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Judgment
D. Hariparanthaman, J.—The Original Application in O.A. No. 1086 of 2002 before the Tamil Nadu Administrative Tribunal (hereinafter
referred to as ""the Tribunal"") is now Writ Petition in W.P. No. 5703 of 2007 before this Court.
Heard Mr. V. Gangatharan, learned Counsel for the petitioner and Mrs. C.K. Vishnu Priya, learned Additional Government Pleader for the
respondent.
The petitioner was sponsored by the District Employment Officer, Chennai -600 020 through his letter dated 21.05.1988 for the post of
Substitute Worker in the Respondent Establishment. He was selected and included in the list of Substitute Workers and posted to work in the
leave vacancies of basic servants.
While so, the petitioner was appointed, as Gardener, on regular basis in the scale of Rs. 750-12-870-14-940 by the respondent by an order
dated 01.04.1992. However, the respondent passed an order dated 11.03.1994 terminating the services of the petitioner to accommodate one
Thiru.T.Murugan, whose removal from service, was set-aside by the Tamil Nadu Administrative Tribunal. The reason stated in the said order
dated 11.03.1994 for termination was that the petitioner was the junior most among the basic servants.
The petitioner filed O.A.1589 of 1994, questioning the aforesaid order dated 11.03.1994. He filed M.A. No. 1146 of 1996 in O.A. No. 1589
of 1994 seeking for a direction to respondent to consider him in the vacancies, that were available, pending disposal of the Original Application.
The Tribunal passed the following order in M.A.1146 of 1996, on 19.05.1996,
The applicant claims that there are vacancies and he may be considered for appointment in the same. If the applicant is eligible for consideration
and if there are vacancies, the respondent shall consider the applicant for appointment in those vacancies. This Miscellaneous Application is
ordered as above.
Based on the aforesaid interim order of the Tribunal, the petitioner was appointed as a Watchman belonging to Basic Service, from 03.02.2000.
The order dated 11.02.2000 of the respondent states that the petitioner reported for duty as Watchman on 03.02.2000.
While so, the respondent passed the impugned order dated 20.02.2002 terminating the services of the petitioner, referring to various orders.
The petitioner filed O.A. No. 1086 of 2002 (W.P. No. 5703 of 2007) to quash the aforesaid order.
The respondent filed a reply affidavit. In paragraph 6 of the reply affidavit, the respondent admits that three persons, namely Selvi Thillaivani,
Tmt Rajakumari and Selvi Kalaiselvi were appointed subsequent to the appointment of the petitioner as Hospital Workers on 29.12.1993,
31.12.1993 and 14.06.1993 respectively. However it is stated that those persons were appointed on compassionate grounds and that therefore
they should not be ousted for want of vacancy, unless a person found surplus. Paragraphs 6 and 7 of the reply affidavit, which are relevant, are
extracted hereunder:
The following hospital workers were temporarily appointed on compassionate ground.
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Sl.No. Name of the Individual Name of deceased Date of Death Date of
Appointed on Govt. Servant Appointment
compassionate Ground
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1 Selvi Thillaivani (Late) N Munusamy 1/6/90 29/12/1993
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2 Tmt Rajakumari (Late) V E Palani 28/3/1990 31/12/1993
(Husband)
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3 Selvi Kalaiselvi (Late) P Murugesan 8/4/1984 14/6/1993
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Even though the above hospital workers who were appointed temporarily on Compassionate grounds are juniors to the applicant Thiru
D.Gurusamy they could not be ousted from service as per Govt. letter No. 114/Employment/dated 28.12.1983 wherein it is stated that a person
appointed under compassionate grounds should not be ousted for want of vacancy unless the person is found surplus. Hence, the above persons
were not ousted from service. The ousting order issued to Thiru D.Gurusamy is not a discrimination and violation of rules.
In view of the said admissions made by the respondent, it is sufficient to set-aside the termination order. That is, the only reason given in the
termination order dated 11.03.1994 was that since the petitioner was the junior most basic servant, he was terminated from service and that
reason is found to be not true, as per the aforesaid reply affidavit of the respondent.
Further, there are other reasons also for interfering with the termination order. Firstly, the termination order was passed based on various
correspondences that took place between the respondent and other authorities. Those correspondences based on which the petitioner was
terminated were not furnished to the petitioner. Hence the impugned order, which is based on many proceedings of many authorities, is illegal and
is violative of principles of natural justice, since none of those proceedings were furnished to the petitioner.
It is seen from paragraph 13 of the reply affidavit filed by the respondent that the Government was addressed for the appointment of the
petitioner as Watchman, based on the interim order of the Tribunal referred to above. The Government seems to have instructed the Director of
Medical Education in its letter dated 31.08.2001 that the Tribunal only directed to consider the petitioner in any of the vacancies and there was no
direction to appoint him. It is further stated in the Government letter dated 31.08.2001 that when he was appointed on 03.02.2000, no objection
certificate from the concerned Employment Exchange or Director of Employment Exchange was not obtained before his appointment. Since no
objection certificate was not obtained from the Director of Employment Exchange, the Government instructed the Director of Medical Education
that the petitioner should have to be terminated by following the procedures.
It is relevant at this juncture to point out that no procedures were followed by the respondent, before terminating the service of the petitioner
by the impugned order dated 22.02.2002 and the impugned order was straight away passed.
In the mean time, after the receipt of the letter dated 11.09.2001 of the Director of Medical Education enclosing the Government letter dated
31.08.2001, instructing the respondent to terminate the service of the petitioner by following the procedure, the respondent seems to have
addressed to the Employment Officer, District Employment Exchange, Adayar in his letter dated 10.10.2001 requesting him to issue no-objection
certificate for the appointment of the petitioner as Hospital Worker (Watchman). But, it seems that the Employment Officer sent a reply dated
17.10.2001 stating that no objection certificate would not be issued in this case and the said certificate could be issued only if there were no
persons available on the Live Register of the Employment Exchange for the post for which the person was appointed.
It seems that the respondent again addressed a letter dated 21.11.2001 to the Director of Employment and Training, Chepauk, Chennai - 5, in
this regard. However, the Director of Employment and Training in his letter dated 10.12.2001 replied that the Tribunal did not issue a direction to
appoint the petitioner and it was only a direction to consider him for appointment, if there was any vacancy and that no appointment could be made
without getting a list from the Employment Exchange. It was directed that the petitioner could be appointed after getting the list from the
Employment Exchange, after terminating the service of the petitioner.
The aforesaid facts are seen from the reply affidavit of the respondent. One fails to understand, why the no-objection certificate is required
from the Director of Employment Exchange, particularly when the petitioner was appointed in the year 1988 only through Employment Exchange.
Further, he was terminated from service only due to want of vacancy, since one Murugan was sought to be appointed pursuant to the order of the
Tribunal. In such circumstances, when the Tribunal directed the respondents to appoint the petitioner in any of the vacancies, the respondent did
correct thing by appointing him on 03.02.2000, as Watchman. Admittedly, he was appointed again in a vacancy in the post of Watchman. It is not
their case, that there was no vacancy in the post of watchman.
Hence, in the aforesaid circumstances, I am of the view that the Government has no valid reason in directing the respondent to terminate the
service of the petitioner and to fill-up the post by calling a list of candidates from the Employment Exchange. As I have already stated, since the
petitioner himself was sponsored through Employment Exchange and since he did not come through backdoor method, there was no necessity to
require the no-objection certificate from the Employment Exchange, in the facts and circumstances of the case.
Further, as stated above, the respondent retained the juniors in service while the petitioner was sent out. The reasons adduced in paragraph 7
of the reply affidavit is not convincing for retaining the juniors and sending out the petitioner. Since, the petitioner is admittedly a senior person,
terminating his services by the impugned order, while retaining the juniors, who were appointed on compassionate grounds, is clearly illegal and
arbitrary. The impugned order of the termination of service of petitioner is violative of Article 14 and 21 of the Constitution, as per the decision of
the Apex Court in D.K. Yadav Vs. J.M.A. Industries Ltd., .
Further more, when the Tribunal issued a direction to consider him for appointment in the vacancy and respondent found that there was a
vacancy in the post of Watchman, terminating the services of the petitioner, on the ground that no-objection certificate was not obtained from the
Director of Employment, is illegal. As pointed out above, the termination order was passed in violation of principles of natural justice. The
petitioner, who belongs to basic service, was made to suffer unnecessarily.
For all the reasons stated above, the impugned order is set-aside and writ petition is allowed. However, there is no order as to costs.