Madras High Court
M.Thirumoorthy vs The State Of Tamil Nadu on 29 November, 2023
W.P.Nos.12342 to 12346 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.11.2023
CORAM:
THE HON'BLE MR.JUSTICE K.KUMARESH BABU
W.P.Nos.12342 to 12346 of 2010
and M.P.Nos. 1 to 1 of 2010
M.Thirumoorthy .. Petitioner in W.P.No.12342 of 2010
R.Mani .. Petitioner in W.P.No.12343 of 2010
M.Madhan .. Petitioner in W.P.No.12344 of 2010
A.Balakrishnan .. Petitioner in W.P.No.12345 of 2010
K.Mani .. Petitioner in W.P.No.12346 of 2010
vs.
1.The State of Tamil Nadu,
Represented by Secretary to Government,
Animal Husbandry, Dairying and
Fisheries (M.P.II) Department,
Fort St.George, Chennai – 600 009.
2.The Commissioner for Milk,
Production and Diary Development,
Madhavaram Milk Colony,
Madhavaram, Chennai – 600 051.
3.The General Manager,
Dharmapuri District Co-operative,
Milk Producers' Union,
1/11
https://www.mhc.tn.gov.in/judis
W.P.Nos.12342 to 12346 of 2010
Post Box No.13, Salem Main Road,
Krishnagiri 635 007, Krishnagiri District. ... Respondents in all W.Ps.
COMMON PRAYER:-Writ Petition filed under Article 226 of the
Constitution of India, to issue a Writ of Certiorarified Mandamus to call for
the records of the 1st respondent relating to the order made in Letter
No.20134/MP.11/2009-4, dated 28.04.2010 and quash the said order dated
28.04.2010 and direct the respondents to promote the petitioner as Senior
Factory Assistant with effect from 06.09.1999 and fix him in the time scale
of Rs.2550-50-2600-60-3200 and pay him the arrears and other monetary
benefits and award costs.
In all W.Ps.
For Petitioner : Mr.S.Ayyathurai
For R1 & 2 : Mr.R.Neethi Perumal
Government Advocate
For R3 : Served – No appearance
COMMON ORDER
This Writ Petition filed challenging the letter dated 28.04.2010 issued
by the 1st respondent and to direct the respondents to promote the
petitioners as Senior Factory Assistant with effect from 06.09.1999 in the
time scale of pay of Rs.2550-50-2600-60-3200 and to pay them the arrears
and other monetary benefits.
https://www.mhc.tn.gov.in/judis
W.P.Nos.12342 to 12346 of 2010
2. Heard Mr.S.Ayyathurai, learned counsel for the petitioners and
Mr.R.Neethi Perumal, learned Government Advocate appearing for the
respondents 1 and 2.
3. Mr.S.Ayyathura, learned counsel appearing on behalf of the
petitioners would submit that the petitioners were all recruited through
Employment Exchange as a daily wager in Dairy and Cold Storage owned
by the 3rd respondent/Management. The petitioners were all assigned the
work of packing, loading, unloading and other manual works in the Diary
and Cold Storage Unit. Since, there was a shortage of machine operators,
the petitioners were doing the work of machine operators as well on the
direction of the Management and they were all continuously employed for
the last 20 years without break. He would further submit that in the year
1998, the Managing Director of the 3rd respondent had informed that the
petitioners who were working as a Junior Mazdoor would be promoted as
Senior Mazdoor (which has been now redesignated as Senior Factory
Assistant) in the time scale of pay of Rs.2550-50-2600-60-3200.
4. However, since no orders were made, the petitioners had made
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W.P.Nos.12342 to 12346 of 2010
representation to the respondents and the said representations were
favourably considered by the 2nd respondent and had made
recommendation to the 1st respondent. However, the 1st respondent by a
cryptic order had rejected the claim of the petitioners and contend that their
services cannot be regularised to the post of Senior Factory Assistant. He
would further submit that the 1st respondent had not considered the case of
the petitioners in the proper perspective.
5. He would submit that even though originally in the year 1988 they
were appointed as a daily wager. In the year 1995, the petitioners were all
absorbed as Junior Mazdoor on monthly wages with other attendant benefits
by the order of the Managing Director of the 3rd respondent and they were
entitled to be promoted as a Senior Mazdoor which was also confirmed by
the communication dated 22.09.1998 by the Managing Director of the 3rd
respondent. He would further submit that the claim of the petitioners had
been rightly considered by the 2nd respondent and recommendations had
been made by him to the Government. But, however, the Government
relying upon the judgment of this Court had held that the petitioners were
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W.P.Nos.12342 to 12346 of 2010
not possessing the required age, qualification, etc., had indicated that their
services cannot be regularised without considering the fact that the
petitioners have been absorbed as Junior Mazdoor as early as in the year
1995. Therefore, he would seek indulgence of this Court to interfere with
the orders impugned in these Writ Petition.
6. Countering his arguments, Mr.R.Neethi Perumal, learned
Government Advocate appearing for the respondents 1 and 2 would submit
that it is not the case of the petitioners that they have required qualification
to be posted as Senior Factory Manager. When that is the factual position,
the petitioners cannot seek regularisation of their services in the
Department that too to a higher post than the entry post. He would further
submit that their appointment itself was in contravention to the rules and
regulations and therefore, the petitioners cannot seek for appointment.
7. I have considered the submissions made by the learned counsel
appearing for their respective parties and perused the materials available on
record.
https://www.mhc.tn.gov.in/judis
W.P.Nos.12342 to 12346 of 2010
8. The petitioners were originally appointed as daily wagers through
Employment Exchange. Even during such appointment, the petitioners
educational qualification, age and other criteria were taken into
consideration and only thereafter, they have been appointed to the said post.
The daily wagers working in the 3rd respondent/Management were all
absorbed as Junior Mazdoor (presently Senior Assistant) by order of the
Managing Director of the 3rd respondent dated 12.12.1995. Even under the
said order, the educational qualification and the age of the petitioners were
all verified and only based upon the satisfaction of the requirements, the
petitioners were allowed to continue as Junior Mazdoors, the next avenue of
promotion to them was the post of Senior Mazdoor (Senior Factory
Assistant). The communication, dated 22.09.1998, the Managing Director of
the 3rd respondent referring to a Committee Meeting dated 10.09.1998 had
informed to the petitioners that they would be promoted as Senior Mazdoor
in the time scale of pay Rs.2550-50-2600-60-3200. The said communication
was subject to the approval by the Managing Committee of the 3rd
respondent. It is also brought to the notice that the 2nd respondent herein by
two communications dated 21.11.2005 and 11.08.2005 had recommended
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W.P.Nos.12342 to 12346 of 2010
the promotion of the petitioners in the post of Senior Mazdoor including the
regularisation of their services. It is to be noted that the representation had
been made by 17 persons. But, however, the Government had cryptically in
a single line had stated that they did not possess required age and
educational qualification, etc., and therefore, their appointment was in
contravention with the Rules and Regulations. Such a view taken by the
Government is wholly arbitrary and colourable exercise of power, which I
conclude to a knee jerk reaction, as they were forced to take such a decision
since, the petitioners had initiated a contempt proceedings for not
complying with the direction given by the learned Single Judge who had
directed the Government to dispose of their representations.
9. Coming to the merits of the Writ Petitions, the initial order of
appointment as daily wager, it could be seen that the same had been made
only through Employment Exchange which would pre-suppose that the
petitioners rank as seniors, for the Employment Exchange to sponsor their
names. It is also pertinent to note that the said order of appointment had also
taken into account the age, educational qualification and other criterias.
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W.P.Nos.12342 to 12346 of 2010
Even in the order of appointment of the petitioners as Junior Mazdoor, the
3rd respondent had also taken into consideration the age, educational
qualification and other criteria and only thereafter had directed such
appointment. In such circumstances, the decision of the Government, in my
view does not hold good. The petitioners have been regularly appointed as
Junior Mazdoors by the 3rd respondent in the year 1995 and they are also
entitled to be promoted as Senior Mazdoors. It has been pleaded that the
similarly placed workmen in other Co-operative Societies have been given
promotion as Senior Mazdoor/Senior Factory Assistant, which fact has not
been denied by the 1st respondent. On that ground alone, I am inclined to
allow this Writ Petition as the petitioners are sought to be discriminated.
10. In fine, this Writ Petition is allowed setting aside the order of
the Government with a direction to promote the petitioners as Senior
Mazdoors with effect from the date on which they are entitled to be
promoted and they are also entitled to time scale of pay as available to the
post of Senior Factory Assistant. However, there shall be no order as to
costs. Consequently, connected miscellaneous petitions are closed.
https://www.mhc.tn.gov.in/judis
W.P.Nos.12342 to 12346 of 2010
29.11.2023
gba
Index : Yes/No
Speaking order : Yes/No
Neutral Citation : Yes/No.
To
1.The State of Tamil Nadu,
Represented by Secretary to Government,
Animal Husbandry, Dairying and
Fisheries (M.P.II) Department,
Fort St.George, Chennai – 600 009.
2.The Commissioner for Milk,
Production and Diary Development,
Madhavaram Milk Colony,
Madhavaram, Chennai – 600 051.
3.The General Manager,
Dharmapuri District Co-operative,
Milk Producers' Union,
Post Box No.13, Salem Main Road,
Krishnagiri 635 007, Krishnagiri District.
https://www.mhc.tn.gov.in/judis
W.P.Nos.12342 to 12346 of 2010
K.KUMARESH BABU, J.
GBA
W.P.Nos.12342 to 12346 of 2010
and M.P.Nos.1 to 1 of 2010
https://www.mhc.tn.gov.in/judis
W.P.Nos.12342 to 12346 of 2010
29.11.2023
https://www.mhc.tn.gov.in/judis
