Boomaian A v. The State Of Tamil Nadu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.06.2023
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN and W.M.P(MD)Nos.8803 & 8804 of 2023 A.Bommaian ... Petitioner Vs 1.The State represented by The Secretary, Municipal Administration, Fort St.George, Chennai.
2.The District Collector, Theni.
3.The Assistant Director of Panchayat, Collector Officer Building, Theni.
4.The Executive Officer, Uthamapalayam Town Panchayat, Uthamapalayam.
5.M.Sundaramoorthy ... Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records of the second respondent by his proceeding in Na.Ka.No.1349-1/2023/Pan-2 dated 21.04.2023 and quash the same insofar as the fifth respondent is concerned and 1/11
direct the second respondent to consider this petitioner for promotion to the post driver as per G.O.Ms.No.23 (Municipality and Water Supply Department (Panchayat) dated 03.03.1998.
For Petitioner : Mr.K.P.S.Palanivel Rajan Senior Counsel for Mr.K.Prabakaran For Respondents : Mr.K.Balasubramanian Special Government Pleader for R.1 to R.4 No Appearance for R.5
ORDER
Heard the learned Senior Counsel appearing for the writ petitioner and the learned Special Government Pleader appearing for the respondents 1 to 4. Though the fifth respondent has been served and his name is also printed in the cause title, he has not chosen to enter appearance.
2. The petitioner challenges the impugned proceedings dated 21.04.2023 issued by the second respondent transferring the fifth respondent from Pannaipuram Town Panchayat to Uthamapalayam Town Panchayat. The fifth respondent is holding the post of Tractor Driver. The petitioner is working as Office Assistant in Uthamapalayam Panchayat. The petitioner is possessing 2/11
driving license for heavy vehicles from 1991 onwards. His contention is that if the fifth respondent is posted as a Tractor Driver in Uthamapalayam Panchayat, then the petitioner's chances for getting promotion are doomed forever.
3. The learned Senior Counsel appearing for the petitioner reiterated all the contentions set out in the affidavit filed in support of the writ petition. The learned Senior Counsel drew my attention to the proceedings issued by Executive Officer of Pannaipuram Town Panchayat proceedings dated 21.01.2019 whereby the fifth respondent was promoted from the post of Sanitary Worker to Tractor Driver. Yet another proceedings dated 28.06.2022 issued by Melpuram Panchayat whereby one P.M.Kingbose was promoted from the post of Office Assistant to the post of Tractor Driver has also been placed before me. The learned Senior Counsel contended that when the District Collector considers the case of the petitioner, he will take note of the aforesaid proceedings issued by the said two Town Panchayats. He called upon this Court to grant relief as prayed for.
4. The respondents have filed counter affidavit and the learned Special Government Pleader took me through its contents. His argument is two fold. According to him, the petitioner who is in the post of Office Assistant has no locus standi to challenge the posting of the fifth respondent as Tractor Driver in 3/11
Uthamapalayam Panchayat. His other contention is that the petitioner is not having requisite qualification to be promoted as Tractor Driver. He would further contend that the Tamil Nadu Urban Local Bodies Rules, 2023 have come into force with effect from 01.04.2023. As per the Rules, the post of Driver can be filled up by way of direct recruitment or by way of promotion. The method of appointment in qualification is set out as follows: "Class VI Category I Tractor Driver by direct i) Pass in VII Standard recruitment ii) Possession of driving license of heavy vehicle without police (or) Magisterial endorsement and experience in lorry driving for five years of which atleast three years must be in driving heavy vehicles."
The firm stand of the learned Special Government Pleader is that the petitioner does not possess SSLC qualification and therefore he cannot hope to be promoted as Driver. He also would argue that in view of G.O.No.139 Municipal Administration and Water Supply (TP.1) Department, dated 03.10.2022, the local bodies have resorted to outsourcing method and that therefore there is no scope for appointing the petitioner as driver. He pressed for dismissal of the writ petition.
5.I carefully considered the rival contentions and went through the materials on record. The post now designated as Driver originally went by the 4/11
name of Tractor Driver. It was governed by the recruitment rules framed under Article 309 of Constitution of India. The recruitment of the said post was governed by G.O(Ms)No.23 Municipal Administration and Water Supply Department (Panchayat) dated 03.03.1998. It read as follows : 5/11
Amendment was made vide G.O(Ms)No.37 Municipal Administration and Water Supply Department dated 01.02.2011. Paragraphs 3 and 4 of the said G.O read as follows:
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6.As already noted, the new Rules have come into force with effect from 01.04.2023. Admittedly, the vacancy in the post of Tractor Driver in Uthamapalayam Panchayat was existing even before the new Rules came into force. The petitioner has been representing for being promoted to the said post. The stand of the respondents is that the petitioner is not qualified to be promoted. The materials on hand are not sufficient to come to any definite conclusion as regards the eligibility of the petitioner to be promoted to the post of Tractor Driver. The petitioner's rights will have to be governed by the rule position that existed prior to 01.04.2023. Without considering the said issue, transferring the fifth respondent and posting him in Uthamapalayam would definitely defeat the rights of the petitioner. I therefore dispose of this writ petition in the following terms:
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I. The second respondent shall consider the case of the petitioner for promotion to the post of Tractor Driver (now designated as Driver) with reference to the rule position that obtained prior to 01.04.2023.
II. Appropriate order on merits and in accordance with law will be passed within a period of five weeks from the date of receipt of a copy of this order.
III. The petitioner is permitted to place all the relevant materials in support of his case before the second respondent within a period of two weeks.
IV. The impugned order of transfer will abide by the decision of the second respondent to be taken on the petitioner's representation.
No costs. Consequently, connected miscellaneous petitions are closed. 28.06.2023 Index : Yes / No Internet : Yes / No NCC : Yes / No MGA 9/11
To 1.The Secretary, Municipal Administration, Fort St.George, Chennai. 2.The District Collector, Theni.
3.The Assistant Director of Panchayat, Theni. 4.The Executive Officer, Uthamapalayam Town Panchayat, Uthamapalayam.
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G.R.SWAMINATHAN, J.
MGA and W.M.P(MD)Nos.8803 & 8804 of 2023 28.06.2023 11/11