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M.JANARTHANAM versus DIRECTOR PUBLIC HEALTH

High Court of Madras

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M.Janarthanam v. Director Public Health - WP.Nos.29794 of 2005 [2007] RD-TN 2308 (13 July 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 13..07..2007

CORAM:

THE HONOURABLE MR.JUSTICE ELIPE DHARMARAO

AND

THE HONOURABLE MR.JUSTICE S.PALANIVELU

Writ Petition Nos.29794 to 29799, 620 to 623, 624, 625 to 631, 632 to 644, 11159, 19475 to 19479, 20865 to 20883, 20884, 29802 to 29807, 29808 to 29813, 29814 to 29819, 29820 to 29825, 30325 to 30331, 30332 to 30338, 30339 to 30345, 30347 to 30353, 30410 to 30415, 30440 to 30446, 30356 to 30362, 35515 to 35535, 37256 to 37259 of 2005, 6867 to 6878, 10793 to 10799, 38233 to 38253 of 2006 and 3864 to 3867 and 19341 to 19359 of 2007 W.P.No.29794 of 2005

M. Janarthanam .. Petitioner vs.

1. The Director of Public Health and Preventive Medicine, DMS Compound, Chennai-6.

2. The State of Tamil Nadu represented

by its Secretary to Government,

Health and Family Welfare Department

Chennai-9. ..Respondents Petition filed under Article 226 of the Constitution of India seeking for issuance of writ of mandamus as stated therein. For petitioner ... Mr.S.M.Subramaniam For respondents ... Mr.K. Balakrishnan Addl. Govt. Pleader COMMON ORDER



(Common Order of the Court was made by ELIPE DHARMARAO ,J.) Though several writ petitions have been filed, the prayer in all these petitions is more or less similar seeking for a direction to the respondents to retrospectively promote the petitioners in the cadre of Health Inspector from the date on which they were eligible to hold the post and consequently, regularize their services in the above post with all monetary benefits and other consequential service benefits as done in the case of one Ramalingam in G.O. (D) No.359 Health and Family Welfare Department dated 26.4.2004.

2. In all these petitions, the petitioners are working as Health Inspector Grade I in the Government Primary Health Centre in different Districts in the State of Tamil Nadu. Though they were initially appointed in different posts in the Health Department such as Vaccinator, Surveilance Worker, Field Assistant, Cholera Worker, etc., some of them were promoted as Health Supervisor, later on redesignated as Health Inspector Grade I and when their Juniors were promoted, the petitioners submitted representations to promote them with effect from the date on which they were eligible to hold the post of Health Inspector, i.e., after obtaining qualification, and based on seniority.

3. The claim of the petitioners is based on the promotion given to one D.Dhanasekaran, who approached the Tribunal by way of filing application being O.A. No.3763 of 1994, which was allowed by the Tribunal by order dated 16.3.1996 with a direction to regularize his services with effect from 03.10.1970, the date on which he was eligible to be promoted as Health Inspector. Though the matter was taken to the Supreme Court by the Government, the same was dismissed. It is stated that even though specific directions were given to all the authorities to implement the order passed by the Government, since they failed to pass orders in the case of the writ petitioners, once again, they approached the Tribunal by way of filing applications being O.A.Nos.4576 of 1994, etc. batch, which were disposed of by the Tribunal vide common order dated 10.8.2001 directing that their deemed promotion will be with effect from the date to be notified by the respondents and in accordance with the seniority list published in the proceedings of the Director of Public Health and Preventive Medicine in R.No.115738 / MP II / S 2 / 95. It is further stated that as per the order passed by the Tribunal, one Ramalingam was promoted in the cadre of Health Inspector with effect from 01.7.1970, the date on which he passed the Sanitary Inspector Course and accordingly, his services were regularised and the monetary benefits were given. The grievance of the petitioners is that the order of the Tribunal was not implemented in the case of the petitioners and the representations made by them in this regard were also not considered. Hence, they have filed the above writ petitions seeking to extend the benefit given to the said Ramalingam by passing G.O. (D) No.359 Health and Family Welfare (N2) Department dated 26.4.2004 and the cases are pending from the year 2005.

4. The respondents have filed a common counter affidavit denying the averments made by the petitioners. In paragraph 6 of the counter affidavit, it is stated that the case of Thiru D.Dhanasekaran for whom retrospective regularisation done based on the Court directions, is entirely different; that the said D.Dhanasekaran was fully qualified (ie., in possession of Sanitary Inspector Course Certificate) even before his entry level post as Vaccinator; that he was initially appointed as Vaccinator temporarily on 02.6.1970 and at the time of his appointment as Vaccinator, he was in possession of Sanitary Inspector Course Certificate, which is the prescribed qualification for appointment / promotion for the post of Health Inspector; that subsequently, on 03.10.1970, he was appointed temporarily as Health Inspector (Family Welfare) under Rule 10(a)(i) since he was in possession of the Sanitary Inspector Course Certificate; that when his services were regularised in the post of Health Inspector after 8 years, as per Rule 36(a) of the General Rules for the Tamil Nadu State and Subordinate Services, i.e., the day following day of completion of his probation, he had moved this Court and got orders to regularize his services retrospectively, from the date of his initial appointment as Health Inspector and accordingly, the Government by an order dated 05.3.1996 directed to regularize other similar persons with similar service and such eligible individuals were already given retrospective regularization. It is further stated that these petitioners have all qualified in Sanitary Inspector Course at a later date after joining in the service and, therefore, they cannot be considered on par with Thiru.D.Dhanasekaran and given monetary benefits.

5. We have heard the learned counsels appearing for the respective petitioners and Mr.K.Balakrishnan, Additional Government Pleader and have perused the materials placed on records.

6. It is the case of the petitioners that since an order was passed by the Government on 05.3.1996 and the Tribunal passed the order on 10.8.2001 in a batch of cases, which has become final, subsequent to which G.O. (D) No.359 Health and Family Welfare (N2) Department dated 26.4.2004 and based on the representations filed by the petitioners, the Government should have acted positively in the interest of public instead of dragging the matter.

7. It is seen that subsequent to the order passed by the Tribunal in O.A. No.3763 of 1991 filed by one D.Dhanasekaran, the Secretary to Government issued proceedings in Letter No.98036/N2/91-11 Health dated 05.3.1996 wherein in paragraph 3, it is stated as follows: "There may be persons who are similarly placed like Thiru.D.Dhanasekaran, I am, therefore, to request you to regularise their services also from the date of their first appointment as done in the case of Thiru.D.Dhanasekaran and in time to the fact to Government early." It is pertinent to note that the above proceedings was communicated to the Medical Officers of Primary Health Centres in all the Districts by the Director of Public Health and Preventive Medicine, Madras. It was also stated that it may be treated as time bounded and a reply may be sent to his office on or before 30.4.1996 without fail.

8. A reading of the counter affidavit filed by the respondents makes it clear that they are under impression that based on the orders of the Government, promotion or regularization can be given retrospectively, ie., from the date of qualification. If that is the case, the promotion or regularisation with retrospective effect cannot be denied to the persons, who have acquired qualification subsequently and gained seniority, to seek promotion as per law. The ground taken by the respondents that the earlier proceedings were issued confined to certain persons, who acquired qualification and seniority as on that date, cannot be a legal and sound ground to deny the relief to which the petitioners are entitled.

9. Though at the time of their initial appointment the petitioner had not possessed the prescribed qualification, viz., Sanitary Inspector Course Certificate, the Government has chosen to appoint them in the Health Services, when they have gained the qualification subsequent to the appointment, they were not considered for promotion. On the other hand, the Government should have considered them for promotion instead of ignoring their legal claim to regularise their services and promotion as Health Inspector to avoid stagnated promotion to create unrest among the employees by virtue of not considering the cases of the petitioners and implementing the orders of its own and the Tribunal. Further, while passing the order on 05.3.1996, the Government directed the Medical Officers of the Primary Health Centres in all the Districts to regularise their services from the date of their first appointment, but they have taken a different stand in the counter affidavit depriving the right of the petitioners by not regularising their services from the date of acquiring qualification for promotion, which is arbitrary and violative of Articles 14 and 16 of the Constitution of India.

10. In the light of the above, the respondents are directed to to consider the cases of the petitioners with regard to regularisation of their services with retrospective effect and thereafter, giving promotion as per the seniority list prepared by the Government by virtue of proceedings dated 05.3.1996 and the order of Tribunal dated 10.8.2001 and also the consequential G.O. (D) No.359 Health and Family Welfare (N2) Department dated 26.4.2004, within a period of 12 weeks from the date of receipt of a copy of this order.

11. It is brought to our notice that some of the writ petitioners have retired from service after attaining the age of superannuation. If that is so, they are entitled for regularization from the date they have acquired qualification and consequential monetary benefits and the respondents are directed to pay the same to them within the stipulated period.

12. The writ petitions are ordered with the above directions. No costs. gri

To

1. The Director of Public Health and Preventive Medicine, DMS Compound, Chennai-6.

2. The Secretary to Government,

State of Tamil Nadu

Health and Family Welfare Department

Chennai-9.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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