BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10/12/2009 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.A.(MD).Nos.446 to 461 of 2009 and W.A.(MD).No. 224 of 2009 and M.P.Nos.2,2,2,2,2,2,2,2,2,2,2,2,2, 2,2,2, 3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3 and 2 of 2009 1.The Secretary to Government, Health and Family Welfare Department, Fort.St.George, Chennai. 2.The Director of Public Health and Preventive Medicine, Chennai. 3.The Commissioner, Employment and Training Department, Guindy, Chennai 600 032. ... Appellants in W.A.(MD).Nos.446 to 461 of 2009 Vs 1.Josuva Jebakumar ... Respondent in W.A.(MD).No.446 of 2009
2.A.Anantha Selvi
… Respondent in W.A.(MD).No.447 of 2009
3.L.Murugeswari
… Respondent in W.A.(MD).No.448 of 2009
4.P.Rajakumar
… Respondent in W.A.(MD).No.449 of 2009
5.S.Karthikeyan
… Respondent in W.A.(MD).No.450 of 2009
6.K.Rajeswari
… Respondent in W.A.(MD).No.451 of 2009
7.S.Lalitha
… Respondent in W.A.(MD).No.452 of 2009
8.G.Muthamil Selvi
… Respondent in W.A.(MD).No.453 of 2009
9.T.Amutha Kalaivani
… Respondent in W.A.(MD).No.454 of 2009
11.G.Thirupathy
… Respondent in W.A.(MD).No.455 of 2009
12.K.Balaji
… Respondent in W.A.(MD).No.456 of 2009
13.S.Balamurugan
… Respondent in W.A.(MD).No.457 of 2009
14.D.Meenakshi Ammal
… Respondent in W.A.(MD).No.458 of 2009
15.C.Subathra
… Respondent in W.A.(MD).No.459 of 2009
16.A.Thulasiraman
… Respondent in W.A.(MD).No.460 of 2009
17.S.Ashok
… Respondent in W.A.(MD).No.461 of 2009
In W.A.(MD).No.224 of 2009
1.K.Sundanthira Pandy
2.Prasanna Kumar … Impleaded Respondents/Appellants
vs
1.S.Balamurugan
2.1.The Secretary to Government,
Health and Family Welfare Department,
Fort.St.George,
Chennai.
3.The Director of Public Health and
Preventive Medicine, Chennai.
4.The Commissioner,
Employment and Training Department,
Guindy, Chennai 600 032.
: Respondents in W.A.(MD).No.224 of 2009
PRAYER in W.A.(MD).Nos.446 to 461 of 2009
Writ Appeals are filed under Section
15 of the Letters Patent against the Order dated 11.02.2009 made in
W.P.(MD).Nos.10442, 10495, 11018 to 11023, 11474 to 11478 and 11411 to 11423 of
2008.
PRAYER in W.A.(MD).No.224 of 2009
Writ Appeal is filed under Section 15 of the
Letters Patent against the Order dated 11.02.2009 made in W.P.(MD).No.10495 of
2008.
In W.A.(MD).Nos.446 to 461 of 2009 !For Appellants ... Mr.Ramaswamy Advocate General For Mr.R.Janakiramalu Special Government Pleader ^For Respondents In W.A.(MD).Nos.446 to 448, 450, 453, 456 and 458 of 2009 of 2009 ... Mr.M.Ajmal Khan In W.A.(MD).No.224 of 2009 For Appellants ... Mr.T.Lajapathi Roy For Respondents1 to3 ... Mr.Ramaswamy Advocate General For Mr.R.Janakiramalu Special Government Pleader For Respondent 4 ... Mr.Ajmal Khan :COMMON JUDGMENT
Since common issues are involved in all these Writ Appeals, they were
heard together and they are disposed of by means of this Common Judgment.
2. Challenging the common Order of the Writ Court, quashing the Government
Order issued in G.O.Ms.No.335, Health and Family Welfare (EAP 1/2) Department,
dated 15.10.2008, the official respondents in the Writ Petitions have come up
with W.A.(MD)Nos.446 to 461 of 2009. The appellant in W.A.(MD.No.224 of 2009 has
got himself impleaded before the Writ Court in W.P.(MD).No.10495 of 2009.
Challenging the very same common Order, he has come up with the said Writ
Appeal.
3. The Writ Petitioners claim that they have got basic qualification for
being appointed as Lab Assistants in the Health and Family Welfare Department.
Admittedly, they have registered their names with the local Employment Exchange.
During the year 1998, there were total number of 413 vacancies, out of which,
the Director of Public Health and Preventive Medicine, Chennai, notified 171
vacancies to the local Employment Exchange. In response to the said
notification, the Commissioner of Employment and Training Department, Guindy,
Chennai, sponsored 1292 candidates including the Writ Petitioners in the ratio
of 1:5. It was also proposed by the Director of Public Health and Preventive
Medicine, Chennai, to fill up the remaining vacancies by absorbing the
Laboratory Technicians/Laboratory Supervisors, who are working in the Revised
National Tuberculosis Control Programme for more than five years and to satisfy
the educational qualification prescribed in the Rules for the post of Laboratory
Technicians Grade III in terms of the above said Government Order.
4. According to the Writ Petitioners, the said Government Order impugned
in the Writ Petitions, which is an administrative order, cannot override the
Special Rules for Tamil Nadu Public Health and Subordinate Service Rules,
according to which, the post of Laboratory Technician Grade III can be filled up
only by way of direct recruitment. It was further contended that because major
chunk of the vacancies have been reserved for certain candidates, who are
already in service, as indicated above, the Writ Petitioners, who are fully
eligible for the said post, are kept out of the purview of consideration, and
thus, there is gross violation of Articles 14 and 16 of the Constitution of
India.
5. However, it was contended by the official appellants before the Writ
Court that the Government Order impugned in the Writ Petitions was issued in the
following circumstances, viz., If candidates are recruited through Employment
Exchange to fill up these vacancies, junior candidates to these persons now
working in the Revised National Tuberculosis Control Programme (Government
Programme) will get regular employment in Government Service whereas the Seniors
who were appointed through paper advertisement with rich experience in the
Medical Institutions could not get absorbed against the regular appointments as
most of them are over aged and many of them are working in the programme for
more than nine years. However, the services of the Laboratory Technicians and
Laboratory Supervisors are being utilized in “Varumun Kappom Thittam” Camps and
other Public Health Programmes. In those circumstances, the Government decided
to accept the recommendations of the State Tuberculosis Officer and Director of
Public Health and Preventive Medicine so as to issue a direction for absorption
of these Laboratory Technicians/Laboratory Supervisors, who are working in the
Revised National Tuberculosis Control Programme for more than five years and who
are fully qualified.
6. It was further contended before the Writ Court that after filling up
the vacancies from out of the qualified service candidates, the remaining
vacancies would be filled up by selecting the suitable candidates sponsored
through the Employment Exchange. It was also contended that there is no
discrimination, as it is contended by the Writ Petitioners.
7. Having considered all the above, by a common Order dated 11.02.2009, a
learned Single Judge of this Court allowed all the Writ Petitions thereby
quashing the impugned Government Order. It is the said Order, which is under
challenge in these Writ Appeals.
8. It is contended by the learned Special Government Pleader appearing for
the official appellants that after all, these service candidates were appointed
only by means of proper selection, and therefore, there is neither illegality
nor irregularity in giving preference to them to absorb them as against the
regular vacancies. This, according to the official appellants, was done under
the Government Order impugned in the Writ Petitions, not only by having regard
to the welfare of the service candidates, who are eligible, but also in the
interest of the department and the interest of the public at large.
9. We have considered the rival submissions and perused the records
carefully. In our considered opinion, though the object of the Government Order
in question is laudable, the procedure adopted by the official appellants is
wholly without jurisdiction. It is too well settled, on several occasions, by
the Hon’ble Supreme Court as well as this Court that administrative/executive
orders, administrative/executive circulars and guidelines cannot override the
Service Rule issued by the Government in exercise of the power conferred under
Article 309 of the Constitution of India. In the cases on hand, as per the
Special Rules governing these posts, the appointment can be made only by means
of direct recruitment. The said Rule does not speak of any reservation for any
service candidate or any other qualification, like, experience. Indisputably,
the Government Order impugned in the Writ Petitions has not been issued in
exercise of power conferred under Article 309 of the Constitution of India, but
instead, it is only an executive order and the same cannot override the Service
Rules. When there is such a conflict between the Government Order and the
Statutory Service Rules, there can be no hesitation to declare the said
Government Order as null and void. Further, allotting a major chunk of vacancies
exclusively for the service candidates so as to exclude the participation of the
fresh candidates would amount to reservation, which is not permissible under the
Constitution, as such reservation would violate Articles 14 and 16(2) of the
Constitution of India. In our considered opinion, all the available vacancies
should be kept open for all eligible candidates to compete, of course subject
to the reservation, like reservation for SC/ST, MBC, BC etc., which have got the
sanction of the Constitution. For all these reasons, we are of the considered
view that the impugned Government Order is liable to be quashed. The learned
Single Judge has rightly done so.
10. At this juncture, it would be worthwhile to refer to a Judgment of a
Full Bench of this Court in Sivakumari, R. v. Ramanathapuram Mavatta
Payirchipetra Edainilai Asiriyargal Sangam reported in 2007 (5) CTC 561 [to
which one of us JUSTICE S.NAGAMUTHU is a party]. In the said Judgment, after
referring to the Judgments of the Hon’ble Supreme Court in Union of India and
others v. N.Hargobal reported in 1987 (3) SCC 308, Exercise Superintendent
Malkapatnam, Krishna District v. K.B.N.Visweshwara Rao and others reported in
1996 (6) SCC 216 and lastly in Arun Kumar Nayak v. Union of India and others
reported in 2006 (8) SCC 111, in paragraph 24, the Full Bench has held as
follows:-
“Therefore, if the recruitment of about four thousand Secondary Grade
Teachers to the Government Schools were to be made in accordance with the law
laid down by the Supreme Court, the respondents ought to have followed the
following procedure, namely;-
A. Notify the Employment Exchange.
B. Issue publications in newspapers having wide circulation, inviting
applications.
C. Display the notification in the notice boards of the respective offices
or make announcements in the media”.
11. In the case on hand, it is needless to say that the official
appellants have to scrupulously follow the above law laid down by the Hon’ble
Supreme Court and followed by the Full Bench of this Court. But, the impugned
Government Order is directly in conflict with the above legal dictum, and
therefore, the same cannot withstand the legal scrutiny. However, Mr.T.Lajapathi
Roy, learned counsel appearing for the appellants in W.A.(MD).No.224 of 2009
would place reliance on a recent Judgment of the Hon’ble Supreme Court in
Harmider Kaur v. UOI reported in 2009 (7) MLJ 1109, wherein, the Hon’ble Supreme
Court, in paragraph 18, has held as follows:-
“We, therefore, are of the opinion that the High Court was correct in its
view. We were, however, informed that 800 posts of teachers are lying vacant.
Ms.Kamini Jaiswal informed that the Administration is ready and willing to fill
p the said posts on a regular basis. While doing so, we have no doubt in our
mind that the cases of the appellants shall also be taken into consideration and
the Administrator may consider the desirability of relaxing the age limit
provided for in the Rules”.
12. Drawing support from the said Judgment, the learned counsel would
submit that while making selection, at least, preference may be given to the
appellants in W.A.(MD).No.224 of 2009 by the Department over the fresh
candidates, since they have rendered more than five years of continuous service
in the department, that too, by having been appointed on merit basis.
13. In this regard, we would like to clarify that we have only concurred
with the findings of the learned Single Judge to quash the impugned Government
Order, because the same runs counter to the Service Rules and it grossly
violates Articles 14 and 16 of the Constitution of India, as the impugned
Government Order creates a reservation of certain number of vacancies for the
candidates, who are already in service. But, it cannot be construed that this
Court has expressed any opinion that the candidates, who have been in service,
should not be given any preference.
14. It is submitted by the learned Special Government Pleader that the
selection was sought to be made on the basis of interview. If that is the case,
while conducting interview, for assessing merit, the department can evolve its
own procedure and guidelines for allotting marks under the various heads. While
doing so, the Government is at liberty to award marks for previous experience,
as the same would be an added qualification for the candidates, who have been
already working. Similarly, for these service candidates, the Government may
relax the age qualification also. We would like to say that by adopting such a
procedure of selection, which is fair, the meritorious candidates should alone
be selected and appointed.
15. In view of all the above, we do not find any infirmity in the Order of
the learned Single Judge warranting interference. In the result, all the Writ
Appeals fail and the same are, accordingly, dismissed, however, with the
clarification as indicated above. No costs. Consequently, connected
Miscellaneous Petitions are closed.
NB
To
1.The Secretary to Government,
Health and Family Welfare Department,
Fort.St.George,
Chennai.
2.The Director of Public Health and
Preventive Medicine, Chennai.
3.The Commissioner,
Employment and Training Department,
Guindy, Chennai 600 032.