Madras High Court
R. Raja vs Commissioner on 2 February, 2022
W.P.No.26380 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 02.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
W.P.No.26380 of 2009 and
M.P.No.1 of 2009
R. Raja ... Petitioner
Vs.
1. Commissioner, Salem Municipal Corporation,
Salem.
2. Assistant Commissioner,
Salem Corporation, Ward No.4,
Kodalampatty. ... Respondents
Prayer: Writ petition filed under Article 226 of the Constitution of
India seeking to issue a Writ of Certiorarified Mandamus, to call for
the records pertaining to the order passed by the second respondent, in
his proceedings Na,Ka.No.M7/2278/2001 dated 24.09.2001 and quash
the same and direct the respondents to reinstate the petitioner in service
and confer all the consequential benefits.
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W.P.No.26380 of 2009
For petitioner : Mr.P.Ganesan
for M/s C.S.Associates
For respondents : Mr.K.Sridhar for R1
Mr.G.Sankaran for R2.
ORDER
This writ petition has been filed seeking to issue a Writ of
Certiorarified Mandamus, to call for the records pertaining to the order
passed by the second respondent, in his proceedings
Na.Ka.No.M7/2278/2001 dated 24.09.2001 and quash the same and
direct the respondents to reinstate the petitioner in service and confer
all the consequential benefits.
2. The case of the petitioner in brief:
The petitioner was selected through Employment Exchange and
was appointed as Sanitary Worker in the respondent Corporation on
31.03.2000, under regular vacancy, on consolidated pay. The petitioner
was placed under suspension on 24.09.2001 by the second respondent's
proceedings dated 24.09.2001. On enquiry, it was replied by the
respondents that a criminal case in Crime No.1182 of 2001 on the file
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W.P.No.26380 of 2009
of Kondalmapatty Police Station was pending against the petitioner
and his mother, and charge sheet was filed for the offence under
Section 498A and 304 B. The petitioner made a representation to the
second respondent to revoke the suspension order and to reinstate him
in service. But it was not considered. Subsequently, the criminal case
in S.C.No.30/2005 was ended in acquittal by judgment dated
11.12.2007. Again he made representation on 12.05.2008 along with
the order of acquittal to reinstate him in service. But the respondents
have not revoked the suspension order. Hence this writ petition.
3. The contentions of the respondents in brief:
The petitioner was appointed on consolidated pay and the
appointment itself was on temporary basis. As per G.O.Ms.No.21
dated 23.02.2006, the NMRs, who have been continuously employed
till the year 2006, have been brought into time scale of pay with
regularization of service with effect from 23.02.2006, based on the
eligibility and assessment of merit. But the petitioner was engaged
beyond 2001 and there is no provision in Corporation Service Rules or
Government Orders to regularize a person, who was not engaged as
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W.P.No.26380 of 2009
NMR from 2001 onwards. Therefore, there is no scope for re-
appointment, as the petitioner was on consolidated pay. Further, the
petitioner was not made eligible for regular service, in the absence of
continuity of service on consolidated pay. Hence the above G.O. is not
applicable to the petitioner and the writ petition is not maintainable.
4. The learned counsel appearing for the petitioner submitted
that, the above said criminal case in S.C.No.30/2005 was ended in
acquittal on 11.12.2007. Though the petitioner made representations,
the respondents have not revoked the suspension order and permitted
the petitioner to continue his service as Sanitary Worker and include
his name for promotion to the post of driver. He further submitted that,
no Subsistence Allowance was paid to the petitioner, during the
suspension period and therefore, the suspension order may be revoked
and consequently, the respondents may be directed to reinstate the
petitioner in service and to pay the Subsistence Allowance for the
suspension period.
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W.P.No.26380 of 2009
5. The learned counsel appearing for the respondents submitted
that, since the petitioner was appointed on consolidated pay and his
appointment was only on temporary basis, he is not entitled for
Subsistence Allowance, which has been specifically mentioned in the
impugned suspension order. He further submitted that the NMRS have
been regularized as per G.O.Ms.No.21 dated 23.02.2006, since they
were continuously employed on the date of Government order. But
the petitioner was engaged after 2001 only on consolidated pay and not
as NMR and hence, there is no provision in Corporation Service Rules
or Government Orders to regularize a person, who was not engaged as
NMR from 2001 onwards. Hence this writ petition is liable to be
dismissed.
6. Heard the learned counsel appearing for both the parties and I
have perused the materials on record.
7. It is not the disputed facts that the petitioner was appointed on
consolidated pay as sanitary worker under the respondent Corporation
and his appointment was purely on temporary basis. However, since a
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W.P.No.26380 of 2009
criminal case was pending against the petitioner, the respondents have
issued suspension order vide proceedings dated 24.09.2001. The
contention of the petitioner is that he is entitled for Subsistence
Allowance from the date of issuing suspension order. It is to be noted
that till today, no final order has been passed in the disciplinary
proceedings, either revoking the order of suspension, or removing the
petitioner from service. It is an admitted fact that the petitioner was
engaged as a consolidated employee on the date of suspension order
issued. In such circumstances, the respondents ought to have passed
final order by taking note of the judgement passed in the criminal case
against the petitioner. Though the petitioner made representations
before the respondents, they were placing the petitioner under
suspension all these years, without passing any final order. Therefore,
the petitioner is certainly entitled for Subsistence Allowance during the
period of suspension.
8. At this juncture, the learned counsel appearing for the
respondents Corporation submitted that, similarly placed persons, who
worked at the time of suspension order, were regularized by virtue of
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W.P.No.26380 of 2009
G.O.Ms.No.21 dated 23.02.2006. However, according to the
respondent, there is no Rule or Provisions to grant Subsistence
Allowance to the petitioner.
9. The learned counsel appearing for the petitioner submitted
that, if the petitioner's request is considered by the respondent
Corporation for reinstatement of service, the petitioner will not insist
upon the Subsistence Allowance and back wages for all these years of
suspension period.
10. Subsequent to the suspension order, the respondent has not
passed any final order, despite notice being serviced to them.
Therefore, considering the submissions made by the counsel for the
petitioner that the petitioner is insisting only upon the reinstatement of
service, by giving up his right of Back wages and Subsistence
Allowance; and also taking into account the fact that similarly placed
persons, working in the respondent Corporation at the time of passing
suspension order were regularised by the respondent; and further there
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W.P.No.26380 of 2009
is a delay and failure on the part of respondent to take final decision;
this court is of the view that the respondent Corporation has to take
positive decision on the representation of the petitioner to reinstate him
in service as a fresh recruit. In such event, the Writ petitioner is not
entitled for any back wages and Subsistence Allowance.
11. Accordingly, it is ordered as follows.
i) The petitioner shall make representation, afresh, before the
respondent Corporation, within two weeks from the date of receipt of
copy of this order.
2. On such representation being made by the petitioner, the
respondent Corporation shall consider the petitioner's representation to
reinstate him and to regularise his service on par with the similarly
placed persons, as per G.O.Ms.No.21 dated 23.02.2006, as a special
case, within 12 weeks from the date of receipt of a copy of this order.
12. With the above directions, this writ petition is disposed of .
No costs.
02.02.2022
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W.P.No.26380 of 2009
Index:Yes/No
Internet:Yes/No
mst
To
1. Commissioner, Salem Municipal Corporation,
Salem.
2. Assistant Commissioner,
Salem Corporation, Ward No.4,
Kodalampatty.
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W.P.No.26380 of 2009
D. KRISHNAKUMAR, J.
mst
W.P.No.26380 of 2009
02.02.2022
https://www.mhc.tn.gov.in/judis
