Madras High Court
P. Jeyakumar vs The Secretary on 23 August, 2023
W.P(MD)Nos.2743 of 2016 and 9921 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.08.2023
CORAM:
THE HONOURABLE MR.JUSTICE BATTU DEVANAND
W.P.(MD)Nos.2743 of 2016 and 9921 of 2014
and W.M.P(MD)No.2422 of 2016
and M.P(MD)Nos. 1 and 2 of 2014
In W.P(MD)No.2743 of 2016:
P. Jeyakumar ...Petitioner
Vs.
1. The Secretary
Department of Health and
Family Welfare
Fort. St. George,
Chennai.
2. The Director of Public Health,
And Preventive Medicine,
Chepauk,
Chennai.
3. The Deputy Director of Health
Service, Nagarcoil,
Kanyakumari. ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution
of India, seeking for the issuance of Writ of Mandamus or any other
writ, order or direction in the nature of Writ directing the
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W.P(MD)Nos.2743 of 2016 and 9921 of 2014
respondents to appoint the petitioner as driver under the 3rd
respondent by considering the order of this Hon'ble Court in
W.P.No.11924 of 2011 dated 13.12.2013 as well as W.P.No.
7852/15, W.P.No.7855 of 2015 dated 06.05.2015 and pass such
further or other orders as this Hon'ble Court.
In W.P(MD)No.9921 of 2014:
P. Jeyakumar ...Petitioner
Vs.
1. The Secretary
Department of Health and
Family Welfare
Fort. St. George,
Chennai.
2. The Director of Public Health,
And Preventive Medicine,
Chepauk,
Chennai.
3. The Deputy Director of Health
Service, Nagarcoil,
Kanyakumari. ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution
of India, seeking for the issuance of Writ of Certiorarified
Mandamus calling for records in the impugned order passed by the
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W.P(MD)Nos.2743 of 2016 and 9921 of 2014
2nd respondent in Na.Ka.No.70869/AaKa Ni.7/A3/2013-2014 dated
18.03.2014 and quash the same, consequently direct the respondent
to absorb the petitioner by giving preference in regular employment
as driver in Government Health Centre, Kanyakumari District by
considering the qualification, past service and experience.
In both Writ Petitions:
For Petitioner : Mr.M.Ramu
For Respondents : Mr.A.Sivanu Pandian
Government Advocate
COMMON ORDER
Since the petitioner is one and the same and the issue is
also same in these two Writ Petitions, this Court dispose of the same
by common order.
2. Heard the learned counsel for the petitioner and the
learned Government Advocate appearing for the respondents and
perused the records.
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W.P(MD)Nos.2743 of 2016 and 9921 of 2014
3. The petitioner was appointed as Driver by the 3rd
respondent through outsourcing on 16.11.2014. As the State decided
to revoke the outsourcing appointment, terminated the service of the
petitioner. The petitioner requested the respondents to absorb him in
regular service. But, it was not considered by the respondents. The
petitioner filed a Writ Petition in W.P(MD)No.11924 of 2011
praying for a direction to give preference to him in regular
appointment as Driver in the respondent Department. The said Writ
Petition was disposed of on 13.12.2013 permitting the petitioner to
submit his application before the respondents along with the
experience certificate issued by the concerned medical officer within
a period of two weeks from the date of receipt of the copy of the
order and the fourth respondent to consider their claim even without
their names are not sponsored by the employment exchange. It is
also made it clear that since the petitioner was already engaged
through outsourcing agency and performed the duties as the Driver
etc further seniority through employment exchange is not required
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W.P(MD)Nos.2743 of 2016 and 9921 of 2014
to him insofar as the petitioner is concerned. However, the second
respondent rejected the claim of the petitioner by order dated
18.03.2014. Aggrieved by the same, the Writ Petition in
W.P(MD)No.9921 of 2014 is filed.
4. W.P(MD)No.2743 of 2016 has been filed by the
petitioner seeking a direction to the respondents to appoint the
petitioner as a Driver under the third respondent by considering the
order of this Court in W.P(MD)No.11924 of 2011 dated 13.12.2013
as well as the order dated 06.05.2015 in W.P(MD)No.7852 of 2015
and W.P(MD)No.7855 of 2015.
5. In the counter affidavit filed by the respondents in
W.P(MD)No.9921 of 2014, it is contended that outsourcing
employees are not employed by the Government. The petitioner was
engaged through outsourcing agency in which they have not
followed the recruitment rules i.e through employment exchange or
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W.P(MD)Nos.2743 of 2016 and 9921 of 2014
communal roaster. Their appointments are also made only by the
private agencies. It is also averred that the petitioner is not entitled
for the relief as per the judgment of the Hon'ble Apex Court in
Secretary State of Karnataka and other Vs. Uma Devi and
others reported in 2006 (4) SCC 1.
6. It is further contended that in pursuance of the order in
W.P(MD)No.13003 of 2008 of this Court, the Government has
passed G.O.Ms.No.(2D)56, Health and Family Welfare C2
Department dated 09.07.2012 to terminate all the outsourced
employees in a phased manner by a maximum spread over period of
one year. The petitioner worked for a limited period which was also
over in the year 2010 itself and as such, he is not entitled for
regularization of service.
7. In the counter affidavit filed in W.P(MD)No.2743 of
2016, it is the contention of the respondents that the petitioner is not
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W.P(MD)Nos.2743 of 2016 and 9921 of 2014
entitled for any preferential treatment for absorption in the service. It
is further contended that the petitioner is over aged as per rules. As
such, he is not entitled for the relief sought in this Writ Petition.
8. Heard the submissions of the learned counsel for the
petitioner and the learned Government Advocate appearing for the
respondents and perused the records.
9. The undisputed facts in the cases are that the petitioner
was appointed as Driver by way of outsourcing employment and he
worked for 7 years continuously. Thereafter basing on the order
passed by this Court in W.P(MD)No.1300 of 2008, the State
Government issued G.O.Ms.No.(2D) 56 Health and Family
Welfare C2 Department dated 09.07.2012 to terminate all the
outsourced employees working in the State. Accordingly, the
petitioner was terminated. At the time of his appointment as Driver
on outsourcing basis, the petitioner was aged 27 years. Thereafter,
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W.P(MD)Nos.2743 of 2016 and 9921 of 2014
he worked for 7 years till attaining the age of 34 years and at the age
of 34 years, he was thrown out. Actually, the maximum age limit for
appointment of Driver in Government service in the State is 34
years. Now it is the contention of the State Government is that in the
light of the order of this Court and the Apex Court, all other
recruitments which are not made by direct recruitment are back door
admissions. It is also the contention of the State Government that
when outsourcing appointments are made the rule of reservation and
all other requirements are not being followed and as the petitioner
was appointed through outsourcing agency not directly by the
Government, the petitioner is not entitled for regularization or
absorption or for any preferential treatment in appointment as
Driver.
10. Having considered the facts and circumstances of the
case and the contentions of the State Government, in the considered
opinion of this Court, when there is need for day to day transactions
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W.P(MD)Nos.2743 of 2016 and 9921 of 2014
of the Government, appointing youth in sanctioned posts on
temporary basis, is nothing but exploiting the youth of the country.
As and when the vacancy in sanctioned posts are available and as
and when there is a need to fill those posts for day to day
transactions of the concerned departments or officers, those posts
shall be filled on permanent basis with the eligible and qualified
persons. When the Government filled that posts on outsourcing
basis, that too, through the outsourcing agencies and thereby
terminating the service of those persons, who are appointed on
outsourcing basis, after a long gap of period, most of the persons,
who have been working for years together there, will become over
aged and they would not be entitled for applying for any posts to be
notified by the Government. It will cause serious and irreparable loss
to the person, who worked in the outsourcing posts. It is true that the
contention of the State Government that in outsourcing appointment
rule of reservation is not being followed. But it is for the State
Government to take appropriate steps to follow the rule of
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W.P(MD)Nos.2743 of 2016 and 9921 of 2014
reservation at the time of appointment on the outsourcing basis or it
is for the State Government to fill all sanctioned posts on permanent
basis by following the selection procedure provided under rules
without filling the posts on outsourcing basis. This issue can be
visualized in a different view. If one post of Driver is filled on
permanent basis, the Government has to pay salary at the rate of pay
scale fixed for that post. But, if that post is filled on outsourcing
basis, the Government will pay only consolidated pay of Rs.10,000/-
or Rs.15,000/-. Due to that reason only, the Governments are
resorting to engage the outsourcing appointments at the cost of the
lives of the educated youth of our country, which is to be held as
“unfortunate”.
11. In the present case, admittedly, the petitioner completed
34 years during the period when he was thrown out from the post of
Driver in the third respondent. This type of actions of the
Government is not acceptable as it violates the constitutional
obligations cast on the Governments. Though this Court has
sympathy towards the petitioner, as of now he crossed 47 years. This
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W.P(MD)Nos.2743 of 2016 and 9921 of 2014
Court is handicapped to direct the respondents to consider the case
of the petitioner for appointment by giving preferential treatment.
12. With the above observations, these Writ Petitions are
closed.
14. No costs.
15. Consequently, connected miscellaneous petitions are
closed.
23.08.2023
Index : Yes / No
NCC : Yes / No
CM
To,
1. The Secretary
Department of Health and Family Welfare
Fort. St. George,Chennai.
2. The Director of Public Health,
And Preventive Medicine,
Chepauk,
Chennai.
3. The Deputy Director of Health
Service, Nagarcoil,
Kanyakumari.
https://www.mhc.tn.gov.in/judis
W.P(MD)Nos.2743 of 2016 and 9921 of 2014
BATTU DEVANAND, J.
CM
W.P.(MD)No.2743 of 2016
and W.M.P(MD)No.2422 of 2016
23.08.2023
https://www.mhc.tn.gov.in/judis
