Madras High Court
K.S.Baskar Pandian vs The State Of Tamil Nadu on 14 July, 2021
W.P.(MD)No.11679 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.07.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
W.P.(MD)No.11679 of 2018
and
W.M.P(MD)Nos.10629, 10630 & 10631 of 2018
K.S.Baskar Pandian ... Petitioner
Vs.
1.The State of Tamil Nadu,
Rep. by its Secretary to Government,
Municipal Administration and Water Supply Department,
Secretariat, Chennai-9.
2.The Chief Engineer/Personal,
Tamil Nadu Generation & Distribution
Corporation Ltd., (Administration Branch)
8th Floor, N.P.K.R.R.Malligai,
144, Anna Salai,
Chennai-2.
3.The Commissioner of Municipal Administration,
Municipal Administration and Water Supply Department,
Chepauk, Chennai-5.
4.The Commissioner,
Madurai Corporation,
Madurai.
5.The Superintending Engineer,
Madurai Electrical Distribution Circle Metro,
K.Pudur, Madurai.
1/15
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W.P.(MD)No.11679 of 2018
6.S.Nalla Thambi ... Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution
of India, to issue a Writ of Certiorarified Mandamus, calling for the
records relating to the impugned order passed by the second
respondent in his proceedings in Memo No.
033379/349/G14/G141/2017, dated 20.04.2018 and quash the same
as illegal and unconstitutional, consequently direct the fourth
respondent to appoint the petitioner as Assistant Engineer
(Electrical) by promotion, taking into account of his educational
qualification in the light of G.O.Ms.No.13, Municipal Administration
and Water Supply Department, dated 14.02.2003 and in light of
recommendation made by the first respondent in Na.Ka.No.
30451/2016/F4, dated 27.02.2018.
For Petitioner : Mr.M.Thirunavukkarasu
For R1 : Mr.P.Subbaraj
Government Advocate
For R2 & R5 : Mr.T.Sakthikumaran
For R4 : Mr.T.S.Mohamed Mohideen
ORDER
This writ petition is filed by the petitioner to quash impugned
order passed by the second respondent in his proceedings in Memo
No.033379/349/G14/G141/2017, dated 20.04.2018, and
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W.P.(MD)No.11679 of 2018
consequently direct the fourth respondent to appoint the petitioner
as Assistant Engineer (Electrical) by promotion, taking into account
of his educational qualification in the light of G.O(Ms)No.13,
Municipal Administration and Water Supply Department, dated
14.02.2003 and in light of recommendation made by the first
respondent in Na.Ka.No.30451/2016/F4, dated 27.02.2018.
2. According to the petitioner, he was working as Skilled
Assistant Grade-II (Line Inspector) in the fourth respondent
Corporation and after creation of posts, due process of selection by
Selection Committee, the fourth respondent, by his proceedings,
dated 06.01.1998, appointed the petitioner as Line Inspector and
he joined duty on 12.01.1998 at Street Lights Maintenance Section
in the fourth respondent Corporation. At the time of appointment
as Line Inspector (Street Light), the petitioner had completed ITI
and subsequently, after obtaining permission from the fourth
respondent, he obtained Diploma in Electrical Engineering and
B.E., (Electrical Engineering). For more than 21 years, the
petitioner and similarly placed persons were working as Line
Inspectors. One A.Palanikumar and 4 others, who are similarly
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W.P.(MD)No.11679 of 2018
placed persons, like the petitioner, filed a writ petition in W.P.
(MD)No.18186 of 2016 for a direction to the respondents 1 and 3
herein to promote them to higher posts either by bringing them
under the preview of the existing Service Rules or by framing
appropriate Service Rules. This Court, by order, dated 22.09.2016,
directed the respondents 1, 3 and 4 herein to complete the whole
exercise within two months from the date of receipt of a copy of
that order, by taking into consideration the fact that the petitioners
are longing for promotion for quite a long time. In pursuance of
the order of this Court, dated 22.09.2016, made in W.P.(MD)No.
18186 of 2016, the fourth respondent, by the proceedings, dated
16.11.2016, addressed to the first respondent through the third
respondent, with a request to issue suitable orders whether the
petitioners in the said writ petition should be brought under the
Corporation Employees Services Rules based on their educational
qualification or to create separate Service Rules for Street Light
Section. On receipt of the said letter, the third respondent through
his letter, dated 20.12.2016, informed the first respondent stating
that the appointing authority to the post of Assistant Engineer is
the Commissioner, Madurai Corporation and he has to pass orders
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W.P.(MD)No.11679 of 2018
in this regard. Pursuant to the order of this Court, there was some
inter se correspondence between the respondents 1,3 & 4. After
such correspondence, the first respondent, by the proceedings,
dated 15.02.2017 passed an order that all 17 Street Light
Employees of Madurai Corporation should be brought under the
Tamilnadu Municipal Corporations Engineering and Water Supply
Service Rules, 1996 and they should be given appointment based
on their educational qualification. Based on such direction, the
fourth respondent vide proceedings, dated 31.03.2017, reverted
the petitioner and 15 others from their respective posts and the
petitioner was reverted to the post of Skilled Assistant (Grade-II)
from the Line Inspector without any valid reason and against the
orders of the respondents 1 & 3. The petitioner and others gave a
memorandum to the third respondent to revoke the order passed
by the fourth respondent, dated 31.03.2017. While there was an
inter se correspondence between the respondents 1,3 & 4 with
regard to promotion of the petitioner as Assistant Engineer, the
second respondent, by the proceedings, dated 20.04.2018, posted
the sixth respondent on deputation to the post of Assistant
Engineer. The petitioner has come out with the present writ
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W.P.(MD)No.11679 of 2018
petition challenging the said order of the second respondent and
also seeking appointment as Assistant Engineer (Electrical) by
promotion taking into account of his educational qualification in the
light of G.O.(Ms)No.13, Municipal Administration and Water Supply
Department, dated 14.02.2003 and in the light of recommendation
on the third respondent, dated 27.02.2018.
3. The learned counsel appearing for the petitioner
vehemently contended that the impugned order appointing the
sixth respondent in the fourth respondent Corporation as Assistant
Engineer in the existing vacancy is contrary to the provisions of
Tamilnadu Municipal Corporation Engineering and Water Supply
Service Rules, 1996. Rule 6 of the Tamilnadu Municipal
Corporation Engineering and Water Supply Service Rules, 1996
enables the appointing authority to appoint a person only in case of
non-availability of suitable candidates at relevant point of time.
When the petitioner and other eligible candidates are available, the
impugned order appointing the sixth respondent is illegal and
violation of service Rules of the fourth respondent.
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W.P.(MD)No.11679 of 2018
4. As per the Tamilnadu Municipal Corporation Engineering
and Water Supply Service Rules, 1996, a person can be deputed to
any posts in the service of the fourth respondent, only if there is no
eligible candidate available in the fourth respondent Corporation.
The learned counsel appearing for the petitioner submitted that the
petitioner is having requisite educational qualification to be
appointed as Assistant Engineer (Electrical), as he is possessed
Diploma in Electrical and B.E. (Electrical). The learned counsel
appearing for the petitioner further submitted that the deputation
of sixth respondent as Assistant Engineer (Electrical) in the fourth
respondent Corporation must be set aside.
5. The learned counsel appearing for the petitioner further
submitted that pending writ petition, the petitioner was promoted
as Assistant Engineer (Electrical) as per the interim order passed
by this Court. The promotion was given to the petitioner as per the
direction, dated 19.03.2019, to the third respondent to promote the
petitioner and others after verifying the qualification and subject to
the result of the writ petition. On such direction, Council of the
fourth respondent passed a resolution, dated 14.06.2019, resolving
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W.P.(MD)No.11679 of 2018
to promote the petitioner and others as Assistant Engineer
(Electrical). The first respondent, by G.O.(D) No.149, Municipal
Administration and Water Supply (MC4) Department, dated
30.04.2020, confirmed the appointment of the petitioner in the post
of Assistant Engineer (Electrical) with effect from 19.03.2019
subject to the result of the writ petition.
6. The second respondent filed counter affidavit. The learned
counsel appearing for the second respondent contended that the
impugned order of deputation of the sixth respondent was
cancelled, vide CE/Per/Chennai Memo.No.
033379/345/G14/G141/2017-3, dated 11.06.2018 and the relief
sought for by the petitioner to quash the order of deputation has
become infructuous and prayed for dismissal of the writ petition
against the second respondent.
7. The fourth respondent filed counter affidavit. The learned
counsel appearing for the fourth respondent submitted that the
petitioner was selected only for the purpose of Street Light
Maintenance. As per the order of this Court, dated 22.09.2016, in
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W.P.(MD)No.11679 of 2018
W.P(MD)No.18186 of 2016, the said Palanikumar and four others
were brought under the Tamilnadu Municipal Corporation
Engineering and Water Supply Service Rules, 1996, on 15.02.2017,
but they are absorbed only as Skilled Assistant Grade-II fixing the
same salary paid in the cadre of Street Light Maintenance (Line
Inspector). The post of Assistant Engineer has to be filled up only
by direct recruitment as per the Rule. The said post cannot be
filled up by promotion. In view of the specific Government Order to
the effect that the Street Light Assistant Engineer posts can be
filled through deputation from Tamil Nadu Electricity Board, the
fifth respondent deputed the sixth respondent in the said post and
hence, the impugned order of deputation of sixth respondent is
valid. The Street Light Maintenance Division Establishment is not
under the Tamilnadu Municipal Corporation Engineering and Water
Supply Service Rules, 1996. Therefore, the request of the
petitioner that he should be promoted as Assistant Engineer is not
acceptable.
8. Heard the learned counsel appearing for the petitioner,
learned Government Advocate appearing for the first respondent,
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W.P.(MD)No.11679 of 2018
learned counsel appearing for the respondents 2, 5 & 4 and
perused the materials available on record.
9. From the above submissions of the learned counsel
appearing for the petitioner, the respondents 1,3 & 4 and the
second respondent, it is seen that the petitioner has challenged the
order of deputation of sixth respondent as Assistant Engineer on
the ground that the same is contrary to Rule 6 of the Tamilnadu
Municipal Corporation Engineering and Water Supply Service
Rules, 1996. According to the petitioner, only when no eligible
candidates are available in the fourth respondent Corporation, a
person can be deputed to the post of Assistant Engineer
(Electrical). When the petitioner and others are available in the
fourth respondent, the deputation of sixth respondent is invalid and
contrary to the Rule. The writ petition is filed on 29.05.2018. The
second respondent in the counter affidavit has stated that the
impugned order of deputation of sixth respondent as Assistant
Engineer in the fourth respondent Corporation was cancelled by
the proceedings, dated 11.06.2018. In view of cancellation of
deputation of sixth respondent by the second respondent,
subsequent to the filing of the writ petition, the question whether
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W.P.(MD)No.11679 of 2018
the deputation can be made when the eligible candidates are
available in the fourth respondent and whether the same is
contrary to Rule 6 of the Tamilnadu Municipal Corporation
Engineering and Water Supply Service Rules, 1996, is only
academic interest in the present writ petition. If in future any
deputation is made contrary to Rule 6 of the Tamilnadu Municipal
Corporation Engineering and Water Supply Service Rules, 1996, it
is open to the aggrieved person to challenge the same in the
appropriate forum. In view of cancellation of deputation of sixth
respondent, the first portion of the relief sought for to quash the
deputation of sixth respondent has become infructuous. Hence, the
writ petition is disposed of as the first prayer viz., quashing the
impugned order of deputation, is infructuous.
10. From the proceedings of the respondents 1, 3 & 4, it is
seen that the petitioner was appointed as Assistant Engineer
(Electrical) on 08.03.2019 and the said appointment is subject to
result of present writ petition and direction is given to the fourth
respondent to verify the qualification of the petitioner and others
and appoint them as Assistant Engineer (Electrical). The petitioner
is having requisite educational qualification. The Council of the
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W.P.(MD)No.11679 of 2018
fourth respondent passed a resolution, dated 14.06.2019, resolving
to promote the petitioner and others as Assistant Engineer
(Electrical) and the same was confirmed by the first respondent in
G.O.(D) No.149, Municipal Administration and Water Supply (MC4)
Department, dated 30.04.2020, subject to the result of the writ
petition. The case of the petitioner and other similarly placed
persons were considered as per the direction of this Court, dated
22.09.2016 made in W.P(MD)No.18186 of 2016 filed by
A.Palanikumar and 4 others as petitioner and others were
stagnating in the same post for more than 21 years. The
respondents 1, 3 and 4 were directed to consider the petitioner and
others to higher post either by bringing them under the purview of
existing service Rules or by framing appropriate service Rules. In
view of the same, the contention of the fourth respondent that post
of Assistant Engineer can be filled up only by direct recruitment is
without merits. Similarly, the judgment in W.A.No.1 of 2011 relied
on by the learned counsel for the fourth respondent is not
applicable to the facts of the present case.
11. Considering the proceedings of the respondents 1, 3 & 4
and resolution of the fourth respondent, dated 14.06.2019, the
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W.P.(MD)No.11679 of 2018
petitioner is entitled to the second portion of relief sought for in the
writ petition as the petitioner is fully qualified to be appointed as
Assistant Engineer (Electrical). The petitioner was promoted as
Assistant Engineer (Electrical) pending writ petition and such
appointment is confirmed from 08.03.2021. The fourth respondent
is directed to permit the petitioner to continue to work as Assistant
Engineer (Electrical).
12. The learned counsel appearing for the petitioner
submitted that from the date of promotion on 14.06.2019 the
petitioner was not paid the salary. The fourth respondent is
directed to pay the arrears of salary as well as continue to pay the
salary in the promotional post.
13. With the above directions, the writ petition is partly
allowed. No costs. Consequently, connected miscellaneous petitions
are closed.
14.07.2021
Index:Yes/No
Internet:Yes/No
am
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W.P.(MD)No.11679 of 2018
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 Secretary to Government,
Municipal Administration and Water Supply Department,
Secretariat, Chennai-9.
2.The Chief Engineer/Personal,
Tamil Nadu Generation & Distribution
Corporation Ltd., (Administration Branch)
8th Floor, N.P.K.R.R.Malligai,
144, Anna Salai, Chennai-2.
3.The Commissioner of Municipal Administration,
Municipal Administration and Water Supply Department,
Chepauk, Chennai-5.
4.The Commissioner,
Madurai Corporation,
Madurai.
5.The Superintending Engineer,
Madurai Electrical Distribution Circle Metro,
K.Pudur, Madurai.
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W.P.(MD)No.11679 of 2018
V.M.VELUMANI, J.
am
W.P.(MD)No.11679 of 2018
14.07.2021
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