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2014 DIGILAW 763 (MAD)

R. Paramaguru v. Secretary to Government Chennai

2014-03-25

B.RAJENDRAN

body2014
Judgment : 1. By consent of counsel for both sides, the writ petitions are taken up for final disposal at the stage of admission. 2. The Petitioners in all these writ petitions seeks for issuance of a Mandamus to direct the respondents 4 and 5 to award additional/bonus marks to them for the services rendered by them in the remote/difficult areas as contemplated under G.O. Ms. No.368, Health and Family Welfare (B2) Department dated 30.12.2010 read with clause 38 of the Prospectus for admission in to Post Graduate Degree/Diploma Courses 2014-2015 and publish the rank list for the counseling for admission to Post Graduate Courses 2014-2015. 3. The petitioners herein have been appointed as Assistant Surgeon by the second respondent on 04.02.2011, 04.02.2011 and 03.02.2011 respectively under Rule 10 (a) (i) of the General Rule for Tamil Nadu State and Subordinate Services under category 2 of Class I of Tamil Nadu Medical Service. On such appointment, the petitioners were posted in Hilly/Remote and Difficult areas. The petitioner in WP No. 6519 Dr. Paramaguru was posted in Government Hospital, Thirukoilur, Villupuram District. The Petitioner in WP No. 6520 and the petitioner in WP No. 6521 viz., Dr. Suganya and Dr. V. Saravanan were posted in Government Hospital, Sankarapuram, Villupuram District. 4. While the petitioners were working as such, the fifth respondent invited applications for admissions to Post Graduate Degree/Diploma Courses for which the petitioners have also applied. According to the petitioners, as they have completed three years of service as Assistant Surgeons in a remote/difficult area, for such service rendered by them, they are eligible to be categorised as 'service candidates' and consequently they have to be awarded additional/bonus marks so that their names will be listed in the top of the merit list for being admitted to the Post Graduate Degree/Diploma course by the respondents. However, in the merit list published by the fifth respondent, the marks secured by the petitioners in WP Nos. 6519 and 6520 alone were indicated under the heading 'service candidates' as 59.72 and 65.48 respectively and the marks obtained by Dr. Saravanan, petitioner in WP No. 6521 has not been mentioned. 5. According to the petitioners, they were originally appointed under the category of Assistant Surgeons and posted in the remote/difficult areas and they are working in the said places till date, therefore, they are entitled to get additional/bonus marks for serving in such areas. Saravanan, petitioner in WP No. 6521 has not been mentioned. 5. According to the petitioners, they were originally appointed under the category of Assistant Surgeons and posted in the remote/difficult areas and they are working in the said places till date, therefore, they are entitled to get additional/bonus marks for serving in such areas. In other words, they are entitled to get additional 3 marks out of 10 marks provided for this purpose i.e., one mark for each year and such additional marks have to be added to the marks secured by the petitioners in that category. In such event, they will be on the top of the ranking list published by the respondents. Even though the petitioners have served in the hill/remote/difficult area, the very purpose for which they served in such areas will be defeated if they are not given additional/ bonus marks. The petitioners bona fide believed that they will be awarded additional/bonus marks for having served the hill/remote/difficult areas, however the respondents failed to award such marks to the petitioners. 6. In this context, the learned counsel for the petitioners relied on the list of hill/remote/difficult areas published by the Directorate of Medical and Rural Services. In the said list, Thirukoilur and Sankarapuram in Vilupuram District are categorised as remote and difficult areas. 7. The learned counsel for the petitioners also would contend that in clause 38 of the prospectus issued by the fifth respondent, it has been clearly stated in sub-clause (2) and 3 as follows:- "38. One mark for each completed year after the completion of CRRI shall be awarded as marks for experience for both service and non-service candidates to a maximum of of ten marks as on 31.03.2014 and Service candidates shall be awarded, one mark per year of service in rural areas and two marks per year of service in hilly areas and two marks per year of service in Government Hospitals, Primary Health Centres and Government Medical College Hospitals of Tiruvarur, Nagapattinam and Ramanathapuram Districts limited to a maximum of 10 marks. Altogether the total marks awarded for experience will be restricted to 10 marks to all candidates including candidates from rural and hilly areas and the three districts mentioned above. Altogether the total marks awarded for experience will be restricted to 10 marks to all candidates including candidates from rural and hilly areas and the three districts mentioned above. 1) Marks awarded for Entrance examination : Maximum 90 marks 2) Experience marks for all candidates limited to a maximum of 10 (i + ii + iii) i) One mark per year for experience after CRRI ii) Marks for candidates served in rural and hilly areas:-One Mark per year of service in rural areas and two marks per year of service in hilly areas iii) Two marks per year of Service for candidates who have worked in Government Hospitals, Primary Health Centres and Government Medical College Hospitals of Thiruvarur, Nagapattinam and Ramanathapuram Districts 8. Relying on clause 1 and 2 of Clause 38 of the prospectus, the learned counsel for the petitioners would contend that the petitioners served in remote/ difficult areas with the legitimate expectation that such service rendered by them would be considered for award of additional mark, however, the respondents, without any justification, refused to allow such additional marks to the petitioners. When the area in which the petitioners served is classified as remote/difficult area by the respondents themselves, there is no justification on the part of the respondents 4 and 5 to ignore such service rendered by the petitioners for the purpose of awarding additional marks in their favour. 9. On the contrary, the learned Additional Government Pleader, relying on the counter affidavit as well as additional counter affidavit filed by the fifth respondent, would contend that the petitioners were appointed under Rule 10 (a) (i) of the General Rules and they are not entitled for any benefit claimed in the writ petitions. As per clause 38 (2) of the prospectus, only for those who served the hilly area alone will be considered for additional marks. At best, the area where the petitioners are serving can be classified as Rural area and in such event, the petitioners are entitled only for one mark. Further, clause 38 (2) (iii) of the prospectus specifically states that those who were working in Thiruvarur, Nagapattinam and Ramanatham Districts alone will be awarded two marks per year of service and such benefit cannot be extended to the petitioners inasmuch as they are working in Villupuram District. 10. Further, clause 38 (2) (iii) of the prospectus specifically states that those who were working in Thiruvarur, Nagapattinam and Ramanatham Districts alone will be awarded two marks per year of service and such benefit cannot be extended to the petitioners inasmuch as they are working in Villupuram District. 10. The petitioners have also filed a reply affidavit repudiating the various averments made by the fifth respondent in the counter affidavit. 11. I heard the counsel for the petitioners as well as the learned Additional Government Pleader appearing for the respondents. The short point arise for consideration in these writ petitions is whether the petitioners are entitled for award of additional marks as per clause 38 (2) and (3) of the prospectus issued by the fifth respondent. 12. Admittedly, the petitioners are now working in Villupuram District pursuant to their selection by Tamil Nadu Public Service Commission even though they were originally appointed under Rule 10 (a) (i) of the General Rules. In the provisional merit list published by the fifth respondent, the name of the petitioners were indicated as 'service candidates' which would indicate that the petitioners are already serving the Government and this is not disputed by the respondents. 13. Now, it has to be seen whether the petitioners are entitled for award of 2 marks as per sub-clauses 2 and 3 of Clause 38 of the prospectus, which is extracted above. Admittedly, the petitioners were originally appointed by issuing G.O. Ms. No.368, Health and Family Welfare Department dated 30.12.2010 which prescribes for posting the candidates in hilly/remote and difficult areas. As mentioned above, the petitioners were appointed on 04.02.2011, 04.02.2011 and 03.02.2011 respectively and from that date, they have completed 3 years of service. It is also to be mentioned that the petitioners, on their appointment, have been posted in Sankarapuram and Thirukoilur, Villupuram District, as the case may be. In this context, it is relevant to refer to the list produced by the petitioners, which was issued by the Directorate of Medical and Rural Health Services, Chennai, reiterating and confirming the places which are identified/classified as 'remote' and 'difficult' areas. List of Remote and Difficult Area Government Hospitals under the Control of Directorate of Medical and Rural Health Services, Chennai S.No. Name of the District Name of the Institution Type of Institution 1. Thiruvannamalai PorurChengamArani Thanipadi Government Hospital Government Hospital Government Hospital Government Hospital 2. List of Remote and Difficult Area Government Hospitals under the Control of Directorate of Medical and Rural Health Services, Chennai S.No. Name of the District Name of the Institution Type of Institution 1. Thiruvannamalai PorurChengamArani Thanipadi Government Hospital Government Hospital Government Hospital Government Hospital 2. Villupuram GingeeThirukoilurUlundurpet Sankarapuram Government Hospital Government Hospital Government Hospital Government Hospital 3. Tirunelveli Cheranmadevi Government Hospital 4. Nagapattinam Nagapattinam Sirkazhi Nagore Thirukuvalai Tharangambadi Govt. HQ Hospital Government Hospital Government Hospital Government Hospital Government Hospital 5. Thiruvarur Koothanallur KodavasalNeedamangalam Nannilam Government Hospital Government Hospital Government Hospital Government Hospital 6. Ramanathapuram Mudukulathur Kamuthi Rameswaram Kilakarai Government Hospital Government Hospital Government Hospital Government Hospital 14. It is evident from the above list that the place where the petitioners are serving is classified as Remote/Difficult Area. Now, the argument of the learned Additional Government Pleader is that it is not a hilly area and therefore, the petitioners cannot be awarded 2 marks. It is true that the place where the petitioners are serving are not hilly area, but in sub-clause 3 of clause 38 of the prospectus, when the candidates who were serving in Thiruvarur, Nagapattinam and Ramanathapuram Districts were awarded additional marks, which were also included in the list of Remote/Difficult area published by the Directorate of Medical and Rural Health Services, Chennai, indicated above, the same has to be extended and applied to the petitioners also who are serving in Villupuram Districts. The other argument of the learned Additional Government Pleader that the area where the petitioners are serving can at best be categorised as rural area cannot be accepted. The classification 'rural area' is distinct and different from the Remote/Difficult area classified by the Directorate of Medical and Rural Health Services, Chennai. Further, the argument of the learned Additional Government Pleader that the petitioners are serving only in a rural area is without any basis and no documentary evidence has been produced in support thereof. When the candidates serving in three Districts indicated in sub-clause 3 of Clause 38 of the prospectus were given certain concessions, the same yardstick has to be applied in the case of the petitioners as well. 15. A perusal of the G.O. Ms. When the candidates serving in three Districts indicated in sub-clause 3 of Clause 38 of the prospectus were given certain concessions, the same yardstick has to be applied in the case of the petitioners as well. 15. A perusal of the G.O. Ms. No. 368, Health and Family Welfare Department dated 30.12.2010, based on which the petitioners were appointed, would indicate that those who serve in the place of posting atleast for 3 years or 5 years would be entitled for incentives besides that such service rendered by them would be taken into account for award of additional/bonus marks for admission to Post Graduate courses. In anticipation of securing admission in Post Graduate Courses, the petitioners have served the remote/difficult areas. While so, definitely, the petitioners are entitled to the additional marks sought for in this writ petition especially when they have completed three years of service anticipating that such service rendered by them will entitle them to get additional marks for admission to post graduate degree/diploma course. Such an anticipation on the part of the petitioners is a legitimate expectation and it cannot be denied. 16. In the light of the above, I hold that the petitioners herein are entitled to get 2 more marks for each year of service as per sub-clauses 2 and 3 of clause 38 of the prospectus. If additional marks are awarded, definitely, in the rank list published by the fifth respondents, the ranking given to the petitioners will improve which would enable them for being considered for admission to the post graduate degree or diploma courses. 17. At this juncture, the learned Additional Government Pleader would contend that he apprehend that the order would open the flood gate inasmuch as similarly placed persons will resort to approach this Court and in which event, the process of selection will be hampered. Such a contention urged by the learned Additional Government Pleader cannot be countenanced for the simple reasons that this order is meant only for the petitioners who have approached this Court with these writ petitions. Secondly, in this order, this Court only decided the entitlement of the petitioners who have served the remote/difficult areas and directed the respondents to award additional marks especially when the area in which the petitioners served comes within the purview of remote/difficult areas categorised by the Directorate of Medical and Rural Health Services, Chennai. Secondly, in this order, this Court only decided the entitlement of the petitioners who have served the remote/difficult areas and directed the respondents to award additional marks especially when the area in which the petitioners served comes within the purview of remote/difficult areas categorised by the Directorate of Medical and Rural Health Services, Chennai. Furthermore, the counselling for admission to Post graduate degree/diploma courses commenced today and any other claim, if any, made will be dealt with separately and in such event, the principles of laches will come in to play. Even though there is no time limit for filing writ petition, it is made clear that this Court cannot entertain writ petitions praying identical relief sought for in this case because, a person who waits for another person to get an order and then approaching this Court will not be extended the same relief. Therefore, I am of the view that the apprehension raised by the learned Additional Government Pleader is misconceived and it is accordingly allayed. 18. In the result, the writ petitions are allowed as prayed for. A Mandamus is issued to the respondents 4 and 5 to grant additional/bonus marks to the petitioners for the services rendered by them in the remote / difficult areas as contemplated under GO Ms. No.368, Health and Family Welfare Department dated 30.12.2010 read with clause 38 of the Prospectus for admission to Post Graduate Degree/ Diploma courses 2014-2015, publish the rank list accordingly for the counselling for admission to post graduate courses 2014-2015. No costs. Consequently, connected miscellaneous petitions are closed.