(Prayer: Writ Petition filed under Article 226 of the Constitution of India, for issuance of writ of Certiorari Mandamus, to call for the records on the file of the First Respondent in connection with the order passed by him in G.O.(M.S.)No.116, Agriculture (AM1) Department dated 08.07.2009 and quash the same to the extent of the recruitment to the post of watchman and to direct the respondents to regularize the service of the petitioner in the post of watchman in the Ramnad Marketing Committee, Virudhunagar or in any one of the 11 vacancies in the Virudhunagar District, considering the long experience and community status of the petitioner with effect from his initial date of appointment with monetary and service benefits.)
The petitioner has filed this writ petition for issuance of Writ of Certiorarified Mandamus to call for the records on the file of the 1st respondent in connection with the order passed by him in G.O.(M.S) No.116, Agriculture (AM1) Department dated 08.07.09 and quash the same to the extent of the recruitment to the post of watchman and to direct the respondents to regularize the service of the petitioner in the Ramnad Marketing Committee Virudhunagar or in any one of the 11 vacancies in the Virudhunagar District considering the long experience and appointment with monetary and service benefits.
2. The case of the petitioner is that the petitioner was appointed as Sweeper by the order of the 3rd respondent herein and the petitioner has joined duty on 06.05.05 at Ulavar Sandai, Virudhunagar. The petitioner is working as Sweeper till date and continues to work at the same station. The petitioner has passed VIII std and he belongs to Schedule Caste Community. The petitioner got his name registered with the Employment Exchange at Virudhunagar and his name is in the roll for more than 6 years. Further, there were no charges against the petitioner and the petitioner is working more than 5 years as Sweeper.
3. The further case of the petitioner is that he was appointed by the respondent on consolidated pay of Rs.1500/- p.m right from 06.05.2005 and the same is being paid by way of cheque every month. The petitioner is working as Sweeper on consolidated pay as on today. The petitioner fully qualified to hold the post of Watchman. The post of Watchman and the post of Sweeper carry identical scale of pay and the qualification to hold the post is also one and the same. Hence the petitioner is fully qualified to hold the post of watchman which is also lowest cadre post. The petitioner made representation on 26.10.2009 to the Secretary to regularize the service of the petitioner, but it was not considered till date. While so, the 1st respondent has chosen to pass an order on 08.07.09, permitting the 2nd respondent to fill up 37 posts of Office Assistant, 134 post of Watchman, and 8 post of Driver through Employment Exchange. The 1st respondent ought to have taken note of the petitioner s continuous service under of the 3rd respondent at Ulavar Santahi, Virudhunagar and should consider for any one of the 11 available vacancies allotted to Virudhunagar District.
4. Per contra, the respondents 2 and 3 have filed counter affidavit and submitted that in order to tone up the administration, the Government had issued order sanctioning the post of, Office Assistant, Watchman, and Drivers in the various market committee in the state of Tamil Nadu, out of which, 1st post of driver and 11 posts of watchman was allotted to the 3rd respondent s office. While sanctioning the said posts the Government in G.O.Ms.116, Agricultural (AMI) Department dated 08.07.2009 had clearly stated that the said posts should be filed up only through concerned Employment Exchange. In Virudhunagar District there are only 6 posts of watchman lying vacant and in order to fill up the said vacancies, the Government has issued various guidelines. In order to fill up the said vacancy, the respondents herein have to call for the report from the District Collector in respect of availability of the candidates who were earlier ousted from the Census Department in the year 1991 for want of vacancy. If no such candidates are available in the District Collectorate, then suitable candidates have to be called for from the regional employment exchange. The employment exchange sponsors the suitable candidates as per the seniority along with the order of the rotation prescribed by the Government in G.O.Ms.No.65 personnel and Administrative Department dated 27.05.2009, 1st turn is for the Schedule Caste on priority basis and 6th turn is for the Schedule Caste destitute widows. Hence, the petitioner herein is not eligible to be appointed as Watchman in the Market Committee. Moreover, the petitioner herein had put up only 6 year of employment exchange seniority and there are numerous candidates with much higher employment exchange seniority are waiting for the selection.
5. Moreover the 2nd respondent herein through his Lr.No.MCS3/7499/2006 dated 24.07.2009 had instructed all the Marketing Committee to strictly adhere to the service rules in vogue and further submitted that the petitioner was temporarily appointed as Sweeper in Ulavar Sandhai. Hence there is no provisions for regularization of service in the post of Sweeper and the Post of Office Assistant /Watchman/ Driver, the 3rd respondent herein had called for no objection certificate from the District Collector, Virudhunagar in his letter dated 08.09.2009 in so for as the availability of the retrenched staff in the year 1991 from the Census Department. In reply to the said letter, the District Collector, Virudhunagar in Lr.No.A3/29238/2009 dated 08.10.2009 had stated that there is no retrenched staff of the Census Department available in the District. Only after obtaining the No Objection Certificate, the 3rd respondent herein has taken steps to fill up the said vacancies through employment exchange.
6. I heard Mr.S.Govindan, learned counsel appearing for the petitioner and Mr.K.Guru, learned Additional Government Pleader, appearing for the respondents 1 and 2 and Mr.R.Subramanian, learned counsel for the 3rd respondent.
7. I have also perused the entire records. It is an admitted fact the petitioner was appointed as sweeper by the 3rd respondent vide proceedings dated 05.05.2015. The petitioner has passed 8th std and he belonged to Schedule Caste community. He also registered his name with the District Employment Exchange, Virudhunagar. At the time of filling the writ petition the petitioner had put 5 years service and he continued to work as sweeper at Ulavar Sandhai, Virudhunagar.
8. From the records, this court could also see that the Government has issued G.O.Ms.No.116, Agriculture (AM1), Department dated 8.7.2009 wherein the 3rd respondent was permitted to fill up 37 posts of Office Assistant, 134 posts of Watchman and 8 posts of Driver through Employment Exchange. Out of 134 post of Watchman, 11 posts of watchman were allotted to the 3rd respondent office. The claim of th petitioner is that he has been continuously working for more than 5 years under the control of the 3rd respondent. Therefore, the petitioner requested the respondents to regularize his service in the post of Watchman in any one of the 11 vacancies allotted to the 3rd respondent.
9. Per contra, the respondents have resisted the claim of the petitioner to regularize his service on the ground that the sweeper post hold by the petitioner is only a temporary post on consolidated pay. Further, the petitioner s working place i.e., in Ulavar Sandhai, Virudhunagar, the 3rd respondent herein is no way connected with the service of the petitioner. That apart, while sanctioning the above said posts the government in G.O.Ms.No.116, dated 08.07.2009 had clearly stated that the said posts should be filled up only through the concerned Employment Exchange. Further, the petitioner had put only 6 years of Employment Exchange seniority and others are in line up having higher seniority than the petitioner. Therefore the petitioner s service can t be regularized in the post of Watchman. This court can t accept the said contention of the respondents for the reason that no sponsorship from employment exchange is required for the post of unskilled work. As stated above, the petitioner is working as Sweeper which is unskilled work.
10. The learned counsel for the petitioner has relied upon the following Judgments to support his case:
(1) The Judgment reported in 2014 (1) CWC 877 in the case of G.Ashokan vs- The District Collector, Tiruvanamalai District and another wherein the Hon ble Division Bench of our High Court have held that the regularization of service in unskilled posts does not require sponsorship from Employment Exchange. For filling up unskilled posts, sponsorship from Employment Exchange is not required.
(2) The another Judgment reported in 2016 (III) LLJ 345 (Madras), in the case of D.Roselin Joyee vs- Tamilnadu Civil Supplies Corporation Ltd and others. I am also a party to the said Judgment. In the said Judgment we have held that service of the petitioner should have been regularized from the date of completion of 480 days from the date of their initial appointment.
11. The above said Judgments are squarely applicable to the facts of the present case on hand. In this case, as discussed above, the petitioner has put more than 5 years of continuous service and there is no dispute over the same. Therefore as per the dictum laid down by us in the 2nd Judgment referred above, the petitioner is working continuously for more than 480 days. Apart from that, as per the dictum laid down in the 1st Judgment stated supra, no Employment Exchange sponsorship is required for unskilled post. In the present case, the petitioner is holding unskilled post of Sweeper .
12. Therefore, both the cases are squarely applicable to the petitioner's case. When the petitioner had completed more than 180 days, the writ petition is entitled for the regularisation of his service. It is an admitted fact that this petitioner is holding ..... post of Sweeper and regularisation of service of the petitioner will not any way prejudiced to the respondents case.
13. For the foregoing discussion, I am of the opinion that the petitioner s claim of regularization could be considered by the respondent in the light of the observation made above.
14. In the result:
(a) this writ petition is disposed of with a direction to the respondents to consider the representation of the petitioner's representation dated 26.10.2009 in the light of Judgments referred above and to regularise the petitioner's service as Sweeper.
(b) the respondents should complete the exercise within a period of eight weeks from the date of receipt of the copy of the order.
15. Accordingly, this writ petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.