Madras High Court
S.Jeya Roslin vs The Under Secretary on 26 February, 2025
W.P.(MD)No.9304 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date : 26.02.2025
CORAM
THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN
W.P.(MD)No.9304 of 2019
and
W.M.P.(MD)No.7310 of 2019
S.Jeya Roslin ... Petitioner
Vs
1.The Under Secretary,
Government of India,
Ministry of Health and Family Welfare,
Nirman Bhavan,
New Delhi – 110 108.
2.The Postmaster General,
Central Region – Tamil Nadu,
Tiruchirappalli – 620 001.
3.The Director,
Central Government Health Scheme,
435-C, Nirman Bhavan,
Ministry of Health and Family Welfare,
New Delhi – 110108.
4.The Officer In-charge,
Directorate General of Health Services,
446-A, Nirman Bhawan,
NewDelhi – 110011.
1/12
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W.P.(MD)No.9304 of 2019
5.The Additional Director,
A-2A, Health and Family Welfare,
Rajaji Bhavan,
Third Avenue,
Nr Besant Nagar Terminal,
Chennai – 600 090.
6.The Chief Medical Officer,
Postal Dispensary,
Trichy – 1. ... Respondents
PRAYER : Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Mandamus, directing the fifth respondent to direct
the respondents 2 and 6 to permit the petitioner as a Pharmacist, at Postal
Dispensary, Tiruchirappalli based on her earlier appointment and
continuous service from the year 2001 by considering her representation,
dated 01.04.2019.
For Petitioner : Mr.NA.Palaniyandi
For R1 : Mr.R.Senthi Kumar
Standing Counsel
For R5 & R6 : Mr.K.R.Badurus Zaman
ORDER
This writ petition has been filed directing the fifth respondent to
direct the respondents 2 and 6 to permit the petitioner to work as a
Pharmacist, at Postal Dispensary, Tiruchirappalli based on her earlier
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appointment and continuous service from the year 2001 by considering her
representation, dated 01.04.2019.
2. It is the case of the petitioner that the petitioner was
orthopaedically handicapped and completed Diploma in Pharmacy in the
year 1998 and enrolled as registered Pharmacist on 26.05.1999 in the Tamil
Nadu Pharmacy Council, Chennai. The District Employment Exchange
nominated her as sponsored candidate for the post of Pharmacist at Postal
Dispensary, Trichy. The second respondent conducted the interview for the
said post on 02.04.2001 and appointed the petitioner for the post of
Pharmacist for leave vacancy at Postal Dispensary, Trichy vide
proceedings, dated 26.04.2001. The petitioner has not been regularised
even after working for more than 10 years as Pharmacist in the dispensary.
She made several requests to the second respondent to regularise her
service. She gone to the office on 01.04.2019 and at that time, her
superiors did not permit her to work, since the first respondent issued an
order, dated 21.12.2018, wherein, it is stated that the 33 postal dispensaries
will be merged with CGHS in All Over India and it shall be effected from
01.01.2019. In that effect, the above Tiruchirappalli Postal Dispensary is
also merged with CGHS. The above said merger order permitted only the
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permanent employees not for the outsiders. The petitioner was not a
permanent employee. Hence, she was treated as outsider and not permitted
to continue her job. The respondents 2 and 6 have wrongly interpreted the
order, dated 21.12.2018 and they prevented the petitioner only on the
ground that the permanent employee comes under the Administrative
control of the Department of Health and Family Welfare not for causal and
outsiders. She made a representation to the respondents and the higher
authorities on 01.04.2019 requesting to regularise and absorb as
Pharmacist at Postal Dispensary, Trichy. But the respondents did not
consider the representation. Hence, this writ petition.
3. The learned counsel appearing for the petitioner would submit
that the petitioner had sent representation on 01.04.2019 requesting to
regularise and absorb as Pharmacist, so far it was not considered and the
same is pending before the authorities concerned. He would submit that the
petitioner all along worked as a Pharmacist since from 2001. He would
submit that the order, dated 21.12.2018 issued by the Government of India,
Ministry of Health and Family Welfare, Department of Health and Family
Welfare, wherein, Column D states that all employees (technical/non-
technical staff) along with the work allocated and posts they are currently
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holding in these 33 dispensaries shall be taken over by CGHS. Their
seniority and other condition of service in CGHS shall be governed by the
relevant instructions and guidelines issued by DOPT from time to time.
Therefore, as per the order of the first respondent, dated 21.12.2018, the
petitioner is entitled for regularisation and absorption in the said post.
4. Per contra, learned counsel appearing for the respondents would
submit that the petitioner was appointed only in the leave vacancy and the
service can be posted at any point of time and the petitioner is not eligible
for regularisation or absorption in the post.
5. This Court considered the rival submissions made on either sides.
6. The provisional appointment order issued to the writ petitioner
states as follows:
“The selection for the post of Pharmacist for leave
vacancy at the P & T Dispensary Tiruchirappalli.
You have been provisionally selected to work as
Pharmacist to be utilised in the leave vacancy, at the P & T
Dispensary Tiruchirappalli in the interview held on
02.04.2001. Kindly, note that the selection is purely for
utilizing you as Pharmacist in leave arrangement only and it
will not confer on you any right for regualar appointment or
absorption in the Department of Posts.
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You will be paid remuneration @ minimum of the scale
post plus usual allowances on prorala basis for the period of
employment only.
You are not eligible for any to and fro fare for
attending the duty whenever called for.
You should attend to duty at the P & T Dispensary
Tiruchirappalli at short notice or intimation from the chief
medical offcer, P & T Dispensary Tiruchirappalli.”
7. It is seen from the order issued to the petitioner that the petitioner
was selected in the post of Pharmacist for leave vacancy and she has been
provisionally selected to work as Pharmacist to be utilised in the leave
vacancy, wherein also stated that the selection is purely for utilising the
petitioner as Pharmacist in leave arrangement only and it will not confer on
any right for regular appointment or absorption in the Department of posts.
According to the learned counsel for the petitioner, the petitioner
continuously served as Pharmacist from 26.04.2001 to 2019 and as per the
order issued by the first respondent, dated 21.12.2018, the petitioner has
also entitled for regularisation or absorption in the said post.
8. It is pertinent to mention that in the context of the legal principles
set out in the preliminary paragraphs, the irregular, illegal and backdoor
appointments would not provide any right to secure permanent absorption
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or regularisation in view of the legal principles settled by the Constitution
Bench of the Hon'ble Supreme Court of India in Secretary, State of
Karnataka and others Vs. Uma Devi and others, reported in 2006 4 SCC
1. Further, whether an exception can be carved out in the present case is to
be considered. The Hon'ble Supreme Court of India in the case of State of
Rajasthan and others Vs. Dayalal and others, reported in (2011) 2 SCC
429, the judgment delivered after Uma Devi's case (cited supra)
summarises the principles regarding permanent absorption and
regularisation as under:
“12. We may at the outset refer to the following well-
settled principles relating to regularisation and parity in
pay, relevant in the context of these appeals:
(i) The High Courts, in exercising power under
Article 226 of the Constitution will not issue directions for
regularisation, absorption or permanent continuance,
unless the employees claiming regularisation had been
appointed in pursuance of a regular recruitment in
accordance with relevant rules in an open competitive
process, against sanctioned vacant posts. The equality
clause contained in Articles 14 and 16 should be
scrupulously followed and Courts should not issue a
direction for regularisation of services of an employee
which would be violative of the constitutional scheme. While
something that is irregular for want of compliance with one
of the elements in the process of selection which does not go
to the root of the process, can be regularised, back door
entries, appointments contrary to the constitutional scheme
and/or appointment of ineligible candidates cannot be
regularised.
(ii) Mere continuation of service by a temporary or ad
hoc or dailywage employee, under cover of some interim
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orders of the court, would not confer upon him any right to
be absorbed into service, as such service would be
“litigious employment”. Even temporary, ad hoc or daily-
wage service for a long number of years, let alone service
for one or two years, will not entitle such employee to claim
regularisation, if he is not working against a sanctioned
post. Sympathy and sentiment cannot be grounds for
passing any order of regularisation in the absence of a legal
right.
(iii) Even where a scheme is formulated for
regularisation with a cut-off date (that is a scheme
providing that persons who had put in a specified number of
years of service and continuing in employment as on the
cut-off date), it is not possible to others who were appointed
subsequent to the cut-off date, to claim or contend that the
scheme should be applied to them by extending the cut-off
date or seek a direction for framing of fresh schemes
providing for successive cut-off dates.
(iv) Part-time employees are not entitled to seek
regularisation as they are not working against any
sanctioned posts. There cannot be a direction for
absorption, regularisation or permanent continuance of
part-time temporary employees.
(v) Part-time temporary employees in government-run
institutions cannot claim parity in salary with regular
employees of the Government on the principle of equal pay
for equal work. Nor can employees in private employment,
even if serving full time, seek parity in salary with
government employees. The right to claim a particular
salary against the State must arise under a contract or
under a statute.”
[See State of Karnataka v. Umadevi (3) [(2006) 4
SCC 1 : 2006 SCC (L&S) 753] , M. Raja v. CEERI
Educational Society [(2006) 12 SCC 636 : (2007) 2 SCC
(L&S) 334] , S.C. Chandra v. State of Jharkhand [(2007) 8
SCC 279 : (2007) 2 SCC (L&S) 897] , Kurukshetra Central
Coop. Bank Ltd. v. Mehar Chand [(2007) 15 SCC 680 :
(2010) 1 SCC (L&S) 742] and Official Liquidator v.
Dayanand [(2008) 10 SCC 1 : (2009) 1 SCC (L&S) 943] .]
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23. If at all the outsiders aspire to secure permanent
employment, they will have to participate in the process of
recruitment, if any notified. As far as their initial
engagement as outsiders are concerned, no recruitment
rules are followed, reservation rules are not followed and
other service rules relating to selection are not complied
with. Therefore, such appointments if resulted in permanent
absorption, it will cause gross injustice to the society at
large. Therefore, we are of the considered opinion that the
relief granted by the Central Administrative Tribunal in the
impugned order is running counter to the legal principles
settled by the Constitution Bench and also the recruitment
rules, which all are applicable for regular appointments in
Postal Departments for various cadres.
9. In view of the settled proposition in the case on hand though the
writ petitioner is qualified in the post and have been worked for more than
7 years and she was not appointed in the sanctioned post, she cannot avail
any concession for regularisation or absorption in that post, there is no
reason to consider the representation submitted by the petitioner. The
continuance of service alone is not a criteria to consider the case of the writ
petitioner. The temporary appointment made by the respondents is only a
stop gap arrangement to run the administration on need basis in that
department. If at all the outsiders asked to secure permanent employment,
they have to necessarily participate in the process of recruitment if
notified.
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10. Therefore, there is no merit in the case of the writ petitioner and
the writ petition is dismissed. No costs. Consequently, the connected
miscellaneous petition is closed.
26.02.2025
Index : Yes / No
NCC : Yes / No
sn
To
1.The Under Secretary,
Government of India,
Ministry of Health and Family Welfare,
Nirman Bhavan,
New Delhi – 110 108.
2.The Postmaster General,
Central Region – Tamil Nadu,
Tiruchirappalli – 620 001.
3.The Director,
Central Government Health Scheme,
435-C, Nirman Bhavan,
Ministry of Health and Family Welfare,
New Delhi – 110108.
4.The Officer In-charge,
Directorate General of Health Services,
446-A, Nirman Bhawan,
NewDelhi – 110011.
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5.The Additional Director,
A-2A, Health and Family Welfare,
Rajaji Bhavan,
Third Avenue,
Nr Besant Nagar Terminal,
Chennai – 600 090.
6.The Chief Medical Officer,
Postal Dispensary,
Trichy – 1.
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M.JOTHIRAMAN,J.
sn
26.02.2025
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