Judgment · High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23-10-2007CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMW.P.Nos.18237, 20643 to 20645 and 21375 of 2007andM.P.Nos.2, 5 and 6 of 2007 in WP No.18237/2007andMP Nos.2, 2 and 2 of 2007 in WP Nos.20643 to 20645/2007andMP Nos.2 and 5 of 2007 in WP No.21375 of 2007G.Ganesan.. Petitioner in W.P.No.18237 of 2007P.Saratha.. Petitioner in W.P.No.20643 of 2007 Pushpa Bensihar.. Petitioner in W.P.No.20644 of 2007A.S.Mujira Banu.. Petitioner in W.P.No.20645 of 20071.M.Tamilselvi2.M.Subburaman*CT amended as per order dated 5.7.2007 in MP.3/07 in WP.21375/073.S.Kalavathi4.R.Joseph Jayakumar.. Petitioners in W.P.No.21375 of 2007Vs1.The Government of Tamil Nadu, rep. by the Secretary to Government, Health and Family Welfare Department, Fort Saint George, Chennai-600 009.

The Director of Medical Education, Kilpauk, Chennai.

The Director of Public Health and Preventive Medicine, Chennai.

The Director of Medical and Rural Health Services, Chennai-600 006.

The Joint Director of Medical and Rural Health, Pudukkottai. https://hcservices.ecourts.gov.in/hcservices/

The District Employment Officer, Employment Exchange, Pudukkottai.

Two Years Diploma Medical Laboratory Technician Association, rep. by its Vice President, Nandakumar No.3, Kannammal Nagar, Valasaravakkam, Chennai-600 087.

S.Sethuraman9.T.Anitha10.R.Ravichandran11.E.Bhuvaneswari12.L.Krishnaveni (RR7 to 12 impleaded vide order dt.29.08.2007 in M.P.Nos.3 and 4 of 2007).. Respondents in W.P.Nos.18237 of 20071.The Government of Tamil Nadu, rep. by the Secretary to Government, Health and Family Welfare Department, Fort Saint George, Chennai-600 009.2.The Director of Medical Education, Kilpauk, Chennai. 3. The Director of Public Health and Preventive Medicine, Chennai. 4. The Director of Medical and Rural Health Services, Chennai-600 006.5.The Joint Director of Medical and Rural Health, Coimbatore District, Thiruppur. 6. The District Employment Officer, Employment Exchange, Chennai. 7. Two Years Diploma Medical Laboratory Technician Association, rep. by its Vice President, Nandakumar No.3, Kannammal Nagar, Valasaravakkam, Chennai-600 087. (R7 impleaded vide order dt.23.10.07 in M.P.3 of 2007).. Respondents in W.P.Nos.20643 and20645 of 2007 https://hcservices.ecourts.gov.in/hcservices/

The Government of Tamil Nadu, rep. by the Secretary to Government, Health and Family Welfare Department, Fort Saint George, Chennai-600 009.2.The Director of Medical Education, Kilpauk, Chennai. 3. The Director of Public Health and Preventive Medicine, Chennai. 4. The Director of Medical and Rural Health Services, Chennai-600 006.5.The District Employment Officer, Employment Exchange, Chennai. 6. Two Years Diploma Medical Laboratory Technician Association, rep. by its Vice President, Nandakumar No.3, Kannammal Nagar, Valasaravakkam, Chennai-600 087. (R6 impleaded vide order dt.23.10.07 in M.P.3 of 2007).. Respondents in W.P.No.20644 of 20071.The State of Tamilnadu, rep. by the Secretary to Govt., Health and Family Welfare (C2) Department, Secretariat, Chennai-600 009.2.The Director of Medical and Rural Health Services, Chennai-600 006.3.The Director of Medical Education, Kilpauk, Chennai-600 010.4.The Director of Public Health and Preventive Medicine, Chennai-600 006.5.The Joint Director of Medical and Rural Health Services, Nagapattinam. 6. The District Employment Officer, Nagapattinam.*CT amended as per order dated 5.7.2007 in MP.3/07 in WP.21375/077.S.Sethuraman8.T.Anitha9.R.Ravichandran https://hcservices.ecourts.gov.in/hcservices/

10.E.Bhuvaneswari11.L.Krishnaveni (RR7 to 11 impleaded vide order dt.28.9.97 in M.P.No.4/07).. Respondents in W.P.No.21375 of 2007 These writ petitions have been preferred under Article 226of the Constitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records and to quash theimpugned order in G.O.(Ms)No.39, Family and Welfare (C2)Department, dated 5.2.2007 passed by the first respondent and todirect the respondents to fill up the vacancies in the post of Lab Technicians without any preference or discrimination infavour of the candidates who have passed out of all therecognized Institutions in the State of Tamil Nadu alike, andalso without any discrimination between the CMLT and DMLTcandidates. For Petitioners : Mr.R.Balachandran in WPs.18237,20643 to 20645/2007 Mr.R.Singgaravelan in WP.21375/07For Respondents : Mrs. Nalini Chidambaram, SC for Mr.N.R.R.Arun Natarajan and Mr.V.Chandrasekaran for impleaded respondents in W.P.Nos.18237,20643 to 20645 of 2007 and for RR7 to 11 in WP.21375/07 Mrs. Shanmugavalli Sekar, GAfor RR1 to 6 in WPs.18237, 20643, 20645 & 21375/2007 and for RR1 to 5 in WP.20644/07COMMON ORDERThis order shall govern the above writ petitions, whereinthe petitioners have sought for the relief of a writ ofcertiorarified mandamus to call for the records on the file ofthe first respondent in G.O.(Ms)No.39, Health and Family Welfare(C2) Department, dated 5.2.2007 and Govt. LetterNo.52378/C2/2006-3, dated 3.5.2007, and also the order of thesecond respondent in his proceedings Ref. No.5289/E5/4/2006,dated 24.01.2007 respectively, and to quash the same and todirect the respondents to treat the candidates who have passedthe Diploma in Medical Laboratory Technology Course of two yearsduration as well as the Certificate in Medical LaboratoryTechnology course of 1 year duration respectively, conducted bythe Institutions recognized by the Government of Tamil Nadu forappointment to the post of Lab Technician Grade-II. 2. The court heard the learned counsel on either side. Theaffidavits filed in support of the petitions are perused. https://hcservices.ecourts.gov.in/hcservices/

3. The case of the petitioners in all the petitions in shortis that the petitioners are affected by the orders of the firstrespondent, dated 5.2.2007 and 3.5.2007 and also the order passedby the second respondent, dated 24.01.2007, whereby preferentialtreatment is given to the candidates of 2 years Diploma in Medical Laboratory Technology (DMLT) course; that the petitionersbelonged to one category; that they are all in possession of aCertificate in Medical Laboratory Technology (CMLT) of one yearcourse; that the State has issued a Government Order in G.O.(Ms)No.39, Health and Family Welfare (C2) Department, dated 5.2.2007,to appoint the eligible candidates to the post of LabTechnicians; but, the Government, without considering the historyin prescribing the qualification, has given preference for thecandidates, who have completed DMLT; that the qualificationprescribed by the Government for the appointment to the post of Lab Technician of Grade I and II, was CMLT; that the CMLT coursewas introduced in the year 1986 with a promise that the studentswho passed that course, would be considered for appointment inthe Government service; that the various institutions includingthe King Institute, stopped conducting CMLT course; that only inthe year 1995, it has reintroduced the said course in an anotherform namely Diploma in Medical Lab Technician (DMLT) course, prescribing two academic years of study; that the syllabusoffered in both CMLT and DMLT is one and the same; that when thepetitioners studied CMLT course, there was no DMLT courseoffered; that upto the year 2007, both the candidates of CMLT andDMLT were treated alike for appointment in the Governmentservice; that while so, now, the first respondent, without anycause, has given preference for DMLT arbitrarily; that the sameis illegal and under these circumstances, these writ petitionshave been brought forth.

4. Advancing his arguments on behalf of the petitioners, thelearned counsel would submit that in the instant case, CMLT andDMLT courses have been treated alike in the past; that at aparticular point of time, when CMLT course, which was actuallyconducted by the King Institute, was stopped, there was no DMLT;that the syllabus offered in both CMLT and DMLT is the same; thatthe G.O, which is under challenge, is not based on any reason; that it is nothing but arbitrary; that under these circumstances, no question of preferential treatment to be given to DMLT thanthe candidates, who have done CMLT course, would arise and hence, it has got to be quashed. 5. The learned counsel for the petitioners would furthersubmit that if G.O.(Ms)No.39 is applied and preferentialtreatment, as found therein, is given to DMLT candidates, thenthe CMLT candidates would be denied employment, since thecandidates, who underwent DMLT course, are huge in number; andthat if this process is applied to DMLT, the students of CMLTcannot get any employment at all.

Added further the learnedcounsel that at the time when the matter was taken up forconsideration before the Tribunal, there were only 54 persons, https://hcservices.ecourts.gov.in/hcservices/ who underwent DMLT course, and therefore, the Tribunal took theview that preferential treatment could be given to DMLTcandidates, and after their appointment, the CMLT candidatescould also be appointed; that now, the candidates from DMLT arehuge in number; and that if they are given preferentialtreatment, the candidates from CMLT could not get any employmentat all. 6. In answer to the above, it is contended by the learnedCounsel for the respondents that it is not correct to state thatCMLT and DMLT have got same syllabus and they are alike; thatCMLT is the certificate course for a period of one year, where acertificate is issued; that so far as DMLT is concerned, it was aspecial course conducted by the King Institute, for a period oftwo years and thus, the post, which requires Lab Technician inthe Medical Laboratory, would require more experience andtherefore, the syllabus is different.

Added further the learnedCounsel that originally, the matter was challenged before the Tribunal in O.A.No.4608 of 2002, and there was an order passed bythe Tribunal that preferential treatment must be given to twoyears Diploma in Medical Laboratory Technology course, in view ofthe experience and nature of course; that this order waschallenged before this court by way of a writ petition, whereininterim order was originally granted; that in the writ appeal, the interim stay has been vacated; that following the same, orders have been issued to give preferential treatment to thestudents, who have actually undergone two years course, andobtained a certificate under DMLT; that pursuant to the G.O. (Ms)No.39, Health and Family Welfare (C2) Department, dated 5.2.2007,the DMLT candidates were appointed; that now, the writ petitionhas been filed, wherein G.O.Ms.No.39 has been challenged; that inview of the interim stay granted, all the appointments given toDMLT candidates, have been immediately cancelled; that there are500 posts fell vacant; that in view of the stay granted by thecourt, no one either from DMLT or from CMLT was appointed; thatthe posts are vacant; that once the question as to whetherpreferential treatment is to be given to DMLT or CMLT, was takenup for consideration by the Tribunal and an order has beenpassed, and subsequently, it has been stayed and has not beenvacated, and the stay order is in force, the CMLT candidatescannot now claim equal treatment with DMLT and hence, these writpetitions have got to be dismissed.

7. The learned Government Advocate further submitted that the State has created a post, namely Laboratory Technician Grade-III,by the Government order, dated 3.4.2007, whereby the students, who are having a certificate under CMLT, are to be provided thepost; that for giving employment to them, the said special posthas now been created; that under these circumstances, it could bewell provided to them; that they need not compete with DMLT, andhence, these writ petitions have got to be dismissed. https://hcservices.ecourts.gov.in/hcservices/

8. Concededly, the petitioners in all these writ petitionshave underwent one year course in CMLT and also obtained thecertificate in Medical Laboratory Technology, while the newlyadded respondents are candidates who underwent two years Diplomacourse in Medical Laboratory Technology namely DMLT. Thepetitioners herein have challenged the G.O.(Ms) No.39 dated5.2.2007, wherein it is stipulated that the vacancies have got tobe filled up from the Diploma in Medical Laboratory Technology(DMLT), and if there is any further vacancy, it should be filledup only from the CMLT. The case of the petitioners in short isthat it is true that DMLT course was conducted by King Institutetill 1994; that thereafter, no such course was available; thatthe candidates namely the petitioners herein, in view of the non-availability of the only one course namely DMLT, and on the fondhope of getting appointments in Government service, underwent thecourse namely CMLT, and they have been waiting for more than adecade.

While the matter stood thus, after the commencement ofthe two years diploma course namely DMLT, again by the KingInstitute, the Association moved the Tamil Nadu AdministrativeTribunal seeking a direction that preferential treatment shouldbe given to the candidates who had underwent DMLT course. TheTribunal on enquiry, agreed with the case of the Association andgranted the relief. The same was challenged by the candidateswho underwent CMLT course, by filing a writ petition before this Court. Pending that writ petition, originally, stay was grantedstaying the operation of the order of the Tribunal inO.A.No.4608/2002. Thereafter, a challenge was made to thatinterim order by the Association consisting of two years Diplomain Medical Laboratory Technicians, and the interim stay wasvacated by the Division Bench. Following the same, the Government has passed the present G.O.(Ms) No.39 dated 5.2.2007,and that is the subject matter of challenge in these writpetitions.

9. The learned Counsel appearing for the petitioners, werestressing that the petitioners underwent one year training andgot the certificate in CMLT course; that the syllabus for CMLTand DMLT is the same; that at the time when they underwent thetraining under CMLT, there was no DMLT course at all; that forthe interregnum period namely a decade, DMLT course was notavailable; that under such circumstances, there is no need ornecessity to give any preferential treatment to DMLT; that whilean order was passed by the Tribunal that preferential treatmentshould be given to the candidates from the DMLT, the same waschallenged, and that writ petition is also pending; that underthe circumstances, both the candidates from the CMLT and DMLThave got to be treated alike in view of the above reasons; that areading of the G.O. would clearly indicate that preferentialtreatment should be given to DMLT candidates; and that if theG.O. is applied, all the posts could be filled up only from thecandidates who underwent DMLT course.

The learned Counsel forthe petitioners would further contend that while the matter wasconsidered by the Tribunal, there were only 54 vacancies; that https://hcservices.ecourts.gov.in/hcservices/ having the same in mind, the Tribunal has observed that if those54 vacancies are filled up, the other posts could be filled upfrom the CMLT course candidates; that as on today, hundreds ofDMLT candidates are there; that if all these posts are allowed tobe filled up applying the G.O.39, then no one candidate from theCMLT can have any opportunity, and under the circumstances, theG.O. has got to be struck down as one unreasonable. The learnedCounsel would further add that if this procedure is allowed tocontinue and is given force, it must take away all the jobopportunities to the candidates who have completed the CMLTcourse, to which they are really entitled to, and hence, it hasgot to be set aside.10.A query was made to the learned Government Advocate forthe State as to the available vacancies in the post of LabTechnicians.

Now, a data is filed before the Court to the effectthat 442 vacancies are there, and DMLT qualified candidates haveapplied for 332 vacancies, and thus, 110 posts are actuallyvacant. Added further the learned Government Advocate that aG.O. came to be passed by the State on 3.4.2007 whereby a post of Laboratory Technician Grade-III has been created, which could befilled up only from the candidates who possessed certificate in Medical Laboratory Technology namely CMLT one year course, andapart from that, even for another post namely Field Assistant, the CMLT candidates are eligible. It is brought to the notice ofthe Court that there are 2000 and odd posts available in thesecategories, out of which more than 1000 CMLT candidates haveapplied for; that they were filled up; that more than 1000 postsare yet to be filled up, and the same could be done only from theCMLT. 11. The Court paid its anxious consideration on thesubmissions made.

This Court is unable to agree with thecontentions put forth by the petitioners' side for more reasonsthan one. Concededly, all the petitioners herein have underwentthe CMLT course which is admittedly for a period of one year. Asfar as the DMLT candidates are concerned, they have undergone thetraining for a period of two years, and thus, comparatively, theDMLT course candidates who have undergone the training for twoyears, in view of their experience in training, have got to benecessarily given preferential treatment since it is concernedwith the medical laboratory technology which would expect moreexperience. Further, when the matter was taken up before the Tribunal, an order came to be passed, a copy of which is placedin the hands of this Court. The above said reason is adduced bythe Tribunal for giving preferential treatment. It is also truethat for a period of about a decade, the DMLT course was notavailable, and thus, the candidates, who are the petitionersherein, along with others were compelled to undergo CMLT course, and it was for a period of one year.

As stated above, the DMLTcandidates having two years training, have got to be necessarilygiven preference in view of their experience and training thanthe CMLT course for one year training. The main contention putforth by the learned Counsel for the petitioners that all these https://hcservices.ecourts.gov.in/hcservices/ petitioners along with others underwent CMLT course with the fondhope of getting employment opportunity in the hands of the Government; and that in view of the above said G.O., if the DMLTcandidates are preferred and posted, the petitioners are likelyto lose the job opportunities cannot be countenanced. Such asituation should have been taken into consideration by the Government which has resulted in creation of these posts namelyLaboratory Technician Grade-III and also Field Assistant whichare exclusively for the candidates from the CMLT. It is broughtto the notice of the Court by the State that more than 2000 postsin Laboratory Technician Grade-III and Field Assistant wereavailable out of which more than 1000 posts from the CMLTcandidates have been filled up, and the rest of the posts are yetavailable.

According to the learned Counsel for the State, 442posts are available today to be filled up. 12. Now, at this juncture, it is pertinent to point out thatin view of the stay originally granted by this Court, even theappointments given to the DMLT candidates were immediatelycancelled by the State, and thereafter, before the DivisionBench, an appeal was preferred, where the stay has been vacated, and even then, the posts remained not filled up. Under thecircumstances, this Court is of the considered opinion that theG.O. Cannot, at any stretch of imagination, be called asunreasonable. A reading of the G.O. would make it clear thatpreferential treatment should be given to the DMLT candidates whohave completed the course of two years and training, and apartfrom that, if the posts are available, the candidates from CMLThave got to be filled up. From the data given by the State, itcould be seen that out of 442 vacancies, 332 candidates from theDMLT have applied for, and 110 posts are yet available.

Hence, there cannot be any impediment for the State for filling up theseposts from CMLT candidates available as on today. This Court isof the considered opinion that the G.O. cannot be said to beunreasonable since it stipulates that the DMLT candidates whounderwent two years training, should be given preference than theCMLT candidates who have completed one year course. It isfurther to be pointed out that the G.O. does not say that theCMLT candidates should not be appointed. On the contrary, itwould say that preference should be given to the DMLT candidates, and if the posts are available, the CMLT candidates could also beappointed. At this juncture, it is again to be pointed out that Laboratory Technicians Grade-III and also Field Assistant postshave been created by the State in order to give job opportunityto the CMLT candidates who were on the fond hope of getting thejob. Under the circumstances, this Court is of the consideredopinion that while dismissing the writ petitions, it would be fitand proper to issue a direction to the State to fill up thevacancies from the DMLT course candidates and the rest from theCMLT course candidates. It is also made clear that thecandidates who were originally appointed and whose appointmentswere terminated pending the proceedings in this Court, could beconsidered along with others. https://hcservices.ecourts.gov.in/hcservices/

The District Employment Officer, Coimbatore.+ 3 ccs to Government Pleader SR No. 63817, 63819 & 63820+ 1 cc to Mr. V. Chandrasekaran, Advocate SR No.64060+ 1 cc to Gladys Daniel, Advocate SR No. 63915+ 1 cc to Mr. R. Singgaravelan, Advocate SR No. 63850WP Nos.18237, 20643 to 20645 and 21375 of 2007KM(CO)SR/26.10.2007