Madras High Court
M.Vanarani vs The Chief Engineer [Personnel on 22 August, 2023
WP.No.38907/2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 22.08.2023
CORAM
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
WP.No.38907/2016
& WMP.No.33328/2016
M.Vanarani ... Petitioner
Versus
1.The Chief Engineer [Personnel]
Tamil Nadu Generation & Distribution
Limited, [TANGEDCO], No.144,
Anna Salai, Chennai 600 002.
2.The Superintending Engineer
Tamil Nadu Generation & Distribution
Limited, [TANGEDCO], Generation Circle
Kadamparai, Attakatti, Minparai 642 101.
3.The Chief Medical Officer
Headquarters Dispensary
Tamil Nadu Generation & Distribution
Limited, [TANGEDCO],
No.144, Anna Salai, Chennai 600 002. ... Respondents
Prayer : - Writ Petition filed under Article 226 of the Constitution of
1
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India praying for issuance of a writ of mandamus directing the 2 nd
respondent not to disengage the service of the petitioner without following
due process of law.
For Petitioner : Mr.V.Stalin
For Respondents : Mr.David Sundar Singh
Standing counsel
ORDER
(1) The writ petition has been filed in the nature of a mandamus seeking
a direction to the 2nd respondent, the Superintending Engineer, Tamil
Nadu Generation and Distribution Corporation Limited
[TANGEDCO], Kadamparai at Attakatti, Minparai-642 101, not to
disengage the services of the petitioner without following the due
process of law.
(2) I really wonder as to how the writ petition is maintainable as this
Court can never thrusts an employee on any employer and further
direct that the employer should never disengage the services of the
employee. The employer/employee must follow the Rule of law. The
respondents have followed the Rule of law. The only Rule of law
which they had apparently insisted on was that the petitioner should
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get herself qualified in any one of the recognised courses, namely, 4
years B.Sc. Nursing Course, 3 Years Diploma in Nursing and 2 years
Diploma in Auxillary Nurse Midwife If the petitioner had voluntarily
comes forward to undergo any one of those courses, then she would
have a reasonable right to claim that she should not be disengaged.
The petitioner has a Certificate issued by the Voluntary Health
Services Medical Centre, Adyar, Chennai, wherein it had been stated
that the petitioner had undergone a training as Nursing Assistant for a
period of one year between February 1990 and February 1991.
(3) It is thus seen that the petitioner had only undergone a training and
there is no formal course done by the petitioner in Nursing to function
as a Nursing Assistant. At the behest of the respondents, the
petitioner had been engaged to perform the work of Nursing
Assistant. But, it was not a regular employment. It was only on
contractual basis for a period of one year. The original appointment
was on 23.06.2010. Subsequently, it had been renewed year after
year.
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(4) In the meanwhile, a communication had been directed to the
respondents directing that anybody who is to work as Nursing
Assistant in TANGEDCO, has to be outsourced for that particular
post, but must have undergone any one of the above mentioned
courses.
(5) It is the grievance of the learned counsel for the petitioner that this
Court had assumed that it was a communication to the petitioner but
that it was only an internal communication. This is all the more the
reason to hold that the petitioner had no cause for filing this writ
petition since there was no order against the petitioner herein. But, if
there is a necessity that the petitioner should undergo any one of
those three courses, an obligation was on the petitioner to register
herself to any one of the three courses, get herself qualified and then,
continue with working, with more authority under the respondents.
As on date, her work is only temporary in nature / contractual in
nature, being renewed year after year. It had been renewed on the
basis of the interim order granted by this Court. That would not lead
the petitioner anywhere. It would not give her any permanency in
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employment.
(6) More specifically, since the petitioner had not voluntarily come
forward to join any one of the three courses, there could not be any
regularisation of the services of the petitioner.
(7) The petitioner as Nursing Assistant, would be involved in extending
her assistance in medical treatment of patients who require emergency
treatments. At that particular point of time, if she is not suitably
qualified, then it is the patients who will suffer. The petitioner cannot
therefore, be kept on a different pedestal and merely because she had
been offered employment on contractual basis seek a direction that
this Court shall regularize her services.
(8) The learned counsel for the petitioner placed reliance on a judgment
of a learned Single Judge of this Court in a batch of writ petitions in
WP.No.29545/2012 etc batch [Dr.Arockia Doss Vs. The Union of
India, rep.by its Joint Secretary [Languages], Department of
Higher Education, Ministry of Home Resource Development,
Government of India, New Delhi and Others]. The relief sought for
in those writ petitions was questioning a Notification issued for
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appointment to various posts in the Central Institute of Classical
Tamil. A further relief was sought for regularization of services of the
petitioners therein.
(9) The petitioners therein had been working without being regularised in
the Central Institute of Classical Tamil. An Advertisement was
published calling for appointment to various posts such as Professor,
Reader, Lecturer, Junior Research Officer on the academic side and
also for various posts on the non-academic side. The petitioners
therein had filed writ petitions complaining that their services should
be regularised and they should not be ousted. In the very same
judgment, there had been references to the pronouncements of the
Hon'ble Supreme Court with respect to appointments made in
transgression of recruitment rules.
(10) Let me quote from the very same judgment, paragraphs No.14[a] to
14[g]:-
''14.The learned counsel would rely upon the
following decisions of the Hon'ble Supreme Court of
India, in support of his contentions and to resist the
grant of any relief to the petitioners herein.
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a)"(2006) 4 SCC 1 (Secretary, State of
Karnataka and others versus Umadevi and others)".
In this landmark judgment, the Constitution Bench has
held that however long employment may continue
whether on temporary, contractual, casual, daily-wage
or ad hoc basis, if the appointment is outside the
constitutional scheme of public employment, cannot be
regularized merely on the basis of continuous for a
long period. According to the Hon'ble Supreme Court,
even if any such regularization is granted, that would
defeat social justice, equal opportunity for all and the
constitutional scheme of public employment.
b)"(2006) 5 SCC 493 (National Fertilizers Ltd.
and others versus Somvir Singh)" wherein, the
Hon'ble Supreme Court has held that appointments
made in transgression of recruitment rules, cannot be
valid and the question of regularization does not arise
in such cases.
c)"(2007) 9 SCC 337 (Punjab State
Warehousing Corpn., Chandigarh versus Manmohan
Singh and another)", wherein, the Honble Supreme
Court has held that a person who was illegally
appointed, cannot stake claim for regular appointment
thereafter as that would be against law laid down by
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the Hon'ble Supreme Court in 'Umade Devi' case as
cited supra.
d) "2008 (10) SCC 1 (Official Liquidator versus
Dayanand and others)", wherein, the Hon'ble Supreme
Court has held that after the law laid down in 'Umade
Devi' case, any appointment made contrary to the
recruitment rules, cannot be regularized as that would
encourage back door entry in public employment.
e)"(2009) 13 SCC 90 (Harminder Kaur and
others versus Union of India and others)". In this
case also, the Hon'ble Supreme Court relied upon the
law laid down in Uma Devi case and refused to grant
relief of regularization.
f) "(2014) 5 SCC 300 (Nand Kumar versus
State of Bihar and others)", wherein, the Hon'ble
Supreme Court has held that the persons who were not
appointed through a proper procedure and
consequences of their appointment being temporary
which was within their knowledge, they cannot have a
right to invoke the theory of legitimate expectation for
being confirmed in the posts. The Supreme Court has
refused to grant regularization as there were no Rules
or Regulations governing the appointment of casual
employees therein.
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g) ''(1992) 4 SCC 99 (Delhi Development
Horticulture Employees Union versus Delhi
Administration & others)''. In this case, the workers
were employed under the scheme ''Jawahar Rozgar
Yojna'' by the District Rural Development Agency
(DRDA), a registered autonomous society. The
Hon'ble Supreme court has held that the workers have
no right to claim regularization of their service
because of completion of 240 or more days of work and
that indiscriminate regularization jeopardizes public
interest.''
(11) In the very same judgment, in paragraph No.16, the judgment which
had been relied on by the learned counsel who appeared for the
petitioners therein had also been reduced and let me also extract that
particular paragraph also:-
''16.Per contra, Mr.N.G.R.Prasad, learned
counsel appearing for the petitioners would strongly
place reliance on the judgment of the Hon'ble Supreme
Court reported in #2013(5) LLN 109 (SC) = 2013 (14)
SCC 65 (Nihal Singh versus State of Punjab)#. He
would draw the attention of this Court particularly to
paragraphs 19 to 36, which are extracted hereunder:
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''19. Coming to the judgment of the division
bench of the High Court of Punjab & Haryana in LPA
No.209 of 1992 where the claims for regularization of
the similarly situated persons were rejected on the
ground that no regular cadre or sanctioned posts are
available for regularization of their services, the High
Court may be factually right in recording that there is
no regularly constituted cadre and sanctioned posts
against which recruitments of persons like the
appellants herein were made. However, that does not
conclusively decide the issue on hand. The creation of
a cadre or sanctioning of posts for a cadre is a matter
exclusively within the authority of the State. That the
State did not choose to create a cadre but chose to
make appointments of persons creating contractual
relationship only demonstrates the arbitrary nature of
the exercise of the power available under section 17 of
the Act. The appointments made have never been
terminated thereby enabling various banks to utilize
the services of employees of the State for a long period
on nominal wages and without making available any
other service benefits which are available to the other
employees of the State, who are discharging functions
similar to the functions that are being discharged by
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the appellants.
20. No doubt that the powers under section 17
are meant for meeting the exigencies contemplated
under it, such as, riot or disturbance which are
normally expected to be of a short duration. Therefore,
the State might not have initially thought of creating
either a cadre or permanent posts.
21.But we do not see any justification for the
State to take a defence that after permitting the
utilisation of the services of large number of people
like the appellants for decades to say that there are no
sanctioned posts to absorb the appellants. Sanctioned
posts do not fall from heaven. State has to create them
by a conscious choice on the basis of some rational
assessment of the need.
22.The question is whether this court can compel
the State of Punjab to create posts and absorb the
appellants into the services of the State on a permanent
basis consistent with the Constitution Bench decision of
this court in Umadevi#s case. To answer this question,
the ratio decidendi of the Umadevi#s case is required
to be examined. In that case, this Court was
considering the legality of the action of the State in
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resorting to irregular appointments without reference
to the duty to comply with the proper appointment
procedure contemplated by the Constitution.
''4....The Union, the States, their departments
and instrumentalities have resorted to irregular
appointments, especially in the lower rungs of
the service, without reference to the duty to
ensure a proper appointment procedure
through the Public Service Commissions or
otherwise as per the rules adopted and to
permit these irregular appointees or those
appointed on contract or on daily wages, to
continue year after year, thus, keeping out
those who are qualified to apply for the post
concerned and depriving them of an
opportunity to compete for the post. It has also
led to persons who get employed, without the
following of a regular procedure or even
through the backdoor or on daily wages,
approaching the courts, seeking directions to
make them permanent in their posts and to
prevent regular recruitment to the posts
concerned. The courts have not always kept the
legal aspects in mind and have occasionally
even stayed the regular process of employment
being set in motion and in some cases, even
directed that these illegal, irregular or
improper entrants be absorbed into service. A
class of employment which can only be called
''litigious employment'', has risen like a phoenix
seriously impairing the constitutional scheme.
Such orders are passed apparently in exercise
of the wide powers under Article 226 of the
Constitution. Whether the wide powers under
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Article 226 of the Constitution are intended to
be used for a purpose certain to defeat the
concept of social justice and equal opportunity
for all, subject to affirmative action in the
matter of public employment as recognised by
our Constitution, has to be seriously pondered
over.''(emphasis supplied)
23.It can be seen from the above that the entire
issue pivoted around the fact that the State initially
made appointments without following any rational
procedure envisaged under the Scheme of the
Constitution in the matters of public appointments.
This court while recognising the authority of the State
to make temporary appointments engaging workers on
daily wages declared that the regularization of the
employment of such persons which was made without
following the procedure conforming to the requirement
of the Scheme of the Constitution in the matter of
public appointments cannot become an alternate mode
of recruitment to public appointment. It was further
declared that the jurisdiction of the Constitutional
Courts under Article 226 or Article 32 cannot be
exercised to compel the State or to enable the State to
perpetuate an illegality. This court held that
compelling the State to absorb persons who were
employed by the State as casual workers or daily-wage
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workers for a long period on the ground that such a
practice would be an arbitrary practice and violative
of Article 14 and would itself offend another aspect of
Article 14 i.e. the State chose initially to appoint such
persons without any rational procedure recognized by
law thereby depriving vast number of other eligible
candidates who were similarly situated to compete for
such employment.
24.Even going by the principles laid down in
Umadevi's case, we are of the opinion that the State of
Punjab cannot be heard to say that the appellants are
not entitled to be absorbed into the services of the State
on permanent basis as their appointments were purely
temporary and not against any sanctioned posts
created by the State.
25.In our opinion, the initial appointment of the
appellants can never be categorized as an irregular
appointment. The initial appointment of the appellants
is made in accordance with the statutory procedure
contemplated under the Act. The decision to resort to
such a procedure was taken at the highest level of the
State by conscious choice as already noticed by us. The
High Court in its decision in LPA No.209 of 1992
recorded that the decision to resort to the procedure
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under section 17 of the Act was taken in a meeting
dated 24.3.1984 between the Advisor to the
Government of Punjab and senior officers of the
various Banks in the public sector. Such a decision was
taken as there was a need to provide necessary security
to the public sector banks. As the State was not in a
position to provide requisite police guards to the
banks, it was decided by the State to resort to section
17 of the Act. As the employment of such additional
force would create a further financial burden on the
State, various public sector banks undertook to take
over the financial burden arising out of such
employment. In this regard, the written statement filed
before the High Court in the instant case by respondent
nos.1 to 3 through the Assistant Inspector General of
Police (Welfare & Litigation) is necessary to be
noticed. It is stated in the said affidavit:
''2.That in meeting of higher officers held
on 27.3.1984 in Governor House Chandigarh
with Shri Surinder Nath, IPS, Advisor to
Governor of Punjab, in which following
decisions were taken:-
i) That it will not be possible to provide
police guard to banks unless the Banks were
willing to pay for the same and additional force
could be arranged on that basis, it was decided
that police guards should be requisitioned by
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the Banks for their biggest branches located at
the Distt. and Sub Divisional towns. They
should place the requisition with the Distt.
SSPs endorsing a copy of IG CID. In the
requisition, they should clearly state that the
costs of guard would be met by them. It will
then be for the police department to get
additional force sanctioned. This task should be
done on a top priority. In the meantime
depending upon the urgency of the need of any
particular branch, police Deptt. may provide
from police strength for its protection.
ii) For all other branches guards will be
provided by Distt. SSP after selecting suitable
ex-servicemen or other able bodied persons
who will be appointed as Special Police Officer
in terms of Section 17 of the Police Act.
Preference may be given to persons who may
already be in possession of licence weapons.
All persons appointed as SPO for this purpose
will be given a brief training for about 7 days
in the Police Lines in the handling of weapons
taking suitable position for protection of
branches. These SPOs will work under the
discipline and control and as per Police Act,
they will have the same powers, privileges and
protection and shall be amenable to same
penalty as an ordinary police personnel.''
26. It can be seen from the above that a selection
process was designed under which the District Senior
Superintendent of Police is required to choose suitable
ex-servicemen or other able bodied persons for being
appointed as Special Police Officers in terms of section
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17 of the Act. It is indicated that the persons who are
already in possession of a licensed weapon are to be
given priority.
27.It is also asserted by the appellants that
pursuant to the requisition by the police department
options were called upon from ex- servicemen who
were willing to be enrolled as Special Police Officer
(SPOs) under section 17 of the Police Act, 1861.[3]
28.Such a procedure making recruitments
through the employment exchanges was held to be
consistent with the requirement of Articles 14 and 16 of
the Constitution by this Court in Union of India and
Ors. v. N. Hargopal and Ors. (1987) 3 SCC 308.[4]
29.The above mentioned process clearly
indicates it is not a case where persons like the
appellants were arbitrarily chosen to the exclusion of
other eligible candidates. It required all able bodied
persons to be considered by the SSP who was charged
with the responsibility of selecting suitable candidates.
30.Such a process of selection is sanctioned by
law under section 17 of the Act. Viewed in the context
of the situation prevailing at that point of time in the
State of Punjab, such a process cannot be said to be
irrational. The need was to obtain the services of
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persons who had some experience and training in
handling an extraordinary situation of dealing with
armed miscreants.
31.It can also be noticed from the written
statement of the Assistant Inspector General of Police
(Welfare & Litigation) that preference was given to
persons who are in possession of licensed weapons.
The recruitment of the appellants and other similarly
situated persons was made in the background of
terrorism prevailing in the State of Punjab at that time
as acknowledged in the order dated 23.4.2002 of the
SSP. The procedure which is followed during the
normal times of making recruitment by inviting
applications and scrutinising the same to identify the
suitable candidates would itself take considerable time.
Even after such a selection the selected candidates are
required to be provided with necessary arms and also
be trained in the use of such arms. All this process is
certainly time consuming. The requirement of the State
was to take swift action in an extra-ordinary situation.
32.Therefore, we are of the opinion that the
process of selection adopted in identifying the
appellants herein cannot be said to be unreasonable or
arbitrary in the sense that it was devised to eliminate
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other eligible candidates. It may be worthwhile to note
that in Umadevi#s case, this Court was dealing with
appointments made without following any rational
procedure in the lower rungs of various services of the
Union and the States.
33.Coming to the other aspect of the matter
pointed out by the High Court - that in the absence of
sanctioned posts the State cannot be compelled to
absorb the persons like the appellants into the services
of the State, we can only say that posts are to be
created by the State depending upon the need to
employ people having regard to various functions the
State undertakes to discharge.
''Every sovereign Government has within
its own jurisdiction right and power to create
whatever public offices it may regard as
necessary to its proper functioning and its own
internal administration''
34.It is no doubt that the assessment of the need
to employ a certain number of people for discharging a
particular responsibility of the State under the
Constitution is always with the executive Government
of the day subject to the overall control of the
Legislature. That does not mean that an examination
by a Constitutional Court regarding the accuracy of
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the assessment of the need is barred. This Court in S.S.
Dhanoa v. Union of India (1991) 3 SCC 567 did
examine the correctness of the assessment made by the
executive government. It was a case where Union of
India appointed two Election Commissioners in
addition to the Chief Election Commissioner just
before the general elections to the Lok Sabha.
Subsequent to the elections, the new government
abolished those posts. While examining the legality of
such abolition, this Court had to deal with an
argument[6] whether the need to have additional
commissioners ceased subsequent to the election. It
was the case of the Union of India that on the date
posts were created there was a need to have additional
commissioners in view of certain factors such as the
reduction of the lower age limit of the voters etc. This
Court categorically held that ''The truth of the matter
as is apparent from the record is that.....there was no
need for the said appointments...''.
35.Therefore, it is clear that the existence of the
need for creation of the posts is a relevant factor
reference to which the executive government is
required to take rational decision based on relevant
consideration. In our opinion, when the facts such as
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the ones obtaining in the instant case demonstrate that
there is need for the creation of posts, the failure of the
executive government to apply its mind and take a
decision to create posts or stop extracting work from
persons such as the appellants herein for decades
together itself would be arbitrary action (inaction) on
the part of the State.
36.The other factor which the State is required to
keep in mind while creating or abolishing posts is the
financial implications involved in such a decision. The
creation of posts necessarily means additional
financial burden on the exchequer of the State.
Depending upon the priorities of the State, the
allocation of the finances is no doubt exclusively within
the domain of the Legislature. However in the instant
case creation of new posts would not create any
additional financial burden to the State as the various
banks at whose disposal the services of each of the
appellants is made available have agreed to bear the
burden. If absorbing the appellants into the services of
the State and providing benefits at par with the police
officers of similar rank employed by the State results in
further financial commitment it is always open for the
State to demand the banks to meet such additional
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burden. Apparently no such demand has ever been
made by the State. The result is- the various banks
which avail the services of these appellants enjoy the
supply of cheap labour over a period of decades. It is
also pertinent to notice that these banks are public
sector banks. We are of the opinion that neither the
Government of Punjab nor these public sector banks
can continue such a practice consistent with their
obligation to function in accordance with the
Constitution. Umadevi's judgment cannot become a
licence for exploitation by the State and its
instrumentalities.''
(12) Thereafter, the learned Single Judge had observed in paragraph No.20
that after many years from the date of initial appointment, the right
which had accrued to the petitioners cannot be taken away. It had
been stated that the Rules which had been brought in after the
petitioners had been employed will only have prospective application
for future appointment and cannot be used as a yardstick for deciding
the correctness of appointment of the petitioners. The learned Judge
had observed as follows:-
''20.......Any subsequent development that too
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after many years from the date of initial appointment of
the petitioners, cannot take away the accrued rights of
the petitioners for continuing in their employment. The
Rules which were brought in 2013 can at best have a
prospective application for future appointment and the
same cannot be used as yardstick for deciding the
correctness of the appointment of these petitioners
which had taken place much earlier to coming into
force of the present Recruitment Rules. In the above
circumstances, the arguments advanced by the learned
counsel, Shri N.G.R.Prasad would assume larger legal
significance in favour of the writ petitioners,
particularly, the legal dictum expressed by the Hon'ble
Supreme Court of India, in the matter of ''Nihal Singh
versus State of Punjab)'' (cited supra), which judgment
has been extracted in extenso supra. The observations
made by the Hon'ble Supreme Court in the said
judgment would squarely apply to the factual matrix of
the present case.''
(13) Thereafter, the learned Judge also examined the communication
which had been issued in the year 2017 whereby there was a
recommendation that temporary posts can be converted into
permanent posts in the very same Institution. Therefore, an argument
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was placed before the Court that the petitioners therein should be
favourably considered in accordance with the said communication of
the year 2017. On the basis of that particular argument advanced, the
learned Judge had further observed as follows:-
''21..... This Court does not find any impediment
in taking forward such proposal and as far as these
writ petitioners are concerned. There are only 13
employees before this Court, out of which, 8 are on
academic side and 5 are on non-academic side and
admittedly, these persons have been continued since
their initial appointment from 2007 onwards. As
rightly contended by the learned counsel for the
petitioners that the case was relied upon by the learned
counsel for the respondents 3 and 4 would assume
legal significance only when there were Recruitment
Rules in force and such Recruitment Rules were not
followed while making appointments. In the absence of
Recruitment Rules, the appointment of the writ
petitioners which were made by a due selection
process, cannot either be termed as illegal or irregular
and therefore, catena of decisions relied upon by the
learned counsel for the respondents 3 and 4 cannot be
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of any help to him for advancing his case as against the
writ petitioners. On the other hand, the writ petitioners
have made out a case for grant of relief as prayed for.''
(14) It was only on that ground, that the Court had directed that the claim
of the petitioners therein for regularization should be taken into
consideration particularly because of the communication which had
been issued by the respondents themselves in the year 2017.
(15) The facts in the present case are entirely different. The petitioner had
been appointed after an interview conducted. The initial appointment
was only for one year. After every year, the respondents had been
extending the period of employment which itself shows that the
respondents had the right to terminate the employment, but had
exercised the discretion to extend the employment. That does not
give any vested right to the petitioner herein. She had not been in
continuous employment and cannot be considered as an employee
with continuous period of service. It was all dependent on the
extension given by the respondents. She could not as a matter of
right step into the next year, but should await orders of extension of
service. Therefore, on the facts itself, the case of the present writ
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petitioner is clearly distinguishable from the facts of the case referred
to above.
(16) Further, in the said case, which had been relied upon by the learned
counsel, there had been a communication in the year 2017 wherein a
proposal was mooted out to regularise the service of those who were
not in regular service. Therefore, taking advantage of that particular
communication, a direction was given to examine regularization of
the petitioners therein. In the instant case, if again the same ratio is to
be upheld, the communication was that, anybody who has to be
outsourced for Nursing activities by TANGEDCO, should have one
of the three qualifications which had been stated above.
(17) In the year 2016 instead of filing this writ petition, the petitioner
could have very well applied to the respondents seeking permission to
study any one of those courses. It is seen that the petitioner had
already undergone one year Diploma in training. She could have
opted for the two years Diploma and I am confident that since the
respondents had given her extension of service, they would also have
considered at that particular point of time, any request placed by her.
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On the other hand, without taking any steps to professionally upgrade
her own standards, the petitioner had come to this Court and is
surviving, not on the basis of the extension given by the respondents
or on her skills, but on the interim order granted by this Court.
(18) As stated at the very beginning, the Court never thrust any employee
on any employer. It is purely the discretion of the employer to
consider the eligibility and suitability of any employee. In the instant
case, as stated, there is no continuity of service. It was only
dependent on the extensions given by the respondents.
(19) The learned counsel for the petitioner relied on paragraph No.16 of
the judgment of the learned Single Judge, which had been extracted
above, still probably without confidence in the manner in which the
Court would examine the issues, had justified a copy of the said
judgment. The relevant portion had already been referred and since
the facts differ, the ratio therein does not apply to the facts of this writ
petition.
(20) Not only has the petitioner been led through a wrong path by the
learned counsel by filing the writ petition, she seeks to take advantage
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WP.No.38907/2016
of having gone through wrong path by insisting an order from this
Court. The option is open to the petitioner herein. She can seek, if
she is otherwise eligible and if she is otherwise qualified, to undergo
any one of the three courses. The respondents are under an obligation
to follow the Rules and guidelines. The Court can never thrust
anybody on them. If the petitioner is not suitably qualified, the
respondents can discharge her. They have every right to do so. If the
petitioner gives application undertaking to study any one of the
courses, the respondents may accept it or may not accept it. They
may also extend her services or may not extend her services. The
discretion is entirely with the respondents. The Court can never give
a direction as sought for by the petitioner that the petitioner should
never be disengaged from services by the respondents. The right to
disengage is vested with the offer of employment given by any
employer. The qualifications which an employee should possess, is
an obligation of the employee and without proper qualification, no
employee can seek a vested right to continue to work.
(21) It is also pointed out by the learned Standing counsel appearing for
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WP.No.38907/2016
the respondents that one of the conditions was to register in the
Medical Council and it is stated that such registration is required
because if any act of negligence is committed, then the responsibility
could be fixed and the act of negligence can be further probed and
action could be taken. But, if a person is not registered and still,
discharges duty as a Nurse or Nursing Assistant in a critical care
department treating patients who require emergency treatments, and is
found responsible for any negligent act, then, the respondents must
have authority to take action on such negligent act.
(22) The petitioner today is a free bird. She can take a considered decision
either to continue in employment and if she wants to continue
employment, she must get herself qualified and she must get herself
registered with the Medical Council or any other Council as
recognized by the respondents and stipulated in the Rules. If she is
not eligible to so register herself, she can always be discharged from
employment by the respondents.
(23) The argument that after the petitioner had been taken into
employment, further Rules and Regulations have been brought in by
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WP.No.38907/2016
the respondents, would not take the petitioner anywhere. She has to
apply as per Rules. No Rule can only be prospective. Every Rule
will apply to every employee who is in service. It is only a
qualification required and a qualification that the petitioner could
have joined in the year 2016 and could have obtained by the year
2018 and could have been placed happily as on date instead of
suffering an order from this Court.
(24) Options are given to the petitioner and it is for the petitioner to take
upon herself to register herself and undergo the courses and to seek
necessary permission. Again, options are with the respondents to
either to accept or not to accept any such request of the petitioner.
The relief sought for in the writ petition can never be granted.
(25) The writ petition stands dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
22.08.2023
AP
Internet : Yes
To
1.The Chief Engineer [Personnel]
https://www.mhc.tn.gov.in/judis
WP.No.38907/2016
Tamil Nadu Generation & Distribution
Limited, [TANGEDCO], No.144,
Anna Salai, Chennai 600 002.
2.The Superintending Engineer
Tamil Nadu Generation & Distribution
Limited, [TANGEDCO], Generation Circle
Kadamparai, Attakatti, Minparai 642 101.
3.The Chief Medical Officer
Headquarters Dispensary
Tamil Nadu Generation & Distribution
Limited, [TANGEDCO],
No.144, Anna Salai, Chennai 600 002.
C.V.KARTHIKEYAN, J.,
AP
https://www.mhc.tn.gov.in/judis
WP.No.38907/2016
WP.No.38907/2016
22.08.2023
https://www.mhc.tn.gov.in/judis
