. To say the least, the
appellants have been harassed ever since they were reguralised in their service
since 2008 and substantial part of their service, they were before this Court by
filing the writ petitions.
14. The learned Single Bench was of the opinion that the services of
the appellants continued because of the interim order passed in the writ
petitions. This finding may not be factual right, because, the appellants' services
were regularised by order dated 09.05.2008 and they were brought into time
scale of pay. When their appointments were cancelled by cryptic order dated
14.10.2008, the Court found that the order to be illegal and the order was
quashed. Thereafter, the appellants continued as regular employees of the Town
Panchayat. Based on the order of remand, show cause notice was issued and
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W.A.(MD)Nos.761 to 769 of 2019
enquiry was conducted, during which, they continued in services. Ultimately the
Executive Officer held their appointments to be valid by order dated 09.08.2011
and the appellants continued in service till the order dated 05.12.2013 was
passed, which is impugned in the writ petitions. In these writ petitions, interim
order was granted. Therefore, it may not be right to state that the appellants had
continued in service for all these years based on interim orders.
15. Though the learned Single Bench has accepted the stand taken by
the third respondent in the counter-affidavit and extracted substantial portion
thereof, that by itself cannot validate an illegal order. Therefore, we are of the
clear view that the order cancelling the appointments of the appellants dated
05.12.2013 is illegal and unsustainable in law.
16. The learned counsel appearing for the fifth respondent submitted
that the order passed in W.P(MD).Nos.112 to 121 of 2012, dated 04.01.2012,
the fifth respondent has filed writ appeal before the Principal Seat of this Court.
17. Be that as it may, twice before this Court the locus standi of the
fifth respondent was tested and it was found that he is a third party to the
proceedings and his plea cannot be entertained as a public interest litigation
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W.A.(MD)Nos.761 to 769 of 2019
since it is a service matter. The Court not stopping with that, also examined the
correctness of the order dated 09.08.2011 validating the appointments of the
appellants dated 27.04.2007 and held that the orders do not suffer from
illegality. The Court also took note of the important fact that all the appellants
are last grade servants working as Sweeper, in the Town Panchayat.
18. Thus, for all the above reasons, the appellants are entitled to
succeed. Accordingly, these Writ Appeals are allowed, and the orders passed
in the writ petition are set aside. Consequently, the order impugned in the writ
petition in Na.Ka.No.21 of 2007, dated 05.12.2013 is quashed and the
appellants shall be allowed to continue to discharge their duties and owing to
the pendency of the writ petitions, if salary, other monetary benefits and service
benefits have not been sanctioned to the appellants, the same shall be
sanctioned by the fourth respondent within eight weeks from the date of receipt
of a copy of this judgment. No costs. Consequently, the connected
miscellaneous petitions are closed.
Index :Yes/No (T.S.S.,J.) (S.A.I.,J.)
Internet :Yes/No 05.07.2021
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W.A.(MD)Nos.761 to 769 of 2019
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy, shall
be the responsibility of the advocate/litigant concerned.
To:
1. The Director of Town Panchayat,
Kuralagam, Chennai.
2. The Collector,
Trichy District, Trichy.
3. The Assistant Director of Town Panchayat,
Trichy Zone, Trichy.
4. The Executive Officer,
Mettupalayam, Town Panchayat,
Trichy District.
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W.A.(MD)Nos.761 to 769 of 2019
T.S.SIVAGNANAM, J.
and
S.ANANTHI, J.
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05.07.2021
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