Makbul Bee v. 2. The District Collector, Dharmapuri District, Dharmapuri.3. The Commissioner, Thallay Panchayat Union

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 16.12.2009Coram THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMANW.P.No.2303 of 2007Makbul Bee ..Petitioner Vs1. The Commissioner and Secretary, Department of Rural Development, Government of Tamilnadu Secretariate, Fort St. George, Chennai 600 009.2. The District Collector, Dharmapuri District, Dharmapuri.3. The Commissioner, Thallay Panchayat Union, Thallay, Dharmapuri District.4. The District Medical Officer, Dharmapuri District. ..RespondentsPrayer: Writ petition filed under Article 226 of Constitution ofIndia, seeking a writ of Certiorarified Mandamus to call for therecords relating to letter No.51161/E5/99-2 dated 28.08.2000 passedby the Secretary to Government, Rural Development (E5) DepartmentSecretariate, Chennai – 9 the first respondent herein and quash thesame and include the service period from the date of appointment(i.e.) 25.10.1978 till 30.09.1984 with the service period of theapplicant's husband and to sanction and to pay the family pensionwith effect from 17.11.1991. For Petitioner : Mr.D.Govinda ReddyFor Respondents 1,2 & 4 : Mr.C.K.Vishnupriya, AGPFor respondent-3 : Mr.V.SubbiahO R D E ROne Dr. Syed Yousuf was appointed as Rural Medical Practioner inAnchetty Thally Panchayat Union by an order dated 21.11.1978. He https://hcservices.ecourts.gov.in/hcservices/ died on 16.11.1991. The legal heirs of Dr.Syed Yousuf filedO.A.No.4218 of 1993 claiming scale of pay and retirement benefits.The Tribunal passed an order on 09.09.1997 issuing the followingdirections:"The third respondent is directed to grant thescale of pay of Rs.905-1545 to late Dr.Syed Yusuf from01.10.1985 to 31.03.1990 and disburse the arrears tothe applicant within eight weeks from the date ofreceipt of a copy of this order.The second respondent and the third respondent aredirected to grant family pension to the applicant witheffect from 17.11.1991 and disburse the arrears within16 weeks from the date of receipt of a copy of thisorder."2.Tally Panchayat Union filed W.P.No.1899 of 1998 to quash theaforesaid order of the Tribunal. A Division Bench of this Court on28.10.1999 modified the order of the Tribunal as follows:"We have heard the learned counsel appearing oneither side and perused the materials on record. So faras the grant of time scale pay is concerned, it is to bestated in view of the statement made by theState/Panchayat Union, in view of G.O.Ms.No.16 dated29.01.1998, mentioned above. So far as the grant offamily pension is concerned, on consideration we findthat all these are the disputed questions of fact and itcannot be agitated or decided, nor gone into by thisCourt, particularly in the absence of any pleading andspecific finding of the Tribunal. Under thecircumstances, the order of the Tribunal granting familypension is uncalled for at this stage. Therefore, theorder of granting family pension is set aside."3.G.O.MS.No.16, Rural Development dated 29.01.1998 was passedimplementing the order of this Court granting time scale of pay toRural Medical Practitioner from 01.10.1984. The facts leading to thepassing of the G.O.Ms.No.16 are as follows:This Court passed an order in W.P.No.863 of 1989 on 08.03.1985holding that the Rural Medical Practitioners were appointed on fulltime basis and they could not be termed as part time employees, inview of their working time. A direction was issued to pay time scaleof pay applicable to regular medical officer with effect from11.07.1985. The relevant passages from the said judgment areextracted hereunder: https://hcservices.ecourts.gov.in/hcservices/ "The respondents though they have raised a plea in thecounter affidavit that the petitioner was appointed on parttime basis or on a contract basis, such contention has notbeen established by any acceptable documentary evidence.On the other hand, the order of appointment itself wouldshow that the appointment was neither on contract nor onpart-time basis. In the absence of such specification, theappointment made must be regarded as one made on full timebasis. The number of hours for which the petitioner wasrequired to work is not mentioned in the appointment order.It is the admitted case of the respondents that the hoursof work at the dispensary which is required to be lookedafter by the petitioner is from 7.30 a.m. To 10.30 a.m. Andagain from 3.00p.m. To 5.00 p.m. Therefore, the number ofworking hours per day is obviously five hours. As towhether the dispensary will be closed on Saturday or not isnot clear from the averments made in the pleading. Thereis nothing on record to allow that the appointment of thepetitioner was on a contract basis. No contract has beenproduced.8. ... As already noticed on the facts of this case,it is clear that the petitioner was only appointed to afull time post and as has been working in that post forwell over 17 years he certainly be regarded as one, who isholding that post on a permanent basis. He cannot beregarded as one, who is still holding a temporary post.Considering the hours of work, it cannot be said that theappointment to the post is on part time basis, in theabsence of an averment in the respondents in theiraffidavits regarding the hours of work of those on the timescale of pay.9.It is settled law that persons performing similarwork are to be similarly remunerated unless there arespecial factors justifying differential scale ofremuneration. It is admitted impliedly that the workinghours of the petitioner are the same as that of thepersons, who have been placed in the time scale of pay.Respondents have not placed any material to rebut thepetitioner's claim for equal remuneration except to assertthat the petitioner is employed on a part time basis. Thefactors if any which distinguish the petitioner from thosegiven the time scale and puts those persons in a classdifferent from the petitioner, have not been pleaded norhas any material been placed before the Court in thatregard. The fact that some Rural Medical Practitioners inB2 Class registered Medical Practitioners have been giventhe time scale is evident from the order of this Court inW.P.No.1071 of 1990 decided on 24.07.1990. https://hcservices.ecourts.gov.in/hcservices/

10. It was submitted for the petitioner that thepetitioner had made a number of representations and thesame not having elicited any positive response, petitionerhas filed this petition. This petition was filed in theyear 1989. The petitioner has produced copy of the auditobjection which had been raised in the year 1985 wherein itwas pointed out that the petitioner should have been giventime scale of pay of Rs.780-1385. The petitioner has alsoproduced letters written by the Commissioner of PanchayatUnion recommending that the petitioner be given the benefitof the time scale of pay. Documents have also beenproduced to show that the nurse working under him isgetting a salary of over Rs.1,000/- while the petitioner,the Doctor in charge of the dispensary is paid the paltrysum of Rs.300/- as salary. Petitioner has stated that onan average 54 patients are treated each day at thedispensary.11.Petitioner is therefore, entitled to be placed inthe time scale of pay fixed by the Government for MedicalOfficer (B2) Ayurvedha in Appendix VII of the Tamil naduRevised Scale of Pay Rules, 1985, with effect from11.07.1985. The benefit of the time scale cannot be givenfrom the date of his appointment as he did not approachthis Court earlier and the State cannot now be saddled withthe burden of having to pay for years long past.Petitioner shall be given the monetary benefits for theperiod from 11.07.85 and he shall be paid salary in futurein the scale to which the scale fixed in 1985 has sincebeen revised."4.The matter was taken on appeal by both the doctors as well asthe Government. A Division Bench of this Court, while confirming theorder of the single judge in W.A.Nos.922, 1036 of 1995 & 95 of 1996dated 01.02.1996, has shifted the date from 11.07.1985 to 01.10.1984.Therefore, the Government implemented the order of this Court andpassed G.O.Ms.No.16 and granted scale of pay from 01.10.1984. 5.Based on this G.O.Ms.No.16, the order of the Tribunal grantingthe scale to the petitioners from 01.10.1985 was changed to01.10.1984 by a Division Bench of this Court on 28.10.1999 inW.P.No.1899 of 1998 as stated above. Accordingly, the arrears werealso paid.6.Thereafter, the Government passed G.O.Ms.No.250, RuralDevelopment Department dated 14.09.2000 contrary to the above saidfindings of this Court in W.P.No.863 of 1989 has confirmed inW.A.Nos.922 of 1995 extra batch as stated above. The relevantparagraph of the order in para 3(e) of G.O.Ms.No.250, Rural https://hcservices.ecourts.gov.in/hcservices/ Development Department denying the pension benefits to rural medicalpractitioner is extracted hereunder:"Pension benefits are eligible only for theregular employees. The Panchayat Union rural medicalofficer post is a part time post and therefore thepart time rural medical officer are not entitled forthe pension benefits. The other terminal benefitsapplicable for regular employees like selection grade,special grade, compassionate ground appointments,group insurance, provident fund, encashment of earnleave and surrender are not applicable to the parttime medical officers."7.The rural medical practitioners challenged the G.O.Ms.No.250before the Tamil Nadu Administrative Tribunal and they were notsuccessful. When the matter was taken to this Court by way of abatch of writ petitions in W.P.Nos.30003 of 2004 etc., batch, aDivision Bench of this Court on 19.04.2006, following the earlierjudgment in W.P.No.863 of 1989 and W.A.No.922 of 1995, categoricallyheld that rural medical practioners are regular employees and theycould not be termed as part time employees. By holding so, theparagraph 3(e) of G.O.Ms.No.250 was quashed. 8. In the meantime, the petitioners made a representation togrant them family pension. But the same was denied by the impugnedorder in G.O.Ms.No.452, Rural Development Department, dated28.08.2000. This denial is solely on the basis that this Court inW.P.No.1899 of 1998 set aside the order of the Tribunal grantingfamily pension to the petitioner.9. The relevant paragraph of the order of this Court inW.P.No.1899 of 1998 was extracted above in para 2 of this order.The impugned G.O. is not correct in stating that this Court hasdenied the benefit of family pension to the petitioners while settingaside the order of the Tribunal. This Court made it clear that sincethere was no materials and pleadings relating to the claim for familypension, the same was set aside at present.10. As stated above since a Division Bench of this Court in theorder dated 19.04.2006 in W.P.No.30003 of 2004 etc., batchcategorically held that Rural Medical Practitioners are entitled topension as they are holding regular post, the G.O.Ms.No.452 dated28.08.2000 is liable tobe quashed. Infact, the learned counselappearing for the respondents has produced G.o.Ms.No.164, RuralDevelopment Department, dated 24.09.2007 implementing the order ofthe Division Bench of this Court quashing G.O.Ms.No.250 inW.P.No.30003 of 2004 etc., batch https://hcservices.ecourts.gov.in/hcservices/

11.In such circumstances, the first respondent is directed topass orders granting family pension and other retirements to thepetitioners, in accordance with G.O.Ms.No.164, Rural DevelopmentDepartment, dated 24.09.2007 within a period of twelve weeks from thedate of receipt of a copy of this order. The first respondent isfurther directed to pay the arrears of Family Pension within 12 weeksfrom the date of receipt of a copy of this order. This writ petitionis ordered accordingly.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarSmi To1. The Commissioner and Secretary, Department of Rural Development, Government of Tamilnadu, Secretariate, Fort St. George, Chennai 600 009.2. The District Collector, Dharmapuri District, Dharmapuri.3. The Commissioner, Thallay Panchayat Union, Thallay, Dharmapuri District.4. The District Medical Officer, Dharmapuri District.+ 1 c.c. to Mr. V. Subbiah, Advocate. S.R.No.69184.+ 1 c.c. to Mr. D. Govinda Reddy, Advocate. S.R.No.69144.+ 1 c.c. to The Government Pleader. S.R.No.69238. W.P.No.2303 of 2007SGL (CO)GSK 19.01.2010.