Allowed

Rengaraj v. Vs The Assistant Director of Town Panchayat

Madras HC28 Jun 2023WP(MD)/5155/2023

Case brief

AI extract

What is this about?

Petitioner, a long-serving Overhead Tank Watchman with relevant experience, sought promotion to Tractor Driver after vacancies arose. The court held that failing to promote him despite prior assurances and actual service was unfair, ordering the respondent to promote him forthwith under Article 14.

What did the court decide?

The second respondent is directed to promote the petitioner to the post of Driver forthwith and without any delay.

Rengaraj v Vs The Assistant Director of Town… — Pension and Retirement Benefits | Madras HC (2023)

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W.P(MD)No.5155 of 2023

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 28.06.2023

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CORAM

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THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

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W.P(MD)No.5155 of 2023

V.Rengaraj

... Petitioner

Vs.

1.The Assistant Director of Town Panchayat, O/o. Collectorate Office, Dindigul District, Dindigul.

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2.The Executive Officer, Puliyur Town Panchayat, Puliyur, Karur District.

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... Respondents

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Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the second respondent to promote the petitioner to the post of Driver in the second respondent Panchayat forthwith as per communication in Na.Ka.No.172/2021 dated 02.09.2021.

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For Petitioner : Mr.T.Antony Arulraj For Respondents : Mr.G.Suriyananth Additional Government Pleader for R.1

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Mr.A.Kannan Additional Government Pleader for R.2

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https://www.mhc.tn.gov.in/judis

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W.P(MD)No.5155 of 2023

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ORDER

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Heard the learned counsel on either side.

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The petitioner joined the second respondent Panchayat as Overhead Tank Watchman in the year 2001. He was possessing valid driving license even then. Contending that he should be promoted as Tractor Driver, he filed W.P(MD)No.4064 of 2013. It was disposed of on 29.01.2014 in the following terms:

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“2. In the counter affidavit filed by the respondent No. 3, two stands have been taken. Insofar as the first stand is concerned, it has been stated that the request of the petitioner for promotion as Driver has been taken note of and he will be provided as and when vacancy arises, as per the Government Order, passed in G.O.Ms.No.23, Municipal Administration and Water Supply [TP-2] Departmentm dated 03.03.1998.

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3. In view of the same, this Court is of the view that the respondent Nos.1 and 2 will have to be directed to consider the case of the petitioner, in the event of any vacancy available in the regular post of Driver.

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4. Insofar as the second stand taken by the respondent No.3 is concerned, it has been stated that the vehicle, in

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which the petitioner was permitted to drive being a Mini Truck, there is no post of Driver sanctioned for the said vehicle, and hence, a policy decision has been taken to make the use of the Drivers available in the live registers. In view of the same, the case of the petitioner cannot be considered for the said post.”

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Since the petitioner's request was not considered, he filed yet another writ petition in W.P(MD)No.14565 of 2021. It was disposed of on 16.08.2021 in the following terms :

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“3.The case of the petitioner is that he is presently working as Selection Grade Security of the Over Head Tank attached to the Puliyur Town Panchayat in Karur District and he also knows driving. Now the Director of Panchayat has issued proceedings in Na.Ka.No.7336/2021/A3 dated 13.07.2021, making provision for creation of post of Drivers in the Panchayat Administration. Hence, the petitioner made a representation on 09.08.20201, requesting to appoint him as Driver in the regular vacancies. The said representation is still pending. Hence, the petitioner has come out with the present Writ Petition.

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4. Considering the facts and circumstances of the case, this Court, without expressing any opinion on the merits of the matter, directs the fourth respondent to consider the representation of the petitioner dated 09.08.2021 on tis own

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merits and in accordance with law and pass orders within a period of twelve (12) weeks from the date of receipt of a copy of this order.”

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The petitioner was informed vide letter dated 02.09.2021 that as and when vacancies arise in the post of Tractor Driver, the petitioner's request will be considered. On 05.09.2022, the incumbent Tractor Driver / Selvaraj was transferred to some other local body. Though vacancy in the post of Tractor Driver had arisen, the petitioner had not promoted to the said post. That led to the filing of this writ petition.

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3.The learned counsel appearing for the petitioner reiterated all the contentions set out in the affidavit filed in support of the writ petition and called upon this Court to grant the relief as prayed for.

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4.The respondents have filed counter affidavit and the learned Additional Government Pleader took me through its contents. His primary contention is that the petitioner lacks qualification for being promoted to the said post. He also would argue that new rules have now come to force on 01.04.2023 and that as per the new rules, the petitioner cannot be promoted. He pressed for dismissal of the writ petition.

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5.I carefully considered the rival contentions and went through the materials on record. The post now designated as Driver originally went by the

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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 :

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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.It is true that if the new rules which came into force on 01.04.2023 are applied to the case on hand, the petitioner will not pass muster. Admittedly, the vacancy in the post arose earlier. The petitioner has been knocking the doors of this Court on more than one occasion. Before this Court a solemn assurance was given that as and when vacancies arise, the petitioner would be considered. Therefore, it is not open to the local body to now go back on that stand.

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7.My attention is drawn to two proceedings. The Commissioner, Melpuram Panchayat Union vide proceedings dated 28.06.2022 had promoted one P.N.Kingbose from the post of Office Assistant to the post of Tractor Driver. Likewise, the Executive Officer of Pannaipuram Town Panchayat vide proceedings dated 21.01.2019 had promoted one Sundaramoorthy from the post

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of sanitary worker to the post of Tractor Driver. Therefore, the objection set out in the counter that the petitioner lacks experience as lorry driver for five years cannot be accepted. This runs counter to the policy of the Government to create promotional avenues for those working in the post of Office Assistant, Sanitary Worker and Record Clerk to the post of Driver, if they possess heavy vehicle driving licence.

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8.The learned counsel appearing for the petitioner points out that when the petitioner has been working in the local body for twenty years, it is not fair on the part of the department that he should possess five years of experience in heavy vehicle driving to be considered for being promoted. Such an approach would defeat the very policy of the Government. He would also point out that the petitioner though holding the post of overhead tank watchman was actually discharging the duties of tractor driver for quite a few years. Unimpeachable materials have been produced before me to show that he was working as Tractor Driver for four years (2007-10 to 2012-13).

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9.In these circumstances, to deny the request for promotion to the petitioner would be a clear breach of the principle of fairness enshrined in Article 14 of the Constitution of India. It is well settled that any employee is entitled to reasonable opportunities of promotion and to be considered. Though https://www.mhc.tn.gov.in/judis 9/11

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the petitioner is having the requisite licence and his service has also been used as tractor driver, he continues to languish in the post of overhead tank watchman all these years. Therefore, the second respondent herein ought to adopt the same approach as followed by Pannaipuram Panchayat and Melpuram Panchayat union. In this view of the matter, the second respondent is directed to promote the petitioner to the post of Driver forthwith and without any delay.

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