Madras High Court
J.Gayathiri vs The State Of Tamilnadu on 2 September, 2021
W.P. Nos.831, 832 & 833 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.09.2021
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P. Nos.831, 832 & 833 of 2009 and
M.P.Nos.3, 3 & 3 of 2009
J.Gayathiri ... Petitioner in WP.No.831/2009
S.Maheswari ... Petitioner in WP.No.832/2009
T.Thamburaj ... Petitioner in WP.No.833/2009
Vs.
1.The State of Tamilnadu,
Rep. by its Secretary to the Government,
Health and Family Welfare (L1) Department,
Fort St. George, Chennai-9.
2.The Directorate of Medical and Rural Health Services,
Rep. by its Director,
Teynampet, Chennai-6.
3.The Joint Director of Health Services,
Udhagamandalam, Nilgiris District. ... Respondents-1 to 3 in all WPs
4.B.Babu ...Respondent-4 in WP.833/2009
(R4 impleaded as per order dated 22.10.2009 in
MP.No.2/2009 in WP.833/2009)
https://www.mhc.tn.gov.in/judis/
W.P. Nos.831, 832 & 833 of 2009
Common Prayer: Writ Petitions filed under Article 226 of the Constitution of
India praying to Writ of Certiorarified Mandamus calling for the records relating
to the order made in Ref.No.SP1/E2/2008 dated 09.01.2009 passed by the 3rd
respondent and quash the same and consequently forbear the respondents from
terminating the petitioners from service.
For Petitioners : Mr.G.Ethirajulu
(In all WPs)
For Respondents : Mr.C.Selvaraj (R1 to R3)
(In all WPs) Government Advocate
No Appearance (R4)
(W.P.No.833 of 2009)
COMMON ORDER
Heard Mr.G.Ethirajulu, learned counsel for the petitioners and
Mr.C.Selvaraj, learned Government Advocate for R1 to R3.
2. All the three writ petitioners challenge communication dated
09.01.2009. The background of the matter is as follows:
(i) The petitioners had completed their plus two and thereafter have
enrolled themselves in the District Employment Exchange. Pending consideration
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W.P. Nos.831, 832 & 833 of 2009
of their applications by the Employment Exchange they had qualified as
pharmacists.
(ii) With the issuance of G.O.(Ms.)No.630, Health and Family Welfare
(L1) Department dated 22.12.1997 and subsequent G.O.(Ms).No.191 dated
14.06.2000, a direction was issued by the Director of Medical and Rural Health
Services in proceedings bearing reference No.91319/E5/2/08 dated 12.12.2008 to
all Joint Directors of Health Services in the State to fill up the posts of pharmacist
in the various districts on or before 31.12.2018. Out of a total number of 105 posts
of pharmacists in the State, 3 enured to the Nilgiris District.
(iii) The third respondent i.e. The Joint Director of Health Services called
the petitioners for interviews held on 29.12.2008 and temporarily appointed the
petitioners for a period of two years under a scale of pay Rs.4500-125-7000 as
pharmacists in the Government Hospital, Kothagiri, Nilgiris District. The
petitioners have joined duty thereafter and are presently serving there.
3. While this is so, W.P.(MD).Nos.11674 and 11408 of 2008 came to be
filed by the Thoothukudi Mavatta Velaivaipatra Marunthalunargal Sangam
challenging G.O.(Ms).No.630 dated 22.12.1997 and G.O.(Ms)No.191 dated
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W.P. Nos.831, 832 & 833 of 2009
14.06.2000, benefit of which had enured to the petitioners in obtaining their
employment. It is consequent upon the filing of the above writ petitions, the
impugned communication has been issued to the petitioners stating as follows:
'In W.P.(MD).No.11674 & 11408 of 2008 The Madurai Bench of
Madras High Court have issued orders regarding appointments for the post
of Pharmacists, as per the reference cited.
The copy of the orders of the Madurai Bench is awaited from the
Director of Medical and Rural Health Services, Chennai-6. The candidates
appointed as Pharmacists in this office appointment order dt. 30.12.2008
are hereby informed that their appointment is subject to the directions and
judgment of the High Court (Madurai Bench of Madras High Court) and
that the orders of the High Court will be implemented immediately on
receipt. The candidates are also informed that their appointments is likely
to be cancelled and/or the temporary services are liable to be terminated at
any time.
4. Apprehending disturbence of the petitioners employment, present writ
petitions have come to be filed.
5. Pending this writ petition, the two writ petitions filed by the Sangam
have come to be closed as infructuous on 27.10.2009 and with the closure of the
aforesaid writ petitions, the threat posed by filing of the same ceases to exist and
the cause of action in this writ petition evaporates. The petitioners are thus not
prejudiced in any event from 27.10.2009.
https://www.mhc.tn.gov.in/judis/
W.P. Nos.831, 832 & 833 of 2009
6. M.P.Nos.2,2 and 2 of 2009 in W.P.Nos.831 to 833 of 2009 had come
to be filed by one Mr.B.Babu, who had sought to implead himself in the present
case. The implead applicaions have come to be dismissed in W.P.Nos.831 & 832
of 2009. However, Mr.Babu was impleaded as the 4th respondent in W.P.No.833 of
2009 and though the name of M/s.Lenin & Bhagya is printed in the cause list as
representing him, he is unrepresented.
7. The petitioners have been favoured with an interim injunction
protecting their employment for all the intervening years and the interim injunction
granted originally has also been made absolute on 06.01.2010, this Court stating as
follows:
M.P Nos.1, 1 and 1 of 2009 in W.P. Nos.831 to 833 of 2009 are filed
seeking injuction restraining the respondents from terminating the service of the
petitioners who are working as pharmascists in Government hospitals.
2. Writ Petitions are filed challenging the order dated 09.01.2009
wherein it is stated that with regard to filling the vacancies in the post of
pharmacists, W.P. Nos.11674 and 11408 of 2008 are pending before the Madurai
Bench of Madras High Court and the appointment of the petitioners as
Pharmacists depends upon the result of the said writ petitions. It is further stated
in the impugned order that the appointment of the petitioners is likely to be
cancelled or the petitioners are liable to be terminated. Aggrieved by this, the
petitioners have filed these writ petitions.
3.According to the learned Government Advocate, in spite of the
pendency of the issue before the Madurai Bench of the Madras High Court, the
petitioners were appointed.
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W.P. Nos.831, 832 & 833 of 2009
4.But, the order passed by the Madurai Bench is enclosed at page no.29
of the typed set of papers. The date of the order is 06.01.2009. But, the petitioners
were appointed by the order dated 30.12.2008 i.e. Prior to the interim orders
granted by the Madurai Bench of this Court. Consequently, this argument of the
learned Government Advocate will not hold good.
5.Besides, according to the learned Government Advocate, the
appointment of the petitioners as Pharmacists is prima facie wrong. But, a
perusal of G.O. (Ms.) No. 328, Health and Family Welfare (C1) Department
dated 08.10.2009 reveals that based on the orders passed by the Hon'ble Apex
Court in filling the vacancies in the post of Secondary Grade Assistants, a
decision has been taken by the Government to follow the State seniority in filling
the vacancies in the post of pharmacists. But, as far as this Government is
concerned, the date of the same is 08.10.2009. But, long prior to this, the
petitioners were appointed as Pharmacists.
6. As far as the impleaded fourth respondent is concerned, according to
him, he is senior to the petitioners in registration in employment exchange; in
spite of it, overlooking his claim, the petitioners were appointed.
If the fourth respondent is having any grievance with regard to the
appointment of the petitioners, he should have challenged that order. But,
unfortunately, their appointment is not challenged by the fourth respondent
before any Court. Since the petitioners are holding the post from 2008 and since
the impugned orders have been passed based on the orders which were passed
subsequent to the appointment of the petitioners, I am of the opinion that the
petitioners are entitled to the relief sought in these Miscellaneous Petitions.
Hence, the interim order already granted is made absolute.
8. In the light of the narration as above, I reiterate the position that there
is no threat posed to the employment of the petitioners as pharmacists by reason of
the impuned communication dated 09.01.2009 and thus nothing survives in these
writ petitions and the same are closed. Connected miscellaneous petitions are
closed. No costs.
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W.P. Nos.831, 832 & 833 of 2009
9. Learned counsel for the petitioner would also raise some issues in
regard to the regularisation of the employment of the petitioners. He would state
that it is high time that the services of the petitioner were regularised seeing as
they have been in service since the year 2008. The petitioners may well raise this
issue before the respondents, who will consider the requests, if and when made, in
accordance with law, bearing in mind the length of service put in by the
petitioners.
02.09.2021
ska
Index: Yes
Speaking order
To
1.The State of Tamilnadu,
Rep. by its Secretary to the Government,
Health and Family Welfare (L1) Department,
Fort St. George, Chennai-9.
2.The Directorate of Medical and Rural Health Services,
Rep. by its Director,
Teynampet, Chennai-6.
3.The Joint Director of Health Services,
Udhagamandalam, Nilgiris District.
https://www.mhc.tn.gov.in/judis/
W.P. Nos.831, 832 & 833 of 2009
Dr.ANITA SUMANTH,J.
Ska
W.P. Nos.831, 832 & 833 of 2009 and
M.P.Nos.3, 3 & 3 of 2009
02.09.2021
https://www.mhc.tn.gov.in/judis/
