IN THE H IGH COURT OF JUDICATURE AT MADRAS DATED: 17.03.2010 CORAM THE HONOURABLE Mr. JUSTICE T.RAJA W.P.Nos.19034, 19775, 19776 of 2008 and 39610 of 2006 Mrs.Premavathi ... Petitioner in W.P.No.19034/2008 Mrs.Gandhimathi ... Petitioner in W.P.No.19775/2008 Mrs.S.Ruckmani ... Petitioner in W.P.No.19776/2008 Mrs.K.Sarojamma ... Petitioner in W.P.No.39610/2006 Vs. 1.The Secretary to Government, Health & Family Welfare Department, Secretariats, Chennai 600 009. 2.The Director, Public Health & Preventive Medicines, 259, Anna Salai, Chennai 600 006. ... Respondents in
all petitions
3.The Deputy Director of Health Services,
Salem.
… Respondents in
all petitions except W.P.No.39610/2006
The Block Medical Officer,
Government Primary Health Centre,
Thammampatti,
Gngavalli Taluk, Salem District. … Respondents in
W.P.No.19034/2008
The Block Medical Officer,
Government Primary Health Centre,
Guruva Reddiyur
Bavani Taluk, Erode District. … Respondents in
W.P.Nos.19775 and 19776/2008
1.The Deputy Director,
of Health Services,
Sathuvachari,
Vellore-9.
2.The Block Medical Officer
Govt. Primary Health Centre,
Mudur, Arakkonam Taluk,
Vellore District.
… Respondents in
W.P.No.39610/2006
PRAYER IN W.P.No.19034 OF 2008: Writ Petition filed under Article 226 of Constitution of India praying to issue a writ of mandamus directing the respondents 2 and 3 to fix pensionary and other benefits due to the petitioner basing upon G.O.Ms.210 P and AR Department dated 11.9.1987 in the scale of pay Rs.2,000/-, Rs.2,060/-, Rs.2,300/- Rs.3,200/- from 02.06.1989 and regulate the increment from time to time up to date of time till 30.06.2001 and grant such other relief.
PRAYER IN W.P.No.19775 OF 2008: Writ Petition filed under Article 226 of Constitution of India praying to issue a writ of mandamus directing the respondents 2 and 3 to fix pensionary and other benefits due to the petitioner basing upon G.O.Ms.210 P and AR Department dated 11.3.1987 in the scale of pay Rs.2,000/-, Rs.2,300/- Rs.3,200/- from 24.01.1989 and regulate the increment from time to time up to date of time till 31.08.2005 and grant such other relief.
PRAYER IN W.P.No.19776 OF 2008: Writ Petition filed under Article 226 of Constitution of India praying to issue a writ of mandamus directing the respondents 2 and 3 to fix pensionary and other benefits due to the petitioner basing upon G.O.Ms.210 P and AR Department dated 11.3.1987 in the scale of pay Rs.2,000/-, Rs.2,300/- Rs.3,200/- from 04.08.1989 and regulate the increment from time to time up to date of time till 28.02.2005 and grant such other relief.
PRAYER IN W.P.No.39610 OF 2006: Writ Petition filed under Article 226 of Constitution of India praying to issue a writ of mandamus directing the respondents 2 and 3 to fix pensionary and other benefits due to the petitioner basing upon G.O.Ms.210 dated 11.3.1987 in the scale of pay Rs.2000-60-2300-75-3200 from 06.02.1989 and regulate the increments from time to time up to date of retirement i.e. 30.06.2006 as per R.No.5262/A1/1999 dated 01.09.1999 of DDHS, Vellore and awarding of Special Grade in the post of CHN with effect from 06.02.1999 in the scale of pay of Rs.8000-275-13500 and the increments and other benefits pending from 01.01.2002 to 30.06.2006 and grant such other reliefs.
For Petitioner in all the cases :Mr.R.Margabandhu For Respondents :Mr.G.Sankaran, Spl.G.P. (Edn.) in all cases Assisted by Ms.E.Ranganayaki, G.A(Edn.) COMMON ORDER
As the facts leading to all the writ petitions are almost identical, they are disposed of by this common order.
2. The case of the petitioner in W.P.N.39610/2006 is that she was appointed as Health Visitor/Sector Health Nurse on 18.03.1971 and was also awarded Selection Grade after completion of 10 years in the post of Health Visitor on 09.05.1981. Whileso, on 06.02.1989, she was further promoted as Community Health Nurse, before completion of 20 years of service. The case of the petitioner is that the scale of pay of Selection Grade Health Visitor and Community Health Nurse are identical, namely, Rs.1600-50-2300-60-2600, and, therefore, she asked for the benefit of G.O.Ms.210 P&AR (Pension) Department, dated 11.03.1987 by counting the service rendered in the Selection Grade Post. Therefore, the only question needs consideration is whether the petitioner is entitled to receive the benefit of G.O.Ms.210 P&AR (Pension) Department, dated 11.03.1987.
3. Learned counsel appearing for the petitioners submits that the benefit of G.O.Ms.210 P&AR (Pension) Department, dated 11.03.1987, has already been granted to one of the petitioner’s juniors Tmt.Chandrabai. Whileso, the same benefit cannot be denied to the petitioners, who are admittedly senior to Tmt.Chandrabai. On that basis, prayer was made for grant of the revised salary as per G.O.Ms.210 P&AR (Pension) Department, dated 11.03.1987.
4. In reply, learned counsel appearing for the respondents submit that the Government, on introduction of Multipurpose Health Workers Scheme with effect from 04.11.1988, by issuing G.O.Ms.No.1936, Health and Family Welfare Department, dated 29.9.82, have ordered for creation of Community Health Nurse post in the time scale of pay of Rs.1600-2660 in G.O.Ms.No.2151, Health and Family Welfare Department, dated 04.11.1988. Since the Community Health Nurse Post was created only on 04.11.88, it was contended that the service of Sector Health Nurse (Previously Health Visitors) post prior to 04.11.1988 could not be taken for calculating Selection Grade post of Community Health Nurse as there was no Community Health Nurse post in existence prior to 04.11.1988. Therefore, G.O.Ms.No.210 P&AR (Pension) Department, dated 11.03.1987, ordering to count the service in identical scale of pay in the lower post for awarding Selection Grade in the promotional post, cannot be made applicable to the petitioners’ case as there was no identical scale of pay prior to 04.11.1988 between Selection Grade Sector Health Nurse and Ordinary Grade of the Community Health Nurse, since the post of Community Health Nurse was created only on 04.11.1988. Therefore, the Community Health Nurses are eligible for Selection Grade in the same post only with effect from 04.11.1988 onwards. Whileso, the petitioners are not eligible to get benefit under G.O.Ms.No.210 P&AR (Pension) Department, dated 11.03.1987. In respect of the benefits enjoyed by the similarly placed person, Tmt.Chandrabai, who is a retired Community Health Nurse, it has been submitted that the said Tmt.Chandrabai’s case cannot be applied to the case of the petitioners, since the department has committed serious mistake in wrongly awarding Selection Grade to Tmt.Chandrabai in the post of Community Health Nurse with effect from 14.2.1989 instead of 5.11.98 as per G.O.(D)No.1188 Health and Family Welfare (N2) Department, dated 18.9.2007 and also wrongly awarded Selection Grade with effect from 14.02.99 and the department also has taken steps to cancel the selection grade and special grade to rectify the said error and to re-fix the pay and also to recover the excess amount drawn by the said individual. Therefore, the revised pay of the above said individual, cannot be relied upon by the petitioners and on that basis, prayed for dismissal of all the writ petitions.
5. Heard the learned counsel appearing on either side and perused the materials available on record.
6. It is better to have a close look at the scale of pay from 4th pay commission to 6th pay commission to the post of Sector Health Nurse and Community Health Nurse, which is extracted hereunder:-
Name of the Category
Grades
Scale of pay as per 4th pay Commission (with effect from 01.10.1984)
Scale of pay as per the 5th pay commission (with effect from 01.06.1988)
Scale of pay as per the 6th pay commission (with effect from 01.01.1966)
Sector Health Nurse
Ordinary
780-1385
1400-2600
5000-150-8000
Selection
905-1545
1640-2660 (Restricted to 1600-2600)
5500-175-9000 (Restricted to 5300-150-8300)
Special
No Special avenue
2000-3200
6500-200-10500
Community Health Nurse
Ordinary
No such post
1600-2660 (with effect from 4.11.88)
5300-150-8300
Selection
2000-3200
6500-200-10500
Special
2200-4000
8000-275-13500
The above mentioned scale of pay applicable to the post of Sector Health Nurse and Community Health Nurse, clears the doubt raised by the learned counsel appearing for the petitioners in respect of the grant of benefit of G.O.Ms.No.210 P&AR (Pension) Department, dated 11.03.1987 in favour of the petitioners. The counting of services rendered on identical or higher scale arises only with effect from 04.11.88, since the post of Community Health Nurse was created only with effect from 04.11.88 by G.O.Ms.No.2151 Health Indian Medicine and Homeopathy and Family Welfare Department, dated 04.11.88. Therefore, the prayer of the petitioners to fix their salary as per G.O.Ms.No.210 P&AR (Pension) Department, dated 11.03.1987 is not feasible for compliance.
7. Further, the question of not granting the benefit of G.O.Ms.No.210 P&AR (Pension) Department, dated 11.03.1987 to the petitioners alone, which has been granted to their junior Tmt.Chandrabai, will not stand to any good reason, since, as contended by the learned counsel appearing for the respondents, the department having realised that the Selection Grade pay scale, has been wrongly awarded to Tmt.Chandrabai in the post of Community Health Nurse with effect from 14.2.99, which should have been granted only from 5.11.98, the department had already taken action to cancel the Selection Grade and Special Grade, wrongly awarded and to re-fix her pay and also to recover the excess amount drawn by the above said individual. When the department has already taken steps to recover the wrongly paid amount to Tmt.Chandrabai, the question of issuance of the direction to the respondents to repeat the same mistake will not arise. Therefore, the writ petitions are not sustainable in law and, accordingly, the same are dismissed. No Costs.
17.03.2010 Index : Yes Internet:Yes rkm To 1.The Secretary to Government, Health & Family Welfare Department, Secretariats, Chennai 600 009. 2.The Director, Public Health & Preventive Medicines, 259, Anna Salai, Chennai 600 006. 3. The Deputy Director of Health Services, Salem. 4.The Block Medical Officer, Government Primary Health Centre, Thammampatti, Gngavalli Taluk, Salem District. 5.The Block Medical Officer, Government Primary Health Centre, Guruva Reddiyur Bavani Taluk, Erode District. 6.The Deputy Director, of Health Services, Sathuvachari, Vellore-9. 7.The Block Medical Officer Govt. Primary Health Centre, Mudur, Arakkonam Taluk, Vellore District. T.RAJA,J. Rkm W.P.Nos.19034, 19775, 19776 of 2008 and 39610 of 2006 17.03.2010