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2025 DIGILAW 1608 (MAD)

State Of Tamil Nadu v. S. Sureshsankar

2025-03-20

G.ARUL MURUGAN, R.SUBRAMANIAN

body2025
JUDGMENT : R.SUBRAMANIAN, J. We do not see any reason to interfere with the order of the writ Court. 2.This case again, demonstrates the jugglery and unfair labour practice adopted by the Government of the day. There were certain posts of Pharmacists that were sanctioned under a scheme called Rashtriya Bal Swasthya Karyakram (hereinafter referred to as "RBSK"), scheme to be implemented through Central funds. The Government issued an order, directing the Director of Public Health and Preventive Medicine and Deputy Director of Medical and Rural Health Services to appoint Pharmacists under the said scheme on a consolidated pay of Rs.10,000/- per month by outsourcing through Contractors. Templates for the memorandum of understanding to be entered into by the outsourcing agency and the letter calling quotation for out sourcing Staff Nurses were also forwarded to the concerned Deputy Directors. This was done on 06.01.2015. Pursuant to that, at least 770 persons were appointed through Contractors as Pharmacists. 3. We are not for the purposes of the present case, examining the need or necessity for employing said people through Middlemen called Contractors. Thereafter, on 12.11.2015, the Government issued G.O.Ms.No.335. Paragraph 2 & 3 of the said Government Order reads as follows:- "2. In his letter second read above, the Director of Public Health and Preventive Medicine has stated that the Mission Director, State Health Society has requested the Director of Public Health and Preventive Medicine to take necessary action to appoint the 770 posts of Pharmacist on contractual basis at Rs. 10,000/- per month, as per the existing rules and regulations in force. The Director also stated that 770 post of Pharmacists are to be appointed by the Medical Services Recruitment Board and they may be absorbed to the regular time scale of vacancies in Primary Health Centres after the completion of two years of service on consolidated pay and also that after filling the 770 posts of pharmacist the mode of entry to the post of pharmacists in Primary Health Centres may be made to contract post only through Block Level Mobile School Health team or any other schemes. The Director of Public Health and Preventive Medicine has therefore requested the Government to issue necessary orders in this regard, 3. The Director of Public Health and Preventive Medicine has therefore requested the Government to issue necessary orders in this regard, 3. After careful examination, the Government have decided to accept the proposal of the Director of Public Health and Preventive Medicine and accord permission to Director of Public Health and Preventive Medicine to fill up 770 post of Pharmacists sanctioned under Rashtriya Bal Swasthya Karyakram (RBSK) Scheme on consolidated pay of Rs. 10,000/- per month with the following conditions:- (i) The recruitment process will be done through the Medical Services Recruitment Board as per the rules of procedure followed by the Board for recruitment. (ii) The candidates who are appointed under the Rastriya Bal Swasthya Karyakram (RBSK) scheme would be absorbed to the regular time scale vacancies in Primary Health Centers after the completion of 2 years of service on Consolidated Pay of Rs. 10,000/- per month as and when the vacancy arises in the regular time scale. If there is no vacancy even after the completion of two years, they will continue to be on consolidated pay till such time vacancy arises in Primary Health Centers and they should not claim to absorb them into regular time scale immediately after completion of two years. They should be absorbed only as and when the regular time scale vacancies arises in the posts existing in Government departments. (iii) An individual who moves to the regular, scale of pay post in Primary Health Centre before completing the 2 years shall be paid consolidated pay only till the prescribed period of 2 years. (iv) The movement will be based on seniority to the Primary Health Centre from the RBSK scheme. After filling up the 770 post of Pharmacists, the mode of entry to the post of Pharmacists in Primary Health Centres shall be made to contract post only through Block Level Mobile School Health Team or any other scheme like Urban Primary Health Center in which contract posts are sanctioned.. (v) The expenditure for contract pay will be met from the NRHM funds." 4. The learned single Judge had found that this Government Order dated 12.11.2015 vests a right in the temporary contractual Pharmacists, who were recruited under the RBSK Scheme to be regularized upon completion of two years of service or upon arising of vacancies. (v) The expenditure for contract pay will be met from the NRHM funds." 4. The learned single Judge had found that this Government Order dated 12.11.2015 vests a right in the temporary contractual Pharmacists, who were recruited under the RBSK Scheme to be regularized upon completion of two years of service or upon arising of vacancies. On the above conclusion, the learned single Judge has allowed the writ petition, in which, a prayer was made for a mandamus to regularize the petitioners as Pharmacists as per G.O.Ms.No.335 dated 12.11.2015. The contention that G.O.Ms.No.335 would apply only to those Pharmacists appointed under the RBSK Scheme by the Medical Services Recruitment Board (herein after referred to as "MSRB") was rejected by the writ Court. Hence, the State is on appeal before us. 5. We have heard Mrs.M.Sneha, learned Special Counsel appearing for the appellants and Mr.V.Prakash, learned Senior Counsel appearing for the respondents. 6. Mrs.M.Sneha, learned counsel for the appellants would vehemently contend that G.O.Ms.No.335 would be applicable to only to those Pharmacists who were appointed on contractual basis by the MSRB and not to the Pharmacists who were engaged through the outsourcing agency. She would also seek support of the judgment of a Division Bench of this Court in G.V.Vairam Santhosh Vs. The Principal Secretary, Department of Health and Family Welfare dated 21.01.2021 made in W.P.(MD).No.19565 of 2020. 7. Contending contra, Mr.V.Prakash, learned Senior Counsel appearing for the respondents would submit that G.O.Ms.No.335 dated 12.11.2015 does not make a distinction between Pharmacists appointed through outsourcing agency under the RBSK Scheme and Pharmacists appointed by MSRB under RBSK Scheme. He would also point out that not even a single Pharmacist was appointed under the RBSK scheme by the MSRB. 8. To our query as to whether at least a single Pharmacist was appointed to the said scheme by the MSRB, the learned Special Counsel appearing for the appellants would assert that not even a single Pharmacist under RBSK Scheme was appointed by the MSRB. It is therefore, clear that all of them were appointed through out sourcing agency. 9. As rightly held by the writ Court, G.O.Ms.No.335 dated 12.11.2015 does not make a distinction between a Pharmacist appointed under the RBSK Scheme by the MSRB or by the out sourcing agency. The judgment that is relied upon does not deal with the current situation. It is therefore, clear that all of them were appointed through out sourcing agency. 9. As rightly held by the writ Court, G.O.Ms.No.335 dated 12.11.2015 does not make a distinction between a Pharmacist appointed under the RBSK Scheme by the MSRB or by the out sourcing agency. The judgment that is relied upon does not deal with the current situation. The challenge there was to the engagement of Staff Nurses in Multipurpose Hospitals on out sourcing basis. Several issues were considered but, the Bench ultimately upheld the right of the Government to engage Staff Nurses in Multipurpose Hospitals on a temporary basis through Contractors. The Bench did not consider the scope or effect of G.O.Ms.No.335 dated 12.11.2015 so, the judgment of the Division Bench cannot be treated as a precedent to decide as to whether these Pharmacists who were appointed on contract basis through out sourcing agency would be entitled to the benefit of G.O.Ms.No.335. 10. As we had already adverted to, the Government Order by itself does not make a distinction between a Pharmacist appointed by the MSRB or a Pharmacist appointed through the out sourcing agency. It confers a benefit of all Pharmacists appointed under the RBSK Scheme. In the teeth of the language of the Government Order, we are unable to fault the writ Court for having held that the Pharmacists, who were appointed on a contract basis through an out sourcing agency under the RBSK Scheme would be entitled to the benefits of the Government Order and the consequent regularization. This Writ Appeal therefore, fails and it is accordingly, dismissed . No costs. Consequently, connected miscellaneous petition is closed. 11. The appellants are granted four weeks time to comply with the directions of the learned single Judge.