Madras High Court
The Executive Officer vs S.Dayalan on 25 March, 2025
Author: R.Subramanian
Bench: R.Subramanian
2025:MHC:770
W.A.No.2952 of 2024
THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 17.03.2025
PRONOUNCED ON : 25.03.2025
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
AND
THE HONOURABLE MR.JUSTICE G.ARUL MURUGAN
W.A.No.2952 of 2024
and
C.M.P.No.21955 of 2024
The Executive Officer,
Panapakkam Town Panchayat,
Ranipet District. ... Appellant
versus
1.S.Dayalan,
S/o.Sahadevan,
No.240, Mettu Street,
Kalthur Post, Panapakkam,
Ranipet District.
2.The Secretary to Municipal Administration
and Water Supply Department,
Fort St.George, Chennai - 9.
3.The Director of Town Panchayat,
8th Floor, Santhome High Road,
MRC Nagar, Raja Annamalaipuram,
Chennai - 600 028. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent, to set aside
the order passed in W.P.No.17878 of 2020 dated 30.10.2023.
1/13
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W.A.No.2952 of 2024
For Appellant : Mr.R.Neelakandan
Additional Advocate General
Assisted by Mr.C.Selvaraj
Additional Government Pleader
For Respondents : Mr.P.I.Thirumoorthy - R1
Mr.P.Ananda Kumar
Government Advocate - R2 & R3
JUDGMENT
(Judgment of the Court was made by G.ARUL MURUGAN, J.)
Challenge in this appeal is to the order of the writ court dated
30.10.2023 in W.P.No.17878 of 2020, wherein the authorities were directed
to regularise the services of the first respondent in the category of Overhead
Tank Operator or Sweeper with effect from 11.09.2001.
2. The first respondent herein claimed to have been appointed in
the year 1990 as Nominal Muster Roll (NMR) in the Public Works
Department (PWD) to deal with the Overhead Tank maintenance in the town
panchayat. Since the Overhead Tank maintenance work was handed over to
the town panchayat, the first respondent was absorbed as NMR for the
appellant town panchayat in the year 1995 on consolidated pay.
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3. The first respondent was carrying out the work of Overhead
Tank Operator and also Night Watchman and in effect he was in the services
of the appellant panchayat both during the day and night. Based on
G.O.(Ms.)No.198 Municipal Administration and Water Supply Department
dated 26.10.1998 [hereinafter referred to as “G.O.(Ms.)No.198 dated
26.10.1998”], by which the NMRs who had been working as on 01.10.1996
were brought under regular employment in the sanctioned posts and the
benefits were extended to several persons, the first respondent also made a
claim on 01.09.2001 for absorbing him under regular time scale.
4. The appellant panchayat had also passed a Resolution in No.57
to absorb the first respondent under regular time scale. However, since the
benefits were not extended, claiming that out of 30 years of total service, he
had rendered 24 years of continuous service in the appellant panchayat itself,
till he was made to work through the Self Help Group in the year 2019 and
as vacancies available were sought to be filled up, the first respondent had
preferred the writ petition for a direction to bring him under regular time
scale based on the Resolution of the appellant panchayat.
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5. The appellant had resisted the claim by denying that the first
respondent was ever employed by them and further, they had been doing the
work by entering into a contract with one Self Help Group in respect of
handling the process of solid waste management.
6. The writ court after finding that the first respondent had been
employed by the appellant panchayat from the year 1995 and considering
G.O.(Ms.)No.198 dated 26.10.1998, by which the casual workers who have
been on consolidated pay as on 31.12.1996 could be considered for bringing
them under regular time scale of pay and also observing that the Self Help
Group Scheme had been introduced only in the year 2019 whereas the first
respondent was working from the year 1995 onwards, had allowed the writ
petition. The respondents in the writ petition were directed to bring the first
respondent / writ petitioner under regular time scale of pay either in the
category of Overhead Tank Operator or Sweeper with effect from
11.09.2001 by extending the benefits of G.O.(Ms.)No.198 dated 26.10.1998.
Assailing the said order, the appellant panchayat, is on appeal.
7. Mr.R.Neelakandan, learned Additional Advocate General,
instructed by Mr.C.Selvaraj, learned Additional Government Pleader,
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appearing for the appellant vehemently contended that, the town panchayat
was never allowed to engage the services of the first respondent and the first
respondent was never in direct employment with the town panchayat. It is
his further contention that when the town panchayat had executed the works
through the Self Help Group, the first respondent could not claim the
benefits under G.O.(Ms.)No.198 dated 26.10.1998 and the learned Judge had
extended the benefits, which will not be applicable to the first respondent.
8. It is his further contention that the Overhead Tank operation
work was, in fact, carried out by one person, namely Mr.Sampath, who had
been in-charge of Kalathur Water Pumping Station. He also submitted that
the first respondent's appointment is not through a proper selection process
and when the appointment itself was irregular, the benefit of bringing him
under regular time scale or regularisation does not arise, as it would be in
violation of the decision of the Hon'ble Supreme Court in the case of
Secretary, State of Karnataka and others Vs. Umadevi and others reported
in (2006) 4 SCC 1.
9. Contending contra, Mr.P.I.Thirumoorthy, learned counsel for
the first respondent submitted that the first respondent was absorbed in the
services of the appellant panchayat in the year 1995 and when they have
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passed a Resolution to absorb him under regular time scale of the town
panchayat, which was passed in G.O.(Ms.)No.198 dated 26.10.1998, the
stand now taken that he was never in the services is an afterthought, only to
deny the benefits which the first respondent is otherwise entitled to.
10. It is his further contention that by extending the benefits of
G.O.(Ms.)No.198 dated 26.10.1998, several persons have been absorbed in
regular services and the town panchayat by making a false claim is only
trying to evade from absorbing the services of the first respondent. The writ
court, after finding that the first respondent was in the services of the town
panchayat, had directed for bringing him under regular time scale of pay,
which is perfectly justified and sought for dismissal of this writ appeal.
11. Heard the rival submissions and perused the materials available
on record.
12. The Government has issued G.O.(Ms.)No.198 dated
26.10.1998, by which those casual workers working on a consolidated pay
as on 31.12.1996 could be considered for bringing them under regular time
scale of pay. In fact, even certain posts were allowed to be filled up on
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consolidated pay for one year and later the appointment could be renewed
continuously for 3 years and based on their performance, their work may be
reviewed and recommended to the Government for being appointed in a time
scale of pay.
13. It is the claim of the first respondent that he was originally
engaged as NMR in the Public Works Department in the year 1990 as
Overhead Tank Operator and later he was absorbed as NMR in the appellant
panchayat in the year 1995 on a consolidated pay. He was carrying out the
duties of Overhead Tank Operator and Night Watchman. As such, out of his
service for nearly 30 years, he had served in the appellant panchayat alone
for the past 24 years. Since he was in service of the appellant panchayat as
on 31.12.1996, he had made a claim to absorb him in the regular time scale
of pay based on G.O.(Ms.)No.198 dated 26.10.1998.
14. The appellant had only resisted the claim denying that he had
been in their employment and also had taken a stand that the work of the
solid waste management had been executed through the Self Help Group. It
is their vehement contention that the first respondent had failed to prove that
he was under the employment of the appellant panchayat to make a claim for
absorption based on the aforesaid Government Order.
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15. In this regard, it is useful to refer the very Resolution passed by
the appellant itself on 11.09.2001. For easy reference, the Resolution is
extracted hereunder:-
“gdg;ghf;fk; Ng&uhl;rpapd; 11-09-2001 Mk; Mz;L
Njjpapy; eilngw;w rhjuz $l;lj;jpy;
epiwNtw;wg;gl;Ls;s 57 vz;Zs;s jPh;khd cz;ik efy;.
nghUs; vz; : 57
gdg;ghf;fk; Ng&uhl;rpapy; FbePh; guhkhpg;gpy; fsj;J}h;
FbePh; kpd; Nkhl;lhh; ,af;Fgth; kw;Wk; fhtyh;
jpU.v];.jahsd; vd;gth; Rkhh; 6 tUl fhykhf
gzpGhpe;J tUfpwhh;. VdNt mtiu Ng&uhl;rpapy;
<h;j;Jf;nfhs;s kd;wj;jpd; ghh;itf;Fk; mDkjpf;Fk;.
jPh;khd vz; : 57
mq;fPfhpf;fg;gl;lJ.
(xk;) b.N$hjp
jiyth;
gdg;ghf;fk; Ng&uhl;rp
/ cz;ik efy; /
nray; mYtyu;
gdg;ghf;fk; Ng&uhl;rp
NtY}h; khtl;lk;”
16. From the Resolution dated 11.09.2001 passed by the appellant
panchayat, it could be seen that the first respondent had been working as
Overhead Tank Operator and also Night Watchman for the past 6 years and
as such, it has been resolved to absorb him in the services of the town
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panchayat. When the Resolution reads that he was in the services of the
appellant panchayat for the past 6 years as on 11.09.2001, it is evidently
clear that the first respondent had been in the services of the town panchayat
from the year 1995 onwards.
17. Only since the G.O.(Ms.)No.198 dated 26.10.1998 facilitated
the NMRs working on a consolidated pay as on 31.12.1996 were allowed to
be brought in regular time scale of pay on completion of 3 years of service,
considering the fact that the first respondent had been in service from the
year 1995, the appellant panchayat has rightly extended the benefits of the
Government Order and has passed the Resolution No.57 dated 11.09.2001
by which the first respondent was resolved to be absorbed in the services of
the town panchayat.
18. In fact, even in the affidavit filed in support of the above appeal
in paragraph 3, it is averred that the Resolution of town panchayat cannot be
the final step for regularisation of post, unless there was vacancy in
sanctioned post at the corresponding period. Further, in paragraph 10 of the
affidavit, it is averred that by proceedings dated 31.07.2000, the Government
accorded permission for filling up two sanctioned posts for which one
P.Nirmalraj and G.Sundaramurthy were considered and absorbed in the
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sanctioned posts, since they were seniors to the first respondent.
19. The very Resolution passed by the appellant panchayat as
referred above and the stand taken by the appellant that this Resolution alone
will not be final for regularisation and in the year 2000 two persons were
absorbed, since they were seniors to the first respondent, would amply go to
show that the first respondent was in service as NMR on a consolidated pay
in the appellant panchayat and therefore the arguments sought to be
advanced that he was never in employment cannot be accepted and are
therefore rejected.
20. Insofar as the contention that the appellant panchayat had
executed the solid waste management work through the Self Help Group, the
writ court had observed that the Self Help Group scheme had been
introduced by the appellant in the year 2019, whereas the first respondent
had been working from the year 1995 onwards. Further as referred above,
the carrying out of the collection of door-to-door garbage and handling the
process of solid waste management, which was also later in point of time,
was completely different from the work executed by the first respondent,
which is Overhead Tank Operator and Night Watchman from the year 1995
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onwards.
21. The posts of Overhead Tank Operator and Sweeper are coming
under the basic services and when the nature of duties performed is not
seasonal and they have been regularly engaged for the work, which is
permanent in nature, it has been held by the Full Bench of this Court in
M.Sivappa Vs. The State of Tamil Nadu reported in 2024 (2) CTC 1, in
which one of us (R.Subramanian, J.) is a party, that irrespective of the nature
of service, the employees who had rendered service in any one of the posts
enumerated under the basic service are entitled for regularisation on the
completion of 10 years of service.
22. Further, the Hon'ble Supreme Court in the case of Shripal and
another Vs. Nagar Nigam, Ghaziabad reported in 2025 SCC OnLine SC
221 has held that the employer cannot exploit the services of the workman
for a long period of time and deny the claim of regularisation by taking
shield by relying on the decision in Umadevi's case.
23. The writ court, after finding that the first respondent had been
in the services of the appellant panchayat from the year 1995 and since he
was entitled for the benefits under G.O.(Ms.)No.198 dated 26.10.1998, had
directed to bring the first respondent under regular time scale of pay only
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with effect from 11.09.2001 i.e., on completion of 3 years. We see no error
or infirmity in the order of the learned Judge, which requires interference.
24. Accordingly, the Writ Appeal stands dismissed. However, six
(6) weeks time from the date of receipt of a copy of this order, is granted to
comply with the directions issued by the Writ Court. There shall be no order
as to costs. Consequently, connected Miscellaneous Petition is closed.
(R.S.M., J.) (G.A.M., J.)
25.03.2025
Speaking order
Index : Yes
Neutral Citation : Yes
sri
To
1.The Secretary to Municipal Administration
and Water Supply Department,
Fort St.George, Chennai - 9.
2.The Director of Town Panchayat,
8th Floor, Santhome High Road,
MRC Nagar, Raja Annamalaipuram,
Chennai - 600 028.
3.The Executive Officer,
Panapakkam Town Panchayat,
Ranipet District.
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R.SUBRAMANIAN, J.
and
G.ARUL MURUGAN, J.
sri
Pre-Delivery Judgment made in
and
25.03.2025
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