Judgment · High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 12-12-2007CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMW.P.No.8285 of 2007andMP Nos.2 and 3 of 20071.K.Ramesh2.G.Aravamuthan3.K.Kumar4.S.Vijayaraghavan5.M.Senthilkumar 6.K.Varadharaju7.C.K.Subramani8.R.Parthasarathy9.G.Ravichandran10.T.Srinivasagan.. Petitioners vs1.State of Tamil Nadu, rep. By its Secretary to Government Health & Family Welfare Department Secretariat, Chennai 9.

Director of Public Health and Preventive Medicine Chennai 6.

G.Gayathri4.M.Suresh5.B.Jothi6.P.Senthilkumar7.P.Raja8.Indra Priyadharshini9.J.Tamilarasan10.S.Muralitharan11.R.Sangeetha12.R.Nirmala13.P.Balakrishnan14.R.Selvarasu15.M.Suresh16.J.Nagabanu17.S.Gomathi18.M.Murugesan19.S.Rajeswari (RR13 to 19 impleaded as per order dated 25.7.2007 in MP No.4/2007).. Respondents https://hcservices.ecourts.gov.in/hcservices/ Writ petition filed under Article 226 of the Constitution of India praying for a writ of Certiorarified Mandamus to call forthe records pertaining to the order passed by the firstrespondent in G.O.(D) No.1127, Health & Family WelfareDepartment, Dated 30.10.2006 and quash the same insofar as itdirects to give posting on completion of 3 months condensedtraining course to the respondents 3 to 17 in para 7 of theorder, and direct the respondents 1 to 2 to fill up the post of Ophthalmic Assistant according to employment exchange seniority. For Petitioners: Mr.S.ManiFor Respondents: Mr.S.Gopinathan Additional GovernmentPleader Mr.Yasood Vardhan Senior Counsel for Mr.E.Girirajan for RR3, 4, 6 and 8 to 12 Mr.V.Venkatasamy for R13 to 19 RR5 & 7 – Not readyORDERBy consent of parties, the writ petition itself is taken upfor consideration. 2. The petitioners 10 in number, have sought for a writ ofcertiorarified mandamus to quash the G.O. made by the firstrespondent in G.O.(D) No.1127, Health & Family WelfareDepartment, dated 30.10.2006, and to direct the respondents 1 to2 to fill up the post of Ophthalmic Assistant according to theemployment exchange seniority. 3. The affidavit in support of the petition and also thecounter affidavits filed by the contesting respondents, includingthe newly added respondents, are perused. The Court heard thelearned Counsel on either side.

The writ petition came to be filed under the followingfacts and circumstances: The petitioners underwent the Para Medical Course of Diplomain Optometry with two years duration in the Regional Institute of Ophthalmology, Government Ophthalmic Hospital, Egmore. They havealso undergone three months condensed training course. TheGovernment allotted private hospitals also to institute the Diploma in Optometry. Accordingly, Sri Gokulam Institute of Para https://hcservices.ecourts.gov.in/hcservices/ Medical Sciences, Salem, instituted the said diploma course fortwo years, and the course was started in 1996. The studentsunderwent two years diploma course, and they did not have thethree months condensed training course as the private institutedid not provide to them. The Government amended the specialrules for the post of Ophthalmic Assistant in 1998, and as perthe amended rules, the students who had the diploma from Government institutions and the condensed 3 months trainingcourse thereon alone were made eligible for appointment to thepost of Ophthalmic Assistant. In the amendment, they introducedthree months condensed training course as also one of therequirements. On the basis of the above amendment, the studentswho underwent the diploma in Optometry in private institutions, were not given the condensed course of three months training. Therefore, 15 of those students, including the contestingrespondents 3 to 12 herein, filed O.A.No.7723 of 1999 on the fileof the Tamil Nadu Administrative Tribunal, Madras, wherein theyventilated their grievance that they were made ineligible to getthe post of Ophthalmic Assistant. The orders came to be passedby the Tribunal, following which the rules have not yet beenamended. Even as per the order passed by the Tribunal, thoughthe petitioners therein were also to be absorbed for the post of Ophthalmic Assistant, the petitioners before this Court whilefilling up the vacancy, must be given seniority. While thematter stood thus, the impugned G.O. came to be passed wherein adirection was given to the Director of Public Health and Preventive Medicine, the second respondent herein, to relax therules thereby the respondents 3 to 12 herein were to be absorbedas Ophthalmic Assistants by giving seniority. Under suchcircumstances, the said G.O. has got to be struck down, andnecessary directions be given to the State.

Advancing his arguments on behalf of the petitioners, thelearned Counsel would submit that these petitioners haveundergone the training which is necessary for the post of Ophthalmic Assistant; that the respondents 3 to 12, who had thediploma course, underwent the course in Sri Gokulam Institute of Para Medical Sciences, Salem; that they also challenged beforethe Tribunal that they should also be given opportunity andabsorbed by the State as Ophthalmic Assistants; that while thesaid O.A. was taken up for consideration by the Tribunal, thepetitioners herein who were the parties therein, put forth theirrespective contentions, and the Government was also a party; thatan order came to be passed by the Tribunal in O.A.No.7723/99after considering the contentions on merits of the matter; thatas could be seen from the order of the Tribunal, though thepetitioners herein who have undergone the training, therespondents 3 to 12 herein were eligible to become OphthalmicAssistants, and the Government could consider and relax therules; but, at the same time, while giving the appointment, thepetitioners herein who have undergone the training under the Government Institution, must be given seniority, and only then, the case of the respondents 3 to 12 should be considered; thatthe order passed by the Tribunal in O.A.No.7723 of 1999, remains https://hcservices.ecourts.gov.in/hcservices/ intact not challenged by the respondents 3 to 12 or by the State; that now, at this juncture, the impugned G.O. came to be passedwherein a direction was given to the second respondent to relaxthe rules in order to absorb the respondents 3 to 12 as Ophthalmic Assistants; that if it is allowed, it would berepugnant and contrary to the orders passed by the Tribunal, andthe petitioners will lose their seniority; that they should begiven seniority as per the orders of the Tribunal, and under thecircumstances, if it is allowed, it would cause prejudice totheir rights.

Added further the learned Counsel that at this juncture, it is to be pointed out that the Rules have not been relaxed yet; but, a direction has been given for the relaxation of the rules; that if the relaxation of the rules has got to be ordered, itshould be in the line of the orders passed by the Tribunal inO.A.No.7723 of 1999, but not done so; that so long as the G.O.passed by the State is repugnant to the orders of the Tribunal, the G.O. has got to be struck down, and necessary directions begiven to the State.

Contrary to the above contentions, the learned AdditionalGovernment Pleader would submit that the petitioners have claimedthat their cases may be considered for the post of OphthalmicAssistant as they have completed three months additional trainingpermitted by the Government; but, the adhoc rules prescribed forthe post of Ophthalmic Assistant, do not permit to consider themas Ophthalmic Assistants; that the executive instructions givenby the Government in G.O.Ms.No.662, Health and Family WelfareDepartment, dated 9.12.1998, for providing additional training, cannot override the rules prescribed for the post of OphthalmicAssistant; that as there are vacancies in the post of Refractionist (Optometrician) in both the Directorate of MedicalEducation and Directorate of Medical and Rural Health Services(Director of Medical Education – 5 vacancies and Director of Medical and Rural Health Services – 16 vacancies) the cases ofthe petitioners can be considered for the above vacancies, sincethey are qualified as per rules for the post of Refractionist whoare Optometricians; that even the respondents 3 to 12 have notbeen given appointment so far, and under the circumstances, thewrit petition has got to be dismissed.

The learned Senior Counsel for the respondents 3, 4, 6 and8 to 12 and the learned Counsel for the respondents 13 to 19would submit that it is true that an order came to be passed inO.A.No.7723 of 1999; that the respondents 3 to 12 herein were thepetitioners in that O.A.; that these respondents have undergonethe training before Sri Gokulam Institute of Para MedicalSciences, Salem; that since they were not made eligible, anoccasion arose for them to challenge the same; that there was aspecific direction given to the State to relax the rules and toabsorb them as Ophthalmic Assistants; but, the Government havenot relaxed the rules so far; that as far as the petitioners areconcerned, they are only Optometricians; that they have undergone https://hcservices.ecourts.gov.in/hcservices/ the course of Optometry; that under the circumstances, theycannot claim any eligibility for the post of OphthalmicAssistant; that a very reading of the order of the Tribunal inthe O.A. would indicate that the merit and necessaryqualification were not considered by the Tribunal; that even ifthe petitioners have undergone three months condensed trainingcourse, it would not satisfy the requirements; that as per therequirement for the post of Ophthalmic Assistant, theserespondents have undergone that course; but, the petitioners whoare only Optometricians, could not have the necessaryqualification even though they have undergone three monthscondensed training course; that under the circumstances, thematter was not considered originally by the Tribunal; that now, there was a direction given to the State to relax the rules inorder to absorb the petitioners in the O.A., who are therespondents 3 to 12 herein, for the post of Ophthalmic Assistant; that under the circumstances, no question of quashing the G.O.would arise, and hence, the writ petition has got to bedismissed.

The Court paid its anxious consideration on thesubmissions made.

The petitioners herein have challenged the G.O. dated30.10.2006. A perusal of the G.O. would indicate that there wasa direction given to the Director of Public Health and PreventiveMedicine to relax the rules and thereby to absorb the respondents3 to 12 as Ophthalmic Assistants. It is not in controversy thatthe respondents 3 to 12 who actually underwent the course in SriGokulam Institute of Para Medical Sciences, Salem, were notoriginally considered eligible. In such circumstances, theyfiled O.A.No.7723 of 1999. A reading of the order of the Tribunal passed in the O.A., would clearly reveal that thepetitioners and the State were also the respondents therein, andrival contentions were actually considered by the Tribunal. TheTribunal took the view that though the respondents 3 to 12 hereinwho were the petitioners therein, had undergone the training inthe private institute, since it is recognised by the State, theyare eligible to be appointed as Ophthalmic Assistants, providedthey have undergone the three months condensed training course. It is not in controversy that the respondents 3 to 12 have alsoundergone the training, and they are eligible to be appointed as Ophthalmic Assistants as per the orders of the Tribunal in theO.A. But, at the same time, it is pertinent to point out thatthere was a direction given to the Government to relax the rulesin such a way to absorb the respondents 3 to 12 as OphthalmicAssistants. Till the G.O., what is now challenged, came to bepassed, the rules have not been relaxed.

It remains to be stated that the Tribunal in the courseof its order, has considered the contentions put forth by thepetitioners herein, who were the respondents therein, and foundthat they have undergone the course in the Government Institute, and they are also eligible to be appointed, and since they have https://hcservices.ecourts.gov.in/hcservices/ undergone the course early, while fixing the seniority for thepost of Ophthalmic Assistant, they must be given priority. Itwould be more apt and appropriate to reproduce that portion ofthe order of the Tribunal in O.A.No.7723 of 1999 as follows: "

We are not informed as to why the Government hasnot chosen to first appoint the persons who havesuccessfully completed the refresher course in Government run colleges. In view of the fact thattheir course was funded by the Government and they areseniors to these applicants from private institute andthat they also registered their names in the EmploymentExchange long prior to the Sri Gokulam Institute of Para Medical Science candidates, they have alreadycompleted their refresher course also may be firstappointed to the post of Ophthalmic Assistant and thenthe case of the candidates from Sri Gokulam Instituteof Para Medical Science, Salem, shall be considered forwhich suitable relaxation of the rules may be made. All these applications are ordered in these terms. "12. From the very reading of the above order, it would bequite clear that these petitioners must be given priority whilethe seniority is fixed, and then only, the respondents 3 to 12are to be absorbed as Ophthalmic Assistants. It is further to bepointed out that no one of either the petitioners or therespondents 3 to 12 has been appointed yet. While the matterstood thus, the impugned G.O.(D) No.1127, dated 30.12.2006, cameto be passed. In the said G.O., no whisper is made about therelaxation of the rules, so that the petitioners could beabsorbed or seniority to be given to them. On the contrary, itspeaks only about the respondents 3 to 12 to be absorbed as Ophthalmic Assistants, and for that purpose, the rules have gotto be relaxed.

Now, the contention put forth by the learned AdditionalGovernment Pleader that administrative instructions were given, and those administrative instructions could not override therules which came into force under Article 309 of the Constitution, and under the circumstances, they need not be giveneffect or any legal consequence cannot be countenanced. Thiscontention was never raised before the Tribunal. From thereading of the Tribunal's order, it would be quite clear that therules have got to be relaxed in such a way to absorb therespondents 3 to 12 herein as Ophthalmic Assistants, and at thesame time, while fixing the seniority, the petitioners hereinmust be given priority. It is also not in controversy that theorder passed in the O.A. by the Tribunal, was never challenged byany one of the parties, and thus, it has got binding force on theparties. As on today, the G.O. what has been passed is onlyfollowing the order of the Tribunal in the O.A. and that too, with regard to only one part.