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2013 DIGILAW 607 (MAD)

Ganesan v. Commissioner Sivagangai Municipality

2013-01-28

K.RAVICHANDRA BAABU

body2013
Judgment :- 1. The prayer in this writ petition is seeking for a Mandamus, directing the 3rd respondent to regularize the petitioners' appointment from the date of completion of three years. 2. The case of the petitioner is that all of them were appointed as Scavengers by the first respondent through his order dated 30.11.1998 with effect from 04.11.1998. They were originally appointed as temporary workers on consolidated scale of pay for a period of one year. They were duly sponsored by the District Employment Office. Their tenure were further extended for two years with 10% increment, as per G.O.No.71, dated 05.05.1998 issued by the Municipal Administration and Water Supply Department. The petitioners are entitled to be considered for regularization after completion of three years from the date of their initial appointment. Therefore, the petitioners are entitled to be regularized with effect from 04.12.2001. The first respondent sent a communication to the 2nd respondent for regularizing the petitioners and the said proposal was also forwarded to the 3rd respondent on 03.01.2002. However, no steps were taken to regularize the service of the petitioner. Finally on 28.02.2006 the 3rd respondent passed an order and regularized the petitioner's service only with effect from 01.03.2006. Therefore, the present writ petition is filed. 3. The first respondent filed a counter affidavit in which it is stated that the petitioners and 22 others were appointed as Scavengers temporarily on consolidated pay of Rs.1000/- per month on 30.11.1998 and they were paid the monthly pay with 10% increment for subsequent period of two years. The 1st respondent sent proposals on 04.12.2001 to regularize the service of those persons. The 2nd respondent also forwarded the said proposal to the 3rd respondent through his proceedings dated 03.01.2002. However, the State Government in the meantime issued an order imposing ban on filling up the vacant post through G.O.Ms.No.212, Personal and Administration Reforms (P) Department, dated 29.11.2001. Therefore, the petitioners and others were not appointed in regular time scale of pay. The said ban was lifted subsequently through G.O.Ms.No.14, P&AR (P) Department, dated 07.02.2006 and thereafter, the petitioners were regularized with effect from 01.03.2006. Therefore, the petitioners cannot claim for regularization of their service with effect from the date of completion of three years from the date of their appointment. 4. The said ban was lifted subsequently through G.O.Ms.No.14, P&AR (P) Department, dated 07.02.2006 and thereafter, the petitioners were regularized with effect from 01.03.2006. Therefore, the petitioners cannot claim for regularization of their service with effect from the date of completion of three years from the date of their appointment. 4. The learned counsel appearing for the petitioners submitted that the issue involved in this case is directly covered by the decision of the Division Bench of this Court made in W.A.No.273 of 2011, dated 02.03.2011 whereinm the Division Bench has considered as to whether the said ban order can be stated as reason for denying the benefit of regularization and found in favour of the appointees therein. 5. Heard the learned counsel appearing for the petitioners as well as the respondents. 6. It is not disputed by the respondents that all these petitioners were appointed on 04.11.1998. If the appointment was made on 04.11.1998 whether the respondents are entitled to deny the regularization by citing the ban order has been considered by the Division Bench in the W.A.No.273 of 2011, dated 02.03.2011. The Division Bench at paragraph Nos.2 and 3 has held as follows:- "2. The case of the applicants is that the respondent, who was employed as NMR from 1994 was given the post of Sweeper on 31.08.2001 in terms of G.O.Ms.No.125 Municipal Administration and Water Supply Department, dated 27.05.1999. However, before completion of one year, ban order was issued by the Government in G.O.Ms.No.463 Finance (CMPC) Department, dated 23.11.2001 and therefore, according to the appellants, only after lifting the ban order respondent's service can be brought under the time scale of pay and the same is also clarified in G.O.Ms.No.21, Municipal Administration and Water Supply (MC3) Department, dated 23.02.2006. Following the said Government Order, respondent's service was brought under time scale of pay from 1.3.2006 i.e., after lifting of the ban order. 3. The said contention cannot be accepted in view of the fact that the respondent was appointed as Sweeper on 31.08.2001 i.e., three months prior to imposition of ban order. Moreover, the ban order was issued only for fresh appointments. The respondent having been appointed as NMR in the year 1994 and in turn given the post of Sweeper on 31.08.2001, cannot be treated as fresh appointee. Hence, the ban order cannot be applied to the respondent's case". 7. Moreover, the ban order was issued only for fresh appointments. The respondent having been appointed as NMR in the year 1994 and in turn given the post of Sweeper on 31.08.2001, cannot be treated as fresh appointee. Hence, the ban order cannot be applied to the respondent's case". 7. The issue involved in this case is squarely covered by the said decision of the Division Bench of this Court. When the petitioners were appointed earlier to the ban order, the respondents are not entitled to cite such ban order by treating the appointment as though a fresh one. What is sought for is only regularization of their service and therefore, when the ban order was in respect of only fresh appointments, the respondents are not entitled to cite the said ban order to deny the regularization from completion of three years from the date of appointment. Consequently, by following the said order made by the Division Bench, the writ petition is allowed and the respondents are directed to regularize the service of the petitioner with effect from 04.12.2001 and pay all other monetary benefits to the petitioners within a period of eight weeks from the date of receipt of a copy of this order. 8. In the result, the writ petition is allowed. No costs.