Madras High CourtWP(MD)/20241/2014disposed of

K.Sankar Ganesh v. The District Educational

2017-07-21Honourable Mr Justice T.Raja5 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.07.2017

CORAM:

THE HONOURABLE MR.JUSTICE T.RAJA W.P.(MD)Nos.20241, 20298 and 20488 of 2014 and M.P.(MD)Nos.1, 1 and 1 of 2014 W.P.(MD)No.20241 of 2014:- K.Sankar Ganesh ... Petitioner Vs.

The District Educational Officer, Thoothukudi District, Thoothukudi.

... Respondent PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Mandamus, directing the respondent to post/appoint the petitioner to the post of Night Watchman, within a time stipulated by this Court.

W.P.(MD)No.20298 of 2014:

S.Ramakrishnan ... Petitioner Vs.

The District Educational Officer, Virudhunagar Educational District, Virudhunagar.

W.P.(MD)No.20488 of 2014:- N.Rajasekar ... Petitioner Vs.

The District Educational Officer, Aruppukkottai Educational District, Aruppukkottai, Virudhunagar District.

For Petitioner : Mr.R.V.Rajkumar (in all Writ Petitions) For Respondent : Mr.R.Karthikeyan (in all Writ Petitions) Additional Government Pleader ***** COMMON ORDER There are three Writ Petitions filed seeking a common relief, for issuance of Writ of Mandamus, directing the respondent to post/appoint the petitioners to the post of Night Watchman, since they have been working as Night Watchman by way of recruitment by transfer, as and when any vacancy arises to the said post, by applying the Special Rules for the Tamil Nadu Basic Service. 2.The learned counsel appearing for the petitioners submitted that the petitioners viz., S.Ramakrishnan [Petitioner in W.P.(MD) No.20298 of 2014] and N.Rajasekar [Petitioner in W.P.(MD)No.20488 of 2014] after completing S.S.L.C., enrolled their names in the Employment Exchange, Virudhunagar and K.

Sankar Ganesh [Petitioner in W.P.(MD)No.20241 of 2014] enrolled his name in the Employment Exchange, Tuticorin. In the month of November 2012, the District Employment Exchange, Virudhunagar and Tuticorin, forwarded their names for the post of Watchman and Sweeper in the Schools coming under the respondents. Finally, considering the qualification possessed by the petitioners to the said post, the respondents issued an order dated 23.11.2012, appointing the petitioners as Sweepers in the scale of pay of Rs.1300-3000+300 Grade Pay and some Night Watchman posts were also filled up by women candidates.

Although interview was conducted for both the posts from the common list of candidates sponsored by the Employment Exchange, without following any criteria or rationale behind it, some people were appointed directly to the post of Watchman and some of them were appointed to the post of Sweepers, when both the posts carrying the same educational qualification. Immediately, after coming to know that 5 persons failed to join in the post of Night Watchman, representations were made by the petitioners to accommodate them in the available Watchman vacancies.

But, the petitioners'

representations did not yield any result. Therefore, the petitioners in W.P.(MD)Nos.20298 and 20241 of 2014 have been working from 26.11.2012 as Sweeper in Higher Secondary School, Melathayilpatti, Virudhunagar District and the petitioner in W.P. (MD)No.20488 of 2014 has been working from 26.11.2012 as Sweeper in Municipal High School, Nesavalar Colony, Aruppukkottai, Virudhunagar District.

3.The learned counsel appearing for the petitioners also submitted that the post of Sweeper and Watchman are coming under Class IV of Rule 1 of the Special Rules for the Tamil Nadu Basic Service, which will form Section 19 in Volume-III of Service Manual, along with other categories. As per Classes IV and V of the said

Rules, the appointment to the category of Watchman can be made by direct recruitment or recruitment by transfer from any other service or transfer from any other categories in Class IV and V. When the petitioners are all working as Sweepers from 2012, to fill up the existing vacancies, the respondents may be directed to consider their candidature in the post of Night Watchman. The reason is, as per Class IV of Rule 1 of the Special Rules for Tamil Nadu Basic Service, the post of Watchman falls in Category 11 and the post of Sweeper falls in Category 12.

Rule 3 of the Special Rules for Tamil Nadu Basic Service, which deals with Classes IV and V, states that the posts falling under Classes IV and V can be filled up either by direct recruitment or recruitment by transfer from any other service or transfer from any other category in Class IV and V. Therefore, when the respondents are going to fill up the posts of Night Watchman directly from the Employment Exchange, no prejudice would be caused, if they consider the existing Sweepers, who are presently working from the year 2012 in the said post, as they are also entitled to be considered for the said post by way of recruitment by transfer from any other service, inasmuch as, both posts are carrying the same educational qualification. On this basis, the learned counsel for the petitioners sought for a direction. 4.

A detailed counter affidavit has been filed by the respondents.

5.Mr.R.Karthikeyan, learned Additional Government Pleader appearing for respondents submitted that by virtue of G.O.(Ms)No.47, School Education (R1) Department, dated 02.03.2012, the Government have decided to appoint 5000 non-teaching staffs, including the Sweepers in the Panchayat Union Middle Schools and High Schools in the time scale of pay of Rs.1300-3000+300 Grade pay throughout the State. Therefore, the petitioners were all appointed pursuant to the issuance of the said Government Order as Sweepers through the Employment Exchange, on the basis of the seniority maintained by the District Employment Exchanges in the State in the time scale of pay. Accordingly, they were appointed in the respective Schools.

Knowing fully well that they were going to be appointed as Sweepers in the time scale of pay, they joined the said post after knowing fully about the salary and other benefits. Hence, after appointment to the post of Sweepers with effect from 26.11.2012, now, they cannot ask for as a matter of right that their names should be considered for the post of Night Watchman. Therefore, the claim of the petitioners, is wholly untenable.

6.In the Additional Counter Affidavit, it has been stated that the petitioners were all appointed not in the regular vacancy. Therefore, their prayer for transfer of service as per the Special Rules for Tamil Nadu Basic Service cannot be entertained. 7.Heard both sides.

8.When G.O.(Ms)No.47, School Education (R1) Department, dated

02.03.2012 was issued taking a decision to fill up 5000 non-teaching posts including the Sweeper posts in Panchayat Union Middle Schools and High Schools in the time scale of pay of Rs.13003000+300 Grade pay throughout the State, the names of eligible persons on the basis of seniority and qualification from the respective District Employment Exchanges were called for. In the said process, the petitioners' names were sponsored by the District Employment Exchange, for the post of Sweepers in the time scale of pay of Rs.1300-3000+300 Grade Pay.

9.In this context, it is relevant to extract Class IV [Categories 11 to 13] of Rule 1 of the Special Rules for Tamil Nadu Basic Service and also Classes IV and V of Rule 3 of the said Rules. "Class IV :

Category 11 Watchmen Category 12 Sweepers Category 13 Watermen"

"Classes IV and V All Categories Direct recruitment; or Recruitment by transfer from any other service; or Transfer from any other category in Class IV and V."

10.A conjoint reading of the abovesaid provision clearly shows that the post of Watchman falls in Category 11. Similarly, the post of Sweepers falls in Category 12. When the post falling under Classes IV and V can be filled up either by way of direct recruitment or recruitment by transfer from any other service or transfer from any other categories in Class IV and V, the submission made by the learned counsel appearing for the petitioners that the petitioners are having the same qualification for the post of Night Watchman and they have already been appointed in the year 2012, since then, they have been working continuously without giving any complaint, at the time of filling up of the post of Night Watchman, they can be considered, finds some force.

Since the qualification for the said posts is one and the same and the petitioners have also possessed the educational qualification for the post of Night Watchman and the Rules also permits direct recruitment or recruitment by transfer from any other service or transfer from any other categories in Class IV and V to post of Night Watchman, the respondents are directed to consider the case of the petitioners on priority basis, before filling up the post of Night Watchman, as and when the vacancies are filled up.

11.With the above direction, these Writ Petitions stand disposed of. No costs. Consequently, connected Miscellaneous Petitions are closed.

Sd/- Assistant Registrar /True Copy/ Sub Assistant Registrar

To 1.The District Educational Officer, Thoothukudi District, Thoothukudi.

2.The District Educational Officer, Virudhunagar Educational District, Virudhunagar.

3.The District Educational Officer, Aruppukkottai Educational District, Aruppukkottai, Virudhunagar District.

+1cc to THE SPECIAL GOVERNMENT PLEADER in SR. No.67323 +1cc to Mr.R.V.RAJKUMAR Advocate in SR. No.67255 GSP/SMN2 JS/GT/SAR.2/17.08.2017/5P-6C Common Order in W.P.(MD)Nos.20241, 20298 and 20488 of 2014 and M.P.(MD)Nos.1, 1 and 1 of 2014 21.07.2017