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2012 DIGILAW 2099 (MAD)

V. Kannan v. State of Tamil Nadu

2012-04-26

C.T.SELVAM

body2012
Judgment :- The petitioner seeks to quash the proceedings of the third respondent in Na.Ka.No.139167/MP4/S1/04 dated 22.11.2004 and the consequent order passed by the second respondent in his proceeding Ref.No.4579 FW/A3/04 dated 30.08.2005 and consequently direct the respondents to fill up the post of District Extension Educator, as per the proceedings of the Secretary to Government, Health & Family Welfare Department in L.No.20942/02/93-1 dated 17.03.1993 and promote the petitioner as per seniority and merits. 2. The petitioner was recruited as Leprosy Inspector on 01.11.1975 when the National Leprosy Control Scheme was in vogue. Upon abolishment of such scheme, the Government decided to freeze the number of employees deployed for leprosy control and absorbed them in other departments. In proceedings in L.No.20942/02/93-1 dated 17.03.1993, the Health and Family Welfare Department, informed the Director of Medical and Rural Health Services, as follows: "L.No.20942/02/93-1 Dated the 17th March 1993 Dear Dr.(Tmt) Premila, Sub: Tamil Nadu Leprosy Control Officials Association - Redeployment. The Government has already issued orders on the need to freeze the number of employees deployed for leprosy control. It has also been decided that to the extent possible, leprosy Inspectors and other supervisory personnel engaged in leprosy wing should be redeployed in various job opportunities arising in the department. I request you to kindly adopt this as a basic cardinal principle for filling up of the posts that may arise in the department. Only where the job requirements are not matched by the qualification/experience of the staff, we should look for the employees elsewhere. If Officials from other departments are to be drawn, clearance should be taken from the Government in advance. 2) It is learnt that statistical assistants posts are being filled up. It is also learnt that appointment orders have been issued in favour of Junior Assistants and only one Leprosy Inspector has been selected. The J.A. has got regular line for promotion. Please take necessary action to review the same and consider the possibilities of assisting the Leprosy Inspectors for these posts." 3. Upon integration of National Leprosy Scheme with the Public Health and Preventive Medicine Service on 01.08.1997, the petitioner was re-designated as Health Inspector, Grade I-B. The petitioner's case is that the several posts of Block Extension Educator arose in the Family Welfare Department. Any graduate is eligible for appointment and the petitioner held a Post-Graduate degree in Sociology. The petitioner repeatedly had been overlooked. Any graduate is eligible for appointment and the petitioner held a Post-Graduate degree in Sociology. The petitioner repeatedly had been overlooked. In fact, though the petitioner was fully qualified, applications for filling up the post of District Extension Educator had been called for by the Director of Public Health and Preventive Medicine in Na.Ka.No.139167/MP4/S1/04 dated 22.11.2004. The petitioner, by way of abundant caution, has also applied. 4. The petitioner has moved W.P.No.5325 of 2005 seeking a writ of certiorarified mandamus towards quashing the proceedings of the Director of Public Health and Preventive Medicine in Na.Ka.No.139167/MP4/Eru.1/04 dated 22.11.2004 and seeking a direction to the respondents to fill up the post of District Extension Educator in keeping with proceedings of Secretary to Government, Health and Family Welfare Department, in L.No.20942/02/93-1 dated 17.03.1993. This Court had directed the respondents to consider the petitioner's application along with the applications of other Health Inspectors Grade I and pass appropriate orders for appointment as District Extension Educator, if the petitioner was otherwise qualified, under orders dated 18.02.2005. Pursuant thereto, the second respondent under proceedings in reference No.4579/FW/A3/05 dated 30.08.2005 informed that the order of this Court in W.P.No.5325 of 2005 required the passing of appropriate orders for appointment to the post of District Extension Educator, if the petitioner was otherwise qualified but the petitioner was not so qualified as the post of Health Inspector Grade-IB (held by the petitioner) is not a feeder post. Hence, the petitioner challenges such proceedings in the present Writ Petition. 5. The counter of the respondents informs the method of appointment to the post of District Extension Educator under Family Welfare Programme as per the adhoc rules issued in G.O.Ms.No.1162, Health and Family Welfare Department, dated 21.08.1991 and amended in G.O.Ms.No.435, Health and Family Welfare Department, dated 03.08.1998, as follows: i. By promotion from the category of Block Extension Educator; or ii. By recruitment by transfer from the category of Health Inspector grade I; or iii. By direct recruitment, if no suitable candidate is available in any of the above methods. The ratio for appointment among the methods specified in items (i), (ii) and (iii) should be 2:7:1. 6. Therefore, if the petitioner is found to be a person belonging to the category of Health Inspector Grade – I, then the proceedings of the second respondent in reference No.4579/FW/A3/05 dated 30.08.2005, cannot be allowed to stand. The ratio for appointment among the methods specified in items (i), (ii) and (iii) should be 2:7:1. 6. Therefore, if the petitioner is found to be a person belonging to the category of Health Inspector Grade – I, then the proceedings of the second respondent in reference No.4579/FW/A3/05 dated 30.08.2005, cannot be allowed to stand. The Division Bench of this Court in disposing a batch of Writ Petitions and W.A.No.312 of 2008 under judgment dated 23.07.2010 has explained that the distinction made between the Health Inspectors already in the department and others, such as the petitioner, who came to be absorbed therein, pursuant to the abolishment of National Leprosy Control Scheme as Health Inspector Grade – IA and Health Inspector Grade – IB, was totally erroneous. It specifically has been held that persons such as the petitioner shall be at par with the Health Inspectors who already were serving in the department. In effect, the distinction drawn between Health Inspector Grade – IA and Health Inspector Grade – IB stood erased. 7. The operative portion of the judgment of the Division Bench reads thus: "29. For all those reasons, more particularly, taking into account the fact that in the same Department, the Uni Purpose Health Workers were absorbed as Multi Purpose Health Assistants from the date of their absorption without insisting the required certificates, referred to above, the Leprosy Inspectors could not be denied the same benefit as that of the Uni Purpose Health Workers, when the Leprosy Inspectors were got integrated into Multi Purpose Health Worker Scheme. Therefore, G.O.Ms.No.382, Health and Family Welfare (N1) Department, dated 12.10.2007 is not correct in treating the Health Inspectors Grade – IB as Health Inspectors Grade – I with effect from the date of G.O., and granting them the scale of pay of Rs.4500-7000 from the date of the said G.O., and the Leprosy Inspectors who were absorbed into Multi Purpose Health Worker Scheme on 01.08.1997 are entitled to be re-designated as Health Inspectors Grade – I with the scale of Rs.1350 – 2200 from 01.08.1997 and they should be given the scale of Rs.4500 – 7000 when the Health Inspectors Grade – I were granted with all consequential benefits. 30. 30. Likewise, paras 6(iv) and (v) of G.O.Ms.No.382 are bad and illegal as clause (iv) of para 6 places Health Inspectors Grade – IB who were re-designated as Health Inspectors Grade – I by G.O.Ms.No.382 en bloc below the last person of the Health Inspector Grade – I already working in the Department. Clause (v) of para 6 is also not correct in denying promotion to the re-designated Health Inspectors Grade – I to the post of Block Health Supervisor and Technical Personal Assistant till the last person in the existing list of Health Inspectors Grade – I gets promotion as Block Health Supervisor and Technical Personal Assistant. The Leprosy Inspectors on integration into Multi Purpose Health Workers as on 01.08.1997 should be treated as Health Inspectors Grade – I and they should be given promotion as Block Health Supervisor and Technical Personal Assistant from the date of which their juniors were promoted, with all consequential benefits. However, it is made clear that on re-designating the Leprosy Inspectors as Health Inspectors Grade – IA / Grade – I as on 01.08.1997, they could be placed at the bottom of the seniority of the serving Health Inspectors Grade – I as on 01.08.1997. 31. In the result, the writ petitions in W.P.Nos.8339, 12654, 14592, 17578, 25844 and 27982 of 2008 and the writ appeal in W.A.No.312 of 2008 stand allowed. The writ petitions in W.P.Nos.23893 of 2006 and 34401 of 2007 stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed." 8. Thus, with the benefit of the decision of the Division Bench, this Court has no difficulty in informing that the distinction sought to be drawn by the second respondent in the impugned proceedings is unsustainable and not in keeping with the rules extant as informed in the counter i.e., a District Extension Educator could be appointed by recruitment by transfer from category of Health Inspector Grade – I and that the petitioner is a person duly qualified to be appointed as District Extension Educator. 9. Though the learned Special Government Pleader has submitted that the petitioner, on promotion, holds the post of Health Educator, it is submitted on behalf of the petitioner that such promotion has been accepted by him without prejudice to his contentions in the present petition. 10. 9. Though the learned Special Government Pleader has submitted that the petitioner, on promotion, holds the post of Health Educator, it is submitted on behalf of the petitioner that such promotion has been accepted by him without prejudice to his contentions in the present petition. 10. For the reasons informed above, this Writ Petition is allowed and the impugned proceedings of the third respondent in Na.Ka.No.139167/MP4/S1/04 dated 22.11.2004 and the consequent order passed by the second respondent in his proceeding Ref.No.4579 FW/A3/04 dated 30.08.2005 are set aside. The respondents shall now effect appointment of the petitioner as District Extension Educator with all consequential benefits from the date on which he would have been eligible to hold such post, taking into consideration the question of seniority as directed by the Division Bench in its judgment in the batch of writ proceedings and W.A.No.312 of 2008 dated 23.07.2010. No costs.