Madras High Court
P.Parameswaran vs State Of Tamil Nadu on 24 January, 2025
Author: R.Vijayakumar
Bench: R.Vijayakumar
W.P(MD).No.20638 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
ORDER RESERVED ON : 21.01.2025
ORDER PRONOUNCED ON : 24.01.2025
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
W.P.(MD).No.20638 of 2023
and WMP(MD).Nos.17064 & 17065 of 2023
1.P.Parameswaran
2.B.Thalapathy
3.P.Dhanapal
4.M.Senthilkumar
5.P.Alagudevi
6.T.Hemalatha
7.K.Praveen Kumar
8.S.Thiruvadi ....Petitioners
Vs
1.State of Tamil Nadu
Represented by its Principal Secretary
Department of Health and Family Welfare
Secretariat
Chennai -9
https://www.mhc.tn.gov.in/judis
1/15
W.P(MD).No.20638 of 2023
2.The Director
Public Health and Preventive Medicine
Teynampet, Chennai – 6
3.The Director
Medical and Rural Health Services
Teynampet, Chennai – 06
4.The Deputy Director
Health Services
Viswanathapuram
Madurai ....Respondents
Prayer : This Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Mandamus, to direct the respondent No.1 to dispose the
proposal sent by the respondent No.2 dated 12.04.2018 and bring the
petitioners services under time scale of pay from the date competition of five
years of their service and regularise their service in the light of G.O.Ms.No.
325, dated 20.11.2012 on the file of the respondent No.1 with all
consequences benefits and consequently restraining the respondents from
making any appointments on the basis of G.O.Ms.No.604 dated 05.06.2023
passed by the respondent No.1 till the regularisation of the petitioners service
by considering the petitioners' representation dated 12.08.2023 within the
time stipulated by this Court.
For Petitioners : Mr.T.Thirumurugan
For Respondents : Mr.T.Amjadkhan
Government Advocate
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W.P(MD).No.20638 of 2023
ORDER
The present writ petition has been filed by Multipurpose Hospital
Workers working in various Primary Health Centres in Madurai District
seeking a mandamus to direct the first respondent to dispose of the proposal
sent by the second respondent on 12.04.2018 and to bring the petitioners
under time scale of pay from the date of completion of 5 years of service and
to regularize their services in the light of G.O.(Ms).No.325 Health and
Family Welfare (F2) Department dated 20.11.2012. The petitioners have
further prayed for restraining the respondents from making any appointment
on the basis of G.O.(D).No.604 Health and Family Welfare (AB1)
Department, dated 05.06.2023 by considering their representation dated
12.08.2023.
(A)Facts leading to the filing of this present writ petition are as
follows:
2.The fourth respondent in the writ petition has issued appointment
orders to the writ petitioners on 29.04.2023 appointing them as Multipurpose
Hospital Workers on contractual basis for a period of one year. The
appointment order further discloses that their services may be renewed every
year up to five years depending upon the performance of the employees.
3.Pursuant to the said order, the petitioners have joined duty and they
are receiving a sum of Rs.400/- as daily wage as fixed by the District
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Collector, Madurai. The said appointment was made based upon
G.O(Ms).No.325, Health and Family Welfare (F2) Department dated
20.11.2012.
4.A perusal of G.O(Ms).No.325, Health and Family Welfare (F2)
Department dated 20.11.2012 reveals that the Project Director, Tamil Nadu
Health System Project had formulated a policy for recruitment of Hospital
Workers/Sanitary Workers in Government Medical Institutions and has
forwarded the same to the third respondent. As per Clause-VI of the above
said policy, the Multipurpose Hospital Workers who have completed five
years on contract may be regularised. However, the Government has not
accepted with the said policy for regularisation and in Clause-V of the above
said Government Order, the Government has taken a policy decision that the
services of the Sanitary Workers/Hospital Workers in Hospital having having
more than 200 beds shall be outsourced. The Government has also directed
the third respondent to prepare Draft Service Rules to the uniformed category
of Multipurpose Hospital Workers.
5.On 18.10.2019, a communication was addressed by the Deputy
Director to the third petitioner informing him that the request for
regularisation of services of the contractual employees who have completed
five years of service is under consideration of the Government.
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6.In the meantime, the Government had issued G.O.(D).No.604 Health
and Family Welfare (AB1) Department dated 05.06.2023 to appoint Sanitary
Workers in the existing 878 Multipurpose Hospital Workers on temporary
contract basis through District Health Society on daily wages basis without
exceeding the cadre strength sanctioned in G.O.Ms.No.325, Health and
Family Welfare Department, dated 20.11.2012. As per the said Government
Order, the vacancy post of Multipurpose Hospital Workers shall be filled up
by eligible Reproductive Child Health Sanitary Workers in future vacancies.
7.It is the grievance of the writ petitioners that without regularising
their services, as contemplated under G.O.Ms.No.325, dated 20.11.2012, the
Government has issued G.O.(D).No.604 dated 05.06.2023. Since their
representation was not considered, the present writ petition has been filed.
(B)Contentions of the learned counsel appearing on either side are
as follows:
8.According to the learned counsel for the petitioners, the Government
has taken a policy decision to regularize the services of Multipurpose
Hospital Workers who were appointed on a contract basis and who have
completed five years of service as per G.O.(Ms).No.325, Health and Family
Welfare (F2) Department dated 20.11.2012. Only based on the above said
Government Order, the appointment orders were issued to the writ
petitioners. Without issuing regularisation order, now a new Government
https://www.mhc.tn.gov.in/judis
Order has been issued under G.O.(D).No.604 Health and Family Welfare
(AB1) Department dated 05.06.2023 to fill up the vacant Multipurpose
Hospital Workers post by way of Reproductive Child Health Sanitary
Workers, again on contract basis.
9.The learned counsel for the writ petitioners had relied upon various
Government Orders under which the services of the physically challenged
persons who have completed two years of contract service have been
regularised. The learned counsel had also relied upon a decision of this Court
in WP(MD).No.21955 of 2022 dated 28.11.2022 wherein this Court has
directed to regularize the physically challenged persons who have completed
two years of service. Therefore, according to the learned counsel for the
petitioners, similar regularisation order should have been issued to the writ
petitioners who have completed five years of contract service. However,
without regularising their services, the State is attempting to appoint some
other candidates again on contract basis as Multipurpose Hospital Workers.
10.The learned counsel for the petitioners had also relied upon a
Division Bench judgment of our High Court in WA(MD).No.840 of 2024
dated 09.09.2024 wherein the Hon'ble Division Bench has dismissed the writ
appeal holding that the full time posts which are governed by Tamil Nadu
Basic Service Rules, cannot be outsourced. Hence, the petitioners prayed for
allowing the writ petition.
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11.Per contra, the learned Government Advocate appearing for the
respondents had contended that the reference with regard to regularisation of
contract service beyond a period of five years under G.O.(Ms).No.325,
Health and Family Welfare (F2) Department dated 20.11.2012 is only a
recommendation made by the Project Director. The said recommendation was
not accepted by the Government in the above said Government Order. On the
other hand, the Government has only directed the concerned authority to
outsource the said post. Only relying upon the above said Government Order,
the petitioners have been issued with appointment order for a period of one
year. In such circumstances, the petitioners cannot take advantage of the
recommendation of the Project Director.
12.The learned Government Advocate had relied upon G.O.(Ms).No.
563, Health and Family Welfare (C1) Department dated 16.12.2021 wherein
the Government has superseded the direction issued in G.O.(Ms).No.325
dated 20.11.2012. He had further pointed out that as per Clause-4(b) of
G.O.Ms.No.563 Health and Family Welfare (C1) Department dated
16.12.2021, the post of Hospital Worker/Sanitary Worker find place in the
Special Rules for Tamil Nadu Basic Service and can be filled up only through
outsourcing as per G.O(Ms).No.49, Personnel and Administrative Reforms
(F) Department, dated 14.05.2002. Therefore, according to him, the
petitioners cannot rely upon G.O(Ms).No.325 dated 20.11.2012.
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13.The learned Government Advocate further contended that the
Government has decided to appoint Reproductive Child Health Sanitary
Workers in the vacant posts of Multipurpose Hospital Workers as per G.O.
(D).No.604, dated 05.06.2023. Since the said Government Order is only for
filling up the vacant post of Multipurpose Hospital Workers, the services of
the writ petitioners are not likely to be affected. That apart, without
challenging G.O.(D).No.604, the petitioners cannot seek a mandamus as
against the authorities not to make any appointment pursuant to the above
said Government Order. Hence, he prayed for dismissal of the writ petition.
14.I have considered the submissions made on either side and perused
the material records.
(C)Discussion:
15.The Government had issued G.O.(Ms).No.325 Health and Family
Welfare (F2) Department dated 20.11.2012. The relevant portion for the
purposes of disposal of this writ petition are as follows:
“Clause.4....
(i)The existing system of having own staff for the services
like cleaning, sanitation, house keeping and security services in
hospitals with less than 200 Beds, Primary Health Centres as well
as in offices, dispensaries etc. where the beds are not sanctioned be
continued.
(v)The Services of Sanitary Worker/ Hospital Worker in all
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Medical College Hospitals, District Headquarters Hospitals,
Major Taluk Hospitals, Accreditation Hospitals and other hospitals
having more than 200 beds shall be outsourced. The outsourcing of
services shall be done for that much of the area of the hospital
covered by vacant staff only as and when future vacancy arises due
to retirement of the above staff, those areas shall also be covered
by outsourcing. No additional staff shall be sanctioned to these
hospitals.
6.The Government also direct the Director of Medical and
Rural Health Services to prepare draft service rules for the unified
category of Multipurpose Hospital Worker and send the same to
Government within three months from the date of issue of this
order.”
16.Relying upon the said Government Order, the petitioners were
issued with the appointment orders on 29.04.2023 on contract basis for a
period of one year to be renewed up to a period of five years based upon their
performance.
17.The Government had issued G.O.(Ms).No.563, Health and Family
Welfare (C1) Department dated 16.12.2021 wherein the Government had
superseded G.O.(Ms).No.325 Health and Family Welfare (F2) Department
dated 20.11.2012 to the extent of excluding the post of Nursing Assistant
Grade-II from the unified category of Multipurpose Hospital Workers.
However, the above said Government Order reiterated, that the post of
Hospital Worker/Sanitary Worker shall be filled up only through outsourcing
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as per G.O.Ms.No.49, Personnel and Administrative Reforms (F) Department
dated 14.05.2002. The Government had also dropped the direction to frame
the Service Rules in the category of Multipurpose Hospital Workers in view
of the fact that the said posts have to be outsourced.
18.The Government had issued G.O.Ms.No.49, Personnel and
Administrative Reforms (F) Department dated 14.05.2002 wherein it has
taken up a policy decision that the work of all Group-D categories like
Sweeper, Scavenger, Cleaner and Gardener shall be progressively outsourced
and entrusted on contract basis. As per the said Government Order, the
outsourcing contractor has to ensure that the existing NMR/consolidated
wage/daily wage employees are to be given preference in employment by the
contractor to protect the interest of such persons.
19.The Government of Tamil Nadu had issued G.O.(D).No.604 dated
05.06.2023 wherein the Government had decided to fill up the vacant post of
878 Multipurpose Hospital Workers by appointing eligible Reproductive
Child Health Sanitary Workers on temporary contract basis. The petitioners
herein have sought for a mandamus restraining the authority from making any
appointment pursuant to the above said Government Order.
20.A perusal of the above said G.O(D).No.604, Health and Family
Welfare (AB1) Department dated 05.06.2023 reveals that the Government has
decided to fill up the vacant post of Multipurpose Hospital Workers and no
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decision has been taken to disengage the writ petitioners who are already
working as Multipurpose Hospital Workers. Therefore, the petitioners cannot
have any grievance over the filling up of 878 vacancies.
21.The petitioners have sought for regularisation of their services
primarily relying upon G.O.(Ms).No.325, dated 20.11.2012 especially
Clause-vi of the recommendation made by the Project Director, Tamil Nadu
Health System Project. A perusal of the said Government Order reveals that
the Project Director had requested the Government to regularise the
Multipurpose Hospital Workers, if they have completed five years of contract
service. However, this recommendation has not been accepted by the
Government.
22.As far as the Primary Health Centres are concerned, the
Government has directed those establishments to continue with the existing
system of having their own staff for the services like cleaning, sanitation,
housekeeping and security services. In other cases where there are more than
200 beds, the concerned Hospitals have been directed to outsource the
services.
23.Only in compliance and in continuation of the above said
Government Order dated 20.11.2012, the petitioners have been issued with
the appointment orders on 29.04.2013 in various Primary Health Centres in
Madurai District. Therefore, the petitioners are not factually correct in relying
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upon the recommendations of the Project Director in G.O.(Ms).No.325 dated
20.11.2012 when the same has not been accepted by the Government.
24.The learned counsel for the petitioners had relied upon the order of
this Court in WP(MD).No.21955 of 2022 ( M.Kesavan Vs. The State of Tamil
Nadu and others) wherein this Court has directed to regularize the employee
who had completed two years of service. A perusal of the said order reveals
that the petitioner therein is a physically challenged person and he is
governed under G.O.Ms.No.151, Social Welfare (Ma) Nutrition (Sa.Na.4)
Department dated 16.10.2008. The petitioners herein are not physically
challenged persons and therefore, they cannot take advantage of the above
said Government Order or the order passed by this Court.
25.The request of the petitioners seeking regularisation of their
services is solely based upon the recommendation referred in G.O.(Ms).No.
325 which has not been accepted by the Government. In such circumstances,
unless the Government takes a policy decision to regularize the services of
the Multipurpose Hospital Workers by way of separate Government Order,
the petitioners cannot seek mandamus to regularize their services and to bring
them under time scale of pay on completion of five years of service. That
apart, as far as the second limb of prayer seeking to restrain the respondents
from making appointment on the basis of G.O.(D).No.604 dated 05.06.2023
is concerned, the said order would not result in disengagement of the writ
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petitioners. On the other hand, only in the vacant posts of Multipurpose
Hospital Workers, the State intends to engage eligible Reproductive Child
Health Sanitary Workers as Multipurpose Hospital Workers. Viewed from any
angle, the prayer sought for by the petitioners cannot be granted.
26.The Hon'ble Supreme Court in a judgment reported in (2022) 15
SCC 540 ( Manish Gupta and another Vs. President, Jan Bhagidari Samiti
and another) has categorically held that an ad hoc employee can be replaced
only by regularly appointed candidate and not by another ad hoc employee.
Therefore, the apprehension of the writ petitioner is misconceived.
27.In view of the above said deliberations, there are no merits in the
writ petition. The writ petition stands dismissed. No costs. Consequently,
connected miscellaneous petitions are closed.
24.01.2025.
Internet : Yes/No
Index : Yes/No
NCC : Yes/No
msa
https://www.mhc.tn.gov.in/judis
To
1.The Principal Secretary
State of Tamil Nadu
Represented by its
Department of Health and Family Welfare
Secretariat
Chennai -9
2.The Director
Public Health and Preventive Medicine
Teynampet, Chennai – 6
3.The Director
Medical and Rural Health Services
Teynampet, Chennai – 06
4.The Deputy Director
Health Services
Viswanathapuram
Madurai
https://www.mhc.tn.gov.in/judis
R.VIJAYAKUMAR, J.
msa
Pre-delivery order made in
W.P.(MD).No.20638 of 2023 and
WMP(MD).Nos.17064 & 17065 of
24.01.2025
https://www.mhc.tn.gov.in/judis
