Madras High Court
State Of Tamil Nadu vs L.R.Jobin on 1 August, 2023
W.A.Nos.59,62,65,66,68,69,73 and 74 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.08.2023
CORAM :
THE HON'BLE MR. JUSTICE R. MAHADEVAN
AND
THE HON'BLE MR. JUSTICE MOHAMMED SHAFFIQ
W.A.Nos.59, 62, 65, 66, 68, 69, 73 and 74 of 2023 &
C.M.P.Nos.554, 555, 566, 568, 577, 580, 581, 583, 585
587, 588, 592, 593, 594, 598 of 2023
1.State of Tamil Nadu,
Rep. by its Secretary,
Department of Public Health & Family Welfare,
Fort St. George,
Chennai - 600 009.
2.The Director of Public Health & Preventive Medicine,
D.M.S.Compound,
Teynampet, Chennai - 600 018. ... Appellants 1 and 2 in
all the writ appeals.
3.The Deputy Director,
Health Service,
Thiruvannamalai. ... 3rd appellant in
WA.Nos.59 and 69/2023
The Deputy Director,
Primary Health Centre,
Keezhkulam, Nagarcoil District ... 3rd appellant in
WA.No.62/2023
The Deputy Director,
Primary Health Centre,
Arudesam, Nagarcoil District ... 3rd appellant in
WA.No.65/2023
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The Deputy Director,
Health Service,
Sivagangai . ... 3rd appellant in
WA.No.66/2023
The Deputy Director,
Health Service,
Thogaimalaia, Karur. ... 3rd appellant in
WA.No.68/2023
The Deputy Director,
Primary Health Centre,
Munjirai, Nagarcoil District ... 3rd appellant in
WA.No.73/2023
The Deputy Director,
Health Service,
Kilakadu, Kallakurichi. ... 3rd appellant in
WA.No.74/2023
Vs.
L.R.Jobin ... Respondent in
W.A.No.59 of 2023
T.Jose ... Respondent in
W.A.No.62 of 2023
J.Viju ... Respondent in
W.A.No.65 of 2023
T.Justin Raj ... Respondent in
W.A.No.66 of 2023
K.Balagopalan Nair ... Respondent in
W.A.No.68 of 2023
Reguvaran Nair ... Respondent in
W.A.No.69 of 2023
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J.N.Shajin ... Respondent in
W.A.No.73 of 2023
C.N.Sunil Kumar ... Respondent in
W.A.No.74 of 2023
Writ Appeals filed under Clause 15 of the Letters Patent, against the
order dated 15.11.2021 passed by the learned Judge in W.P.Nos.30113 of
2019, 15409 of 2020, 15416 of 2020, 30124 of 2019, 30118 of 2019, 30106
of 2019, 15412 of 2020 and 30121 of 2019.
For Appellants in
all Writ Appeals : Mr.Silambanan
Additional Advocate General
Assisted by Mr.S.Yashwanth
Additional Government Pleader
For Respondents in
all Writ Appeals : M/s.Anna Mathew
COMMON JUDGMENT
(Judgment of the Court was made by R. MAHADEVAN, J.)
Assailing the common order dated 15.11.2021 passed by the learned
Judge in WP.No.30106 of 2019, etc. cases, these writ appeals have been filed
by the State.
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2. Brief facts which are necessitated for disposal of these appeals
are that the Government of Tamil Nadu had issued G.O.Ms.No.305 Health
and Family Welfare (N1) Department, dated 22.09.2009, by which
appointments to the post of Health Inspector Grade-II were permitted to be
made to the persons, who acquired qualifications outside Tamil Nadu and
also ordering relaxation under Rule 5(b)(iii) of the Public Health Subordinate
Service Adhoc Rules. An annexure has also been enclosed along with the
G.O. specifying the names of 55 candidates who were to be given relaxation
and appointment. The respondents’ names were found in the annexure of 55
candidates. The Government order further directed the second appellant to
take steps to appoint the said 55 candidates after verifying their certificates.
Even though the respondents’ names were found in the said annexure,
instead of appointing them, the authorities have called for a list from
Employment Exchange, fixed cut off marks and interviewed the candidates.
On the other hand, by order dated 13.01.2011, the second appellant left out 9
persons whose names were found in the annexure and appointed some other
persons whose names were not found in the annexure or in the list furnished
by the Employment Exchange. After filing of the writ petition viz.,
WP.No.7376 of 2011 by these respondents, this Court directed the appellants
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to consider their representations and pass appropriate orders. Since the said
order has not been complied with, the respondents herein filed a Contempt
Petition in Cont.P.No.1422 of 2011, in which, counter affidavit has been filed
by the second appellant giving reasons for non-appointment. Recording the
same, the contempt petition was closed leaving it open to the respondents to
challenge the non-appointment. Subsequently, the second appellant issued
orders to some of these respondents stating that they did not acquire the
necessary marks and hence, they were not considered for appointment.
Aggrieved by the same, the respondents preferred writ petitions, viz.,
WP.No.16488 of 2012 etc., in which, this Court took serious objection to the
Government’s action in overlooking the respondents herein while giving
irregular appointments to others. Stating so, the said writ petitions were
allowed on 26.03.2015 by quashing the orders passed by the authorities.
Pursuant to the same, the second appellant issued orders stating that the
Government had permitted to appoint the respondents as Multi Purpose
Health Workers (M) and accordingly, they were appointed to the said post in
the scale of Rs.5200-20200 +2400 on 27.07.2015 under Rule 10(a)(1) of the
Tamil Nadu State and Subordinate Services Rules, which Rule envisages only
temporary appointments to meet administrative exigencies.
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3. With the above background, the respondents herein filed the
instant writ petitions to direct the appellants herein to appoint them on a
regular basis as Health Inspectors Grade II [now known as Multipurpose
Health Workers (M)] with effect from 13.01.2011 in accordance with
G.O.Ms.No.305 dated 22.09.2009 read with the judgment dated 26.03.2015
passed by this Court in W.P.No.16488 of 2012 with all consequential
benefits of seniority, increments, arrears of salary and promotion with effect
from the same date when other such appointees in 2011 were promoted
pursuant to the panel dated 24.10.2019.
4. The contention of the respondents before the writ Court was that
because of denial of appointment as per G.O.Ms.No.305 dated 22.09.2009
and the subsequent temporary appointment, the next avenue of promotion
has been affected and the persons who have not at all in the annexure, have
gone ahead of these respondents. It was also stated that the name of the post
was changed to Multipurpose Health Worker (Male) and the qualifications
were also changed in the year 2013, which has no bearing on their
appointment. Further, the second appellant has issued an order dated
11.10.2017 by which the persons like that of the respondents herein have
been informed that their services will not be regularized since they need
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relaxation of age as per Rule 12(d) of the Tamil Nadu State and Subordinate
Service Rules. In this regard, the respondents contended that had they been
properly appointed in 2011 along with other employees, the respondents
would have been in the age limit of 35 years and the age relaxation will not
be required.
5. Counter affidavit was filed on behalf of the Government,
wherein, amongst other grounds, it was specifically stated that
G.O.Ms.No.305 dated 22.09.2009 explicitly stated that the list was enclosed
only for reference and all the posts should be filled up by getting the list of
eligible persons from Employment Exchange and no relaxation of rules were
given to these candidates.
6. Considering the submissions made on either side, the learned
Judge by common order dated 15.11.2021, allowed the writ petitions holding
that appointment of the respondents has to be treated as regular appointment
with effect from the date of initial appointment of 53 appointees / batchmates
of the respondents who were appointed in 2011 and consequently, they are
entitled for notional promotion on par with their appointees / batchmates, and
that, the services of the respondents have to be regularized and they have to
be paid arrears of salaries and other allowances.
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7. Challenging the aforesaid common order passed in the writ
petitions, the present appeals have been filed by the Government / State.
8. The learned Additional Advocate General appearing for the
appellants has submitted that the order impugned herein is contrary to
G.O.Ms.No.305 dated 22.09.2009. Since the respondents herein were
appointed only in the year 2015, they cannot be treated as having been
appointed with effect from 2011. Adding further, he submitted that the
Government has taken a policy decision of enhancing the quality of services
to the people duly taking note of increased threat of communicable and non-
communicable diseases and hence, some criteria should be followed in the
selection of Health Inspector Grade-II and therefore, a Committee was formed
and appointments were made through the said Committee. These respondents
were appointed based on the marks obtained by them and following
communal rotation. The list enclosed along with G.O.Ms.No.305 dated
22.09.2009 was communicated for reference only and not for appointment
and therefore, all appointments were filled up by getting the list of eligible
persons from Employment Exchange. Without considering all these factors,
the learned Judge erred in allowing the claim of the respondents, by the order
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impugned herein, which will have to be set aside.
9. Per contra, the learned counsel appearing for the respondents
submitted that the learned Judge passed the order impugned herein, after a
detailed scrutiny of records and that, the findings have been given very
clearly to emphasise that these respondents are entitled to the prayer sought
for by them. Therefore, the learned counsel submitted that the order
impugned in these appeals, does not require any interference by this court.
10. Heard the learned counsel on either side and perused the
materials available on record.
11. It is seen that pursuant to the representation submitted by the
Sanitary Inspectors who have undergone the Diploma Course outside
Tamil Nadu, the Director of Public Health and Immune Medicine Department
instructed his subordinate Dr.Selva Vinayagam, Health Officer to visit the
centres of All India Local Self Government Institution which has been
established in outside Tamil Nadu, inspect the infrastructure of the system
and the syllabus taught by the said institution in the diploma course, and
submit a report. Accordingly, a comprehensive report was submitted to the
effect that the institutions are having necessary infrastructural facilities and
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the standard of syllabus in all those institutions is on par with the Health
Worker Training syllabus adopted by the Public Health Department,
Chennai. Based on the said report, the Director of Public Health and Immune
Medicine Department, the second appellant herein, made a recommendation
to the Government to relax the provisions of the ad hoc rules as a special
case, so as to appoint the Diploma Holders from Tamil Nadu who have
completed training elsewhere as Health Inspector Grade II. The Government
examined the issue and ultimately relaxed Rule 5(b)(iii) of the Public Health
Subordinate Service Adhoc Rules, by facilitating the appointment of persons
belonging to the State of Tamil Nadu who have completed the required
training as Sanitary Inspectors, for appointment to the post of Health
Inspectors Grade II. Accordingly, the Government, by G.O.Ms.No.305, dated
22.09.2009, issued a direction to the Director of Public Health and Immune
Medicine Department, to take necessary action to verify the genuineness of
the educational qualification certificates and to appoint them as Health
Inspector Grade II. Along with the GO., a list of 55 candidates has been
annexed. For better appreciation, the relevant portion of the said G.O. is
reproduced below:
“7.In view of the power granted under Article 309 of the
Constitution of India, His Excellency the Governor of Tamil Nadu, the
eligibility for the post of Health Inspector Grade -II, the Adhoc Rules under
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5 (b)(iii) of the Subordinate Service Rules of Public Health is relaxed to
those having undergone the training at All India Local Self Government
Institution as Sanitary Inspector and having registered their name at the
employment office to those candidates belonging to Tamil Nadu so as to
enable them be appointed as Health Inspector Grade 2, the said rule is
hereby relaxed and order is issued.
8.It is hereby requested to the Director of Public Health and Immune
Medicine Department by adducing and verifying the genuineness of their
educational qualification certificates to take appropriate steps to appoint
them in the post of Health Inspector Grade 2.”
Thus, it is evident from the above G.O. that the Government had directed the
second appellant to relax the age limit and accommodate all the 55 candidates
to the post of Health Inspector Grade II, after verifying their educational
qualification certificates and registration with employment office.
12. However, contrary to the aforesaid Government Order, the
second appellant, instead of appointing 55 candidates, conducted interview,
after fixing cut off marks arbitrarily and appointed only some of the
candidates mentioned therein by order dated 13.01.2011. It is pertinent to
point out at this juncture that in the said G.O., there was no direction from
the Government to conduct interview for selecting candidates and the second
appellant was expected only to verify the certificates of named candidates and
appoint them as Health Inspector Grade II, but he has adopted his own
procedure and appointed the individuals of his choice, who were neither
recommended by Employment Exchange nor covered by G.O.Ms.No.305
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dated 22.09.2009. Therefore, it is manifest that the second appellant had
voluntarily adopted a method to eliminate the named Sanitary Inspectors for
whose benefit the order in G.O.Ms.No.305 dated 22.09.2009, was issued.
13. Admittedly, the names of the respondents were found in the list
annexed to the aforesaid Government Order. However, they were not given
appointment and extended the benefit conferred under G.O.Ms.No.305 dated
22.09.2009. Therefore, the respondents preferred writ petitions in
WP.No.16488 of 2012 etc. batch, seeking direction to the appellants to
appoint them as Health Inspector Grade II, with effect from 13.01.2011 when
55 others were appointed as per G.O.Ms.No.305 dated 22.09.2009 with
continuity of service, arrears of salary and all other attendant benefits. The
writ court by order dated 26.03.2015, allowed the writ petitions, by observing
that the appellants have selected the candidates through interview, without
any written test and the cut off marks were fixed without any rationale and
the same were also awarded in a highly arbitrary manner. The relevant
paragraphs of the said order are quoted below for ready reference:
“18.The Government have taken a conscious decision to
accommodate 55 sanitary Inspectors from Tamil Nadu who have undergone
their studies outside the State. The Government have made it very clear that
the order was issued for appointing the unemployed persons belonging to
Tamil Nadu, who have completed diploma course for the post of Sanitary
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Inspector. Their names were shown in the annexure to the Government
Order. The second respondent was expected only to verify the certificates of
named candidates and appoint them as Health Inspector Grade II. The
second respondent, by giving a go-by to the Government Order, adopted his
own procedure and appointed individuals of his choice, who were neither
recommended by employment exchange nor covered by Government order
in G.O.Ms.No.305 dated 22 September 2009. The petitioners are therefore
correct in their contention that the selection is liable to be set aside.”
“22.The Government have already granted age relaxation to the
petitioners and similarly placed Sanitary Inspectors who have undergone
Diploma Course outside the State. Age limit is therefore not a problem for
appointing the petitioners as Health Inspector Grade II. It is also not
necessary to disturb the appointment of others in view of large number of
vacancies in the post of Health Inspector Grade II. I am therefore of the
view that immediate steps should be taken by the respondents to appoint the
petitioners as Health Inspector Grade-II.”
“23.In the result, a writ in the nature of a Writ of Mandamus is
issued, directing the respondents to appoint the petitioners as Health
Inspector Grade II, in the light of Government Order in G.O.Ms.No.305
Public Health and Family Welfare Department, dated 22 September 2009
and more particularly, paragraph 8 of the said order. Such exercise shall be
completed within a period of eight weeks from the date of receipt of a copy
of this order.”
It is evident from the aforesaid order that the learned Judge categorically
stated that by G.O.Ms.No.305 dated 22.09.2009, appointments were
sanctioned, age relaxation was given to the respondents, and their names
were mentioned in the annexure appended thereto, and hence, the
respondents have to be appointed as Health Inspector Grade II, after verifying
the certificates. However, the respondents were appointed as Multi Purpose
Health Workers (M) in the scale of Rs.5200-2022 + 2400 on 27.07.2015
under Rule 10(a)(1) of the Tamil Nadu State and Subordinate Service Rules
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(Part II-General Rules), which is contrary and utter disregard to the aforesaid
order passed by the learned Judge on 26.03.2015 in the writ petitions.
14. In the mean while, the other named candidates in
G.O.Ms.No.305 dated 22.09.2009 and appointed as Health Inspector Grade
II on 13.01.2011, were considered for promotion to the post of Health
Inspector Grade – I. Whereas, the claim of the respondents for reckoning
their entry into service from the date on which the other candidates were
appointed on 13.01.2011, and further claim for promotion to the post of
Health Inspector Grade I (Multi purpose Health Supervisor) were rejected on
the ground that as per G.O.Ms.No.232 dated 17.10.2013, only those who
had completed five years service in the post of Multi Purpose Health Worker
(Male) can be considered for promotion to Multi Purpose Health Supervisor
(Male). Subsequently, by another order dated 11.10.2017 passed by the
second appellant, the respondents were required to get age relaxation and
educational qualification for further promotion to the post of Multipurpose
Health Worker Supervisor (Male). It was the specific contention of the
learned counsel for the respondents that had the respondents been properly
appointed in 2011 along with other named candidates as per G.O.Ms.No.305
dated 22.09.2009, they would have been considered for further promotion,
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regularisation of service, etc., without any order relating to age relaxation and
education qualification. Taking note of the same, the learned Judge in the
instant writ petitions filed by the respondents in W.P.No.30106 of 2020 etc.
batch, has allowed their claims and passed the following order, on
15.11.2021, which is impugned in these appeals:
“ i) The appointment of the petitioners shall be treated as a regular
appointment with effect from the date of the initial appointment of 53
appointees / batchmates of the petitioners who were appointed in 2011;
ii) The respondents are therefore directed to regularize the services
of the petitioners and make appropriate entry in the Service Register of the
respective petitioners as permanent employees on par with 53
appointees/batchmates of the petitioners who were appointed in 2011;
iii) Consequently respective petitioners are entitled for notional
promotion on par with their appointees/batchmates of the petitioners who
were appointed in 2011;
iv) The respondents shall pay arrears of salaries and other
allowances to the respective petitioners;
v) The 1st respondent shall implement this order by issuing
appropriate G.O.
vi) The above exercise shall be carried out within a period of 18
weeks from the date of receipt of this order.”
15. This court finds no error / fault in the order so passed by the
learned Judge, in view of the reason that though the respondents have armed
with the order of this court in their favour, they have not been appointed on
par with their batchmates, as per G.O.Ms.No.305 dated 22.09.2009. Instead,
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the respondents were appointed as Multi Purpose Health Workers (M) only
on temporary basis in the year 2015 and their claim for regularisation and
further promotion, was erroneously rejected citing the amended rules, relating
to age and qualification. As already stated above, the Government had given
age relaxation and appointment to the post of Health Inspector Grade II to the
55 named candidates in G.O.Ms.No.305 dated 22.09.2009, in which, the
names of the respondents were found; and in the order dated 26.03.2015
passed in WP.No.16488 of 2012 etc. batch, the learned Judge specifically
pointed out that various irregularities were committed by the appellants in the
appointment of 55 candidates as Health Inspector Grade II; and the selection
was not made in accordance with G.O.Ms.No.305 dated 22.09.2009. Despite
the two orders having been passed by the writ court in favour of the
respondents, the appellants have not complied with the same, but have
preferred these appeals, by dragging on the matter, which cannot be
countenanced by this court.
16.1. During the course of argument, apart from the other grounds,
the learned Additional Advocate General raised a plea that the respondents
were appointed to the post of Multi Purpose Health Workers (M) only in the
year 2015 and hence, they cannot be granted arrears of salary and allowances
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for the period during which they had not actually worked by applying the
principle of 'no work no pay' and accordingly, the order of the learned Judge
will have to be revisited.
16.2. Finding merit in the submission so made on the side of the
appellants, this court directed the learned counsel appearing for the
respondents to get instructions in this regard. Accordingly, the learned
counsel for the respondents submitted that the respondents are now inclined
to forego their arrears of salaries and other allowances for the period which
they had not actually worked, provided the appellants comply with all other
directions issued by the writ court. In support of the same, separate affidavits
dated 18.06.2023 with identical averments made by the respondents have
been filed before this court. The relevant passage of one such affidavit filed in
one of the appeals viz., WA.No.59 of 2023, is usefully extracted below:
“6.However, I once again reiterate that I am willing to forego my
arrears of salary from 13.01.2011 to 26.07.2015, provided the appellants
comply with the order passed by this Hon'ble Court in W.P.No.30113 of
2019 dated 15.11.2021 in all other respects relating to my service. My
service register should be opened from 13.01.2011 as directed by the
Hon'ble Court in the writ petition. I would also be entitled to notional
fixation of pay from 13.1.2011, but monetary payment of arrears from
27.07.2015 including all consequential benefits of seniority and notional
promotions on par with my batchmates who were appointed on 13.01.2011
with all other attendant benefits.
7.I also reiterate that I am willing to forego my monetary benefits as
mentioned in para 6 above and restricting my right as stated above, only on
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the basis of the appellant's agreeing to comply with order in the writ petition
in all other respects and that they will not challenge the said order before
any forum.
8.This revised prayer is without prejudice to my rights in this writ
appeal. I pray that this Hon'ble Court may be pleased to pass appropriate
orders to meet the ends of justice.”
16.3. In view of the above, this court is inclined to modify the order of
the learned Judge only in respect of the direction issued to the appellants for
payment of arrears of salary and allowances to the respondents, by applying
the principle of 'no work no pay'.
17. Accordingly, all these writ appeals are disposed of, in the
following terms:
(i)The appellants are directed to comply with the order of the learned
Judge which is impugned herein, in respect of the directions (i)(ii)(iii) and
(v), issued at paragraph 58, within a period of 18 (eighteen) weeks from the
date of receipt of a copy of this judgment.
(ii)In the light of the affidavits filed by the respondents and by
applying the principle of "no work, no pay", the respondents herein are not
entitled for arrears of salaries and other allowances, for the period from
13.01.2011 to 26.07.2015 which they had not actually worked; and the
direction (iv) at paragraph 58 of the order dated 15.11.2021 passed by the
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learned Judge, is accordingly modified.
No costs. Consequently, connected miscellaneous petitions are closed.
[R.M.D,J.] [M.S.Q, J.]
01.08.2023
rns
Speaking Order / Non-speaking order
Internet : Yes.
Index : Yes /No
To
1.The Secretary,
Government of Tamil Nadu,
Department of Public Health & Family Welfare,
Fort St. George,
Chennai - 600 009.
2.The Director of Public Health & Preventive Medicine,
D.M.S.Compound,
Teynampet, Chennai - 600 018.
3.The Deputy Director,
Health Service,
Thiruvannamalai.
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R. MAHADEVAN, J.
and
MOHAMMED SHAFFIQ, J.
rns
W.A.Nos.59, 62, 65, 66, 68, 69, 73 and 74 of 2023
01.08.2023
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