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Makbul Bee vs The Commissioner And Secretary on 16 December, 2009

Madras High Court
Makbul Bee vs The Commissioner And Secretary on 16 December, 2009
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 16.12.2009

Coram

	The Honourable Mr.Justice D.HARIPARANTHAMAN		

W.P.No.2303 of 2007

Makbul Bee                  		..PETITIONER  
      
				          Vs


1. 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.
						.... RESPONDENTS 

Prayer: Writ petition filed under Article 226 of Constitution of India, seeking a writ of Certiorarified  Mandamus to call for the records relating to letter No.51161/E5/99-2 dated 28.08.2000 passed by the Secretary to Government, Rural Development (E5) Department Secretariate, Chennai  9 the first respondent herein and quash the same and include the service period from the date of appointment (i.e.) 25.10.1978 till 30.09.1984 with the service period of the applicant's husband and to sanction and to pay the family pension with effect from 17.11.1991.
 
	For Petitioner	 	    : Mr.D.Govinda Reddy
	For Respondents 1,2 & 4   : Mr.C.K.Vishnupriya, AGP
	For respondent-3	   	    : Mr.V.Subbiah
..  ..  ..
						
O R D E R

One Dr. Syed Yousuf was appointed as Rural Medical Practioner in Anchetty Thally Panchayat Union by an order dated 21.11.1978. He died on 16.11.1991. The legal heirs of Dr.Syed Yousuf filed O.A.No.4218 of 1993 claiming scale of pay and retirement benefits. The Tribunal passed an order on 09.09.1997 issuing the following directions:

“The third respondent is directed to grant the scale of pay of Rs.905-1545 to late Dr.Syed Yusuf from 01.10.1985 to 31.03.1990 and disburse the arrears to the applicant within eight weeks from the date of receipt of a copy of this order.

The second respondent and the third respondent are directed to grant family pension to the applicant with effect from 17.11.1991 and disburse the arrears within 16 weeks from the date of receipt of a copy of this order.”

2.Tally Panchayat Union filed W.P.No.1899 of 1998 to quash the aforesaid order of the Tribunal. A Division Bench of this Court on 28.10.1999 modified the order of the Tribunal as follows:

“We have heard the learned counsel appearing on either side and perused the materials on record. So far as the grant of time scale pay is concerned, it is to be stated in view of the statement made by the State/Panchayat Union, in view of G.O.Ms.No.16 dated 29.01.1998, mentioned above. So far as the grant of family pension is concerned, on consideration we find that all these are the disputed questions of fact and it cannot be agitated or decided, nor gone into by this Court, particularly in the absence of any pleading and specific finding of the Tribunal. Under the circumstances, the order of the Tribunal granting family pension is uncalled for at this stage. Therefore, the order of granting family pension is set aside.”

3.G.O.MS.No.16, Rural Development dated 29.01.1998 was passed implementing the order of this Court granting time scale of pay to Rural Medical Practitioner from 01.10.1984. The facts leading to the passing of the G.O.Ms.No.16 are as follows:

This Court passed an order in W.P.No.863 of 1989 on 08.03.1985 holding that the Rural Medical Practitioners were appointed on full time basis and they could not be termed as part time employees, in view of their working time. A direction was issued to pay time scale of pay applicable to regular medical officer with effect from 11.07.1985. The relevant passages from the said judgment are extracted hereunder:

“The respondents though they have raised a plea in the counter affidavit that the petitioner was appointed on part time basis or on a contract basis, such contention has not been established by any acceptable documentary evidence. On the other hand, the order of appointment itself would show that the appointment was neither on contract nor on part-time basis. In the absence of such specification, the appointment made must be regarded as one made on full time basis. The number of hours for which the petitioner was required to work is not mentioned in the appointment order. It is the admitted case of the respondents that the hours of work at the dispensary which is required to be looked after by the petitioner is from 7.30 a.m. To 10.30a.m. And again from 3.00p.m. To 5.00p.m. Therefore, the number of working hours per day is obviously five hours. As to whether the dispensary will be closed on Saturday or not is not clear from the averments made in the pleading. There is nothing on record to allow that the appointment of the petitioner was on a contract basis. No contract has been produced.

8. … As already noticed on the facts of this case, it is clear that the petitioner was only appointed to a full time post and as has been working in that post for well over 17 years he certainly be regarded as one, who is holding that post on a permanent basis. He cannot be regarded as one, who is still holding a temporary post. Considering the hours of work, it cannot be said that the appointment to the post is on part time basis, in the absence of an averment in the respondents in their affidavits regarding the hours of work of those on the time scale of pay.

9.It is settled law that persons performing similar work are to be similarly remunerated unless there are special factors justifying differential scale of remuneration. It is admitted impliedly that the working hours of the petitioner are the same as that of the persons, who have been placed in the time scale of pay. Respondents have not placed any material to rebut the petitioner’s claim for equal remuneration except to assert that the petitioner is employed on a part time basis. The factors if any which distinguish the petitioner from those given the time scale and puts those persons in a class different from the petitioner, have not been pleaded nor has any material been placed before the Court in that regard. The fact that some Rural Medical Practitioners in B2 Class registered Medical Practitioners have been given the time scale is evident from the order of this Court in W.P.No.1071 of 1990 decided on 24.07.1990.

10. It was submitted for the petitioner that the petitioner had made a number of representations and the same not having elicited any positive response, petitioner has filed this petition. This petition was filed in the year 1989. The petitioner has produced copy of the audit objection which had been raised in the year 1985 wherein it was pointed out that the petitioner should have been given time scale of pay of Rs.780-1385. The petitioner has also produced letters written by the Commissioner of Panchayat Union recommending that the petitioner be given the benefit of the time scale of pay. Documents have also been produced to show that the nurse working under him is getting a salary of over Rs.1,000/- while the petitioner, the Doctor in charge of the dispensary is paid the paltry sum of Rs.300/- as salary. Petitioner has stated that on an average 54 patients are treated each day at the dispensary.

11.Petitioner is therefore, entitled to be placed in the time scale of pay fixed by the Government for Medical Officer (B2) Ayurvedha in Appendix VII of the Tamil nadu Revised Scale of Pay Rules, 1985, with effect from 11.07.1985. The benefit of the time scale cannot be given from the date of his appointment as he did not approach this Court earlier and the State cannot now be saddled with the burden of having to pay for years long past. Petitioner shall be given the monetary benefits for the period from 11.07.85 and he shall be paid salary in future in the scale to which the scale fixed in 1985 has since been revised.”

4.The matter was taken on appeal by both the doctors as well as the Government. A Division Bench of this Court, while confirming the order of the single judge in W.A.Nos.922, 1036 of 1995 & 95 of 1996 dated 01.02.1996, has shifted the date from 11.07.1985 to 01.10.1984. Therefore, the Government implemented the order of this Court and passed 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 granting the scale to the petitioners from 01.10.1985 was changed to 01.10.1984 by a Division Bench of this Court on 28.10.1999 in W.P.No.1899 of 1998 as stated above. Accordingly, the arrears were also paid.

6.Thereafter, the Government passed G.O.Ms.No.250, Rural Development Department dated 14.09.2000 contrary to the above said findings of this Court in W.P.No.863 of 1989 has confirmed in W.A.Nos.922 of 1995 extra batch as stated above. The relevant paragraph of the order in para 3(e) of G.O.Ms.No.250, Rural Development Department denying the pension benefits to rural medical practitioner is extracted hereunder:

“Pension benefits are eligible only for the regular employees. The Panchayat Union rural medical officer post is a part time post and therefore the part time rural medical officer are not entitled for the pension benefits. The other terminal benefits applicable for regular employees like selection grade, special grade, compassionate ground appointments, group insurance, provident fund, encashment of earn leave and surrender are not applicable to the part time medical officers.”

7.The rural medical practitioners challenged the G.O.Ms.No.250 before the Tamil Nadu Administrative Tribunal and they were not successful. When the matter was taken to this Court by way of a batch of writ petitions in W.P.Nos.30003 of 2004 etc., batch, a Division Bench of this Court on 19.04.2006, following the earlier judgment in W.P.No.863 of 1989 and W.A.No.922 of 1995, categorically held that rural medical practioners are regular employees and they could not be termed as part time employees. By holding so, the paragraph 3(e) of G.O.Ms.No.250 was quashed.

8. In the meantime, the petitioners made a representation to grant them family pension. But the same was denied by the impugned order in G.O.Ms.No.452, Rural Development Department, dated 28.08.2000. This denial is solely on the basis that this Court in W.P.No.1899 of 1998 set aside the order of the Tribunal granting family pension to the petitioner.

9.The relevant paragraph of the order of this Court in W.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 has denied the benefit of family pension to the petitioners while setting aside the order of the Tribunal. This Court made it clear that since there was no materials and pleadings relating to the claim for family pension, the same was set aside at present.

10.As stated above since a Division Bench of this Court in the order dated 19.04.2006 in W.P.No.30003 of 2004 etc., batch categorically held that Rural Medical Practitioners are entitled to pension as they are holding regular post, the G.O.Ms.No.452 dated 28.08.2000 is liable tobe quashed. Infact, the learned counsel appearing for the respondents has produced G.o.Ms.No.164, Rural Development Department, dated 24.09.2007 implementing the order of the Division Bench of this Court quashing G.O.Ms.No.250 in W.P.No.30003 of 2004 etc., batch

11.In such circumstances, the first respondent is directed to pass orders granting family pension and other retirements to the petitioners, in accordance with G.O.Ms.No.164, Rural Development Department, dated 24.09.2007 within a period of twelve weeks from the date of receipt of a copy of this order. The first respondent is further directed to pay the arrears of Family Pension within 12 weeks from the date of receipt of a copy of this order. This writ petition is ordered accordingly.

Smi 									16.12.2009     
Index    : Yes/No
Internet : Yes/No
 
To

1. 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.

    					

D.HARIPARANTHAMAN, J.

											Smi	











 W.P.No. 2303 of 2007   












16.12.2009

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