D.Gurusamy v. The Director Government Institute of Rehabilitation Medicine K.K. Nagar, Madras 600 083

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 07.09.2009CORAM:THE HON'BLE MR.JUSTICE D.HARIPARANTHAMANW.P.NO.5703 OF 2007D.Gurusamy...Petitioner Vs.The DirectorGovernment Institute of Rehabilitation MedicineK.K.Nagar, Madras 600 083...RespondentPRAYER: This Writ Petition came to be numbered under Article 226 ofthe Constitution of India for issuance of writ of CertiorarifiedMandamus by way of transfer of O.A.No.1086 of 2002, to call forrecords and to set-aside the proceedings of the respondentNa.Ka.No.2197/N2/91 dated 20.02.2002.For Petitioner: Mr.V.GangatharanFor Respondent :Mrs.C.K.Vishnu PriyaAdditional Government Pleader- - -

O R D E RThe Original Application in O.A.No.1086 of 2002 beforethe Tamil Nadu Administrative Tribunal (hereinafter referred to as"the Tribunal") is now Writ Petition in W.P.No.5703 of 2007 beforethis Court.

Heard Mr.V.Gangatharan, learned counsel for thepetitioner and Mrs.C.K.Vishnu Priya, learned Additional GovernmentPleader for the respondent.

The petitioner was sponsored by the DistrictEmployment Officer, Chennai -600 020 through his letter dated21.05.1988 for the post of Substitute Worker in the RespondentEstablishment. He was selected and included in the list of Substitute Workers and posted to work in the leave vacancies ofbasic servants.

While so, the petitioner was appointed, as Gardener, on regular basis in the scale of Rs.750-12-870-14-940 by therespondent by an order dated 01.04.1992. However, the respondentpassed an order dated 11.03.1994 terminating the services of thepetitioner to accommodate one Thiru.T.Murugan, whose removal from https://hcservices.ecourts.gov.in/hcservices/ service, was set-aside by the Tamil Nadu Administrative Tribunal. The reason stated in the said order dated 11.03.1994 fortermination was that the petitioner was the junior most among thebasic servants.

The petitioner filed O.A.1589 of 1994, questioning theaforesaid order dated 11.03.1994. He filed M.A.No.1146 of 1996 inO.A.No.1589 of 1994 seeking for a direction to respondent toconsider him in the vacancies, that were available, pendingdisposal of the Original Application. The Tribunal passed thefollowing order in M.A.1146 of 1996, on 19.05.1996,"The applicant claims that there are vacancies and he maybe considered for appointment in the same. If theapplicant is eligible for consideration and if there arevacancies, the respondent shall consider the applicantfor appointment in those vacancies. This MiscellaneousApplication is ordered as above. "

Based on the aforesaid interim order of the Tribunal, the petitioner was appointed as a Watchman belonging to BasicService, from 03.02.2000. The order dated 11.02.2000 of therespondent states that the petitioner reported for duty as Watchmanon 03.02.2000.

While so, the respondent passed the impugned orderdated 20.02.2002 terminating the services of the petitioner, referring to various orders. The petitioner filed O.A.No.1086 of2002 (W.P.No.5703 of 2007) to quash the aforesaid order. 8. The respondent filed a reply affidavit. In paragraph 6of the reply affidavit, the respondent admits that three persons, namely Selvi Thillaivani, Tmt Rajakumari and Selvi Kalaiselvi wereappointed subsequent to the appointment of the petitioner as Hospital Workers on 29.12.1993, 31.12.1993 and 14.06.1993respectively. However it is stated that those persons wereappointed on compassionate grounds and that therefore they shouldnot be ousted for want of vacancy, unless a person found surplus. Paragraphs 6 and 7 of the reply affidavit, which are relevant, areextracted hereunder:-"6. The following hospital workers were temporarilyappointed on compassionate ground. Sl.No.Name of the IndividualAppointed oncompassionate GroundName of deceasedGovt.

It is relevant at this juncture to point out that noprocedures were followed by the respondent, before terminating theservice of the petitioner by the impugned order dated 22.02.2002and the impugned order was straight away passed.

In the mean time, after the receipt of the letterdated 11.09.2001 of the Director of Medical Education enclosing the Government letter dated 31.08.2001, instructing the respondent toterminate the service of the petitioner by following the procedure, the respondent seems to have addressed to the Employment Officer, District Employment Exchange, Adayar in his letter dated 10.10.2001requesting him to issue no-objection certificate for theappointment of the petitioner as Hospital Worker (Watchman). But, it seems that the Employment Officer sent a reply dated 17.10.2001stating that no objection certificate would not be issued in thiscase and the said certificate could be issued only if there were nopersons available on the Live Register of the Employment Exchangefor the post for which the person was appointed.

It seems that the respondent again addressed a letterdated 21.11.2001 to the Director of Employment and Training, Chepauk, Chennai – 5, in this regard. However, the Director of Employment and Training in his letter dated 10.12.2001 replied thatthe Tribunal did not issue a direction to appoint the petitionerand it was only a direction to consider him for appointment, ifthere was any vacancy and that no appointment could be made withoutgetting a list from the Employment Exchange. It was directed thatthe petitioner could be appointed after getting the list from the Employment Exchange, after terminating the service of thepetitioner.

The aforesaid facts are seen from the reply affidavitof the respondent. One fails to understand, why the no-objectioncertificate is required from the Director of Employment Exchange, particularly when the petitioner was appointed in the year 1988only through Employment Exchange. Further, he was terminated fromservice only due to want of vacancy, since one Murugan was soughtto be appointed pursuant to the order of the Tribunal. In suchcircumstances, when the Tribunal directed the respondents toappoint the petitioner in any of the vacancies, the respondent didcorrect thing by appointing him on 03.02.2000, as Watchman. Admittedly, he was appointed again in a vacancy in the post of Watchman. It is not their case, that there was no vacancy in thepost of watchman.

Hence, in the aforesaid circumstances, I am of theview that the Government has no valid reason in directing therespondent to terminate the service of the petitioner and to fill-up the post by calling a list of candidates from the EmploymentExchange. As I have already stated, since the petitioner himselfwas sponsored through Employment Exchange and since he did not comethrough backdoor method, there was no necessity to require the no- https://hcservices.ecourts.gov.in/hcservices/ objection certificate from the Employment Exchange, in the factsand circumstances of the case.

Further, as stated above, the respondent retained thejuniors in service while the petitioner was sent out. The reasonsadduced in paragraph 7 of the reply affidavit is not convincing forretaining the juniors and sending out the petitioner. Since, thepetitioner is admittedly a senior person, terminating his servicesby the impugned order, while retaining the juniors, who wereappointed on compassionate grounds, is clearly illegal andarbitrary. The impugned order of the termination of service ofpetitioner is violative of Article 14 and 21 of the Constitution, as per the decision of the Apex Court in D.K.Yadav V. J.M.A.Industries Ltd. reported in (1993) 3 SCC 259.

Further more, when the Tribunal issued a direction toconsider him for appointment in the vacancy and respondent foundthat there was a vacancy in the post of Watchman, terminating theservices of the petitioner, on the ground that no-objection certificate was not obtained from the Director of Employment, is illegal. As pointed out above, the termination orderwas passed in violation of principles of natural justice. Thepetitioner, who belongs to basic service, was made to sufferunnecessarily.