Deputy Director of Health Services Collectorate Campus Ramanathapuram v. T.G. Madhavaraman

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19.2.2009CORAMTHE HONOURABLE MRS. JUSTICE PRABHA SRIDEVANANDTHE HONOURABLE MR. JUSTICE K.K. SASIDHARANWRIT APPEAL NO.1422 OF 2006ANDM.P.NO.2 OF 2006Deputy Director of Health ServicesCollectorate CampusRamanathapuram ...AppellantVs.T.G. Madhavaraman ...RespondentWrit Appeal filed under Clause 15 of Letter Patent against theorder dated 6.4.2006 made in W.P.No.26200 of 2005 this petition filedunder Article 226 of the Constitution of India, praying this Court tocall for the records on the file of the respondent in his proceedingsNa.Ka.No.00190/A5/98 dated 07.12.1998 and directing the respondent toappoint the petitioner as per his seniority list.For Appellant: Mr. A. Arumugam Special Government PleaderFor Respondent : Mr. R. SubramanianJ U D G M E N T(Judgment of the Court was delivered byPrabha Sridevan, J.)The appeal is against the order granting the respondent's timescale of pay with effect from 20.6.2005, though as per G.O(D) No.373,Health and Family Welfare 99(1) Department, dated 13.5.2005, he wouldbe brought into Time Scale of Pay only on completion of two yearsfrom the date of appointment (20.6.2005).2. The facts of the matter are as follows:The petitioner had passed Diploma in Pharmacy in the year 1985.He registered his name with the Employment Exchange at Ramnad. He had https://hcservices.ecourts.gov.in/hcservices/ attended several interviews for the post of Pharmacist in the PrimaryHealth Centre but without any success. On 17.12.1998, he was calledfor interview for the post of Pharmacist. The petitioner's seniorityin the Employment Exchange was 4. He had submitted all hiscertificates. He apprehended that persons Junior to him might beappointed and since he was 33 years old and nearing the upper agelimit for the post of Pharmacist, he moved the Tamil NaduAdministrative Tribunal by filing O.A.No.10920 of 1998.3. A counter was filed by the appellant herein stating that fourvacancies were notified for the post of Pharmacist videRc.No.00190/A5/98, dated 14.9.1998. The Directorate of EmploymentOffice at Ramanathapuram sent a list of eligible candidates, whereinthe applicant's name was found in Serial No.4. On that date, noinstructions had been received by the office that the selection forthe post of Pharmacist should be made according to the EmploymentExchange Seniority. According to the counter, the AppointingAuthority interviewed the candidates and selected one candidate, whowas eligible for appointment after considering all aspects. Onabolition of the Tribunal, the Original Application filed by thepetitioner was transferred to this Court and re-numbered asW.P.No.26200 of 2005. Before the learned single Judge, the followingGovernment Notification was produced, in which, it was stated thatthe Government permitted the Appointing Authority to fill up the postof Pharmacist by drawing the list of candidates from the EmploymentExchange. 4. In the meantime, the respondent / writ petitioner had beenappointed by order dated 20.6.2005 as a Pharmacist in the GovernmentPrimary Health Centre, Thondi for a consolidated pay of Rs.2,500/-per month. The learned single Judge felt that considering the overallcircumstances, the petitioner's Employment seniority had beenoverlooked and that while he cannot be appointed with effect from1998, he could be given Time Scale of Pay from the date ofappointment i.e., 20.6.2005. It is this order which is challengedhere.5. The learned Special Government Pleader submitted that therewas a ban on recruitment from 2001 to 2005. G.O(D) No.373, Health andFamily Welfare 99(1) Department, dated 13.5.2005 was issued liftingthe ban and filling up vacancies. It is by virtue of this GovernmentOrder that the appointment orders were issued and the writpetitioner/respondent was appointed and the appointment of 570Pharmacists was governed by the following terms and conditions." i) The persons appointed in the posts shall be designed asContact Pharmacists and they shall be paid a consolidated payof Rs.2500/- (Rupees two thousand five hundred only) permonth. https://hcservices.ecourts.gov.in/hcservices/ ii) Such persons should work at least for two years onspecified terms and conditions to be fixed by the concernedDirectorates.iii) Such persons appointed on consolidated pay shall bebrought into regular time scale of pay and competition of twoyears.iv) Contract Pharmacist shall be appointed only against thesanctioned post and the posts shall not be treated asadditional sanction. While drawing the pay of the ContractPharmacists regular sanction order (i.e. the GovernmentOrders) and further continuance orders in respect ofTemporary posts shall be quoted.v) The Pay and Accounts Officer/Treasury Officers shall admitthe pay and allowances of the Contract Pharmacists asapplicable to the regular time scale of pay of posts oncompletion of two years as per the orders in force on thatdate.vi) They are not transferable during the contract period andthey shall work in the instructions allotted till they areabsorbed in the regular vacancy.vii) The Pay and Accounts Officers/Treasury Officers shalladmit the pay bills of the Contract Pharmacists in theexisting vacancies without insisting the revival of the postswhich are vacant for more than five months."6. It provided that the persons appointed on consolidated paywould be brought into regular Time Scale of Pay on completion of twoyears. 7. The learned Special Government Pleader submitted that havingaccepted the appointment order under this Government Order, it is notnow open to the respondent to contend that he should be brought intoregular Time Scale of Pay right from the date of his appointment. Thelearned Special Government Pleader therefore prayed that the writpetitioner would be brought into regular Time Scale of Pay only inaccordance with G.O(D) No.373, Health and Family Welfare 99(1)Department, dated 13.5.2005 and not otherwise.8. The learned counsel appearing for the writ petitionersubmitted that the learned single Judge took note of the fact thatinjustice had been done to the petitioner because he was not givenappointment at the appropriate time. Though his Employment ExchangeSeniority was No.4 both in 1998 and 2000, he was denied appointmentand only to balance the interest of justice, this order was passed. https://hcservices.ecourts.gov.in/hcservices/ The learned counsel for the writ petitioner submitted that it shouldnot be interfered with.9. The Government has produced G.O.Ms.No.141, Personnel andAdministrative Reforms (S) Department, dated 15.6.1998, which isreferred to in the Government Notification, which has been producedbefore the learned single Judge and which is also extracted by thelearned single Judge. This shows that the High Level Committee, whichwas vested with the responsibility of preparation of estimates, wouldbe wound up because there was considerable delay in preparation ofproper estimates and therefore, to ensure that need-based approvalhas been given for filling up of entry level posts, revised procedurewas laid down by the Government in G.O.Ms.No.141, Personnel andAdministrative Reforms (S) Department, dated 15.6.1998, whichrequired the concerned Department to prepare an estimate of itsvacancies with the detailed justification for the need to fill upsuch vacancies and thereafter, to give recommendations based on whichthe administrative department can proceed further. It is seen that inresponse to this, sometime in 2000, a Government Notification waspassed for filling up vacancies, a copy of which is enclosed in thetyped set of papers and the date of the Notification is not clearfrom the copy. In any event it must be after 27.4.2000, since that isthe date on which the Finance Department gave its concurrence. TheGovernment, after examining the proposals of the Director of Medicaland Rural Health Services and Director of Medical Education, approvedthe revised procedure and permitted the Appointing Authorities todraw up a list of candidates from the Employment Exchange on thebasis of seniority following the rule of reservation. Therefore, wehave no material to show that in 1998, Employment Exchange senioritywas insisted upon and more particularly there is absolutely nopleading that a person, who was lower in seniority, was in factappointed overlooking the claims of the writ petitioner. In thepetition filed before the Tribunal, the petitioner had merely averredthat he apprehends that his juniors would be appointed. In theabsence of any material to show that the juniors were in factappointed, we are not able to accept this submission made on behalfof the respondent. 10. In G.O(D)No.373, Health and Family Welfare 99(1) Department,dated 13.5.2005, paragraphs 1 to 3 read as follows:-" 1. It has been brought to the notice of the Government thatseveral posts of Pharmacists in the GovernmentHospitals/Primary Health Centres/Dispensaries are vacant dueto promotion/voluntary retirement/retirement onsuperannuation. Due to shortage of Pharmacists the poor andneedy patients are experiencing much difficulties inreceiving the medicines. https://hcservices.ecourts.gov.in/hcservices/

2. As the Pharmacists are considered they essential forrunning the hospitals and they are the grass root leveltechnical personnel dealing with medical stores anddistribution of medicines to the poor public, the Commissionerof Indian Medicines and Homeopathy, Director of MedicalEducation, the Director of Medical and Rural Health Services,the Director of Medical and Rural Health Services (ESI), andDirector of Public Health and Preventive Medicine have sentproposals to the Government to fill up the posts throughEmployment Exchange on contract basis subject to certainconditions by lifting the ban orders issued in the G.O., firstread above.3. The Government, after careful examination, havedecided to accept the proposals in Para 2 above. Accordingly,they direct that the 570 (five hundred and seventy only)vacant posts of Pharmacists under the control of Commissionerof Indian Medicine and Homeopathy, the Director of MedicalEducation, Director of Medical and Rural Health Services,Director of Medical and Rural Health Services (ESI) andDirector of Public Health and Preventive Medicine, as detailedbelow, be filled up on contract basis initially for period oftwo years, by calling for candidates from Employment Exchangebased on the seniority of their dates of registration Districtwise and following the rule of reservation by exempting theposts from the ban orders issued in the G.O., first readabove."11. In the absence of any material to show that in 1998, theemployment had to be made on the basis of the Employment ExchangeSeniority and since there is no material to show that some one lowerin Employment Exchange Seniority than the petitioner had in fact beenappointed, we are not able to sustain the objection of the writpetitioner that there was arbitrariness in the action of the writappellant. Further, he had been appointed and he had acceptedappointment pending disposal of his O.A., as per the conditions laiddown in G.O(D)No.373, Health and Family Welfare 99(1) Department,dated 13.5.2005. In fact, when he was appointed as a Pharmacist asper G.O(D)No.373, Health and Family Welfare 99(1) Department, dated13.5.2005, virtually the OA had become infructuous. But however, heproceeded to obtain an order, which was indeed favourable to him. Therespondent was given Time Scale of Pay which he is entitled to as perthe Government Order. We are not able to sustain the order of thelearned single Judge. The writ petitioner will be entitled to pay asper G.O(D)No.373, Health and Family Welfare 99(1) Department, dated13.5.2005 and all his other rights and allowances will only be inaccordance with the same. https://hcservices.ecourts.gov.in/hcservices/

12. With the above observation, the writ appeal is allowed. Nocosts. Consequently, connected miscellaneous petition is closed.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarkbTo The Deputy Director of Health Services Collectorate Campus Ramanathapuram.+ 1 c.c. to Mr. R. Subramanian, Advocate. S.R.No.7041.+ 1 c.c. to The Government Pleader. S.R.No.7162. W.A.NO.1422 OF 2006RJ (CO)GSK 04.03.2009.