The Honourable Mr v. The Government of Tamil Nadu

In the High Court of Judicature at MadrasDated: 20.9.2007Coram:The Honourable Mr.Justice Elipe Dharma RaoandThe Honourable Mr.Justice S.TamilvananW.P.No.31244 of 2004W.SuryapushpamW/o A.Amaladoss .. Petitionervs.1. The Government of Tamil Nadu, represented by its Secretary, Health and Family Welfare Department, Fort St.George, Chennai-600 009.2. The Director of Public Health and Preventive Medicine, Chennai-600 006.3. The Regional Deputy Director of Public Health and Preventive Medicine, Madurai-2.4. The District Health Officer, Ramnad at Madurai.5. The Tamil Nadu Administrative Tribunal, represented by its Registrar, Chennai... RespondentsWrit Petition filed under Article 226 of the Constitution of India,praying for issuance of a Writ of Certiorarified Mandamus, calling forthe order of the Tamil Nadu State Administrative Tribunal, dated 12.1.2004passed in O.A.No.7053 of 1995 and to quash the same and direct respondents1 to 4 to regularise the service of the petitioner as Junior Assistantwith effect from 11.8.1975, confer all other consequential promotion andto pay all pensionary and other benefits accordingly to the petitioner.For petitioner : Mr.P.Premkumar for M/s.S.VasukiFor respondents 1 to 4 : Mr.C.Ramesh, Addl.G.P. https://hcservices.ecourts.gov.in/hcservices/ Order(The Order of the Court was made by Elipe Dharma Rao,J)The Writ Petition is directed against the impugned order of theTribunal, dated 12.1.2004 passed in O.A.No.7053 of 1995 (common orderpassed in O.A.No.7053 of 1995 and 60 of 2004)2. The Tribunal held that the petitioner's services were regularisedon 10.11.1986 in accordance with G.O.Ms.No.996, Personnel andAdministrative Reforms Department, dated 22.9.1984, that the Governmenthas recognised the appointment of the petitioner-applicant as JuniorAssistant in National Malaria Eradication Programme (for short, NMEP) witheffect from 25.6.1984 and therefore, the earlier order of regularisationcannot be restored because, it was passed without jurisdiction and theapplicant is also not entitled to get the benefit of earlier order ofregularisation passed in 1991. Therefore, the applicant has beenregularised as Junior Assistant and the Tribunal directed that theapplicant will be entitled for pension and other benefits with effect fromthe date of her regularisation a per the G.O.Ms.No.996, dated 22.9.1984. 3. The case of the petitioner/applicant is that she was appointed asJunior Assistant in November 1966 in the Primary Health Centre inRamanathapuram District. Thereafter, she was appointed as Junior Assistanton 8.8.1975 in the NMEP and from 8.8.1975 till the date of retirement on31.8.2003, the petitioner worked in various capacities and retired asSuperintendent.4. The question of claiming pension from the date of herregularisation, is in dispute, on the ground that the petitioner/applicantwas appointed by the authorities when the post of Junior Assistant iscovered by the Tamil Nadu Public Service Commission Regulations, whereasthe applicant was appointed as a candidate sponsored by the EmploymentExchange. Therefore, the regularisation order issued by the fourthrespondent-District Health Officer is without jurisdiction and theregularisation is to be made as per the consent given by the TNPSC. Thoughthe TNPSC gave its consent to regularise the services of the employeesunder the above said NMEP, based on which G.O.Ms.No.1771, Health andFamily Welfare Department, dated 13.10.1978 fixing the date ofregularisation of those persons who were working as on 1.1.1973, as thepetitioner was not working as on 1.1.1973, but working from the date of8.8.1975, the petitioner was not entitled for regularisation as perG.O.Ms.No.1771, though the regularisation order was issued by the fourthrespondent-District Health Officer, dated 9.10.1976 with effect from11.8.1975 and the Probation of the petitioner was also declared by orderdated 7.10.1977 and the seniority list was prepared and she was placed atSl.No.265 through the proceedings of the second respondent, dated2.7.1980. But subsequently, as per the consent given by the TNPSC to https://hcservices.ecourts.gov.in/hcservices/ regularise those persons who were working under the above said NMEP andappointed through the Employment Exchange, the Government passed ordersin G.O.Ms.No.996, dated 22.9.1984, on the basis of which the services ofthe petitioner/applicant came to be regularised by letter dated 29.11.1986with effect from 25.10.1976. 5. As per the above said G.O.Ms.No.996, the petitioner's serviceswere regularised with effect from 25.6.1984. By letter dated 29.11.1986,it was stated by the authorities that the petitioner was regularised inher service with effect from 25.10.1976, contrary to the regularisationorder passed by the District Health Officer, Ramanathapuram, dated9.10.1976. Then, the petitioner made a representation on 31.1.1987 to theRegional Deputy Director of Public Health and Preventive Medicine,Madurai. Pending consideration of the above said representation, the thirdrespondent issued proceedings dated 22.1.1991, modifying the earlier orderof regularisation of the services of the petitioner/applicant dated9.10.1976 as from 25.6.1984, placing her on probation for a period of twoyears and also declaring her probation as was being completed on27.3.1991. 6. Once again, the representation of the petitioner dated 16.3.1994to restore the date of regularisation as per the order dated 9.10.1976 andsince there was no response, the petitioner filed O.A.No.7053 of 1995before the Tribunal, which was disposed of on 12.1.2004.7. Although the petitioner filed the Original Application before theTribunal, pending the same, O.A.No.60 of 2004 was filed for payment ofterminal benefits after the retirement, which was stated to be on31.8.2003. The Tribunal, on a consideration of the facts and circumstancesof the case, passed a common order in both the Original Applications,fixing the date of regularisation of the services of the petitioner as25.6.1984 as per the G.O.No.996, dated 22.9.1984. The Tribunal alsodirected the respondents to pay the pension and other terminal benefits,against which, the present Writ Petition has been filed. 8. It is contended by the petitioner that when the services of thepetitioner were regularised with effect from 11.8.1975 as per the order ofthe fourth respondent, dated 9.10.1976, without giving any opportunity,subsequent orders have been passed, changing the date of regularisation ofthe services of the petitioner, which is detrimental to the interest ofthe petitioner and also in violation of the principles of natural justice.9. It is further contended that though the benefit is conferred underthe G.O.Ms.No.1771, dated 13.10.1978, the same is not applicable to thecase of the petitioner, as she was not working as on the cut-off date,namely on 1.1.1973. But as seen from the facts and circumstances, the postof Junior Assistant was sanctioned by the Central Government for the year1958 and she was transferred from the Public Health Centre to the NMEP on8.8.1975 and she was continuously working from the date of transfer and https://hcservices.ecourts.gov.in/hcservices/ her services came to be regularised by the order dated 9.10.1976 passed bythe fourth respondent/District Health Officer based on the order of theRegional Health Officer, and regularising her services with effect from11.8.1975. It is seen that she was transferred from the Health Centre tothe NMEP on 8.8.1975. 10. Further, preparing the seniority list on 2.7.1980 and placing thepetitioner at Sl.No.265, and changing the date of regularisation solely onthe ground that the Officer who had passed the order of regularisation isactually the District Health Officer, is without jurisdiction andsecondly, the post of Junior Assistant is coming within the jurisdictionof the TNPSC as per the Regulation 16(b) of the TNPSC Regulations, 1954for regularisation of the services of all the temporary employees in thecategory of Junior Assistant, Typist and Steno-Typist included in theTamil Nadu Ministerial Service, Tamil Nadu Judicial Ministerial Serviceand Tamil Nadu Secretariat Service, who were continuing as on 25.6.1984. 11. Originally, the consent was given by the TNPSC to regularise theservices of the petitioner/applicant. Therefore, depriving the petitionerto receive the pension from the date of initial regularisation of herservices, by order dated 9.10.1976, with effect from 11.8.1975 andmodifying the same to that of 25.6.1984 as per the G.O.Ms.No.996, dated22.9.1984 (stated to be through the proceedings dated 29.11.1986), isprejudicial and detrimental to the interest of the petitioner/applicantand therefore, the Tribunal has committed illegality in considering thedate of regularisation of the applicant as 25.6.1984 instead of 11.8.1975,solely on the ground that she was not working as on 1.1.1973, as per theconditions stipulated under G.O.Ms.No.1771, dated 13.10.1978 and she wasappointed through the Employment Exchange and not by the TNPSC. Thus, thepersons who are appointed through the Employment Exchange have to beregularised after obtaining the consent from the TNPSC. 12. It is not in dispute that the petitioner was working from8.8.1975 in the NMEP. The question of regularisation is within thejurisdiction of the respondents by obtaining the consent from the TNPSC asper the Regulations of the TNPSC and to pass appropriate orders, insteadof delaying the regularisation of the services of the petitioner solely onthe ground that she was appointed through the Employment Exchange and theconsent of the TNPSC is to be taken only to regularise her services.13. As seen from the above said facts and circumstances, the servicesof the applicant came to be regularised as early as by proceedings dated9.10.1976. Thereafter, by proceedings dated 29.11.1986 and finally byproceedings dated 22.1.1991, the date of regularisation of the services ofthe petitioner came to be modified, more so, without giving anyopportunity to the petitioner, which is prejudicial to the interest of thepetitioner and therefore, the order of the Tribunal is liable to be setaside. https://hcservices.ecourts.gov.in/hcservices/

14. As rightly contended by the petitioner, the change of date ofregularisation of the services of the petitioner from time to time solelyon the above said grounds, is not only in violation of the principles ofnatural justice by not affording an opportunity of hearing to thepetitioner to put forth her case, but also detrimental to the interest ofthe petitioner. 15. For all the reasons stated above, the impugned order of theTribunal is set aside. Accordingly, we hold that the petitioner/applicantis entitled to be regularised from 11.8.1975 as per the proceedings of theDistrict Health Officer (fourth respondent) dated 9.10.1976. Therespondents 1 to 4 are directed to fix the pay scale of the petitioneraccordingly and revise the pension and other service/terminal benefitsin accordance with law, as indicated above, within a period of six weeksfrom the date of receipt of a copy of this order. The Writ Petition isaccordingly allowed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcsCopy to1. The Secretary to Government, Health and Family Welfare Department, Fort St.George, Chennai-600 009.2. The Director of Public Health and Preventive Medicine, Chennai-600 006.3. The Regional Deputy Director of Public Health and Preventive Medicine, Madurai-2.4. The District Health Officer, Ramnad at Madurai.5. The Registrar, The Tamil Nadu Administrative Tribunal, Chennai.81 cc To The Government Pleader, SR.58842.1 cc To M/s.S.Vasuki, Advocate, SR.58671.W.P.No.31244 of 2004 VRK(CO)RVL 28.09.2007