Madras High Court
A. Perumal vs The Principal Secretary To The ... on 25 September, 2023
W.P.No.27796 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.27796 of 2021
A. Perumal ... Petitioner
Vs.
1. The Principal Secretary to the Government
Public 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 Mandamus to direct the respondents to regularise the
petitioner's service forthwith as per Government Order in G.O.(Ms).No.325
dated 20.11.2012.
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W.P.No.27796 of 2021
For Petitioner : Mr.S.Kolandasamy
For Respondents : Mrs.C.Meera Arumugam
Addl. Government Pleader
ORDER
This Writ Petition has been filed seeking for issuance of a Writ of
Mandamus to direct the respondents to regularise the petitioner's service
forthwith as per Government Order in G.O.(Ms).No.325 dated 20.11.2012.
2. The learned counsel for the petitioner submitted that the petitioner
was working as a Multi Purpose Hospital Worker (MPHW) in
Vedukathampatty Primary Health Centre (PHC), Salem for the last 7 years and
10 months. Even after completion of five years of service he 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 20.02.2013 as per 3rd 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 Vedukathampatty Primary Health Centre (PHC) as
per 3rd respondent proceeding Letter No.12000/E2/2012 dated 07.03.2013
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W.P.No.27796 of 2021
based on G.O.(Ms).M.L.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 he has been working as
MPHW as Attender for Male and Female Nurses, Hospital Staff Attender,
Sweeper's Attender, Stretcher workers. 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 10 months but not
regularised so far.
4. The learned counsel further submitted that the respondents have
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
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W.P.No.27796 of 2021
their Association, but there was no response from the respondents in regard to
his regularisation. The petitioner and other similarly placed persons have
already crossed the age of 44 years and their regularisation is just and necessary
for getting retirement benefits at old age.
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 7
years and 6 months of service, even then he 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
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W.P.No.27796 of 2021
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 he 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 6 months of service.
7. The learned Additional Government Pleader appearing for the
respondents has filed a counter affidavit filed by the third respondent dated
25.02.2020 and submitted that the service of the petitioner was extended
beyond 5 years only based on sympathy.
8. Heard both sides and perused the materials available on record.
9. 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
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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
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.
10. 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 10 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. In the counter affidavit dated 25.02.2022
filed by the 3rd respondent it is 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. This Court passed an
order in W.P.No.4343 of 2020 dated 25.02.2020 and the relevant portion of the
order is extracted as below:-
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W.P.No.27796 of 2021
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
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.”
11. 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
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was directed to pass orders on merits and in accordance with law and
subsequently the third respondent herein in its counter affidavit dated
25.02.2022 has stated that after completion of 5 years of service by the
petitioner the same was extended only on the ground of sympathy, hence
his request for regularisation cannot be accepted. 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.
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12. 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
services of the petitioner on the ground of sympathy as stated by the third
respondent and the petitioner is entitled for regularisation.
13. 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.
14. 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, the respondents are directed to regularise the petitioner from
the date of completion of 5 years of his appointment within a period of eight
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weeks from the date of receipt of a copy of this order.
15. In the result, this writ petition stands allowed with the above
observation and direction. 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.27796 of 2021
J. SATHYA NARAYANA PRASAD, J.
dpq
W.P.No.27796 of 2021
25.09.2023
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