Madras High Court
S.Aristatil vs The Government Of Tamil Nadu on 11 September, 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 13.06.2024
Delivered On : 11.09.2024
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.P.(MD)Nos.18405, 26269, 18375, 18407, 18411, 18494, 18551,
18595, 18598, 18630, 18716, 18858, 18882, 19976, 19998, 25121 of
2023 and 5272 of 2024
and
W.M.P.(MD)Nos.15665, 15248, 15249, 15252, 15538, 15539, 15250,
15667, 15686, 15687, 15688, 16475, 16476, 16496, 16498, 21303,
21305, 22614, 22615, 22616, 15403, 15277, 15278, 15279, 15280,
15282, 15284, 15286, 15287, 15288, 15330, 15331, 15332,
15379,15380, 15398, 15399, 15401, 15426, 15427, 15428, 15430,
15472, 15473, 15537 of 2023,
5053, 5054 and 5055 of 2024
W.P.(MD)No.18405 of 2023:-
1.S.Aristatil
Health Inspector Gr.II,
HSC/HWC: Alanthalai,
Pitchivilai primary Health Center,
Kayamozhi BPHC,
Thoothukudi District.
2.C.Muthusamy,
Health Inspector Gr.II,
Pasuvanthani Primary Health Center,
Ottapidaram BPHC,
Ottapidaram Taluk,
Thoothukudi District.
3.S.Rajesh,
Health Inspector Gr.II,
HSC/HWC: Adaikalapuram,
Sonaganvillai Primary Health Center,
Kayamozhi BPHC,
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Thoothukudi District.
4.K.Karupasamy,
Health Inspector Gr.II,
Vasudevanallur Primary Health Center,
Tenkasi District.
5.S.Saravanakumar,
Health Inspector Gr.II,
HSC/HWC: Nattathi
Sebathayapuram Primary Health Center,
Eral BPHC,
Thoothukudi District.
6.V.Sridhar,
Health Inspector Gr.II,
HSC/HWC: Perur,
Betmanagram Primary Health Center,
Eral BPHC,
Thoothukudi District.
7.M.S.Sivaramasubramaniam,
Health Inspector Gr.II,
HSC/HWC: Alwarthoppu,
Betmanagram Primary Health Center,
Eral BPHC,
Thoothukudi District.
8.C.M.Bibin,
Health Inspector Gr.II,
Pudukottai Primary Health Center,
Thoothukudi District.
9.P.Ananth,
Health Inspector Gr.II,
HSC/HWC: Sivanthipuram,
Vairavikulam BPHC,
Thoothukudi District.
10.C.M.Prabin dhas,
Health Inspector Gr.II,
HSC/HWC: varthanadarkudieruppu,
Muttom BPHC,
Thoothukudi District.
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11.V.Ajith,
Health Inspector Gr.II,
HSC/HWC: Thiruvattar,
Thiruvattar Primary Health Center,
Kuttakuzhi BPHC,
Thoothukudi District.
12.R.Micklin Jacks,
Health Inspector Gr.II,
HSC/HWC: Udaiyarvillai,
Naduvoorkarai Primary Health Center,
Muttom BPHC,
Thoothukudi District.
13.D.Diamond Bright,
Health Inspector Gr.II,
HSC/HWC: Pinanthode,
Petchiparai Primary Health Center,
Kuttakuzhi BPHC,
Kanyakumari District.
14.G.Venkatesaperumal,
Health Inspector Gr.II,
HSC/HWC: Padarathapulli,
Primary Health Center,
Perilovanpatti BPHC,
Thoothukudi District.
15.A.Dinesh,
Health Inspector Gr.II,
HSC/HWC: Maniyachi,
S.Kailaspuram Primary Health Center,
Ottanatham BPHC,
Thoothukudi District.
16.P.Babu,
Health Inspector Gr.II,
HSC/HWC: Muramban,
S.Kailaspuram Primary Health Center,
Ottanatham BPHC,
Thoothukudi District.
17.A.Balaji,
Health Inspector Gr.II,
HSC/HWC: Ottudanpatti,
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S.Kailaspuram Primary Health Center,
Ottanatham BPHC,
Thoothukudi District.
18.D.Kamaraj,
Health Inspector Gr.II,
HSC/HWC: T.Shanmugapuram,
Keela Eral BPHC,
Thoothukudi District.
19.G.Saravanakumar
Health Inspector Gr.II,
Madhupatti Primary Health Center,
Tenkasi District.
20.M.Monish Babu,
Health Inspector Gr.II,
Thiruvanthancodu Primary Health Center,
Nagarcoil District.
21.M.Logesh,
Health Inspector Gr.II,
HSC/HWC: Kumarapuram,
Aralvaimozhi Primary Health Center,
Chenbagaramnputhoor BPHC,
Kanyakumari District.
22.B.Nishanth,
Health Inspector Gr.II,
HSC/HWC: Mattor,
Thiruvattar Primary Health Center,
Kuttakuzhi BPHC,
Kanyakumari District.
23.C.Sujin,
Health Inspector Gr.II,
HSC/HWC: Thenmanoor,
Kuttakuzhi BPHC,
Kanyakumari District.
24.S.Kathir Joyson,
Health Inspector Gr.II,
Kulainayaneri Primary Health Center,
Sankarankoil BPHC,
Tenkasi District.
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25.B.Gnana Blesso,
Health Inspector Gr.II,
HSC/HWC: Mankuzhi,
Naduvoorkarai Primary Health Center,
muttom BPHC,
Kanyakumari District.
26.M.Krishna Varun Raj,
Keela Eral BPHC,
Kovilpatti
Thoothukudi District.
27.A.Akhil,
Health Inspector Gr.II,
HSC/HWC: Kappukadu,
Munchirai Primary Health Center,
Arudesam BPHC,
Kanyakumari District.
28.T.L.Abijesh,
Health Inspector Gr.II,
HSC/HWC: Ganeshapuram,
Aralvaimozhi Primary Health Center,
Chenbagaramnputhoor BPHC,
Kanyakumari District.
29.V.Vivek,
Health Inspector Gr.II,
HSC/HWC: Paraikkai,
Singlayerpuri Primary Health Center,
Rajakamangalamthurai BPHC,
Kanyakumari District.
30.T.Raja Gobal,
Health Inspector Gr.II,
Edaicode Primary Health Center,
Kanyakumari District.
31.M.Rajaram,
Health Inspector Gr.II,
Ganapathypuram Primary Health Center,
Rajakamangalamthurai BPHC,
Kanyakumari District.
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32.J.Sunil,
Health Inspector Gr.II,
HSC/HWC: Vembanoor,
Ganapathypuram Primary Health Center,
Rajakamangalamthurai BPHC,
Kanyakumari District.
33.S.Priyesh,
Health Inspector Gr.II,
HSC/HWC: kunnathoor,
Munchirai Primary Health Center,
Arundesam BPHC,
Kanyakumari District.
34.Augesto A.Lazen,
Health Inspector Gr.II,
HSC/HWC: Azhagiapandiapuram,
Aralvoimozhi Primary Health Center,
Chenbagaramnputhoor BPHC,
Kanyakumari District.
35.S.Ashlin Jacob,
Health Inspector Gr.II,
HSC/HWC: Ankudy,
Ganapathypuram Primary Health Center,
Rajakamangalamthurai BPHC,
Kanyakumari District.
36.S.U.Sachith,
Health Inspector Gr.II,
Kuttakuzhy BPHC,
Kanyakumari District.
37.S.Sam Repiro,
Health Inspector Gr.II,
HSC/HWC: Erachakulam,
Aralvoimozhi Primary Health Center,
Chenbagaramnputhoor BPHC,
Kanyakumari District.
38.T.Krishnakumar,
Health Inspector Gr.II,
HSC/HWC: Pallanthurai,
Ganapathypuram Primary Health Center,
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Rajakamangalamthurai BPHC,
Kanyakumari District.
39.G.Suresh,
Health Inspector Gr.II,
HSC/HWC: Periyapillaivalasi,
vadamkaraikilpidagai BPHC,
Tenkasi District.
40.K.Rajendra kumar,
Health Inspector Gr.II,
HSC/HWC: Marukkalankulam,
Uthumalai Primary Health Center,
Nettur BPHC,
Tenkasi District.
41.A.Vigneshkumar,
Health Inspector Gr.II,
Veeranam Primary Health Center,
Sankarankoil
Tenkasi District.
42.A.Srinivasan,
Health Inspector Gr.II,
HSC/HWC: Viswanahaperi,
Tenmalai Primary Health Center,
Tenkasi District.
43.M.Krishnamoorthy,
Health Inspector Gr.II,
HSC/HWC: Thiruvedanallur,
Madathupatti Primary Health Center,
Karivalamvanthanallur BPHC,
Tenkasi District.
44.S.Saravanakumar,
Health Inspector Gr.II,
HSC/HWC: Veerasingamani,
Madathupatti Primary Health Center,
Karivalamvanthanallur BPHC,
Tenkasi District.
45.J.Padmanaban,
Health Inspector Gr.II,
HSC/HWC: Ariyanayagipuram,
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Madathupatti Primary Health Center,
Karivalamvanthanallur BPHC,
Tenkasi District.
46.M.Riswan Hussain,
Health Inspector Gr.II,
HSC/HWC: Iynthamkattalai,
Koviloothu Primary Health Center,
Kadayam BPHC,
Tenkasi District.
47.M.Kalicharan,
Health Inspector Gr.II,
HSC/HWC: Thadicherry,
veerapandi BPHC,
Theni District.
48.C.K.Balavasanthan,
Health Inspector Gr.II,
Elumalai Block Primary Health Center,
Madurai District.
49.B.Hemanth,
Health Inspector Gr.II,
HSC/HWC: Chithur,
Devipattinam BPHC,
Ramanathapuram District.
50.K.Kathiresan,
Health Inspector Gr.II,
Elumalai Block Primary Health Center,
Madurai District.
51.K.Suresh Kumar,
Health Inspector Gr.II,
HSC/HWC: Silaiman,
Valayankulam BPHC,
Madurai District.
52.B.Senthil Kumar,
Health Inspector Gr.II,
HSC/HWC: Sakkarakottai,
Devipattinam BPHC,
Ramanathapuram District.
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53.G.Manirajan,
Health Inspector Gr.II,
HSC/HWC: Kurumbapatti,
Seelapadi Primary Health Center,
Thadicombu BPHC,
Dindugul District. .... Petitioners
Vs.
1.The Government of Tamil Nadu
Rep. By itsprincipal secretary to Government ,
Health Department
Secretariat,
Chennai- 600 008
2.The Director of Public Health and Preventive Medicines,
Chennai- 600 008.
3.The Deputy Director of Health Service / Executive Secretary, District
Health Society,
Thoothukudi District,
Thoothukudi.
4.The Member secretary,
Medical Services Recruitment Board (MRB),
DMS Building - 7th Floor,
359, Anna salai,
Teynampet,
Chennai – 600 006.
5.The Chairman,
Board of Examination for Multipurpose Health
Worker (Male)//Health Inspector/Sanitary
Inspector Training course and
the Director of Public Health and Preventive Medicine,
Chennai – 6. ... Respondents
(R4 is suo moto impleaded vide Court
order dated 11.09.2024 by LVGJ)
PRAYER : Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, calling for the records
relating to the Notification No.06/MRB/2023, dated 11.07.2023, issued by
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the 4th respondent and quash the same and consequently, direct the
respondents to give preference to the petitioners and also weightage to the
previous service of 20 months rendered for COVID 19 duties and further
service being rendered from December 2021 under National Health Mission
and select the petitioners for appointment as Health Inspector Grade II in
the vacancies for which recruitment is being made within a time limit.
For Petitioners : Mr.M.Sricharan Rengarajan
For Mr.A.Thirumoorthy
For Respondents 1 to 3 : Mr.P.Veera Kathiravan,
Additional Advocate General
Assisted by Mr.D.S.Nedun Cheliyan
Government Advocate
For 4 Respondent
th
: Mr.V.Ramesh, Standing Counsel
COMMON ORDER
All these Writ Petitions came to be filed, to quash the impugned
Notification No.06/MRB/2023, dated 11.07.2023, of the Medical
Recruitment Board and consequently seeking the following reliefs:-
I. To direct the respondents to absorb the petitioners in the post of
Health Inspector Grade II on the basis of the priority for the COVID-19
duties rendered by the petitioners in the light of the circular issued by the
Government of India, Ministry of Health and Family Welfare, dated
03.05.2021.
II. To direct the respondents to appoint the petitioner as Health
Inspector by considering his service experience as Health Inspector under
the National Mission, which is implemented by the first and third
respondents.
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III. To direct the respondents to give preference to the petitioners by
offering weightage to their previous service of 20 months rendered for
COVID-19 duties and further service rendered by them from December 2021
under National Health Mission and select the petitioners for appointing
them as Health Inspectors Grade II in the vacancies, for which the
recruitment has been notified.
IV. To direct the respondents to consider the petitioners for regular
recruitment as Health Inspector on preferential basis, considering their 2
years Health Inspector course with 6 months “Part – III - Field Training” and
the marks secured against the total 1050 marks prescribed for 2 years of
2017 - 2019 and 20 months of COVID-19 life threatening service and
further continuation in service from April 2020 till date.
V. To quash the impugned G.O.Ms.No.299, Health and Family
Welfare (L1) Department, dated 12.09.2023, issued by the first respondent
and further consider the petitioners for regular recruitment as Health
Inspector Grade II on preferential basis, considering their 2 full years of
services Health Inspector.
VI. To quash para 7(a) and 7(b) relating to the procedure for selection
in impugned recruitment Notification No.06/MRB/2023, dated 11.07.2023.
VII. Deviating from other petitions in W.P.(MD)No.18411 of 2023, the
the consequential relief sought for is to permit the petitioners, who have
studied 1 year Health Sanitary Inspector (NSQF) course offered by the
Ministry of Skill Development and Entrepreneurship under the guidance of
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the Directorate of General Training, Government of India, to participate in
the recruitment to the post of Health Inspector Grade II within a stipulated
period of time.
2.All the writ petitioners herein were appointed as Health Inspectors
Grade II on 28.04.2020, that is, during COVID-19 pandemic period. All the
writ petitioners possess basic qualification of SSLC and higher secondary
with two years Multipurpose Health Worker (male)/Health
Inspector/Sanitary Inspector Training course conducted by the Board of
Examinations of the Department of Public Health and Preventive Medicine of
the Government of Tamilnadu. Pursuant to the communication of the
second respondent in R.No.26666/MP.1/S1/2020, dated 15.04.2020, the
third respondent, that is, the Deputy Directors of Health Services concerned,
appointed the petitioners as Health Inspector Grade II in the Primary Health
Centers in Thoothukudi and other Southern districts on a monthly
consolidated pay of Rs.20,000/-, to carry out COVID-19 health and
preventive works from 28.04.2020, that is, on the sudden breakout of
COVID-19 pandemic in the State of Tamilnadu.
3.Accordingly, the petitioners have worked from 28.04.2020 to
December 2021, that is, for a period of one year and eight months.
Thereafter, on due certificate verification and preference as decided by the
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selection committee along with weightage based scoring, the third
respondent had appointed the petitioners as Health Inspector Grade II in the
National Health Mission, that is, Makkalai Thedi Maruthuvam Scheme for a
meager and lesser monthly salary of Rs.11,000/- and now the petitioners
are working in the service of the Government of Tamilnadu under the
bonafide expectation of regularization of their service and for permanent
appointment. Though the petitioners have completed the Health Inspector
course during the years 2017-2018 and 2018-2019, that is, from
11.12.2017 to 27.12.2019, the second respondent had issued the “course
certificate” alone. Though it is stated in the course certificate that the
petitioners have secured first class in the Health Inspector course, mark
statements were not issued immediately. However, later to their shock and
surprise, the second respondent issued mark statement mentioning that a
pass in Multi purpose Health Worker (Male), that is, (MPHW) (M/HI/SI)
training course examinations required a minimum of 50 percentage of
marks in each subject, that is, 75 marks out of 150 marks. However, there
is no mention about the percentage of marks for classification of the ranks
as distinction or first class or second class. While so, the fourth respondent
issued the Notification No.06/MRB/2023, dated 11.07.2023, calling for
online applications up to 31.07.2023, for direct recruitment to fill up 1066
post of Health Inspectors.
4.In the said recruitment Notification under 'procedure of selection' in
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para 7(a), the minimum education qualification has been mentioned as
certificate or diploma with HSC qualification and weightage of marks have
been prescribed as (i)20% for SSLC marks, (ii)30% for higher
secondary/PUC marks and (iii)50% for Health Inspector course marks. The
petitioners having continuously contributed their service risking their lives
working as Health Inspectors Grade II during COVID-19 pandemic from
28.04.2020 to December 2021, that is, for a period of 20 months. In the
aforesaid Notification dated 11.07.2023, no weightage marks has been
offered for the life saving service rendered by the petitioners. That apart,
when preference along with weightage based scoring was followed for the
appointment of the petitioners as Health Inspector Grade II under the
National Health Mission, that is, Makkalai Thedi Maruthuvam Scheme and
when the petitioners were in service as Health Inspector Grade II from
December 2021 to till date for a meagre monthly salary of Rs.11,000/-, the
petitioners service ought to have been regularized before going for fresh
direct recruitment or at least a weightage ought to have been granted or
allotted for the service already rendered by the petitioners. Since the said
provision is not made in the Notification, dated 11.07.2023, these Writ
Petitions came to be filed seeking to quash the same for grant of weightage
to their previous service till December 2021.
5.Deviating from the other Writ Petitions, in W.P.(MD)No.18411 of
2023, the petitioner having completed her SSLC and plus 2 studies at
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Government Higher Secondary School, at Tirunelveli district, she later
completed one year certificate course in Health Sanitary Inspector, at
Thiyagarajar PVT Industrial Training Institute, in Salem District, offered by
the National Council for Vocational Training offered by the Ministry of Skill
Development and Entrepreneurship under the guidance of the Directorate of
General Training, Government of India. Her selection was based on single
window counseling system offered by the Government of Tamil Nadu for ITI
admission during the year 2021. She had scored 544 marks out of 600 in
the said course. However, in the impugned notification No.06/MRB/2023
dated 11.07.2023, candidates with qualification as that of the petitioner
have been excluded from participating in the recruitment process for the
post of Health Sanitary Inspector Grade II. Hence, the said Writ Petition has
been filed challenging the impugned notification to the extent of neglecting
the students like the petitioner, who have studied one year Health Sanitary
Inspector (NSQF) course offered by the Ministry of Skill Development and
Entrepreneurship, Government of India.
Submissions:-
6.The arguments put forth by the various counsels for the various
petitioners are crystallized as here under:-
(i)The impugned recruitment notification dated 11.07.2023, is per se
illegal for the prime reason that applications have been invited for direct
recruitment on “Temporary basis” to the post of Health Inspector Grade II
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in Tamil Nadu Public Health Subordinate Service, claiming that the
petitioners are serving as Multipurpose Health Worker (male)/Health
Inspector Grade II. The learned counsels for the petitioners insisted that a
temporary employee cannot be replaced by another temporary employee, but
can be replaced only by another candidate, who is regularly appointed by
following the procedure established by law and as such, the said impugned
Notification is bad in the eye of law.
(ii)The distribution of vacancies in Clause 2(II) more particularly with
respect to PSTM category is erroneous and hence, the Notification is liable to
be quashed.
(iii)The procedure of selection in Clause 7(a), (b) and (c) of the
impugned notification is discriminatory and violative of Articles 14 and 16 of
the Constitution of India. Having prescribed the minimum educational
qualification required for the post of Health Inspector Grade II as certificate
or diploma with HSC qualification, the weightage of marks offered to SSLC
marks is obviously unwarranted.
(iv)Having acknowledged the fact that mark statements for
Multipurpose Health Worker (Male)/Health Inspector/Sanitary Inspector
course have not been awarded to the candidates in many of the institutes
prescribing the procedure for such cases that the minimum pass mark for
the course would be taken as marks obtained by those candidates is
explicitly discriminatory.
(v)The recommendations of the Hon'ble Supreme Court in suo moto
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W.P.No.3 of 2021, more particularly requiring the respective State
Governments to ensure that the Health Care Personnel who contributed
during COVID-19 pandemic to continue in service with the assistance from
the Central Government is conveniently swept under the mat by the State
Government.
(vi)The petitioners who served as Health Inspectors during COVID 19
pandemic were not given any priority. The circular dated 03.05.2021, issued
by the Ministry of Health and Family Welfare, Government of India, has not
been adopted by the State Government.
(vii)Equating both the certificate course and diploma course in the
same scale would lead to discrimination.
(viii)Exclusion of female candidates for the post of Health Inspector
Grade II is discriminatory.
(ix)Mark statements issued to 2020 batch who have passed out the
Multipurpose Health Worker (male) training course are erroneous and the
certificates issued are also contrary to the mark statements. Hence,
weightage marks prescribed for the marks scored during the diploma/
certificate course would obviously lead to irregular recruitment.
(x)The impugned notification more particularly Clause 2 and 7 are
misleading and arbitrary.
7.The learned Additional Advocate General Mr.Veera Kathiravan
appearing for the respondents submitted that the previous nomenclature of
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the post was Multipurpose Health Worker (male). There are separate posts
available for female candidates, such as, Multipurpose Health Worker
female, now re-designated as Village Health Nurse. None of the petitioners
were appointed in any sanctioned vacancy and their appointments were
neither temporary nor one made in the sanctioned post. The petitioners were
actually engaged on contract basis in “Makkalai Thedi Maruthuvam
Scheme” until the scheme had been in vogue.
8.As far as the allegation of the petitioners that the mark statement
issued for the certificate/diploma course were improper, the learned
Additional Advocate General submitted that the Medical Recruitment Board
will only consider the mark statement. Hence, the Department of Public
Health had issued mark sheets instead of grade sheets. Students answer
sheets are still maintained under the custody of the Department of Public
Health and any time anyone can verify it and there can be no dispute with
the mark statements. He further categorically contended that in view of
these Writ Petitions filed before this Court, the Government had carefully
examined the issue and had magnanimously issued yet another government
order in G.O.Ms.No.299, Health and Family Welfare (L1) Department, dated
12.09.2023, granting incentive marks for contract Health Inspectors
appreciating their service during COVID pandemic. In view of the same, he
pressed for vacating the interim stay and allow the appointment process to
proceed with by dismissing the Writ Petitions.
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9.Heard the learned Senior Counsel Mr. Sricharan Rangarajan for Mr.
A.Thirumoorthy, Mr. Aswin Raja Simman for M/s. Lajapati Roy Associates,
Mr. S. Louis, Mr. S.Malaikani, Mr.Ragatheesh Kumar for M/s. Isaac
Chambers, Mr.R.Venkatesan for M/s. Right Law Associates on behalf of the
petitioners, the learned Additional Advocate General, Mr. V.Veera
Kathiravan, assisted by J.K.Jeyaseelan, Government Advocate and
Mr.V.Ramesh for the respondents, and anxiously perused the materials
available on record.
Analysis:-
10.The impugned notification in Notification No.06/MRB/2023, dated
11.07.2023, issued by the Medical Services Recruitment Board (MRB),
inviting applications from male candidates through online mode for direct
recruitment on temporary basis to the post of Health Inspector Grade II in
Tamil Nadu Public Health Subordinate Service, has opened up a Pandora's
box, giving way to all these petitioners to file a number of Writ Petitions,
challenging the aforesaid notification.
11.All the petitioners in W.P.(MD)Nos.18405 of 2023, 18407 of 2023,
25121 of 2023, and 18630 of 2023, have completed SSLC, Higher Secondary
Course and two years Multipurpose Health Worker (male)/Health
Inspector/Sanitary Inspector training course, conducted by the Board of
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Examinations of Department of Public Health and Preventive Medicine of the
Government of Tamil Nadu, between the academic years 2017-2019, in
various institutes.
12.All the petitioners in W.P.(MD)No.18375 of 2023, have completed
SSLC, Higher Secondary Course (biology group), B.Sc chemistry degree and
postgraduate diploma in Sanitary Inspector course at Gandhigram Rural
Institute. All the other petitioners in W.P.(MD)Nos.18716, 18598, 18595,
18551, 18494, 19998, 19976, 18882, 18858, 26269 of 2023 and 5272 of
2024, except one Essakiamal, the writ petitioner in W.P.(MD)No.18411 of
2023, have completed two years Multipurpose Health Worker (male)/Health
Inspector/Sanitary Inspector training course, conducted by various
institutes across Tamil Nadu, during 2017-2019. The aforesaid
Essakiammal has undergone one year certificate course in Health Sanitary
Inspector, July 2022, at Thiyagarajar PVT Industrial Institute, Salem.
13.In the year 2020, the World Health Organization declared
COVID-19 epidemic, which affected more than 195 countries, including
India, as public health emergency of international concern and had
characterized the same as pandemic, which required urgent massive effort
for control. Pursuant to the same, as an emergency measure, the powers
were delegated under Section 7 of the Tamil Nadu Public Health Act, 1939,
to the Director of Public Health, to recommend measures, that may be
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necessary for improving the Public Health Administration, in the local area,
or for safeguarding the public health. Following which, the Director of Public
Health and Preventive Medicine, Chennai - 6, issued a circular in R.No.
26666/MP.1/S1/2020, dated 15.04.2020, requesting the Deputy Director of
Health Services, to engage Multipurpose Health Workers (male), on
outsourcing on temporary basis, for a period of 3 months. The qualification
as prescribed, for engaging Multipurpose Health Workers (male), at a
consolidated pay of Rs.20,000/- per month, through outsourcing on
temporary basis, for a period of 3 months, is as follows:-
“Qualifications:
(i)Must have passed plus two with Biology or Botany
and Zoology.
(ii)Must have passed Tamil languate as a subject in
S.S.L.C. Level.
(iii)For those who have acquired Multipurpose Health
Worker (Male) Course/Sanitary Inspector Course in University
affiliated/Government recognized institutions prior to 13.04.2017
plus two with Biology or Botany and Zoology with one year
Multipurpose Health Worker (Male) Course. The syllabus followed
in such institutes should be equivalent to the syllabus prescribed
by the Director of Public Health and Preventive Medicine.
(iv)For those who have acquired Multipurpose Health
Worker (male) Course/Sanitary Inspector Course in University
affiliated/Government recognized institutions after 13.04.2017 plus
two with Biology or Botany and Zoology with two year Multipurpose
Health Worker (Male) Course.”
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14.A total number of 2215 persons, as qualified supra, were engaged
as Health Inspector Grade II and were posted across 42 districts, in the
State of Tamil Nadu. All the 2215 persons, appointed as Health Inspector
Grade II, were recruited by outsourcing, exclusively for the purpose of
managing the outbreak of COVID-19, in the State of Tamil Nadu. While
being so, the Department of Health and Family Welfare issued G.O.Ms.No.
516, dated 19.11.2021, issuing operational guidelines, for strengthening of
health and wellness centers, under the Makkalai Thedi Maruthuvam
Scheme, of the National Health Mission, by which, placement of 2448
Multipurpose Health Worker, (male)/Health Inspector Grade II, in Health
Sub Centers, were also approved. The selection criteria, qualification and
eligibility for the purpose of engaging Multipurpose Health Worker
(male)/Health Inspector Grade II, under the Makkalai Thedi Maruthuvam
Scheme, was also mandated in the aforesaid G.O.Ms.No.516, dated
19.11.2021, and the same is as follows:-
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https://www.mhc.tn.gov.in/judis
15.Almost all the petitioners, except few, who were originally
appointed as Health Inspectors Grade II, in pursuance of the
Communication, of the Director of Public Health and Preventive Medicine,
Chennai, dated 15.04.2020, were appointed as Health Inspector Grade II, in
Health Sub Centers/Health and Wellness Centers, on contract basis, for a
consolidated pay of Rs.11,000/- per month, purely, temporarily, in nature.
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16.The cry of the petitioners is that, when they were rendering their
unblemished service and were under the legitimate expectation of being
regularized in service and for a permanent appointment, the impugned
Notification, in Notification No.06/MRB/2023, dated 11.07.2023, inviting
applications from male candidates, for direct recruitment, on temporary
basis to the post of Health Inspector Grade II in Tamil Nadu Public Health
Subordinate Service, came to be issued by the Medical Recruitment. In view
of the various arguments, put forth by the learned counsels for the
petitioners, challenging the impugned notification, dated 11.07.2023 and
the counter argument made by the learned Additional Advocate General, the
following important questions have arisen for the consideration of this
Court:-
I. Whether the impugned notification inviting applications only from
male candidates for direct recruitment on temporary basis to the post of
Health Inspector Grade II, in Tamil Nadu Public Health Subordinate Service,
violate Articles 14 and 16 of the Constitution of India ?
II. Whether the distribution of vacancies in Clause 2(II) of the
impugned notification has violated the rule of reservation for PSTM
category?
III. Whether Clause 6B of the impugned notification, providing for
educational qualification, is bad, as far as excluding those, who have
undergone one year Multipurpose Health Worker training course, after
13.04.2017?
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IV. Whether the procedure of selection envisaged under Clause 7(a)
and 7(b) of the impugned notification, is liable to be quashed?
V. Whether the impugned G.O.Ms.No.299, Health and Family Welfare
Department, dated 12.09.2023, is liable to be quashed?
17.Question No.1:- Whether the impugned notification inviting
applications only from male candidates for direct recruitment on
temporary basis, to the post of Health Inspector Grade II in Tamil Nadu
Public Health Subordinate Service, violates Articles 14 and 16 of the
constitution of India?
17.1.It is already elucidated above that the petitioners were among the
2215 candidates who were engaged as Multipurpose Health Workers (male)
in the cadre of Health Inspector Grade II, in terms of the annexure to the
circular of the Director of Public Health and Preventive Medicine, Chennai-6
in R.No.2666/MP.1/S1/2020, dated 15.04.2020. The petitioners were
engaged as Health Inspector Grade II at a consolidated pay of Rs.20,000/-
per month through outsourcing on temporary basis from 31.03.2020 and
were appointed across the 42 districts in the State of Tamil Nadu. Further
from December 2021, under the National Health Mission, they were
appointed as Multipurpose Health Worker (male)/Health Inspector Grade II
in Health Sub Centers/Health and Wellness Centers on contract basis at a
consolidated pay of Rs.11,000/- per month, under the National Health
Missions Scheme. A total number of 2448 candidates were appointed as
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Health Inspector Grade II including the petitioners under the National
Health Mission. While they were continuing service as Health Inspector
Grade II under the Health Mission Scheme, the impugned notification dated
11.07.2023, came to be issued by the Medical Recruitment Board. The
learned Additional Advocate General Mr.Veerakathiravan categorically
submitted that the petitioners and others were engaged as Health Inspector
Grade II at the first instance pursuant to the proceedings of the Director of
Public Health and Preventive Medicine, Chennai dated 15.04.2020, and
thereafter under a National Health Mission only on contract basis and their
appointment can never ever be considered to be on temporary basis in a
cadre post.
17.2.Time and again, the Hon'ble Apex Court and this Court have
deprecated the attitude of the Central and State Governments in engaging
contract employees and after having exploited work continuously from such
employees, thereafter, disengage them by inviting applications from others
to replace the already working employees who were working on contract
basis. No doubt, the appointees under the Makkalai Thedi Maruthuvam
under the National Health Mission Scheme cannot claim for a regularization,
in view of the nature of their employment on contract basis which cannot be
equated to adhoc employment. It is categorically argued by the petitioners
that a temporary employee cannot be replaced by another temporary
employee and he can be replaced only by another candidate who is regularly
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appointed by following a regular procedure of selection under the
established procedure of law, relying upon the judgment of the Hon'ble Apex
Court in the case of the Manish Gupta and another v. President, Jan
Bagidari Samithi and others reported in 2022 SCC online SC 485,
which has held as follows:-
“12.A perusal of the advertisement dated 24 June, 2016
issued by the Principal, Government Kamla Raja Girls Post
Graduate Autonomous College, Gwalior, which is at Annexure P-2 of
the Appeal Paper Book and the advertisement dated 2 July, 2016
issued by the Principal, SMS Government Model Science College,
Gwalior, M.P., which is at Annexure P-3 of the Appeal Paper Book,
would show that the appointments were to be made after the
candidates had gone through due selection procedure. Though Shri
Nataraj, learned ASG has strenuously urged that the appointments
of the appellants were as guest lecturers and not as ad hoc
employees, from the nature of the advertisements, it could clearly be
seen that the appellants were appointed on ad hoc basis. It is a
settled principle of law that an ad hoc employee cannot be replaced
by another ad hoc employee and he can be replaced only by
another candidate who is regularly appointed by following a regular
procedure prescribed. Reliance in this respect can be placed on the
judgment of this Court in the case of Rattan Lal v. State of Haryana
and on the order Court in the case of Hargurpratap Singh v. State of
Punjab.”
17.3.As far as inviting applications only from male candidates to the
post of Health Inspector Grade II, the same is a post which is earmarked as
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Multipurpose Health Worker (male)/Health Inspector Grade II. The learned
Additional Advocate General Mr.Veera Kathiravan, rightly submitted that
there are posts in the Tamil Nadu Public Health Subordinate Services
exclusively earmarked for male as well as female candidates. While the
Multipurpose Health Workers (male) are given the nomenclature Health
Inspector Grade II, the Multipurpose Health Worker (female) has been given
the nomenclature Village Health Nurse and the said post is exclusively to be
appointed with female candidates. In view of the same, I do not find any
demerit in classifying the Health Inspector Grade II post for male and the
Village Health Nurse post for females and the same is reasonable in view of
the avenue of work to be executed by the appointees to the aforesaid post in
the rural and urban areas.
17.4.The Government issued G.O.Ms.No.337, Health and Family
Welfare (L1) Department, dated 02.08.2019, declaring the cadre strength for
the post of Multipurpose Health Worker (male) (Health Inspector Grade II)
and Multipurpose Health Supervisor (Health Inspector Grade I) as per the
revised norms and the net vacancy as per the said GO is as follows:-
Cadre Strength Men in position (as on
sanctioned as per date)
Revised Norms
Grade I Health Inspector 1806 2063
Grade II Health Inspector 1641 1050
Total 3447 3113
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Health Inspector posts
17.5.Having declared the net vacancy for the post of Multipurpose
Health Worker (male) (Health Inspector Grade II) as on 02.08.2019 after a
passage of four years, now the impugned notification dated 11.07.2023, has
been notified by the Medical Services Recruitment Board, hereinafter to be
mentioned as MRB, inviting applications for direct recruitment to the post of
Health Inspector Grade II for 1066 posts on temporary basis. The policy of
adhocism adopted by the State Government for appointments to the post of
Health Inspector Grade II in Tamil Nadu Public Health Subordinate Service
for appointment in the distribution of vacancies as notified in the impugned
notification following the impugned procedure of selection in Clause 7(a) and
7(b) of the impugned Notification dated 11.07.2023, would obviously lead to
the breach of Articles 14 and 16 of the Constitution of India. Once direct
recruitment of candidates to a particular cadre post is called for, the
appointment should be made only on a permanent basis and should never
be temporary.
18.Question No.2:- Whether the distribution of vacancies in Clause
2 (II) of the impugned notification has violated the rule of reservation
for PSTM category?
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18.1.Clause 2 of the impugned notification is extracted as follows:-
Category No. of Ex - Ser. DAP(PH) PSTM Total
Vacancies G Ex- Vacancies
Ser.
GT 257 14 13 43 3 330
BC 220 11 11 37 3 282
MBC/DNC 165 9 9 28 2 213
SC 124 6 7 21 2 160
SC(A) 25 1 1 5 1 33
ST 8 2 1 11
Total 828 43 42 141 12 1066
18.2.The Government issued G.O.Ms.No.145, Personal and
Administrative Reforms (S) Department, dated 13.09.2010, notifying the
Tamil Nadu appointment on preferential basis in the services under the
State of Persons Studied in Tamil Medium Rules, 2010. Rule 3 of the
aforesaid Rules mandates that 20% of all vacancies in the appointment in
the services under the State which are to be filled through direct
recruitment shall be set apart on preferential basis to persons studied in
Tamil medium. Later, the Government further issued G.O.Ms.No.40,
Personal and Administrative Reforms (S) Department, dated 30.02.2014, by
substituting Rule 3 under the heading Illustration with an annexure
earmarking the 20% reservation for persons studied in Tamil medium on
preferential basis in every category of communal rotation for reservation.
Section 26(5) of the Tamil Nadu Government Servants Conditions of Service
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Act, 2016, provides for appointment of a minimum of 30% of women in all
vacancies, which are to be filled through direct recruitment and if a qualified
and suitable woman candidate belonging to schedule caste, schedule tribes,
backward Classes, backward classes Muslims, most backward
classes/denotified communities or general turn is not available for selection
for appointment in the turn allotted for women in the cycle, the turn so
allotted shall go to a male candidate within the respective category. Hence, a
combined reading of section 26(5) of the Tamil Nadu Government Servants
Conditions of Service Act, 2016 and Subsection 1 of Section 8 of the Tamil
Nadu Appointment on preferential basis in the services under the State of
Person Studied in Tamil Medium Act, 2010, (Tamil Nadu Act 40 of 2010)
would make it clear that when the posts are not meant for women, then it
should have to be notified as reserved for PSTM candidates as per the
rotation provided in G.O.Ms.No.40, dated 30.04.2014.
18.3.In view of the same, of the total 1066 vacancies, only 141 plus 12
vacancies have been earmarked for the category PSTM and the same ought
to have been 214 and hence, Clause 2(II) is bad and the same is liable to be
quashed for violating the mandates of Tamil Medium Act, 2010 and Section
26(5) of the Tamil Nadu Government Servants Conditions of Service Act,
2016.
19.Question No.3:- Whether Clause 6B of the impugned
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notification providing for “educational qualification” is bad as far as
excluding those who have undergone one year Multipurpose Health
Worker (male) Training course after 13.04.2017?
19.1.The Department of Health and Family Welfare issued G.O.Ms.No.
107, dated 13.04.2017, revising the guidelines and syllabus to the training
imparted for Multipurpose Health Worker (male)/Health Inspector/Sanitary
Inspector course offered by private institutions/trusts/universities/deemed
universities. By issuance of the aforesaid G.O., the Government after careful
consideration accepted the proposal of the Director of Public Health and
Preventive Medicine and authorized the Director of Public Health and
Preventive Medicine to approve the new guidelines and syllabus of the
Multipurpose Health Worker (male)/Health Inspector/Sanitary Inspector
course offered by the various institutions/universities, thereby adopting new
procedural requirement for the conduct of the said course.
19.2.Accordingly, the revised guidelines for conducting Multipurpose
Health Worker (male)/ Health Inspector/Sanitary Inspector Training course
dated 13.04.2017, came to be formulated and issued. The duration of the
said course came to be revised as 2 years (2 semesters) from 2017 - 2018
onwards. However, the course period would be 1 year for candidates those
who have minimum of 5 years service and experience in Public Health
Department or Local Body Public Health Establishment. The curriculum and
syllabus of the course were also separately revised. Hence, the duration of
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the course for Multipurpose Health Worker (male)/Health
Inspector/Sanitary Inspector Training course was made 2 years from 2017 -
2018 with effect from 13.04.2017. This Court in a batch of Writ petitions in
W.P.Nos.25671 of 2021, batch, has dealt with a similar point and the
relevant portion of the same is extracted as follows:-
“11. Point (ii): Whether the persons holding one year Diploma in
Sanitary Inspector from Pondicherry University Community College are
entitled to seek inclusion of the said course of study as eligibility criteria
for recruitment purpose in Tamil Nadu as in Puducherry including
applying for the 2448 posts of Multipurpose Health Workers in the
Health and Wellness Centres across Tamil Nadu in Annexure VI-A to
G.O.Ms. No. 531, Health and Family Welfare Department, dated
25.11.2021 issued by the Government of Tamil Nadu? (W.P. Nos. 25675
and 26518 of 2021)
Some of the persons, who had temporarily worked as Health
Inspector Grade II on contract basis were holding one year Diploma in
Sanitary Inspector from Pondicherry University Community College, but
the said course of study had not been included in Annexure VI-A to
G.O.Ms. No. 531, Health and Family Welfare Department, dated
25.11.2021 issued by the Government of Tamil Nadu, though the
Principal of Pondicherry University Community College had
recommended for its inclusion as eligibility criteria for recruitment
purpose in Tamil Nadu as in Puducherry. In this context, it would be
useful to recapitulate the principles relating to determination of
equivalence of prescribed qualifications for any post under the State with
any other given qualification, as highlighted in Devender Bhaskar -vs-
State of Haryana (Order dated 24.11.2021 in Civil Appeal No. 7031 of
2021) from the earlier decisions of the Hon'ble Supreme Court of India
referred below:-
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(i) Mohammad Shujat Ali -vs- Union of India [(1975) 3 SCC 76]: The
question regarding equivalence of educational qualifications is a technical
question based on proper assessment and evaluation of the relevant
academic standards and practical attainments of such qualifications.
Where the decision of the Government is based on the recommendation of
an expert body, then the Court, uninformed of relevant data and unaided
by technical insights necessary for the purpose of determining
equivalence, would not lightly disturb the decision of the Government
unless it is based on extraneous or irrelevant considerations or actuated
malafides or is irrational and perverse or manifestly wrong.
(ii) Ranga Swamy -vs- Government of Andhra Pradesh [(1990) 1 SCC
288]: It is not for the Court to consider the relevance of qualification
prescribed for various post.
(iii) State of Rajasthan -vs- Lata Arun [(2002) 6 SCC 252]: The prescribed
eligibility qualification for admission to a course or for recruitment to or
promotion in service are matters to be considered by the appropriate
authority.
(iv) Guru Nanak Dev University -vs- Sanjay Kumar Katwal [(2009) 1 SCC
610]: The equivalence is a technical academic matter. It cannot be implied
or assumed. Any decision of the academic body of the university relating
to equivalence should be by a specific order or resolution, duly
published.
(v) Zahoor Ahmad Rather & Ors -vs- Sheikh Imtiyaz Ahmad [(2019) 2
SCC 404]:
The State, as an employer, is entitled to prescribe qualifications as a
condition of eligibility, after taking into consideration the nature of the
job, the aptitude required for efficient discharge of duties, functionality of
various qualifications, course content leading up to the acquisition of
various qualifications, etc.,
The said view has been reinforced in Institution of Mechanical Engineers
(India) -vs- State of Punjab [(2019) 16 SCC 95] in the following words:-
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“45. ....What is the value of that certificate will be considered by each
employer as and when the occasion arises. The appellant would certainly
be entitled to award Certificate of Membership to its Members. What
weightage the Certificates must have is for the individual employers to
consider in a given case. The concerned employer may attach due
importance to such Certificates while considering the worth and ability of
the concerned candidates but to say that the Certificates are equivalent
to a degree and as such all the candidates who hold such Certificates
are entitled to derive the advantage which a degree holder can, is
completely a different issue.”
This would necessarily mean that it would not be permissible for the
Court to enter into the realm of ascertaining the equivalence of prescribed
qualification for any post in public service. At the same time, it must be
highlighted that the Government of Tamil Nadu has created a mechanism
for the said purpose in G.O. Ms. No. 93, Higher Education (K2)
Department, dated 30.05.2019 by constituting the equivalence committee
under the Chairmanship of the Secretary to Government, Higher
Education Department and has also prescribed the manner in which
such exercise would have to be conducted. As such, if the Petitioners
have any grievance relating to non-inclusion of their course of study in
the prescribed qualification for filling up the vacancies in the regular post,
they would have to work out their remedies accordingly in that regard.”
19.3.Since the Government has revised the curriculum guidelines and
regulations for conducting Multipurpose Health Worker (male)/Health
Inspector/Sanitary Inspector Training course, thereby, changing the
duration of the course as 2 years (2 semesters) from 2017-2018 by issuance
of G.O.Ms.No.107, Health and Family Welfare (N1) Department, dated
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13.04.2017. Without challenging the said G.O., the petitioners are not
entitled to seek to permit them in the recruitment process to the post of
Health Inspector Grade II having completed a course for a duration of only 1
year contrary to the mandates of G.O.Ms.No.107, dated 13.04.2017.
20.Question No.4:-Whether the procedure of selection envisaged
under Clause 7(a) and 7(b) of the impugned notification is liable to be
quashed?
20.1.The Government issued G.O.Ms.No.401, Health and Family
Welfare (C2) Department, dated 16.12.2014, amending the rules of
procedures of Medical Service Recruitment Board (MRB) for recruitment of
various categories of posts in various Government Medical Institutions. As
far as paramedical and technical staff, the following amendment came to be
implemented and the same is extracted as follows:-
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https://www.mhc.tn.gov.in/judis
20.2.The validity of the aforesaid G.O., more particularly with respect
to the weightage of marks came to be tested before this Court in W.P.No.
2466 of 2018, dated 05.02.2018 and this Court had upheld the same and
the relevant portion is extracted as follows:-
“4. When the aforesaid Government Order in G.O.Ms.No.
401 dated 16.12.2014 is in force, the 5th respondent has issued a
Notification No.6/MRB/2016 dated 31.1.2016 for filling up 333
posts of Pharmacist. Aggrieved by the same, the petitioner has filed
W.P.No.5705/2016 challenging the validity of G.O.Ms.No.401
dated 16.12.2014 along with other petitioners. A Division Bench of
this Court, by an order dated 06.11.2017 disposed of the said Writ
Petitions making it clear that the respondents, without giving effect
to weightage system, have to select the candidates in accordance
with law. Aggrieved by the Division Bench Order, SLP.Nos.34134
to 43135/2017 have been filed. The same was also dismissed.
Thereafter, a representation has been sent on 12.01.2018 seeking
the respondents to moderate the weightage system to create a level
playing field in the appointment to the post of Pharmacist,
considering the G.O.Ms.No.328, Health and Family Welfare
Department, dated 08.10.2009. The same has not been
considered. Hence the present Writ Petition.
6. This Court hardly finds any merit in the writ petition.
The reason is that when the petitioner had already filed W.P.No.
5705/2016 challenging the validity of G.O.Ms.No.401, Health and
Family Welfare (C2) Department, dated 16.12.2014 and the same
has also been disposed of along with other Writ Petitions and the
Special Leave Petitions filed against the same have also been
dismissed, it goes without saying that the weightage marks
specified in the said Government Order followed for appointment of
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Pharmacists has become final. Therefore, giving any representation
dated 12.01.2018 is wholly misconceived. Hence, I am not inclined
to give any direction as sought for by the petitioner in the present
Writ Petition.”
20.3.In yet another case in W.P.(MD)No.2861 of 2018 dated
14.02.2018, the said G.O. came to be tested and the relevant portion is
extracted as follows:-
“The Medical Services Recruitment Board issued recruitment
notification in the year 2016 calling for applications from eligible
candidates for filling up 333 vacancies for the post of Pharmacist. It
was made clear that candidates sponsored by the employment
exchange as well as the candidates from open market would be
considered. It was also made clear that G.O.Ms.No.401, Health and
Family Welfare Department dated 06.12.2014 will be followed
while evaluating the respective merits of the candidates. As per the
said Government Order, the weightage of marks is to be awarded
as under:
Minimum Weightage of marks (*)
Educational Diploma HSC/PUC SSLC/10t
Qualification
required for the h
post
50% 30% 20%
* Note : I. In case marks are not specifically awarded for any
batch of the Diploma, then selection for marks scored all will be
based on the by the applicants in SSLC and HSC / PUC
examinations only. II. Wherever the basic essential qualification for
a technical post is a diploma, has been changed from SSLC to HSC,
in all such cases the weightage may be restricted to marks obtained
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in SSLC and the technical diploma (for all the candidates) 7.b.There
will be no oral test (Interivew) for the post.
2.The matter was considered at length by the Hon'ble
Division Bench in WP.No.25786 of 2015. When G.O.Ms.No.401,
dated 16.12.2014 was issued, writ petitions were filed before the
Principal Bench challenging the said G.O. Those writ petitions were
taken up along with the writ petitions in which the recruitment
notification issued by the fifth respondent Board in the year 2016
was there. By the common order dated 06.11.2017, the Hon'ble
Division Bench disposed of the writ petitions. It was clarified that
the P.U.C/12th Standard marks will not be taken into account.
Marks secured in 10th Standard and Diploma alone will be taken
into account for the purpose of awarding weightage. Since the
necessary clarification was provided, the interim order earlier
granted stood vacated. 3.Aggrieved by the said common order of
the Hon'ble Division Bench, S.L.Ps were filed before the Hon'ble
Supreme Court. But the same were dismissed on 22.12.2017. The
fifth respondent Board thereafter took up the process of selection
from the stage where it was stalled on account of the institution of
the writ proceedings. In order to once again put spokes in the
wheel, the present writ petition has been filed.
20.4.Respectfully fortified by the aforesaid orders passed by this
Court, the procedure of selection under Clause 7(a) in the impugned
notification, which has been notified in line with G.O.Ms.No.401, dated
16.12.2014, cannot be interfered with. However, the anomalies in issuance
of course certificate as well as mark statements to the various candidates
who have undergone the two-year course Multipurpose Health Worker
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(male)/Health Inspector/Sanitary Inspector Training course has been
brought to the notice of this court by the petitioners herein. In many cases
the Director of Public Health and Preventive Medicine has issued the “course
certificate” alone, mentioning that the candidates have secured first class in
the “Health Inspector course”, but mark statements were not issued
immediately. Later the Director of Public Health and Preventive Medicine
had issued mark statement and in the said mark statement, it is mentioned
that “a pass in the MPHW (M/HI/SI) training course examinations required
a minimum of 50% of marks in each subject, that is, 75 marks out of 150
marks is required”. Further the mark statement did not indicate the date of
issuance of the same. The mark obtained by the various candidates for 6
months “Part III - Field Training” was not taken into account to consider the
candidate's merit and rank in the Health Inspector course. In furtherance to
the same, in the mark statement, there is no mention about the percentage
of marks for classification of ranks as distinction or first class or second
class. Further the petitioners have completed the Health Inspector Couse
during the years 2017-2018 and 2018-2019 (I.e., from 11.12.2017 to
27.12.2019), the second respondent has issued the “Course Certificate”
alone, mentioning that each of the petitioners have secured “Distinction
Class” and “First Class” respectively for all the petitioners in the Health
Inspector Course and the certificate was issued only in the year 2020 who
had completed the course in various institutions. However, when the mark
statements were issued subsequently, the marks of the individuals totally
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differed from that of the certificate issued to the petitioners. For example:-
Name of the candidate Certificate issued Marks obtained
1.C.Munusamy First Class 650 out of 900
2.K.Karuppasamy Distinction Class 570 out of 900
20.5.Thus it is clear that the certificate, which is undated, issued
earlier is in contra to the marks obtained by the individuals and thus the
respondents have either not applied their mind in issuing the certificate or
they have wantonly indulged in malpractice by reducing the marks secured
by the individuals.
20.6.For better clarity, the certificates pertaining to the candidates
mentioned supra, namely, C.Munusamy and K.Karuppasamy are extracted
as follows:-
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https://www.mhc.tn.gov.in/judis
https://www.mhc.tn.gov.in/judis
20.7.More particularly, the certificate course and diploma for
Multipurpose Health Worker (Male) course are also two different category of
courses and they cannot be equated on par with each other. The syllabus
and regulations issued by the Directorate of Public Health and Preventive
Medicine and the course offered pertaining to the 2 years diploma course
was inclusive of a 6 months “Part - III Field Training” carrying maximum of
1050 marks, that is, 150 marks for Field Training and by all means, the
same cannot be equated with the certificate course, for which, marks were
issued only for a total of 900. Hence, the impugned notification dated
21.07.2023, prescribing both certificate or diploma at par with each other, is
arbitrary and illegal. In furtherance to the same, in view of the anomaly in
the issuance of certificate and mark sheet as elaborated supra by the
Directorate of Public Health and Preventive Medicine, the impugned Clause
7(b) in the procedure of selection is also liable to be quashed.
21.Question No.5:- Whether the impugned G.O.Ms.No.299, Health
and Family Welfare Department, dated 12.09.2023 is liable to be
quashed?
22.1.The Hon'ble Supreme Court of India in suo moto Writ Petition
(Civil) No.3 of 2021 - IN RE: Distribution of Essential Supplies and Services
during pandemic case, dealt with the unprecedented humanitarian crisis in
the country, following the outbreak of the COVID-19 pandemic and the
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relevant portion of that case, which is applicable to the fact and
circumstances of these Writ Petitions are extracted here under:-
“.......
H Recommendations for augmenting healthcare workforce
58.It is common knowledge that a large number of medical,
nursing and pharmacy students, who graduated in 2020 and would
be in the process of graduating in 2021, would be available to
augment the workforce in the health sector. The Central Government
should, we feel, look into this aspect, and ensure the optimal manner
of utilization of their services, regard being had, of course, to their
safety and well-being.
.........
65. speak not only as members of this Court, but also as
grateful citizens of the country, and commend the outstanding work
of our all healthcare professionals (doctors, nurses, healthcare
workers, laboratory technicians, ward staff, ambulance drivers,
crematorium workers etc.) during this crisis. They have truly gone
beyond their call of duty and toiled day in and day out, relentlessly
without rest amidst great challenges.......While the healthcare
professionals have been at the forefront of tackling this crisis, we
have to recognize their contribution as medical healthcare
professionals who have undertaken “to protect public health using
proven scientific evidence and best practices and to serve to
community at large” 45 , and not just as “CORONA WARRIORS”.
.......
66(ii)Healthcare personnel are at an obvious heightened risk of
contracting the COVID-19 virus. However, we are aware of reports
that indicate that infected healthcare personnel are left to fend for
themselves without adequate availability of beds, oxygen or
essential drugs.
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.......
66(iii)It is unclear what measures are currently being taken to
ensure that healthcare personnel can continue to serve others while
not risking the health of their family members. We hope that the
respective State Governments, with necessary assistance from the
Central Government, can ensure this takes place; and
.........
66(iv)All these, we feel, would show these professionals that
we do not show our appreciation in mere words, but also care for
them.
67.The issues mentioned above are only symptomatic of the
other broader issues that are being faced by healthcare
professionals, who are instrumental in combating the pandemic.
Hence, we hope their welfare is considered seriously by the Central
and State Governments. Further, we would wish to use this order to
place on record our sincerest appreciation for all the public
healthcare professionals - not just limited to the doctors, but also
nurses, hospital staff, ambulance drivers, sanitation workers and
crematorium workers. It is through their dedicated efforts that the
effect of COVID-19 pandemic is being currently tackled in India.”
22.2.No doubt, the petitioners in these petitions are also professionals,
who had contributed relentlessly and selflessly in the Department of Health
and Family Welfare as Health Inspector Grade II during the COVID- 19
pandemic. The petitioners were among the 2,215 Health Inspector Grade II
engaged by the Director of Public Health and Preventive Medicine at a
consolidated pay of Rs.20,000/- per month through outsourcing on
temporary basis during COVID-19 pandemic. More particularly, they were
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engaged to screen the passengers coming from airports, railway stations and
bus stands for the symptoms of COVID-19 and to take care of them in
quarantine facilities and also home quarantine across various districts in
the State of Tamil Nadu. They were directed to personally contact the
suspected corona infected persons at their place, take them to corona test
sample collection centres, to arrange corona test sample and admit the
corona infected persons in Government Hospitals/Corona Treatment
Centres arranged at various places. That apart, they were also engaged to
take corona samples from sample collection centres to corona sample testing
laboratories and collect the corona test results from laboratories and hand
over the test results to Government Hospitals/Corona Treatment Centres
established at various places using their own two wheelers. In addition to
that, they undertook collection of corona test samples at the corona wards,
airport, railway stations, State Border Checkposts, District Border
Checkposts using their own two wheelers. They also undertook corona
sample tests at the hospitals and testing centres. They also maintained
computerized corona vaccination records and arranged to issue online
corona prevention vaccination certificates to the corona vaccinated public
and attended duty at corona information control room/ward room. Last but
not the least, they even accompanied the corona affected dead bodies for
decent burials/cremations. On being engaged temporarily as Health
Inspector Grade II from 28.04.2020, later they were recruited by the Deputy
Director of Health Services as Health Inspector Grade II in the National
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Health Mission, that is, the Makkalai Thedi Maruthuam Scheme for a
meagre and lesser monthly salary of Rs.11,000/- on contract basis. When
they were under a legitimate expectation that their services would be
regularized, the impugned notification came to be issued by the Medical
Recruitment Board inviting applications for the direct recruitment to the
post of Health Inspector Grade II in Tamil Nadu Public Health Subordinate
Service.
21.3.The Central Government in Clause 17 in the notification dated
03.05.2021, recommended to the State/UT Governments to consider giving
“preference” in regular Government appointments of health professionals
through their respective Public Service Commissions/other recruitment
bodies for those health professionals whose services were utilized during the
COVID-19 pandemic. The Government of Andhra Pradesh issued a
Government Order in G.O.RT.No.211, Medical and Family Welfare (82)
Department, dated 08.05.2021, offering weightage marks to those health
professionals who are engaged during COVID-19 pandemic as follows:-
1. Weightage for experience of Government service including contract
service.
2. Weightage based on COVID-19 duties at 5 marks for 6 months, 10
marks for a period of 1 year and 15 marks for 1 year and 6 months and so
on.
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21.4.Pursuant to the issuance of the impugned notification dated
11.07.2023, by the Medical Services Recruitment Board, all these Petitions
came to be filed requiring the Government to prioritize their service in the
recruitment to the post of Health Inspector Grade II notified vide the
impugned notification dated 11.07.2023. Under such circumstances, the
Government examined the issue of award of incentive marks for Health
Inspector Grade II for their temporary service rendered during COVID-19
pandemic. Consequent to the issuance of amendment to the adhoc rules
governing the post of Health Inspector Grade II in G.O.Ms.No.104, Health
and Family Welfare (L1) Department, dated 28.06.2023, the Director of
Public Health and Preventive Medicine had placed indent to the Medical
Services Recruitment Board for recruitment to fill up the 1066 vacancies in
the post of Health Inspector Grade II, in regular timescale of pay.
Accordingly, after obtaining approval from the Government, the Medical
Services Recruitment Board, issued the impugned notification in notification
No.06/MRB/2023 dated 11.07.2023, inviting applications for direct
recruitment to the post of Health Inspector Grade II in the Tamil Nadu
Public Health Subordinate Service. However, in the said notification, no
preference was given to the candidates who were engaged during the
pandemic. In the wake of filing of various Writ Petitions before this Court
and before the Principal Bench of this Court, the Government carefully
considered G.O.Ms.No.278, Health and Family Welfare (B1) Department,
dated 17.08.2023, by which orders have been issued awarding incentive
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marks to the medical officers who have worked in the Government Medical
Institutions during COVID-19 pandemic based on their service during
pandemic period subject to certain conditions. That apart, the Director of
Public Health and Preventive Medicine also took into consideration the
guidelines of the Government of India/orders of the Hon'ble Supreme Court
of India/court cases filed by the Health Inspectors, who have rendered
services during COVID-19 pandemic period and after serious consideration
had issued G.O.Ms.No.299, Health and Family Welfare (L1) Department,
dated 12.09.2023 (impugned GO) for the purpose of giving incentive marks
to the Health Inspector who have rendered services during COVID-19 as
follows:-
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21.5.Grant of incentive marks to the Health Inspectors who rendered
service during COVID-19 pandemic for the purpose of direct recruitment to
the post of Health Inspector Grade II is exclusively the policy decision of the
State and the Courts shall not ordinarily interfere with the same unless the
said policy is manifestly arbitrary or discriminatory.
21.6.No doubt the Government's decision, in the matter of grant of
incentive marks to the Health Inspectors who served during corona
pandemic, in the direct recruitment to the post of Health Inspector Grade II
is a benevolent initiative aimed at rewarding the relentless and selfless
contribution of those Health Inspectors who served during the dreadful
pandemic period risking their own lives. In view of the same, I find no merit
in interfering with the impugned G.O.Ms.No.299, dated 12.09.2023 and I
find it necessary to uphold the said Government Order.
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22.Epilogue:-
22.1.The COVID-19 pandemic had caused a global health crisis
resulting in the death of innumerable number of persons across the world.
The entire Nation's health system was at peril and the State had to plunge
into swift action resurrecting the health balance of the Country. As a result
of which, the Central Government issued a number of guidelines to the State
Governments and the Union Territories to provide a brisk health sector,
which could safeguard the safety and livelihood of the common public. The
Department of Health and Family Welfare of every state recruited by
outsourcing umpteen number of employees in various levels, various cadres
of Health Department in hundreds/thousands for swiftly managing the
COVID-19 pandemic condition which prevailed during the pandemic times.
The petitioners herein are the Health Inspectors who were engaged
temporarily by the State during the pandemic period exclusively for the
purpose of managing the pandemic struck State.
22.2.Having exploited their service all along during the pandemic
period, later when the Department of Public Health and Preventive Medicine,
consequent to the amendment of the adhoc rules governing the post of
Health Inspector Grade II in G.O.Ms.No.104, Health and Family Welfare
Department, dated 28.06.2023, had placed indent to the Medical Services
Recruitment Board for recruitment to fill up 1066 vacancies in the post of
Health Inspector Grade II in regular timescale of pay, without considering
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the candidature of the various Health Inspectors Grade II who already
contributed relentlessly and selflessly during pandemic period. Under such
background, when the impugned notification No.6 of 2023 dated
11.07.2023, came to be notified by the Medical Services Recruitment Board,
these Petitions came to be filed.
22.3.On careful consideration of the arguments made by the rival
parties and all the documents placed on record, the impugned notification
No.6/MRB/2023, dated 11.07.2023, inviting applications from male
candidates for direct recruitment on temporary basis to the post of Health
Inspector Grade II in Tamil Nadu Public Health Subordinate Services, came
to be issued reflecting the State's policy of adhocism, in the matter of direct
recruitment to the post of Health Inspector Grade II in the Tamil Nadu
Public Health Subordinate Services.
22.4.In view of the categorical submission made by the learned
Additional Advocate General Mr.Veera Kathiravan that, the petitioners were
engaged during the COVID-19 pandemic only on contract basis, who cannot
be equated as adhoc employees, the appointment orders issued by the
Deputy Director of Health Services to the various petitioners were carefully
perused by this Court. The same would also reveal the fact that, the
petitioners were appointed as Health Inspector Grade II in contract basis
through outsourcing from 31.03.2020, with the pay of Rs.20,000/- per
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month. In such background, perhaps undermining the policy of adhocism
adopted by the State in the matter of recruitment to the post of Health
Inspector Grade II, I consciously refrain from interfering with the same. The
Hon'ble Supreme Court of India in the case of P.U.Joshi v. Accountant
General reported in 2003 2 SCC 632, in a case dealing with the
upgradation of post of Section Officers in the Accountant General Audit and
Entitlements Department has held as follows:-
“"10.We have carefully considered the submissions made on
behalf of both parties. Questions relating to the constitution,
pattern, nomenclature of posts, cadres, categories, their creation/
abolition, prescription of qualifications and other conditions of
service including avenues of promotions and criteria to be fulfilled
for such promotions pertain to the field of policy is within the
exclusive discretion and jurisdiction of the State, subject, of course,
to the limitations or restrictions envisaged in the Constitution of
India and it is not for the statutory tribunals, at any rate, to direct
the Government to have a particular method of recruitment or
eligibility criteria or avenues of promotion or impose itself by
substituting its views for that of the State. Similarly, it is well open
and within the competency of the State to change the Rules relating
to a service and alter or amend and vary by addition /substraction
the qualifications, eligibility criteria and other conditions of service
including avenues of promotion, from time to time, as the
administrative exigencies may need or necessitate. Likewise, the
State by appropriate Rules is entitled to amalgamate departments
or bifurcate departments into more and constitute different
categories of posts or cadres by undertaking further classification,
bifurcation or amalgamation as well as reconstitute and restructure
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the pattern and cadres/ categories of service, as may be required
from time to time by abolishing the existing cadres/posts and
creating new cadres/posts. There is no right in any employee of
the State to claim that Rules governing conditions of his service
should be forever the same as the one when he entered service for
all purposes and except for ensuring or safeguarding rights or
benefits already earned, acquired or accrued at a particular point
of time, a government servant has no right to challenge the
authority of the State to amend, alter and bring into force new
Rules relating to even an existing service.”
22.5.No doubt recruitments pertain to the field of Policy which is
exclusively within the domain of the State. Though normally the Courts are
slow in interfering with the policy decision of the State, if the policy decision
and the action flowing from the said policy is inconsistent with the
Constitution and the laws leading to manifest arbitrary and discriminatory
abuse of power, in that case, the Courts cannot close the eyes and turn
aside. The distribution of vacancies in Clause 2(II) of the impugned
notification is explicitly inconsistent with the mandates of the “Tamil Nadu
appointment on preferential basis in the services under the State of Persons
Studied in Tamil medium, Act, 2010” and Section 26(5) of the Tamil Nadu
Government Servants Conditions of Service Act, 2016. When the total
sanctioned vacancy for the post of Health Inspector Grade II has been
earmarked as 1066 in the distribution of vacancies, obviously 20 percent of
the total vacancies, which would roughly come to 214 posts should have
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been provided for PSTM reservation in true letter and spirit. Having not done
the same for the sole reason of being inconsistent with the aforesaid Act,
Clause 2(II) of the impugned notification is hereby quashed.
22.6.Clause 7(a) and 7(b), which provides for the procedure of
selection has been notified in line with the mandates of G.O.Ms.No.401,
Health and Family Welfare (C2) Department, dated 16.12.2014. Since the
minimum educational qualification required for the post of paramedical and
technical staff and the weightage of marks with respect to
degree/diploma/certificate High Secondary Course and SSLC prescribed in
the aforesaid G.O. has already been upheld by this Court in W.P.No.2466 of
2018 and W.P.(MD)No.2861 of 2018, I am afraid to interfere with the
weightage of marks provided under Clause 7(a) under the head Procedure of
Selection in the impugned notification. But the minimum educational
qualification required for the post, which is prescribed as certificate or
diploma with HSC qualification has to be necessarily interfered for the
reasons elaborated in para no.20.7 supra.
22.7.It is pertinent to mention at this point that, the total marks
awarded for the Multipurpose Health Worker (male)/Health
Inspector/Sanitary Inspector Training Diploma course being 1050, the total
marks awarded for Multipurpose Health Worker (male)/Health
Inspector/Sanitary Inspector Training certificate course being 900, if the
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weightage marks as prescribed under 7(a) of the impugned notification is
evenly awarded by giving 50% weightage to the certificate/diploma course
on treating both the courses on a single palette, the same would lead to
discrimination and arbitrary selection in the recruitment of Health Inspector
Grade II in view of the elaborate discussion made in question no.4 supra
with respect to the anomaly which prevailed/prevails in the grant of mark as
far as the diploma/certificate courses are concerned.
22.8.In view of the same, quashing the minimum educational
qualification required for the post without disturbing the weightage of
marks, this Court hereby direct the Medical Services Recruitment Board to
prescribe a rational method of selection without discriminating among the
candidates, who are qualified in diploma as well as certificate courses.
Clause 7(b) of the impugned notification itself would disclose the oddities,
which prevail in the issuance of mark sheets to the various candidates, who
have undergone Multipurpose Health Worker (male) course/Health
Inspector/Sanitary Inspector course under the Department of Public Health
and Preventive Medicine. If minimum pass marks for the course would be
taken for those candidates for whom mark sheets have not been awarded, in
such case the system of weightage of marks, which is being prescribed for
the purpose of recruitment without any prescribed written examination or
interview would clearly lead to a blatant discrimination among the
candidates who were already issued with mark sheets and who were not
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issued with mark sheets so far.
22.9.In view of the same, the Chairman, Board of Examination for
Multipurpose Health Worker (male)/Health Inspector/Sanitary Inspector
Training course and the Director of Public Health and Preventive Medicine,
Chennai – 6, is hereby suo motu impleaded as one of the respondents in all
the Writ Petitions and such respondent is hereby directed to forthwith issue
mark statements to all those candidates who have completed the 2 year
Multipurpose Health Worker (male)/Health Inspector/Sanitary Inspector
Training course within a period of 4 weeks from the date of receipt of copy of
this order.
22.10.For the reasons elaborated supra, Clause 7(b) of the impugned
notification is also hereby quashed. The Medical Services Recruitment Board
is at liberty to issue fresh notification inviting applications for the direct
recruitment for the post of Health Inspector Grade II in the Tamil Nadu
Public Health Subordinate Service, undoing all the maladies pointed out by
this Court in the impugned notification dated 11.07.2023.
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23.Accordingly, the Writ Petitions in this batch are allowed, but W.P.
(MD)No.18411 of 2023 alone is dismissed. No Costs. Consequently,
connected miscellaneous petitions are closed.
11.09.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes
Mrn
Note: Registry is directed to effect the necessary amendments
in the concerned cause titles in all the Writ Petitions.
To
1.The Principal Secretary to Government,
Government of Tamil Nadu,
Health Department
Secretariat,
Chennai- 600 008
2.The Director of Public Health and Preventive Medicines,
Chennai- 600 008.
3.The Deputy Director of Health Service / Executive Secretary, District
Health Society,
Thoothukudi District,
Thoothukudi.
4.The Member secretary,
Medical Services Recruitment Board (MRB),
DMS Building - 7th Floor,
359, Anna salai,
Teynampet,
Chennai – 600 006.
5.The Chairman,
Board of Examination for Multipurpose Health Worker (male)
/Health Inspector/Sanitary Inspector Training course
and the Director of Public Health and Preventive Medicine,
Chennai – 6.
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L.VICTORIA GOWRI, J.
Mrn
W.P.(MD)Nos.18405, 26269, 18375, 18407, 18411, 18494, 18551,
18595, 18598, 18630, 18716, 18858, 18882, 19976, 19998, 25121 of
2023 and 5272 of 2024
11.09.2024
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