V. Sudhakaran and Another vs The Corporation of Madras and Another

K.S. Bakthavatsalam, J.—The petitioners are working as Sanitary Inspectors in the Corporation of Madras, the respondents herein. They

challenge an order of the respondent-Corporation dated 29.11.1990 by which they were posted exclusively to attend the duty in the burial

grounds. In the impugned order it is stated that the petitioners are immediately relieved from the normal divisional duties and they should (1)

supervise the work of staff posted in the burial ground, (2) collect the details of the deceased person, (3) supervise the works of vettiyans, (4)

collect the cremation or burial charges from the public as fixed by the Corporation and remit the same into Corporation treasury then and there, (5)

keep the burial ground in clean and tidy manner and (6) particularly enforce strict discipline among the Vettiyans and to try to avoid complaints and

criticism from the public.

The petitioners alleged in the affidavit filed in support of the writ petition that paragraph 716 of the Madras City Municipal Code (hereinafter

referred to as ''the Code'') deals with management of burial grounds, that paragraph 887 of the Code prescribes the duties of Sanitary Inspectors,

that 20 functions are enumerated in paragraph 887 of the Code and that the petitioners have been asked to relieve other duties and that it amounts

to a demotion to them. It is also alleged in the affidavit that inspecting a burial ground is one of the functions of the Sanitary Inspectors, that

Sanitary Inspectors have got technical qualifications and that the impugned order passed by the respondent-Corporation in so far as it directs the

petitioners to look after a burial ground, relieving from other divisional duties is too harsh. It is also alleged in the affidavit that the action of the

respondent-Corporation asking the petitioners to do the functions which are really that of the peons, which is clear from what is described in

paragraphs 716 of the Code and that it amounts to a demotion to the petitioners to Class IV posts whereas the petitioners are belonging to Class

III. It is also alleged in the affidavit that when the Code prescribes certain conditions of service, it is not correct on the part of the Corporation to

change it by the impugned order of the respondent-Corporation. It is also alleged in the affidavit that the action of the respondent-Corporation is

arbitrary and violation of Article 14 of the Constitution of India, since the petitioners have been picked up when there are other Sanitary Inspectors

with the respondent-Corporation.

Notice of motion has been ordered by this Court on 8.1.1991.

A counter-affidavit has been filed by the respondent-Corporation. It is stated in the counter affidavit that with a view to ameliorate the problems

faced by the public in using the Corporation burial grounds particularly the problem of extraction of exorbitant amounts collected by vettiyans

unauthorisedly has proposed to take remedial measures. It is also stated that at present the burial ground caretakers and the office Assistants are

incharge of the burial grounds, that they belong to Class IV service of the Corporation of Madras, that several complaints were received and

criticisms appeared in the press as to the exorbitant charges demanded by the Vettiyans and as such it was decided to post an officer of higher

cadre viz. Sanitary Inspectors. It is also claimed in the counter affidavit that three major burial grounds at Washermanpet, Otteri and Mylapore

were selected for implementing the decisions of the respondent-Corporation, and that by the impugned order the petitioners were posted at

Washermanpet and Mylapore. It is also claimed in the counter affidavit that keeping the burial grounds in good sanitary conditions is also one of

the duties and responsibilities of the Sanitary Inspectors. It is also pointed out in the counter affidavit that as per para 887 of the Code the Sanitary

Inspector has to inspect burial grounds and see to their sanitary upkeep and to detect deaths from dangerous diseases, that para 716 of the Code

prescribes that in the management of burial grounds the major work is done by the Office Assistants of the burial ground and that the responsibility

lies with Sanitary Inspector of that Division. A reference to para 724 of the Code has been made in the counter affidavit It is also claimed in the

counter affidavit that the impugned order has been validly passed in the interest of the public and for the proper administration of burial grounds

and that the said order does not affect the interest of the petitioners in respect of their salary, allowances, cadre or benefits in services under the

Corporation. It is admitted in the counter affidavit that the petitioners are Class III employees under the respondent-Corporation stating that the

posting of the petitioners for exclusive supervision of burial and burning grounds does not in any way reduce their status. It is also claimed in the

counter affidavit that there is no demotion in the cadre of the petitioners. It is also stated in the counter affidavit that the impugned order is not in

any way punitive or working against the interest of the petitioners, and that the posting of the Sanitary Inspectors has been done only to correct the

remedy for the problems faced by the public. A reference to Section 19 (obviously a mistake of Section 9 of the Madras City Municipal

Corporation Act has been made in the counter affidavit under which the Commissioner is empowered to prescribe the duties of the Corporation

establishment. It is also pointed out in the counter affidavit that the posting orders are not permanent and that they are liable to be changed from

time to time. It is categorically stated in the counter affidavit that the impugned order is not illegal or arbitrary, that the impugned order does not

affect the fundamental right of the petitioners in any way, that no provision of law or rule or code is violated by the impugned order and as such the

petitioners cannot have any grievance over the impugned order.

Miss. R. Vaigai, the learned Counsel appearing for the petitioners contends that it may be true that there is no reduction in rank and that it is not

necessary for the Corporation to utilise the services of Sanitary Inspectors to be in charge of the burial and burning grounds permanently especially

when they are technically qualified. She points out that when there are other Sanitary Inspectors available, there is no reason why these two

petitioners should be chosen or picked up and that this is violative of Article 14 of the Constitution. That apart, the learned Counsel contends that

the status of a Sanitary Inspector is reduced when he is posted as incharge of the burial ground and that it is against the provisions of the Code

which governs the services and procedures of the Corporation. The learned Counsel relies upon para. 887 of Madras Corporation Code which

prescribes the duties of the Sanitary Inspectors. The learned Counsel points out that one of the functions of the Sanitary Inspectors is to inspect

burial grounds and see to their sanitary upkeep and to detect deaths from dangerous diseases. Pointing out para. 716 of the Code, counsel argues

that the management of burial grounds is done by peon and Office Assistant and the Vettiyan and it is not correct on the part of the Corporation to

appoint the petitioners who had exhaustive training on the Sanitary Inspection by getting through many courses and fully equipped with the

discharge of the Sanitary Inspector of the Corporation. The learned Counsel relies upon the decision in P.K. Chinnasamy Vs. Government of

Tamil Nadu and Others, , where the Apex Court of the land gave directions to give appropriate posting and assign normal official work, where an

officer was given a posting.

Mr. R. Swaminathan, the learned Standing counsel for the Corporation appearing for the respondents contends that it is not case of demotion

on the facts of the case that according to Code what has been done is that the petitioners were asked to be in charge of the burial ground and that

it cannot be said that there is a demotion in the real sense. Refereeing to Section 91 of the Madras City Municipal Corporation Act, the learned

Counsel argues that the Commissioner has got the power to utilise the services of the employees of the Corporation and post them as occasion

warrants. The learned Counsel for the Corporation contends that in so far as no mala fide is alleged, the petitioners have no case at all. He further

argues that the impugned order cannot be couched by way of punishment and as much this Court should not interfere with on the facts and

circumstances of the case. He reiterates the contentions raised in the counter-affidavit with regard to the factual position that the petitioners are

posted in particular burial grounds in order to alleviate the hardships faced by the public.

Having considered the arguments of the learned Counsel on both sides, I am of the view that the petitioners cannot have any grievance at all by

the impugned order. It is seen that the Corporation Code, which is being followed by the Corporation, even after passing the enactment, provides

for the duties of the Sanitary Inspectors and the management of the burial grounds. Para. 724 of the Code provides for the duties of the Sanitary

Inspectors in regard to the burial or burning grounds. Section 13 of the Code deals with ""Burial and burning grounds"" starting from paras. 714 to

Paragraph 715 happens to be by-laws framed by the Corporation u/s 349(22)(a) of the Madras City Municipal Act IV of 1919 for the

regulation of burial and burning grounds and other places for the disposal of corpses. In so far as the management of the burial ground is

concerned, it is provided in para. 716 of the Code under which it is seen that there is a Corporation peon-incharge of each burial and burning

ground, who has to keep an account in his register of all cremations and he is required to be on duty during certain hours. In the case of corpses of

paupers, with regard to their burial, it is provided in para. 717 of the Code. Para. 719 speaks of the duties of Vettiyans, who shall be on duty at

the burial and burning grounds. So a reading of Section 13 of the Code which provides ""burial and burning grounds"" shows that the Sanitary

Inspectors of the divisions concerned are in immediate charge of the burial and burning grounds in them and they have to frequently inspect them to

see that the duties entrusted to the peons, gardeners and the vettiyans are being carried out properly. It is one of the duties of the Sanitary

Inspectors that they shall report in time to the Health Officer the necessity for opening fresh burial or burning grounds. It is one of the duties of the

Sanitary Inspectors to suggest improvements where necessary for the burial and burning grounds in their charge. In my view, para. 724 of the

Code is non-statutory and it shows that the Sanitary Inspectors are in immediate charge of the burial or burning grounds in them and they are

expected to inspect them and to supervise the duties of Vettiyans, peons and Gardeners of the said burial grounds. What has been done in the case

before me is that the petitioners are permanently posted in two major burial grounds in the City, relieving from their normal divisional duties, by the

impugned order dated 29.11.1990. There cannot be any doubt that the Commissioner has got the power u/s 91 of the Madras City Municipal

Corporation Act, 1919 to control the establishment of the Corporation subject to the provisions of the Act and to the Rules, by-laws and

regulations for the time being in force and the Commissioner shall prescribe the duties of the corporation establishment and exercise supervision

and control over their acts and proceedings. In so far as the duties of the Sanitary Inspectors are concerned, no Rule or by-law is brought to my

notice as one passed even after the enactment of the Madras City Municipal (Corporation) Act, 1919. Learned Counsel on either side has not

brought to my notice any Rule or by-law which controls the duties of the Sanitary Inspectors apart from para. 724 of the Code. The Corporation

Code seems to have been complied with as it is seen from Vol.1 of the Madras Corporation Code. What all is stated in the Code is not merely a

recital of the existing procedure. So it cannot be doubted that what is contained in the Code is not statutory in character. It is well settled that any

violation of any non-statutory direction cannot be made a cause of action to approach the High Court under Article 226 of the Constitution unless

the provisions of the Constitution are violated especially Articles 14 and 16 of the Constitution. As rightly pointed out by the learned Counsel

appearing for the Corporation it cannot be disputed that there is no reduction in rank of the petitioners, on the facts and circumstances of the case.

Surely, there is no reduction of emoluments. Only the duties are changed. Even assuming that there is violation of the provisions of the Code, I do

not think the writ petition can be maintained for this purpose, on the facts and circumstances of the case. The case relied on by Miss. R. Vaigai, the

learned Counsel for the petitioners is not relevant. In that case the apex court of the land was concerned with the public servant who was not given

posting to the status, the ratio decided in that case is as follows: (at p.79)

....The scheme postulates that every public officer has to be given some posting commensurate to his status and circumstances should be so

created that he would be functioning so as to render commensurate service in lieu of the benefits received by him from the State. If an officer does

not behave as required of him under the law he is certainly liable to be punished in accordance with law but it would ordinarily not be appropriate

to continue an officer against a post and provide no work to him and yet pay him out of the consolidated Fund....

The case before me is entirely different and I do not think the principle laid down by the Apex Court of the land in the above mentioned decision

can be made applicable to the facts of the present case. In so far as 1 come to the conclusion that there is no reduction in rank, any variation of the

provision in the Code will not give any cause of action to these petitioners. There are no merits in the writ petition and accordingly it is dismissed.

No costs.

Having dismissed the writ petition, I am of the view that the plea put forth by Miss R. Vaigai, the learned Counsel for the petitioners is worth

mentioning. If the respondent-Corporation wants to adopt a method of posting Sanitary Supervisors to burial grounds and burning grounds

exclusively the respondent-Corporation could have called all the Sanitary Inspectors or Association of the Sanitary Inspectors if there is one and

should have sorted out the matter after having a dialogue with them. It has not been done in this case. This is why, when two persons are posted

for that post, the argument is built upon under Article 14 of the Constitution. It is true that it is stated in the counter-affidavit, that it is not a

permanent arrangement. But yet, I would suggest that the respondent-Corporation can have a dialogue with the association of the Sanitary

Inspectors and decide about the future course of action appointing the Sanitary Inspectors permanently to supervise the burial grounds and burning

grounds.