Madras High Court
The State Of Tamil Nadu vs P.Rajagopal on 7 April, 2021
W.A.(MD)No.1424 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.04.2021
CORAM
THE HONOURABLE MR.JUSTICE T. S. SIVAGNANAM
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)No.1424 of 2018
and C.M.P.(MD) No.9984 of 2018
1.The State of Tamil Nadu,
Rep. by the Secretary,
Department of Health & Family Welfare,
Fort St. George, Chennai.
2.The Director,
Public Health & Preventive Medicine,
DMS Complex,
Chennai.
3.The Deputy Director,
Public Health & Preventive Medicine,
Theni.
4.The Block Medical Officer,
Government Primary Health Center,
Odaipatti,
Uthamapalayam Taluk,
Theni.
5.The Medical Officer,
Government Primary Health Center,
Erasainayakanur Post,
Uthamapalayam Taluk,
Theni. ... Appellants/Respondents
Vs.
1.P.Rajagopal
2.P.Saravan
3.The Pay Accounts Officer,
Accounts Office (South),
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W.A.(MD)No.1424 of 2018
Chennai.
4.The Treasury Officer,
Sub-Treasury Office,
Bye Pass Road,
Uthamapalayam,
Theni.
5.The District Hosur Treasury Officer,
Hosur Treasury Office,
1st Floor, Collector Office,
Theni. ... Respondents 6 to 8/Petitioners
Prayer : Appeal filed under Clause 15 of the Letters Patent against the order
passed by this Court in W.P.(MD)No.18049 of 2016, dated 31.01.2018.
For Appellants : Mr.Sricharan Rangarajan
Additional Advocate General
Assisted by Mr.K.P.Krishnadoss
Special Government Pleader
For Respondents 1 & 2 : Mr.M.Ajmal Khan
for M/s.Ajmal Associates
*****
JUDGMENT
(Judgment of the Court was delivered by T. S. SIVAGNANAM, J.)
This Writ Appeal by the Government is directed against the order
dated 31.01.2018, made in W.P.(MD) No.18049 of 2016, which was filed by
respondent Nos.1 and 2 herein. Since the relief sought by respondent Nos.1 and
2 are one and the same, they have filed a single Writ Petition, seeking a
direction to the appellants to regularize their services in the post of Male
Nursing Assistant from the date of appointment i.e., on 25.09.2006 as sanitary
worker with all monetary and service benefits.
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W.A.(MD)No.1424 of 2018
2.Respondent Nos.1 & 2/Writ Petitioners placed reliance upon
G.O.Ms.No.103, dated 21.05.2003. The learned Writ Court has taken note of the
submissions made on behalf of respondent Nos.1 and 2, which is the
submissions made before us as well that as per G.O.Ms.No.340, Health and
Family Welfare Department, dated 02.12.2010, the persons appointed through
Employment Exchange and who have completed two years and paid daily
wages shall be appointed as a hospital workers in the regular time scale of pay.
The learned Writ Court has also noted that respondent Nos.1 and 2/writ
petitioners were appointed through Employment Exchange and have completed
two years of service and they are paid wages on consolidated basis. Therefore,
having found that all the conditions set out in G.O.Ms.No.340, Health and
Family Welfare Department, dated 02.12.2010 are applicable to respondent Nos.
1 and 2, the learned Writ Court allowed the Writ Petition with a positive
direction to the second respondent to pass appropriate orders in favour of
respondent Nos.1 and 2/writ petitioners in terms of the above said Government
Order.
3.We have elaborately heard Mr.Sricharan Rangarajan, the learned
Additional Advocate General, assisted by Mr.K.P.Krishnadoss, learned Special
Government Pleader appearing for the appellants and Mr.M.Ajmal Khan,
learned Senior Counsel appearing for respondent Nos.1 and 2.
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W.A.(MD)No.1424 of 2018
4.First, we may point out that it is seldom for the Writ Court to issue a
positive direction for regularization of services of temporary employees. There
are certain decisions of the Hon'ble Supreme Court as well as this Court, which
have carved out certain exceptions. In the Writ Petition, the appellants/
department did not file their counter affidavit. The case of respondent Nos.1 and
2/writ petitioners is that they have been working for several years under the
control of appellant Nos.4 and 5 herein in the Government Primary Health
Center at Odaipatti and Erasainayakanur and several records have been placed
before us to show that they have been continuously employed and paid on
consolidated basis. Thus, the argument of respondent Nos.1 and 2/writ
petitioners is that since they have been appointed through Employment
Exchange, they should be considered and appointed as Male Nursing Assistant.
5.In our considered view, such a broad principle may not be carved
out. It is to be noted that recruitment through Employment Exchange is one of
the proper and time tested source of recruitment. Subsequently, the Hon'ble
Supreme Court has held that it is not the only source of recruitment, but wide
publicity for the recruitment should be given.
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W.A.(MD)No.1424 of 2018
6.The argument of the learned Senior Counsel appearing for
respondent Nos.1 and 2 is that respondent Nos.1 and 2 are in a better footing
than the employees, who were recruited on temporary basis for a specific
scheme. This issue has to be considered by the authorities at the appropriate
level and the Writ Court cannot make a roving enquiry to examine as to whether
the appointment is valid, whether the appointment is continued appointment,
whether the salary was paid from the Government funds or funds sanctioned for
a particular scheme or project etc., Furthermore, it is submitted that respondent
Nos.1 and 2/writ petitioners are continued to be employed on consolidated
basis, especially for Covid – 19 duties. However, the learned Special
Government Pleader appearing for the appellants does not have instructions in
that regard. Further, we cannot issue any positive direction to regularize the
services of respondent Nos.1 and 2. However, we are inclined to issue a
direction, which may enable the authorities to take a decision in this regard.
7.Accordingly, the Writ Appeal is allowed and the direction issued by
the Writ Court to pass an order in favour of respondent Nos.1 and 2 is modified
to the effect that respondent Nos.4 and 5 shall place appropriate proposals
before appellant Nos.2 and 3 as regards the claim made by respondent Nos.1
and 2 and place all records with them relating to the service of respondent Nos.
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W.A.(MD)No.1424 of 2018
1 and 2 within a period of three months from the date of receipt of a copy of this
order and thereafter, based on such proposals, the appellant Nos.2 and 3 shall
take a decision on merits and in accordance with law within a period of two
months therefrom. If the petitioners continued on consolidated pay as on date
with the appellants continuously, they shall not be disturbed. Consequently,
connected Miscellaneous Petition is closed. No costs.
Index :Yes/No [T.S.S., J.] [S.A.I., J.]
Internet :Yes/No 07.04.2021
sj
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy, shall be
the responsibility of the advocate/litigant concerned.
To
1.The Secretary,
Department of Health & Family Welfare,
State of Tamil Nadu,
Fort St. George, Chennai.
2.The Director,
Public Health & Preventive Medicine,
DMS Complex,
Chennai.
3.The Deputy Director,
Public Health & Preventive Medicine,
Theni.
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W.A.(MD)No.1424 of 2018
4.The Block Medical Officer,
Government Primary Health Center,
Odaipatti,
Uthamapalayam Taluk,
Theni.
5.The Medical Officer,
Government Primary Health Center,
Erasainayakanur Post,
Uthamapalayam Taluk,
Theni.
6.The Pay Accounts Officer,
Accounts Office (South),
Chennai.
7.The Treasury Officer,
Sub-Treasury Office,
Bye Pass Road,
Uthamapalayam,
Theni.
8.The District Hosur Treasury Officer,
Hosur Treasury Office,
1st Floor, Collector Office,
Theni.
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W.A.(MD)No.1424 of 2018
T. S. SIVAGNANAM, J.
AND
S.ANANTHI, J.
sj
W.A.(MD)No.1424 of 2018
07.04.2021
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