M. Ramesh Kumar v. Preventive Medicines

V.ChandrasekaranFor Respondents: Mrs.E.Ranganayagi, Government Advocate(Edn)COMMON ORDERBy consent of both parties, the writ petitions are taken upfor final disposal. 2. Prayer in these writ petitions are to issue a writ ofdeclaration, declaring that the recruitment of LaboratoryTechnician Grade-II in the State Government Service on the basis of District-wise employment exchange seniority is illegal, unconstitutional, violative of Articles 14 and 16 of the Constitution of India, read with Recruitment Rules, viz., TamilNadu Medical Subordinate Service Rules and consequently forbear therespondents from recruiting candidates on the basis of District-wise Employment Exchange Seniority for the post of LaboratoryTechnician Grade-II in the forthcoming vacancies. 3. The case of the petitioners is that they havesuccessfully completed Diploma in Medical Laboratory Technology andgot themselves registered before the District Employment Exchange(Petitioners in W.P.Nos.7061 & 7137 of 2008 in the year 2001;Petitioners in W.P.No.7062 & 7138 of 2008 in the year 2002;Petitioners in W.P.Nos.7136 & 7139 of 2008 in the year 1997).According to the petitioners, they are fully qualified and eligibleto be appointed to the post of Lab Technician Grade-II. TheSpecial rules for the said post viz., Tamil Nadu MedicalSubordinate Service Rules, which was amended through G.O.Ms.No.39Health and Family Welfare Department, dated 5.2.2007, states that Diploma in Medical Laboratory Technology (DMLT) candidates shouldbe given preference for appointment as Lab Technician Grade-II.The said Government Order was also upheld by this Court inW.P.No.19237 of 2007 etc., batch by order dated 23.10.2007.

Whenvacancies arose, the Appointing Authorities viz., respondents 5 to15 received list of candidates from the District EmploymentOfficer, Chennai, who is the 16th respondent, for givingappointment by following the District-wise seniority. According tothe petitioners, candidates registered in the year 2007 and even inthe year 2008, who are far juniors than the petitioners in the Employment Exchange registration were called for interview. Thesaid action of the respondents 5 to 15 to call for the list ofeligible candidates only from the 16th respondent viz., DistrictEmployment Office, Chennai is contrary to the Tamil Nadu Medical https://hcservices.ecourts.gov.in/hcservices/ Subordinate Service Rules, which states that the Lab TechnicianGrade-II post is a State Cadre post and persons holding the saidpost can be transferred through out the State. The grievance ofthe petitioners are that when the post is a State Cadre post, preferring the employment exchange seniority of a particulardistrict for appointment, is violative of the fundamental rightguaranteed under Article 16(2) of the Constitution of India.

According to the petitioners, in Kancheepuram District only 10vacancies are available, for which 70 DMLT candidates haveregistered and awaiting for employment from 1997. The persons, whohave completed the course long after the petitioners and registeredtheir names in the Employment Exchange, Chennai, having been calledfor, without considering the State as a Unit as well as theseniority of employment registration through out the State, isviolative of fundamental rights guaranteed under Articles 14 and16 of the Constitution of India as the petitioners are deprived oftheir participating in the selection. 4. Respondents 5 to 15 have filed counter affidavit whereinit is admitted that the post of Lab Technician Grade-II is governedby the Special Rules applicable to the Tamil Nadu MedicalSubordinate Services under Branch IV - General under Class-III as Category No.2. It is denied in the counter affidavit that the saidpost is a State Cadre post and whenever vacancies arise in therespective Medical Institution, the Deans/Superintendents recruitthe candidates by addressing the concerned District EmploymentOffice and the District Employment Officer will sponsor thecandidates with required qualification strictly in accordance withthe District Employment Exchange registration seniority and thesaid practice is being adopted for several years.

In paragraph 3of the counter affidavit it is stated that if a person is appointedin a particular post in a particular Medical Institution, he willhave the seniority based on his date of appointment and in case heis transferred on his own request out of the Medical Institution, where he was originally appointed, he will lose the seniority inthe particular Medical Institution and he will be placed as thejunior-most among the Lab Technician Grade-II, already working inthe transferred Institution. Pointing out the said contentions andthe prevailing present practice for several years, the respondents5 to 15 pray for dismissal of the writ petitions. 5. The learned Senior Counsel appearing for the petitionerssubmits that even though in the counter affidavit it is statedabout the transfer on request, the counter affidavit is silentabout the transfer of Lab Technician Grade-II outside the Districton administrative exigency and in fact several transfers are beingmade from one district to another by the Head of the Departmentviz., the Director of Medical and Rural Health services, the Director of Public Health and Preventive Medicines and the saidfact cannot be disputed and therefore the post cannot be treated as District Cadre Post.

The learned Senior Counsel also submitted https://hcservices.ecourts.gov.in/hcservices/ that similar issue with regard to the appointment of SecondaryGrade Teachers by following the seniority as per the registrationin the District Employment Exchange was held illegal by a DivisionBench of this Court in W.A(MD)No.119 of 2008 dated 14.5.2008 andappointment of Drawing Teachers on the basis of Employment Exchangeregistration seniority in the District was also found illegal byanother Division Bench (First Bench) of this Court in the decisionmade in W.A.No.533 of 2008 dated 7.7.2008 and the said judgmentsare equally applicable to these cases. 6. The learned Additional Advocate General appearing forrespondents submitted that in the Division Bench decision made inW.P.No.33647 of 2007 dated 29.4.2008 insofar as the ministerialpost of the District Court, Tiruvallur District, DistrictEmployment Exchange registration seniority was upheld and it willnot offend Articles 14 and 16(2) of the Constitution of India andtherefore the request of the petitioners to appoint Lab TechniciansGrade-II post on the State-wise Employment Exchange registrationseniority is unsustainable.7.I have considered the rival submissions made by thelearned Senior Counsel appearing for the petitioners as well aslearned Additional Advocate General appearing for the respondents.

8. Admittedly Lab Technician Grade-II post is a transferablepost from one district to another district and only on requesttransfer one would get junior-most place in the transferred place. Further, promotions to various categories of posts are also made tohigher post based on the state-wise seniority list. Hence theappointment of Lab Technician Grade-II post cannot be treated as District Cadre post. Once the post is not found to be DistrictCadre post, the respondents are not entitled to invite thecandidates registered in a particular district for appointment asthe same is violative of Articles 14 and 16(2) of the Constitutionof India i.e., giving employment based on residential qualificationalone. A Division Bench of this Court in the judgment made in W.A(MD)No.119 of 2008 dated 14.5.2008 (The Unemployed Secondary GradeTeachers Welfare Association v. The State of Tamil Nadu), inparagraphs 34 and 35 considered the very same issue and held asfollows: "34.

As a matter of fact the decision ofthe Supreme Court in (2002) 6 SCC 562 (citedsupra) is a complete answer to such imaginaryexcuses putforth by the State. In a veryrecent decision, the Supreme Court hasexpressed its grave concern relating topossible balkanization of the country becauseof the spread of non-tolerance displayed insome parts of the country. The submissionswhich are now being made by the learned https://hcservices.ecourts.gov.in/hcservices/ Additional Advocate General or the counselfor the Interveners bring only to fore theabove unwelcome trend. We do not think thatsuch a course can ever be countenanced. As acitizen of India one has to imbibe the spiritof the Constitution and follow the adage madefamous by no less a personality than JusticeKrishna Iyer that "Kashmir to Kanyakumari, India is one". However, a reading of thecounter filed by the State Government and thestand so painstakingly putforth by thelearned Additional Advocate General, thoughmore in desperation rather than with anyconviction, one gets the feeling that eventhough Kashmir to Kanyakumari - India may beone, Dharmapuri to Kanyakumari - Tamil Naduis not one.

The net result of the policyhitherto followed by some curious logic isthat a duly qualified person, who is born inone part of the Tamil Nadu and gets himselfregistered in the district of his residence, cannot seek employment under the Governmentin another district of the very same State. If this does not amount to denial of right toequality under Article 14 and moreparticularly Article 16(2) and the rightunder Article 19(1), we fail to imagine whatelse can be the denial of such fundamentalrights. 35. In view of the above discussion, inour considered opinion, confining thequestion of selection to the candidatessponsored by the Employment Exchange of aparticular district without considering thewillingness, availability and suitability ofsimilar candidates who have been registeredin the other district employment exchanges, is clearly violative of fundamental rightsand, therefore, cannot be countenanced.

Theimpugned G.O.Ms.No.447, dated 16.7.1996 isliable to be quashed. Accordingly, adirection is issued to consider the questionof selection of eligible candidates, eventhough such candidates' names have beenregistered in other District EmploymentExchanges. For the aforesaid purpose, obviously intimation is required to be givento all the District Employment Exchanges andpublic advertisement throughout the State isrequired to be made so that any willing https://hcservices.ecourts.gov.in/hcservices/ candidate even though registered in adifferent district can offer hiscandidature. "(Emphasis supplied)The said Division Bench Judgment was recently followed by the Division Bench of this Court (First Bench) in W.A.No.533 of 2008dated 7.7.2008 (Senthil Kumar v. State of Tamil Nadu & others)insofar as appointment of Drawing Teachers in Government schools isconcerned. The First Bench answered the said issue by observingas follows: "................. This question hasbeen answered by the Division Bench of this Court (Madurai Bench) in an unreportedjudgment dated 14.5.2008 in THE UNEMPLOYEDSECONDARY GRADE TEACHERS WELFARE ASSOCIATIONv.

STATE OF TAMIL NADU BY ITS SECRETARY,DEPARTMENT OF SCHOOL EDUCATION AND THEDIRECTOR OF ELEMENTARY EDUCATION (W.A.No.119of 2008).2.Learned Government Pleader for the State submits that though the State hasfiled Special Leave Petition against thesaid judgment and fate of S.L.P. is awaited. In terms of the said judgment, the State hasto publish advertisement through out the State for vacancies which shall accrue forthe post of Teachers whether such vacancyaccrues from another District or localEmployment Exchange. In the instant case, the appellant is a Drawing Teacher and he isaggrieved by the judgment dated 3.3.2008passed by the learned Judge, which runs asfollows:-"The only reason for this writ petitionis some information that the petitionerhad obtained under the Right to Information Act from the ChiefEducational Officer, Namakkal, Villupuram, Nilgiris and Thanjavur. That does not give the petitioner thecause of action to seek a mandamus.

There is no right to be appointedeither. Hence the writ petition isdismissed. "The appellant registered his name in the District Employment Exchange, Karur, and theinformation of the appellant is that thereare vacancies for the post of Teachers in https://hcservices.ecourts.gov.in/hcservices/ some other Districts and he should beconsidered for appointment against thosevacancies. 3. Since the stand of the StateGovernment that in respect of such vacanciesthere shall be an advertisement in the Newspaper before such vacancies are filledup, we dispose of the writ appeal by givinga direction to the respondents that if anysuch advertisement appears, the appellantmay apply for being considered for suchvacancy even though his name has beenregistered in the Employment Exchange at Karur, with other candidates on merits inaccordance with his seniority. This Courtmakes it clear that no such appointmentshall be made without following the ratio ofthe judgment of the Division Bench withoutfollowing the ratio of the judgment of the Division Bench referred toabove. .........."9.

The decision of the Division Bench cited by the learnedAdditional Advocate General made in W.P.No.33647 of 2007 dated29.4.2008 (Amirthaveni v. The District Employment Exchange Officer, Dharmapuri District & Others) relates to filing up of differentministerial posts such as Examiners of copies, Readers, Copyists, Senior Bailiffs, Office Assistants, Masalchies, Watchmen, XeroxOperators, Drivers, etc., in the District Court, Tiruvallur. Inthe said case, the posts, which are to be filed up are admittedlywithin the District cadre. The Division Bench, while upholding thesaid procedure, also held that the choice of selection cannot berestricted only from the persons sponsored by the local EmploymentExchange, but also by giving a publication in the newspapers havingwider circulation calling for applications, if more number ofvacancies are to be filled up at a time. 10. Issue in this aspect is also well settled in thefollowing decisions of the Honourable Supreme Court and Full Benchof this Court: (a)In the decision reported in (1996) 6 SCC 216 (ExciseSuperintendent Malkapatnam, Krishna District, A.P. V.K.B.N.Visweshwara Rao and others) the Honourable Supreme Court hasstated as under in paragraph 6:"6.............. Under thesecircumstances, many a deserving candidate isdeprived of the right to be considered forappointment to a post under the State.

Better https://hcservices.ecourts.gov.in/hcservices/ view appears to be that it should bemandatory for the requisitioningauthority/establishment to intimate theemployment exchange, and employment exchangeshould sponsor the names of the candidates tothe requisitioning departments for selectionstrictly according to seniority andreservation, as per requisition. In addition, the appropriate department or undertaking orestablishment should call for the names bypublication in the newspapers having widercirculation and also display on their officenotice boards or announce on radio, television and employment news bulletins; andthen consider the cases of all the candidateswho have applied. If this procedure isadopted, fair play would be subserved. Theequality of opportunity in the matter ofemployment would be available to all eligiblecandidates. "(Emphasis Supplied)(b)In (2006) 2 SCC 482 (Union Public Service Commission v.Girish Jayantilal Veghela) the Honourable Supreme Court has statedthe legal position as under in paragraph 12:"12. .......... A regular appointmentto a post under the State or Union cannot bemade without issuing advertisement in theprescribed manner which may in some casesinclude inviting applications from theemployment exchange where eligible candidatesget their names registered.

Any regularappointment made on a post under the State or Union without issuing advertisement invitingapplications from eligible candidates andwithout holding a proper selection where alleligible candidates get a fair chance tocompete would violate the guarantee enshrinedunder Article 16 of the Constitution. "(Emphasis Supplied)(c)In (2006) 8 SCC 111 (Arun Kumar Nayak v. Union of India)paragraph 9 reads as under: "9. This Court in Visweshwara Rao, therefore, held that intimation to theemployment exchange about the vacancy andcandidates sponsored from the employmentexchange is mandatory. This Court also heldthat in addition and consistent with theprinciple of fair play, justice and equal https://hcservices.ecourts.gov.in/hcservices/ opportunity, the appropriate department orestablishment should also call for the namesby publication in the newspapers having widercirculation, announcement on radio, television and employment news bulletins andconsider all the candidates who have applied.

This view was taken to afford equalopportunity to all the eligible candidates inthe matter of employment. The rationalebehind such direction is also consistent withthe sound public policy that wider theopportunity of the notice of vacancy by widerpublication in the newspapers, radio, television and employment news bulletin, thebetter candidates with better qualificationsare attracted, so that adequate choices aremade available and the best candidates wouldbe selected and appointed to subserve thepublic interest better. "(Emphasis Supplied)(d)In the Full Bench decision of this Court reported in 2007(5) CTC 561 (Sivakumarai R. v. Ramanathapuram Mavatta PayirchipetraEdainilai Asiriyargal Sangam) in para 24, it has been stated asunder: "24. Therefore, if the recruitment ofabout four thousand secondary grade teachersto the Government Schools, were to be made inaccordance with the law laid down by the Supreme Court, the respondents ought to havefollowed the following procedure namely,A.Notify the Employment Exchanges.B.Issue publications in newspapers havingwide circulation, inviting applications.C.Display the notification in the noticeboards of the respective offices or makeannouncements in the media.