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2012 DIGILAW 1424 (MAD)

P. Kulandaivelu v. Chief Educational Officer

2012-03-20

VINOD K.SHARMA

body2012
Judgment 1. The petitioner has approached this Court with the prayer for issuance of a writ in the nature of mandamus, to direct the respondent to appoint the petitioner as a Night watchman Keelarasampatti High school in view of Govt. instructions issued vide G.O Ms.No.528 dated 10-10-1988. 2. The petitioner was appointed as Night Watchman in Keelarasampatti High School after being selected through Employment Exchange in the year 1981. The petitioner was removed from service in the year 1984. 3. The submission of the petitioner is, that the Government vide G.O.Ms.No.528 dt.10.10.1998 ordered, that the persons who were previously appointed on daily wages be appointed permanently, without reference to employment exchange. 4. The petitioner filed representation on 04.05.1998, to consider his case for appointment as Night Watchman against regular vacancy. Inspite of the representation filed by the petitioner, the respondent did not consider his case and therefore, he filed O.A.No.5670 of 1998 in the learned Tamil Nadu Administrative Tribunal, for directing the respondent to consider his case for appointment as Night Watchman. 5. On 20.07.1998, the learned Tribunal directed the respondent to consider the representation of the petitioner for appointment as Night Watchman and pass appropriate orders, as per the rules within a period of eight weeks from the date of receipt of certified copy of the order. 6. The order was not complied with. The petitioner issued a legal notice on 23.10.2000 calling upon the respondent to obey the order passed by the learned Tribunal. No action was taken on the legal notice, which forced the petitioner to file contempt petition. The learned Tribunal did not proceed with the contempt petition, rather directed the petitioner to file a fresh application for the relief claimed in the representation dated 04.05.1988 within a period of five weeks from the date of the order. The order passed by the learned Tamil Nadu Administrative Tribunal was patently illegal and without jurisdiction. The learned Tribunal was not justified in directing the petitioner to file fresh application on the same cause of action. 7. Once the earlier O.A. filed by the petitioner was allowed, the respondent could not be permitted to ignore the order passed by the learned Tribunal. The learned Tribunal was not justified in directing the petitioner to file fresh application on the same cause of action. 7. Once the earlier O.A. filed by the petitioner was allowed, the respondent could not be permitted to ignore the order passed by the learned Tribunal. The action should have been taken to implement the order, instead of asking the petitioner to file fresh application on the same cause of action, is not competent in view of settled law that rule of res judicata is also applicable to the writ proceedings. 8. In pursuance to the order passed by the learned Tribunal, O.A. was filed by the petitioner, wherein interim order was passed, directing the respondent to consider the representation filed by the petitioner for appointment in case any vacancy was available, within a period of two months. 9. The interim order was again not complied with. 10. The petitioner did not initiate contempt proceedings against the respondent, for disobeying the interim order passed by the learned Tribunal. Though this writ petition is not competent, but in view of settled law that nobody should suffer for the action of the Court, the claim of the petitioner is being considered on merit. 11. The petitioner is placing reliance on the G.O.Ms.No.528 dt.10.10.1998 to seek appointment on regular basis. The G.O. reads as under: PROCEEDINGS OF THE DIRECTOR OF SCHOOL EDUCATION, CHENNAI 6. D.Dis.No.299047/C24/88 Dated 31.10.1988 GOVERNMENT OF TAMIL NADU ABSTRACT Tamil Nadu Basic Services - Appointment to Regular vacancies in Tamil Nadu Basic Services without further reference through Employment Exchange - orders - Issued. PERSONNEL AND ADMINISTRATIVE REFORMS (PER.F) DEPT. G.O.Ms.No.528Dated 10.10.1988 Read: G.O.Ms.No.241, Personnel and Administrative Reforms (Per.F) Dept., dated 18.4.1988. ORDER: 1) In G.O.Ms.No.241, Personnel and Administrative Reforms (Per.F) Dept., dated 18.4.1988 orders have been issued to the effect that the persons appointed on daily wages initially to discharge the functions of the posts in the Tamil Nadu Basic service by way of recruitment through Employment Exchange can be appointed against regular vacancies that may arise in these posts under the same appointing authority as direct recruits without their names being sponsored by the Employment Exchange once again, provided they satisfy all the qualifications prescribed for the posts under the Special Rules for Tamil Nadu Basic Service including Educational and age qualifications as on the date of appointment against regular vacancies. 2) A staff side member of the Tamil Nadu Civil services Joint Council has given notice of a subject for discussion wherein he has requested that night Watchman appointed on daily wages may be appointed in permanent vacancies as and when the vacancies arise. The issue was discussed by the Tamil Nadu Civil Services Joint Council in its meeting held on 20.5.1988 and 20.09.1988, it was decided by the Council that persons appointed on daily wages through Employment Exchange to discharge the functions of the posts under the Tamil Nadu Basic Service if they were fully qualified at the time of such appointment with reference to age and educational qualification may be appointed to the post in the regular scale of pay under Tamil Nadu Basic Services as and when vacancies arises without further reference to the Employment Exchange. 3) After careful consideration the Government accept the decision of the Tamil Nadu Civil Services Joint Council and direct that the persons appointed on daily wages to discharge the functions of the posts in the Tamil Nadu Basic service through Employment exchange initially be appointed against regular vacancies that may arise in these posts on time scale of pay order the same appointing authority as direct recruits though their names being sponsored by the Employment Exchange once again, provided they were fully qualified for such posts at the time of initial appointment on daily wages that is with reference to age and educational qualification etc. (By order of the Governor) LashmiPranesh Commissioner & Secretary to Government /true coy/ Copy communicated S.Ramamoorthy For Director of School Education true copy/forwarded by order/ Superintendent" 12. The reading of the Government order shows, that the instructions were issued for considering the employees, appointed on daily wages for appointment, without further reference to Employment Exchange. The pre-requisite therefore was that there should be available vacancies which were being filled up by considering the cases of eligible persons. 13. The petitioner has not pleaded about the available vacancies and as to whether the vacancies were filled up or not. In absence of regular vacancies, it was not open to the petitioner to make representation. Even otherwise, the petitioner was not in employment when the representation for appointment was filed. 14. The G.O.Ms.No.528 dated 10.10.1988 was applicable only to the persons serving in the department at the time when vacancy arises. In absence of regular vacancies, it was not open to the petitioner to make representation. Even otherwise, the petitioner was not in employment when the representation for appointment was filed. 14. The G.O.Ms.No.528 dated 10.10.1988 was applicable only to the persons serving in the department at the time when vacancy arises. For the sake of repetition, it may be noticed that there is no pleading with regard to availability of vacancies and how it was to be filled up. 15. The petitioner admittedly, was not in employment, when the representation for reappointment was made, that too without disclosing the available regular vacancy. The case of the petitioner therefore is not covered under the Govt. instructions. 16. Finding no merit, this writ petition is dismissed.