Madras High Court
P. Saroja vs The Secretary To The Government on 25 September, 2023
W.P.No.102 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE J. SATHYA NARAYANA PRASAD
W.P.No.102 of 2021
and WMP.Nos.149 & 153 of 2021
P. Saroja ... Petitioner
Vs.
1. The Secretary to the Government
Health and Family Welfare Department,
Secretariat, St.George Fort,
Chennai 600 009.
2. The Director
Public Health and Preventive Medicine
DMS Complex, Teynampet,
Chennai 600 006.
3. The Deputy Director
Public Health and Services,
Opp.to Govt.General Hospital,
Salem – 636 001. ... Respondents
PRAYER : Writ Petition filed under Article 226 of Constitution of
India, seeking Writ of Certiorarified Mandamus to call for the records of the 1st
respondent letter No.6745/AB1/2020 – 13 dated 29.08.2020 and quash the
same and direct the respondents to regularise from completing the date of 5
years of the petitioner's appointment.
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W.P.No.102 of 2021
For Petitioner : Mr.S.Kolandasamy
For Respondents : Mrs.C.Meera Arumugam
Addl. Government Pleader
ORDER
This writ petition has been filed, seeking to call for the records of the
1st respondent letter No.6745/AB1/2020 – 13 dated 29.08.2020 and quash the
same and direct the respondents to regularise from completing the date of 5
years of the petitioner's appointment.
2. The learned counsel for the petitioner submitted that the petitioner
was working as a Multi Purpose Hospital Worker (MPHW) in Tharamangalam
Primary Health Centre (PHC), Salem since 2013. Even after completion of five
years of service she was not regularised as per G.O.(MS).No.325 dated
20.11.2012. Thereafter, the petitioner was called for an interview for Multi
Purpose Hospital Worker through employment exchange letter No.20130000
dated 17.01.2013 and attended interview on 19.02.2013 as per 3 rd respondent's
letter No.12000/E2/2012 dated 11.02.2013 for Multi Purpose Hospital Worker.
The petitioner was selected and was appointed as Multipurpose Hospital
Worker (MPHW) on a daily basis in Ellampillai Primary Health Centre (PHC)
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W.P.No.102 of 2021
as per 3rd respondent proceeding Letter No.12000/E2/2012 dated 07.03.2013
based on G.O.(Ms).No.325, Public Health and Family Welfare (F2) Department
dated 20.11.2012 as well as proceedings of the 2nd respondent letter
No.6258/PHC7/A3/2012 dated 06.12.2012.
3. The learned counsel further submitted that the petitioner was
appointed on daily wages fixed by the concern District Collector for unskilled
worker as per G.O.(MS).No.325 dated 20.11.2012 and she has been working as
MPHW as Attender for Male and Female Nurses, Hospital Staff Attender,
Sweeper's Attender, Stretcher workers. The petitioner has rendered her service
during the Covid-19 pandemic period with utmost dedication and involvement
in service to the hospital. The G.O.(Ms).No.325 dated 20.11.2012 clearly
reveals for regularising the temporary appointment, after completion of 5 years
in the temporary post. As per the G.O.(Ms).No.325 the appointment shall be
made initially for a period of one year which shall be extended every year based
on the performance of the incumbent upto a total period of 5 years and whereas
the petitioner has completed 7 years and 8 months but not regularised so far.
4. The learned counsel further submitted that the respondents have
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W.P.No.102 of 2021
assured regarding the regularisation as per G.O (Ms).No.325 dated 20.11.2012
and the petitioner has given several representation to the respondents through
their Association, but there was no response from the respondents in regard to
her regularisation. The petitioner and other similarly placed persons have
already crossed the age of 45 years and their regularisation is just and necessary
for getting retirement benefits at old age. The petitioner and other similarly
placed persons were receiving the payment from Government Treasury and
appointed only in the vacant post in concerned District and not under extra
vacant post. Since there was no response from the respondents for the past 8
months on the representation along with the order copy submitted by the
petitioner, the petitioner and other similarly placed persons filed contempt of
notice to the respondents to comply the order passed by this Court dated
25.02.2020. But to the shock and surprise, the 1st respondent has issued the
impugned letter No.6745AB1/2020-13 dated 29.08.2020 rejecting their request
for regularisation.
5. The learned counsel for the petitioner further submitted that as per
G.O.(Ms)No.325 dated 20.11.2012 the petitioner should have completed five
years for regularisation of service but whereas the petitioner has completed 10
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W.P.No.102 of 2021
years and 6 months of service, even then she was not regularised and in this
context, the learned counsel drew the attention of this Court to para 2 clause
(vi) of the G.O.(Ms) No.325, Health and Family Welfare (F2) Department,
dated 20.11.2012 and the same is extracted as below:-
2 (vi) “to approve the proposals in respect of offices and dispensaries
etc., where the beds are not sanctioned. For Medical Colleges and
similar institutions to continue the present hiring system by
designating the persons as Multi Purpose Hospital Workers who
may be brought under the 5 year contract and then regularise their
services”.
6. Further, the learned counsel submitted that the petitioner's name
was registered in the employment exchange and he awaited more than a decade
and obtained these daily basis appointment based on the assurance of G.O.(Ms)
No.325 dated 20.11.2012 that after 5 years tenure she would be regularised and
most of the persons have crossed 45 years and completed 10 years but they
have not been regularised. The respondents ought to have regularised the
persons those who have completed 5 years of service forthwith but they did not
take any steps for the petitioner's regularisation and others, even though they
have completed 10 years of service as on date and at the time of filing the writ
petition the petitioner has completed 7 years and 8 months of service.
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W.P.No.102 of 2021
7. The learned counsel appearing for the petitioner would further
submit that the petitioner earlier filed writ petition before this Court and this
Court by order dated 25.02.2020 in W.P.No.4343 of 2020 disposed of the writ
petition with a direction to the petitioner to make a fresh representation to the
2nd and 3rd respondents along with a copy of the representation dated
20.12.2019 and a copy of the order. Further in this context, the learned counsel
also relied upon the judgment of the Division Bench of this Court in
W.A.No.1458 of 2019 dated 20.01.2023.
8. The learned Additional Government Pleader appearing for the
respondents vehemently opposed the prayer of the writ petition for the reason
that the service of the petitioner was extended beyond 5 years only based on
sympathy. She further drew the attention of this Court to the impugned order
dated 29.08.2020 passed by the 1st respondent and the relevant portion of the
impugned order is extracted hereunder:-
2. mj;Jld; nkny bjhptpf;fg;gl;Ls;s ePjpkd;w Mizapd; mog;gilapy;
j';fs; nfhhpf;if Fwpj;J murhiz (epiy) vz;/325 kf;fs; ey;thH;t[ kw;Wk;
Flk;g ey;j (F2) Jiw. Ehs; 20/11/2012 d;goa[k; muR ftdkhf ghprPyid bra;jJ/
nkw;go murhizapy;. kUj;Jtkid gzpahsh;. Mz; brtpypa cjtpahsh;. bgz;
brtpypa cjtpahsh;. Jg;g[ut[ gzpahsh; kw;Wk; bgUf;Fgth; Mfpa gjtpfs;
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W.P.No.102 of 2021
xU';fpizf;fg;gl;L gy;nehf;F kUj;Jtkid gzpahsh; vd;Dk; xnu gjtp
njhw;Wtpf;fg;gl;L mg;gzpapl';fs; khtl;l ntiytha;g;gfk; K:yk;. Khtl;l Ml;rpah;
eph;zak; bra;a[k; jpdf;Typ tH';fp xg;ge;j mog;gilapy; epug;gg;gl ntz;Lk; kw;Wk;
mt;thW xg;ge;j mog;ggilapy; epakdk; bra;a;ggLth;fs; Kjypy; Xuhz;Lf;Fk;
mjd;gpd;dh; mth;fspd; bray;jpwdpd; mog;gilapy; xt;nthuhz;Lk; mth;fsJ
gzp xg;ge;j;jjpid ePlo; j;J bkhj;jk; Ie;jhz;Lfs; tiuapy; ePl;oj;Jf;bfhs;syhk;
vd Mizaplg;gl;Ls;sJ/ ,Ug;gpDk;. Ie;jhz;Lfs; fle;Jk; kdpjhgpkhd
mog;ggilapnyna jw;nghJ tiuapy; gzpapy; bjhlu j';fSf;F mDkjp
mspf;fg;gl;Ls;sJ/ vdnt. j';fspd; gzpapid tud;Kiw bra;af;nfhUk;
nfhhpf;ifapid Vw;f ,ayhJ vd;gij j';fSf;F
bjhptpj;Jf;bfhs;sg;gzpf;fg;gl;Ls;nsd;/
9. Heard both sides and perused the materials available on record.
10. In the case on hand, the petitioner was appointed temporarily as
Multipurpose Hospital Worker (MPHW) by the proceedings of the 3rd
respondent letter No.12000/E2/2012 dated 07.03.2013 based on the
G.O.Ms.No.325, Public Health and Family Welfare (F2) Department, dated
20.11.2012 as well as the proceedings of the 2nd respondent letter No.6258 /
PHC7/A3/2012 dated 06.12.2012. At this juncture, it is relevant to extract para
2 clause (vi) of the above G.O. and the same is extracted as below:-
(vi) to approve the proposals in respect of offices and
dispensaries etc., where the beds are not sanctioned. For Medical
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W.P.No.102 of 2021
Colleges and similar institutions to continue the present hiring
system by designating the persons as Multi Purpose Hospital
Workers who may be brought under the 5 year contract and then
regularise their services.
11. The above clause clearly states that the person who have worked
under 5 years contract, their services can be regularised and in the instant case
the petitioner has worked for 7 years and 8 months as on date of filing the writ
petition and as on date has completed 10 years and 6 months and despite this
the petitioner was not regularised. The impugned order was passed by the 1 st
respondent in which it is categorically stated that even after the completion of 5
years, the service of the petitioner was extended only on the ground of
sympathy, hence the request for regularisation cannot be accepted and the same
is rejected. The above impugned order was passed by the first respondent on
29.08.2020 subsequent to the order passed by this Court in W.P.No.4343 of
2020 dated 25.02.2020 and the relevant portion of the order is extracted as
below:-
2. The case of the petitioner is that he is working in the 3 rd
respondent Multipurpose Hospital Worker (MPHW). The petitioner has
been working for the last 6 ½ years in the 3 rd respondent Hospital and
the grievance of the petitioner is that no steps have been taken to
regularise the services of the petitioner. According to the petitioner, the
services of the petitioner has to be regularised in accordance with
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W.P.No.102 of 2021
G.O.(Ms).No.325, dated 20.11.2012 which contemplates regularisation
after the completion of five years period. The petitioner has given a
representation to the respondents on 20.12.2019 seeking for
regularisation as per the above Government order. Since, the same was
not considered, the present writ petition has been filed before this Court.
4. “Taking into consideration the facts and circumstances of
the case and also the limited relief that has been sought for this writ
petition, there shall be a direction to the 2nd and 3rd respondents to send
the service particulars regarding the petitioner to the 1 st respondent,
within a period of four weeks from the date of receipt of copy of this order
and the 1st respondent on receipt of those particulars shall pass
appropriate orders, within a period of six weeks. Thereafter, the 1st
respondent shall see whether the petitioner is entitled to claim for
regularisation as per G.O.(MS).No.325 dated 20.11.2012. The petitioner
is directed to make a fresh representation to the 2nd and 3rd respondents
along with a copy of the representation dated 20.12.2019 and copy of this
order. The petitioner shall mark a copy of the representation to the 1st
respondent also.”
12. In the above order, the petitioner therein was directed to make a
fresh representation to the 2nd & 3rd respondents along with the copy of the
representation dated 20.12.2019 and a copy of the order and the first respondent
was directed to pass orders on merits and in accordance with law and
subsequently impugned order dated 29.08.2020 was passed by the first
respondent stating that after completion of 5 years of service by the
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W.P.No.102 of 2021
petitioner the same was extended only on the ground of sympathy, hence
her request for regularisation cannot be accepted and the same stands
rejected. The learned counsel for the petitioner has also rightly relied on the
judgment of the Division Bench of this Court in W.A.No.1458 of 2019 dated
20.01.2023, wherein the division bench in para 24 & 25 held thus:-
“24. We therefore, have no hesitation in setting aside the
order of the Writ Court and directing regularisation of the
appellants with effect from the date on which they completed 10
years in service. We make it clear that the appellants would be
entitled to monetary benefits only from the date on which they came
before this Court in W.P.No.32112 of 2018 i.e., on 03.12.2018.
25. In fine, this Writ Appeal is allowed, the order of the
Writ Court is set aside. There will be a direction to the respondents
to regularise the service of the appellants with effect from the date
on which they had completed 10 years of service from the date of
their initial appointment. It is made clear that the appellants would
be entitled to monetary benefits of such regularisation only from
03.12.2018. In the circumstances, we spare costs with the fond hope
that the Government will discontinue exploitation of its citizens by
employing them as daily rated employees atleast in future.
13. The petitioner is entitled for regularisation on completion of 5
years of service as per G.O.(Ms).No.325, Health and Family Welfare (F2)
Department, dated 20.11.2012 and there is no question of extending the
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W.P.No.102 of 2021
services of the petitioner on the ground of sympathy as stated by the first
respondent in the impugned order and the petitioner is entitled for
regularisation.
14. The respondent having extended and extracted the service from
the petitioner beyond the period of 5 years cannot deprive the legitimate right
of regularisation as contemplated in para 2 clause (vi) of the above Government
Order stated Supra. It is the duty cast upon the respondents to regularise the
services as per the Government Order and rejecting or denying regularisation to
the petitioner is in gross violation of the Government order. The respondents
are bound to follow the Government order and they cannot deviate from the
same under any circumstances since the same is binding on the respondents.
15. In view of the above factual matrix of the case and in the light of
the order passed by the Division Bench of this Court in W.A.No.1458 of 2019
dated 20.01.2023 and order passed by the learned Single Judge of this Court in
W.P.No.4343 of 2020 dated 25.02.2020, this Court is of the considered view
that the impugned order passed by the 1st respondent in Letter
No.6745/AB1/2020-13 dated 29.08.2020 is liable to be quashed and the same is
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W.P.No.102 of 2021
hereby quashed.
16. In the result, this writ petition stands allowed and the respondents
are directed to regularise the petitioner from the date of completion of 5 years
of her appointment within a period of eight weeks from the date of receipt of a
copy of this order. No costs. Consequently, connected miscellaneous petition
are also closed.
25.09.2023
dpq
Index : Yes /No
Speaking/Non speaking order
To
1. The Secretary to the Government
Health and Family Welfare Department,
Secretariat, St.George Fort,
Chennai 600 009.
2. The Director
Public Health and Preventive Medicine
DMS Complex, Teynampet,
Chennai 600 006.
3. The Deputy Director
Public Health and Services,
Opp.to Govt.General Hospital,
Salem – 636 001.
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W.P.No.102 of 2021
J. SATHYA NARAYANA PRASAD, J.
dpq
W.P.No.102 of 2021
25.09.2023
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