K.V. Jothi Vs The Secretary to Government

PRAYER :- Writ Petition, filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, to direct the respondents to regularize the service of the petitioner in the post of Sweeper with effect

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from the date of completion of 10 years of service from her initial date of appointment on 27.01.1989 with all consequential service and monetary benefits.

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For Petitioner : Mr.R.Prem Narayan,

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For Respondents : Mr.N.Satheesh Kumar, Additional Government Pleader for R1 to R4

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ORDER

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This writ petition has been filed for a Mandamus to direct the respondents herein to regularize the service of the petitioner in the post of Sweeper with effect from the date of completion of 10 years of service from her initial date of appointment on 27.01.1989 with all consequential service and monetary benefits.

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The learned counsel for the petitioner would submit that the

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petitioner is working in the fifth respondent School as a part time Sweeper. His name was sponsored by the employment exchange and was reappointed on consolidated pay. He would further submit that there is no break in service. On 05.07.2000, he was appointed as Office Assistant in the fifth respondent School in a regular time scale of pay.

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But however, since the fourth respondent had refused to approve his appointment as Officer Assistant, he was reverted back to the post of part time Sweeper. Referring to various Government Orders, he would submit that the petitioner is entitled for being absorbed into the regular establishment. However, the respondents have failed to regularize the service. He would further submit that the petitioner earlier filed a writ petition in WP(MD)No.16244 of 2012 and this Court by order dated 07.11.2014, had directed the respondents to consider the appointment of the petitioner in any of the regular vacancy suitable for the petitioner in the fifth respondent School. Till date, the fifth respondent has not considered the claim of the petitioner for appointment in any regular vacancy. Therefore, he prays this Court to direct the respondents to regularize the post of Sweeper with effect from the date of completion of 10 years of service from her initial date of appointment on 27.01.1989.

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The learned Additional Government Pleader would submit that

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the petitioner is working in fifth respondent School. Unless or until a proposal from the fifth respondent, there could be no question of respondents 1 to 4, considering the claim of regularization of the

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petitioner. Even as on date, the first respondent had not forwarded any proposal in spite of the earlier direction of this Court in the year 2014. Therefore, the hands of the respondents 1 to 4 are tied and they are not in a position to regularize the service of the petitioner.

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In spite of the fifth respondent having been duly served and name printed in the cause list, there is no representation on the side of the fifth respondent.

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I have heard the learned counsel on either side and perused the materials on record.

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The case of the petitioner is that the representation was directed to be considered by this Court by appointing him in any one of the regular vacancy in the fifth respondent School. Even according to the petitioner, the fifth respondent thereafter, had not appointed the petitioner in any of the regular vacancy. The petitioner had not approached this Court by filing any petition of contempt for violation of the orders passed by this Court WP(MD)No.16244 of 2012, in which the order was passed as early as on 07.11.2014.

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As rightly pointed out by the learned Additional Government Pleader, if only a proposal is submitted by the fifth respondent Institution for appointing the petitioner in any sanctioned vacancy, the claim of the petitioner could be considered. It is not the petitioner, but the Management / fifth respondent had challenged the refusal of approval to the appointment of the petitioner, which was made in the year 2012 to the post of Office Assistant.

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In such view of the matter, this Court cannot grant a mandamus as sought for by the petitioner, but, however, the petitioner is directed to approach the fifth respondent for being appointed in any one of the sanctioned post vacant with the fifth respondent and if the fifth respondent proposes to appoint him in any one of the vacant sanctioned post, for which, he is eligible to be appointed, the fifth respondent shall forward the proposal as required under law to the appropriate authority and if such proposal is received, the same shall be considered favourably by the authorities.

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