T.Sugumar vs The State Of Tamil Needy
2021 Latest Caselaw 14259 Mad

                                                                          W.P(MD)No.8333 of 2021 etc., batch


                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                  DATED: 16.07.2021
                                                            CORAM:

                                   THE HONOURABLE MS.JUSTICE V.M.VELUMANI

                      W.P.(MD)Nos.8333, 8334, 8335, 8336, 8337, 8338, 8339 and
                                           8341 of 2021
                                                and
                       W.M.P(MD)Nos.6308, 6310, 6311, 6312, 6313, 6314, 6315
                                         and 6317 of 2021

                     W.P(MD)No.8333 of 2021


                     T.Sugumar                                         ... Petitioner

                                                        Vs.

                     1.The State of Tamil Needy,
                       Rep. by its Secretary,
                       Health and Family Welfare Department,
                       St. George Fort,
                       Chennai-600 009.

                     2.The Director of Public Health and Preventive Medicines
                       O/o.No.359, Anna Salai,
                       D.M.S.Compound,
                       Chennai-600 006.                      ... Respondents

PRAYER: Writ Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned Government Order in G.O(Ms)No.69, Health and Family Welfare (AB1) Department, dated 25.02.2020 issued by the first respondent herein and the consequential proceedings of the second respondent herein in

https://www.mhc.tn.gov.in/judis/ W.P(MD)No.8333 of 2021 etc., batch

R.No.39974/VM/A3/2015-14, dated 06.03.2020 to an extent of the effect of the date of the petitioner's regular employment alone and quash the same in so far as the effect of the date of the petitioner's regular employment alone and consequently direct the respondents herein to refix the petitioner's service period retrospectively, from the date of the petitioner's initial appointment i.e., from on 17.12.2007 and accordingly the petitioner's service period may be counted from 17.12.2007 and accordingly direct the respondents to pay all arrears of amount to the petitioner, within a time stipulated by this Court.

                                       For Petitioner    : Mr.C.Kishore

                                       For Respondents : Mr.Veera Kathiravan
                                                        Senior Standing Counsel
                                                        Assisted by
                                                        Mr.K.S.Selvaganesan
                                                        Government Advocate

                                                    COMMON ORDER

Since the issues involved in these writ petitions are one and

the same, they are heard together and disposed of by way of this

common order.

2. According to the petitioners, their names were sponsored

by the Employment Exchange and they were appointed as Drivers

in Mobile Medical Units on consolidated basis after following the

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procedure on 07.12.2007, 18.03.2008, 18.03.2008, 04.08.2009,

04.08.2009, 24.10.2008, 29.02.2008 and 04.08.2009 respectively.

The petitioners were appointed in the regular vacancy and they are

working continuously from the date of appointment and therefore,

they are entitled for regularisation. The petitioners and similarly

placed persons made several representations for regularisation

from the date of their initial appointment. On 03.10.2012, the

second respondent sent communication to the first respondent to

absorb the Drivers, like the petitioners into regular vacancies, who

were appointed through Employment Exchange and the second

respondent called for particulars of those Drivers from the

concerned Health Units for the purpose of regularization. The

Health Units sent the particulars of those Drivers, including the

petitioners to the second respondent. The second respondent, by

the proceedings, dated 19.12.2013 sent the details of Drivers,

including the petitioners to the first respondent for regularization

of their service. Subsequently, there was no progress made on the

said issue. In the meanwhile, one M.Subramani, who was

appointed in the year 2010 as a Driver on consolidated pay through

Employment Exchange, was absorbed in the existing vacancy and

https://www.mhc.tn.gov.in/judis/ W.P(MD)No.8333 of 2021 etc., batch

his service was regularized, vide G.O(Ms)No.74, Health and Family

Welfare (EAP II-2) Department, dated 27.02.2014, by the first

respondent. In G.O(Ms) No.91, Personnel and Administrative

Reforms (S) Department, dated 14.08.2015, the Government

decided to treat the temporary posts, which are in existence for

more than 5 years, as permanent posts. According to the

petitioners, they are also similarly placed persons, like

M.Subramani and hence, the Association sent representation to the

first respondent on 21.05.2018, for regularization of its members

reiterating the contents of G.O.(Ms)No.91, Personnel and

Administrative Reforms (S) Department, dated 14.08.2015. While

so, the petitioners and others filed writ petition in W.P(MD)No.4162

of 2019, for regularizing their service. This Court, by order dated

22.03.2019, disposed of the said writ petition recording the

submission of the learned Special Government Pleader that the

proposal to absorb the petitioners, who are working as Drivers in

the existing vacancy is under favourable consideration and

appropriate decision would be taken within a period of twelve

weeks. The respondents did not pass orders within the time limit

granted by this Court. Hence, the petitioners filed contempt

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petition in Cont.P.(MD)No.207 of 2020. When the contempt

petition was taken up for hearing, the first respondent produced

the Government Order in G.O(Ms)No.69, Health and Family Welfare

(AB1) Department, dated 25.02.2020, and submitted that the

Government decided to absorb 58 Mobile Medical Unit Drivers,

including the petitioners, by relaxing Rule 4 for category 15 of

Branch-V Miscellaneous of the Special Rules for the Tamil Nadu

Medical Subordinate Services. Recording the same, the said

contempt petition was closed. Consequent to the said Government

Order, the second respondent issued proceedings, dated

06.03.2020, appointing the petitioners and others in the post of

Drivers in the existing vacancy in the various Primary Health

Centres with effect from the date of joining their duty. The

petitioners have come out with the present writ petitions

challenging the portion of the Government Order regularising their

service from the date of joining in the year 2020 and not from the

date of their initial appointment.

3. The learned counsel appearing for the petitioners

submitted that the petitioners are entitled to be regularised from

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the date of their initial appointment and in any event, on

completion of three years of service. One of the Drivers viz.,

M.Subramani, who was appointed on consolidated pay in the year

2010, much later than the appointment of petitioners, was

regularised in the year 2014 itself. The Government in G.O.(Ms)No.

91, Personnel and Administrative Reforms (S) Department, dated

14.08.2015, decided to treat the temporary posts, which are in

existence for more than 5 years, as permanent posts. In view of the

above, the learned counsel appearing for the petitioners prayed for

allowing these writ petitions.

4. The second respondent filed counter affidavit. The learned

Senior Standing Counsel appearing for the respondents submitted

that the request of the petitioners were considered on merits and

they were regularised by G.O(Ms)No.69, Health and Family Welfare

(AB1) Department, dated 25.02.2020, by relaxing Rule 4 for

category 15 of Branch-V Miscellaneous of the Special Rules for the

Tamil Nadu Medical Subordinate Services, relating to age

qualification, subject to the condition that the Director of Public

Health and Preventive Medicine should ensure that 58 Drivers have

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been recruited through employment exchange. The petitioners

were regularised by relaxing age and qualification and as per the

Government Order, the second respondent issued appointment

orders to the petitioners, which is valid and legal. The petitioners,

who were appointed temporarily on consolidated pay are not

entitled for regularisation from the date of their initial

appointment. The benefits are given from the date of

regularisation i.e., from the year 2020. The petitioners are not

entitled for retrospective regularisation. As per the Judgment of

the Full Bench of this Court in S.Dhanasekaran & 24 others vs.

Government of Tamil Nadu reported in 2013(6) CTC 593, the

petitioners are not entitled for retrospective regularization from

the initial date of joining. In support of his contention, the learned

Senior Standing Counsel relied on paragraph 28(iii) of the said

judgment, which reads as under: -

“28(iii). Those Sanitary Workers, who were appointed as per G.O.Ms.No.101, Municipal Administration and Water Supply Department, dated 30.04.1997 or absorbed as per G.O.Ms.No.71, Municipal Administration and Water Supply Department, dated 05.05.1998, are all governed by G.O.Ms.No.21, Municipal Administration and Water

https://www.mhc.tn.gov.in/judis/ W.P(MD)No.8333 of 2021 etc., batch

Supply Department, dated 23.02.2006, in respect of their regularisation in service and such regularisation shall take effect only from 23.02.2006 and not from the date on which they had completed three years of service from the date of their initial entry into service.”

The service of the Drivers mentioned by the petitioners were

regularised only from the date of Government Order and not from

the date of their initial appointment. In view of the same, the

petitioners are not entitled for regularisation from the date of their

initial appointment and prayed for dismissal of the writ petitions.

5. Heard the learned counsel appearing for the petitioners

and the learned Senior Standing Counsel appearing for the

respondents and perused the entire materials available on record.

6. From the materials on record and the submissions of the

learned counsel appearing for the petitioners and the learned

Senior Standing Counsel appearing for the respondents, it is seen

that the petitioners were appointed after their names being

sponsored by the Employment Exchange on consolidated pay on

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various dates from the year 2007. All the petitioners were

appointed directly on contractual basis in the regular vacancy.

They worked continuously from the date of their appointment

without any break. The petitioners and their Association made

various representations for regularisation of petitioners and

members of their Association. The second respondent, by the

communication, dated 03.10.2012, requested the first respondent

to absorb the petitioners and others into regular vacancy. After the

filing of the writ petitions and contempt petition, the petitioners

and others were regularised by impugned G.O.(Ms)No.69, Health

and Family Welfare (AB1) Department, dated 25.02.2020.

Consequent to the said Government order, the second respondent

issued appointment orders to the petitioners, dated 06.03.2020. It

is seen that by G.O.(Ms)No.74, Health and Family Welfare (EAP

II-2) Department, dated 27.02.2014, one M.Subramani, who was

appointed on 03.11.2010, was regularised in the year 2014 itself.

The respondents have not given any reason for not regularising the

petitioners and others, who were appointed earlier to the said

M.Subramani. Further, in G.O.(Ms).No.91, Personnel and

Administrative Reforms (S) Department, dated 14.08.2015, the

https://www.mhc.tn.gov.in/judis/ W.P(MD)No.8333 of 2021 etc., batch

Government decided to treat the temporary posts, which are in

existence for more than 5 years as permanent posts. The

Government has not considered the above facts, when the

impugned Government Order was passed.

7. Considering the above facts, the portion of the Government

Order insofar as effecting the date of the petitioners' regular

employment alone is set aside. The petitioners have given various

representations to the first respondent. Therefore, the first

respondent is directed to consider the representations of the

petitioners taking into consideration the letter of the second

respondent, dated 03.10.2012 by proceedings in R.No.

67598/PHC7/A3/2007, seeking earlier order for absorption,

regularisation of service of M.Subramani in the year 2014 by G.O.

(Ms)No.74, Health and Family Welfare (EAP II-2) Department,

dated 27.02.2014 and G.O.(Ms).No.91, Personnel and

Administrative Reforms (S) Department, dated 14.08.2015 and pass

orders on merits and in accordance with law, within a period of

twelve (12) weeks from the date of receipt of a copy of this order.

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8. With the above directions, all the writ petitions are

disposed of. No costs. Consequently, connected miscellaneous

petitions are closed.

16.07.2021 Index:Yes/No Internet:Yes/No am

To

1.The Secretary, Health and Family Welfare Department, St. George Fort, Chennai-600 009.

2.The Director of Public Health and Preventive Medicines O/o.No.359, Anna Salai, D.M.S.Compound, Chennai-600 006.

https://www.mhc.tn.gov.in/judis/ W.P(MD)No.8333 of 2021 etc., batch

V.M.VELUMANI,J., am

W.P.(MD)Nos.8333, 8334, 8335, 8336, 8337, 8338, 8339 and 8341 of 2021

16.07.2021

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