Madras High Court
Josuva Jebakumar vs The Secretary To Government on 11 February, 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11/02/2009
CORAM
THE HONOURABLE Mr.JUSTICE K.VENKATARAMAN
Writ Petition No.10442 of 2008
Writ Petition Nos. 10495, 11018 to 11023, 11474 to 11478
and 11411 to 11413 of 2008
Josuva Jebakumar .. Petitioner in W.P.(MD)No. 10442 of 2008
S.Balamurugan .. Petitioner in W.P.(MD)No. 10495 of 2008
A.Anantha Selvi .. Petitioner in W.P.(MD)No. 11018 of 2008
S.Subathra .. Petitioner in W.P.(MD)No. 11019 of 2008
K.Balaji .. Petitioner in W.P.(MD)No. 11020 of 2008
L.Murugeswari .. Petitioner in W.P.(MD)No. 11021 of 2008
D.Meenashiammal .. Petitioner in W.P.(MD)No. 11022 of 2008
G.Muthamil Selvi .. Petitioner in W.P.(MD)No. 11023 of 2008
A.Thulasiraman .. Petitioner in W.P.(MD)No. 11474 of 2008
G.Thirupathy .. Petitioner in W.P.(MD)No. 11475 of 2008
D.Raja Kumar .. Petitioner in W.P.(MD)No. 11476 of 2008
T.Amutha Kalaivani .. Petitioner in W.P.(MD)No. 11477 of 2008
K.Rajeswari .. Petitioner in W.P.(MD)No. 11478 of 2008
S.Ashok .. Petitioner in W.P.(MD)No. 11411 of 2008
S.Karthikeyan .. Petitioner in W.P.(MD)No. 11412 of 2008
S.Lalitha .. Petitioner in W.P.(MD)No. 11413 of 2008
Vs
1. The Secretary to Government
Health and Family Welfare Department
Fort St. George,
Chennai.
2. The Director of Public Health and
Preventive Medicine
Chennai.
3. The Commissioner
Employment and Training Department
Guindy
Chennai 600 032. .. Respondents in all the Writ Petitions
Common Prayer
Writ Petition Nos.10442, 10495, 11018 to 11023,
11474 to 11478 and 11411 to 11413 of 2008
Petitions filed under Article 226 of the Constitution of India praying for
the issuance of writs of certiorarified mandamus to call for the records
pertaining to the impugned G.O.Ms.No.335, Health and Family Welfare (EAP 1/2)
Department dated 15/10/2008 issued by the first respondent and quash the same
and consequently, direct the respondents to appoint the petitioner to the post
of Lab Technician Grade III as per the call letter dated 28/7/2008, 29/7/2008
and 31/7/2008.
!For petitioners ... Mr.R.Singaravelan, Senior Advocate
for M/s.Nisha Banu
For the Impleaded
Parties ... Mr.T.Lajapathi Roy
for the impleaded parties
^For respondents ... Mr.T.Raja
Additional Advocate General
- - - - -
:COMMON ORDER
Challenging the G.O.Ms.No.335, Health and Family Welfare (EAP 1/2) Department dated 15/10/2008 issued by the first respondent seeking to appoint Contract Laboratory Technicians/Laboratory Supervisors working in RNTCP Programme with more than five years of service on the date of issue of the Government Order, after verifying their educational qualification in the existing Lab Technician/Grade III vacancies, are questioned in these writ petitions.
2. The case of the petitioners is that they have passed one year course for Lab Technician Grade - I and registered their names in the employment exchange for the post of Lab Technician Grade - I. An interview was conducted in August 2004 for appointment to the said post through out the State in the office of the Director of Public Health and Preventive Medicine. 2.1. The Director of Public Health had chosen to consider the candidates who have completed the one year course in six Colleges for which permission was granted by the Government and the candidates who have completed the course in all other Colleges who were registered after 1990 were not considered. The said act of the Director was questioned in a batch of writ petitions and in Writ Petition No.6608 of 2003 by an association of private Colleges, an injunction order was originally granted for the same. But even before that, 140 candidates from six Colleges who have been granted permission prior to 1990 were appointed. In the meanwhile, the Government had issued an order to enable the students who had completed the course in other private Colleges also to be considered for appointment.
2.2. The petitioners along with other similarly placed persons thought that the said G.O., would come to the rescue of the candidates who have completed their course in other Colleges also and was waiting for appointment as per the seniority list mentioned in the employment exchange. While so, the Government issued another Notification in G.O.Ms.No.39, Health and Family Welfare (C 2) Department dated 5/2/2007 which is in the nature of affecting the candidates who have completed one year course by inserting that "a Diploma in Medical Laboratory Technology Course (two years) duration conducted by the King Institute of Preventive Medicine or from other recognised Institution would be appointed as Lab Technician Grade II and the balance if any, the candidates who have obtained one year certificate would be considered." Challenging the said G.O., several writ petitions have been filed before this Court. 2.3. When the writ petitions came up for final hearing, the Government has taken a specific stand that Lab Technician Grade III has been created by the Government viz., G.O.Ms.No.115 dated 3/4/2007, wherein the candidates who have a certificate under CMLT are to be provided for the said Post. When the batch of writ petitions in W.P.Nos.18237 of 2007 came up before the Principal Bench, the writ petitions were dismissed with a direction that after filling up the vacancy from DMLT course, the rest of the vacancy will have to be filled up by CMLT course candidates. Thereafter, the petitioners had received call letters from the second respondent for the post of appointment of Lab Technician Grade- III. While they were waiting for their employment, the first respondent had passed G.O.Ms.No.335 dated 15/10/2008, thereby absorbing the persons who are working in the project of revised National Tuberculosis Control Programme to the post of Lab Technician Grade III in the Public Health Department. Thus it denies an opportunity to the CMLT candidates who are waiting for employment from 1993 onwards.
3. A common counter affidavit had been filed on behalf of the respondents 1 and 2, wherein the following facts have been set out.
3.1. As per G.O.Ms.No.91, Personnel and Administrative Reforms (P) Department dated 6/7/2006, the estimate of vacancies approved by the first respondent for direct recruitment for filling up the vacant post of Laboratory Technician Grade III in the Department of Public Health and Preventive Medicine, the second respondent herein had notified as 171 vacancies on 9/4/2008 and 13/5/2008, to the Commissioner for Employment and Training, Guindy to sponsor the candidates for filling up 171 vacant posts of Laboratory Technician Grade III. The Commissioner for Employment and Training has sponsored 1291 candidates for filling up the post in 1.5 ratio and the candidates were requested to send their certificates for verification.
3.2. There were 323 Contract Senior Tuberculosis Laboratory Supervisors and Laboratory Technicians who are working in the Revised National Tuberculosis Control Programme. Out of which 59 persons were recruited through Employment Exchange and the remaining 264 persons were recruited by the District Collectors through advertisements as per their merits. They have submitted their representation dated 13/11/2007 to the first respondent that they are working for more than 8 years without any complaint and hence, they may be absorbed in the existing Laboratory Technician Grade III vacancies in the Public Health Department. The first respondent carefully examined their request and had passed G.O.Ms.No.335, Health and Family Welfare (EAP 1/2) Department dated 15/10/2008 directing the Lab Technicians/Lab Supervisors who have got more than 5 years of service as on date in the Revised National Tuberculosis Control Programme and who satisfy the educational qualification prescribed in the Rules for the post of Lab Technician Grade III, be absorbed in the existing regular vacancies of Lab Technician Grade III in the Public Health Department. Accordingly, the Director of Public Health and Preventive Medicine/second respondent after verifying the service details and the certificates in respect of educational qualification, issued orders regularly appointing the 194 fully qualified Contract Senior Tuberculosis Laboratory Supervisors/Laboratory Technicians as Laboratory Technician, Grade III and issued orders temporarily appointing them. There are 202 qualified Contract Senior Tuberculosis Laboratory Supervisors/Laboratory Technicians who have possessed the required qualification and in the remaining vacancies it would be filled up by CMLT candidates. Thus, the Government had taken a decision to accommodate the qualified Contract Senior Tuberculosis Laboratory Supervisors/Laboratory Technicians as Laboratory Technician Grade III in the existing vacancies. This cannot be faulted by the petitioners. Hence the dismissal of the writ petitions are sought for.
4. I have heard the arguments of learned counsel appearing for the petitioners, learned counsel appearing for the impleaded parties and learned Additional Advocate General appearing for the respondents 1 to 3.
5. The learned counsel appearing for the petitioners would mainly contend that
(i). The impugned order had been passed by the first respondent against the spirit of the order passed in batch of writ petitions in W.P.No.18237 of 2007 etc., and the orders of the Government in G.O.Ms.No.115, Health and Family Welfare (C2) Department.
(ii). The impugned order virtually take away the opportunities of the petitioners for appointment to the post of Lab Technician Grade III.
(iii). The Contract Laboratory Technician and the Laboratory Supervisors working in the revised National Tuberculosis Contract Programme are sought to be appointed as Lab Technician Grade III which is against the orders of the Honourable Supreme Court in UMA DEVI's CASE reported in 2006 (4) SCC - 1.
6. On the other hand, the learned Additional Advocate General appearing for the respondents 1 to 3 and Mr.T.Lajapathi Roy, the learned counsel appearing for the impleaded parties would contend that
(i). Contract Laboratory Technicians and Laboratory Supervisors are working under the National Tuberculosis Control Programme for the last eight years and in order to accommodate them and to utilise their service, the impugned G.O., has been passed which is well within the power of the Government.
(ii). Considering the vacancy that is in existence for the post of Laboratory Technician Grade III, after appointing the Contract Laboratory Technicians and Laboratory Supervisors in RNTCP, the case of the petitioners would be considered and they would be filled up in the existing vacancy.
(iii). The impugned order of the first respondent is not against the spirit of the order passed in W.P.No.18237 of 2007 batch, since the consideration in the said writ petition was whether DMLT candidates could be appointed as Lab Technician Assistants in preference over the CMLT candidates. While dismissing the writ petitions thereon, a direction was issued to fill up the vacancies from the DMLT candidates and the rest from CMLT course candidates. At that point of time, there was no consideration about the employing Contract Laboratory Technicians and Laboratory Supervisors working in RNTCP.
7. I have considered the said submissions made in this regard.
8. The petitioners admittedly have undergone one year certificate course which is called CMLT course. The DMLT course is for a period of two years. In order to accommodate the DMLT candidates, the Government had issued Notification in G.O.Ms.No.39 dated 5/2/2007, amending the Special Rules in the Tamil Nadu Medical Subordinate Services, the amendment made thereon is extracted hereunder:-
"In the said Special Rules, in Part II, under Branch IV - General", (1) for the expression "Technician Grade - I" and "Technician Grade - II"
wherever they occur, the expressions "Laboratory Technician Grade - I" and Laboratory Technician Grade - II" shall respectively be substituted; (2). as so amended, in rule 2, in sub-rule (a), under the heading CLASS III, for the entry in the second column against Category (2) "Laboratory Technician Grade - II" in the first column thereof, the following entry shall be substituted namely:-
(i). by direct recruitment; or
(ii). by recruitment by transfer from the post of "Laboratory Assistant (Malaria) in the Tamil Nadu Public Health Subordinate Service". (3). In Annexure II, under the heading Class - III, for the entry in column (2), against the Category 2 Laboratory Technician Grade - II, in column (1) thereof, the following entry shall be substituted, namely:-
A Diploma in Medical Laboratory Technology Course (two years duration conducted by the King Institute of Preventive Medicine or from any other institution recognized by the Government of Tamil Nadu for this purpose. Provided that, if candidates with the above qualification are not available than candidates with Certificate in Medical Laboratory Technology (one year) duration conducted by the institutions recognised by the Government of Tamil Nadu for this purpose may be appointed."
9. This has been challenged by the petitioners in W.P.No.18237 of 2007. The stand that has been taken by the petitioners in those writ petitions was that originally DMLT was conducted by the King Institute of Preventive Medicine till 1994 and thereafter, since the said course was not conducted by the King Institute of Preventive Medicine, the only course that was available was the certificate course in CMLT and the petitioners underwent the course, the duration of which was one year. After the commencement of the two years Diploma course, again by the King Institute, a preferential treatment was given to the DMLT candidates. Hence, the petitioner had to challenge the said G.O. After hearing the parties at length, in the Principal Bench it has been held that the writ petitions filed by them deserves to be dismissed and a direction has been issued to fill up the vacancies from DMLT candidates and the rest from the CMLT candidates. Paragraph 12 of the said order is extracted hereunder.
"Now, at this juncture, it is pertinent to point out that in view of the stay originally granted by this Court, even the appointments given to the DMLT candidates were immediately cancelled by the State, and thereafter, before the Division Bench, an appeal was preferred, where the stay has been vacated, and even then the posts remained not filled up. Under the circumstances, this Court is of the considered opinion that the G.O., cannot, at any stretch of imagination, be called as unreasonable. A reading of the G.O., would make it clear that preferential treatment should be given to the DMLT candidates who have completed the course of two years and training, and apart from that if the posts are available, the candidates from CMLT have got to be filled up. From the date given by the State it could be seen that out of 442 vacancies, 332 candidates from the DMLT have applied for, and 110 posts are yet available. Hence, there cannot be any impediment for the State for filling up these posts from CMLT candidates available as on today. This Court is of the considered opinion that the G.O., cannot be said to be unreasonable since it stipulates that the DMLT candidates who underwent two years training, should be given preference than the CMLT candidates who have completed one year course. It is further to be pointed out that the G.O., does not say that the CMLT candidates should not be appointed. On the contrary, it would say that preference should be given to the DMLT candidates, and if the posts are available, the CMLT candidates could also be appointed. On the contrary, it would say that preference should be given to the DMLT candidates, and if the posts are available, the CMLT candidates could also be appointed. At this juncture, it is again to be pointed out that Laboratory Technicians Grade - III and also Field Assistant Posts have been created by the State in order to give job opportunity to the CMLT candidates who were on the fond hope of getting the job. Under the circumstances, this Court is of the considered opinion that while dismissing the writ petitions, it would be fit and proper to issue a direction the State to fill up the vacancies from the DMLT course candidates and the rest from the CMLT course candidates. It is also made clear that the candidates who were originally appointed and whose appointments were terminated pending the proceedings in this Court, could be considered along with others."
10. Thus, when the writ petitions came up for final hearing, the Government has taken the specific stand that the Lab Technician Grade III has been created by the Government Order dated 5/2/2007 vide G.O.Ms.No.115, whereby, the CMLT candidates are to be provided to the said post. While so, the petitioners are now hurt because of the present G.O., in question which enables the Contract Laboratory Technicians and the Laboratory Supervisors working in RNTCP are to be considered and appointed for the post of Technical Laboratory Assistant Grade III.
11. The case of the petitioners is that when they have registered themselves in the employment exchange and waiting in a que, and also when they have been made to understand that they would be considered for the post of Lab Technician Grade III, now the said post is sought to be filled up by the Contract Laboratory Technicians and the Laboratory Supervisors working in RNTCP, depriving them of employment opportunity. Further, according to them, when such candidates are preferred over the petitioners, it is nothing but encouraging back door appointees. However, on the side of the respondents, it has been stated that since those persons are having sufficient knowledge and experience, they have been preferred and in the remaining vacancies, definitely, the petitioners would be considered for appointment as Lab Technician Grade III.
12. The question that arises for consideration is that "Whether the persons who were employed as Contract Laboratory Technicians and the Laboratory Supervisors in RNTCP could have preference over the CMLT." Admittedly, except few of the Contract Laboratory Technicians and the Laboratory Supervisors, others have not been appointed from the employment exchange seniority list. They have been appointed temporarily by the various District Collectors through paper publication alone. Thus, it will definitely deploy the persons who have registered themselves in the employment exchange.
13. The Government has passed G.O.Ms.No.115, Health and Family Welfare (C2) Department amending the Special Rules for the Tamil Nadu Public Health Subordinate Service creating a post of "Laboratory Technician Grade - III which prescribes the following qualification for appointment by direct recruitment to the said post.
(i). must have passed plus - two examination
(ii). must possess certificate in Medical Lab Technology (one year duration course) undergone in any Institution recognized by the Director of Medical Education; and
(iii). Must have a good physique, good vision and capacity to do outdoor work."
14. It is the definite case of the petitioners that such amendment had been introduced by the said G.O., in order to accommodate CMLT candidates since by G.O.Ms.No.39, Health and Family Welfare (C2) Department dated 5/2/2007, Laboratory Technician Grade II post is sought to be filled up by DMLT candidates in preference over CMLT candidates. When such a plea had been taken in the writ petitions, there is no denial about the same in the counter affidavit of the respondents.
15. Further more, as stated already when the petitioners have challenged G.O.Ms.No.39, Health and Family Welfare (C2) Department dated 5/2/2007, giving preference to this DMLT candidates for the appointment of Laboratory Technician Grade - II in W.P.Nos.18237 of 2007 batch, the Government has taken a definite stand that the State has created a post, namely Laboratory Technician Grade - III, by G.O.Ms.No.115, Health and Family Welfare (C2) Department dated 3/4/2007 to accommodate only the candidates who are having a certificate under the CMLT would be provided with the said post and they need not compete with DMLT. When such a stand had been taken by the Government in the writ petitions referred to above, now, it cannot be heard to say that the preference would be given to the Lab Technicians and Lab Supervisors working in RNTCP on contract basis would be appointed in the existing Lab Technician - Grade III vacancies by G.O.Ms.No.335, Health and Family Welfare (EAP 1/2) Department dated 15/10/2008.
16. This fact was also been taken note of while disposing of the batch of writ petitions referred to above and it would be useful to extract the relevant passage in this regard.
"At this juncture, it is again to be pointed out that Laboratory Technicians Grade - III and also Field Assistant posts have been created by the State in order to give job opportunity to the CMLT candidates who were on the fond hope of getting the job. Under the circumstances, this Court is of the considered opinion that while dismissing the writ petitions, it would be fit and proper to issue a direction to the State to fill up the vacancies from the DMLT course candidates and the rest from the CMLT course candidates."
17. Yet another factor that has to be borne in mind is that except few persons who have been appointed as Contract Laboratory Technicians and Laboratory Supervisors others have not been appointed from the employment exchange seniority list. While so, could they have any preference over the persons who have registered themselves in the employment exchange number of years back and were waiting on the fond hope of getting an employment, considering their seniority.
18. In this connection, it would be useful to lay the hands on the decision of the Honourable Apex Court reported in 2007 (2) SCC - 491 (PUNJAB WATER SUPPLY & SEWERAGE BOARD .VS. RANJODH SINGH AND OTHERS WITH CIVIL APPEAL NO.5633 OF 2006 PUNJAB WATER SUPPLY & SEWERAGE BOARD, HOSHIARPUR .VS. HARI HAR YADAV AND OTHERS). Paragraph Nos. 12 to 16 and 18 of the said judgment is usefully extracted hereunder.
"12. In regard to the contention that the workmen had been working for years and many of them had already crossed the age fixed for entry to the government service, as such they are entitled to regularisation, it was opined(SCC pp 354-55, Para 6).
"6. No person illegally appointed or appointed without following the procedure prescribed under the law, is entitled to claim that he should be continued in service. In this situation, we see no reason to interfere with the impugned order. The appointees have no right to regularisation in the service because of the erroneous procedure adopted by the authority concerned in appointing such persons."
13. The dicta of the said decision, however, was not followed by the High Court.
14. Once it is held that the terms and conditions of service including the recruitment of employees were to be governed either by the statutory rules or rules framed under the proviso to Article 309 of the Constitution of India, it must necessarily be held that any policy decision adopted by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be illegal and without jurisdiction. In A. Umarani .vs. Registrar, Co-op. Societies a three-judge Bench of this Court has opined(SCC P.126, Para 45) "45. No regularisation is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules."
It was further held: (SCC PP 126-27, para 49) "49. It is trite that appointments cannot be made on political considerations and in violation of the government directions for reduction of establishment expenditure or a prohibition on the filling up of vacant posts or creating new posts including regularisation of daily-waged employees(See Municipal Corporation, Bilaspur .vs. Veer Singh Rajput)
15. The question came up for consideration before a Constitution Bench of this Court in Secretary, State of Karnataka .vs. Umadevi, wherein it was held that no person who was temporarily or casually been employed could be directed to be continued permanently. It was opined that by doing so it would be creating another mode of public employment which is not permissible.
16. The learned counsel appearing on behalf of the respondents, however, placed strong reliance on paras 15,16 and 53 of the said judgment to contend that the Constitution Bench itself directed the Central or State Government to consider and adopt a one-time measure for regularisation of services of the employees whose appointments were irregular. For the sake of clarity, we would reproduce the said paragraphs(SCC pp 24-25 and 42) "15. Even at the threshold, it is necessary to keep in mind the distinction between regularisation and conferment of permanence in service jurisprudence. In State of Mysore .vs. S.V.Narayanappa this Court stated that it was a misconception to consider that regularisation meant permanence. In R.N.Nanjundappa .vs. T.Thimmiah this Court dealt with an argument that regularisation would mean conferring the quality of permanence on the appointment. This Court stated"(SCC pp 416-17, Para 26) 'Counsel on behalf of the respondent contended that regularisation would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularisation did not mean permanence but that it was a case of regularisation of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."
16. In B.N.Nagarajan .vs. State of Karnataka this Court clearly held that the words 'regular' or 'regularisation' do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This Court emphasised that when rules framed under Article 309 of the Constitution are in force, no regularisation is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of the rules. These decisions and the principles recognised therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularised and that it alone can be regularised and granting permanence of employment is a totally different concept and cannot be equated with regularisation.
18. Distinction between irregularity and illegality is explicit. It has been so pointed out in National Fertilisers .vs. Somvir Singh in the following terms(SCC pp 500-01, paras 23-25) "23. The contention of the learned counsel appearing on behalf of the respondents that the appointments were irregular and not illegal, cannot be accepted for more than one reason. They were appointed only on the basis of their applications. The Recruitment Rules were not followed. Even the Selection Committee had not been properly constituted. In view of the ban on employment, no recruitment was permissible in law. The reservation policy adopted by the appellant had not been maintained. Even cases of minorities had not been given due consideration.
24. The Constitution Bench thought of directing regularisation of the services only of those employees whose appointments were irregular as explained in State of Mysore .vs. S.V.Narayanappa, R.N.Nanjundappa .vs. T.Thimmiah and B.N.Nagarajan .vs. State of Karnataka wherein this Court observed:(Umadevi(3) case, SCC p. 24, Para 16) '16. In B.N.Nagarajan .vs. State of Karnataka this Court clearly held that the words "regular" or "regularisation" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments.'
25. Judged by the standards laid down by this Court in the aforementioned decisions, the appointments of the respondents are illegal. They do not, thus, have any legal right to continue in service.'(See also State of M.P .vs. Yogesh Chandra Dubey and State of M.P .vs. Lalit Kumar Verma)."
19. In yet another decision reported in 2007 (1) SCC - 408 (INDIAN DRUGS AND PHARMACEUTICALS LIMITED .VS. WORKMEN, INDIAN DRUGS AND PHARMACEUTICALS LIMITED, paragraph Nos.30 and 31 could be usefully extracted hereunder:-
30. In paras 46 to 48 of the judgment, this court also observed that temporary, contractual, casual or daily wage ad hoc employees appointed dehors the constitutional scheme to public employment have no legitimate expectation to be absorbed or, regularised or granted permanent continuation in service on the ground that they have continued for a long time in service. It was observed by this Court that non-grant of permanent continuation in service of such employees does not violate Article 21 of the Constitution and such employees do not have any enforceable legal right to be permanently absorbed, nor to be paid salary of regular employees. A regular process of recruitment or employment has to be resorted to when regular vacancies and posts are to be filled up. This Court further observed that public employment must comply with Articles 14 and 16 of the Constitution as the rule of equality in public employment is a basic feature of the Constitution.
31. No doubt, there can be occasions when the State or its instrumentalities employ persons on temporary or daily wage basis in a contingency as additional hands without following the required procedure, but this does not confer any right on such persons to continue in service or get regular pay. Unless the appointments are made by following the rules, such appointees do not have any right to claim permanent absorption in the establishment."
20. In yet another decision reported in 2008 (6) MLJ - 1229, the Principal Bench while considering the Notification issued by the Government for temporary appointment for the post of Motor-vehicle Inspectors Grade II, has held that such impugned Notification is arbitrary and violative of Article 14 and 16 of the Constitution of India. Paragraph 19 - a is usefully extracted hereunder:-
19[a] The Honourable Supreme Court considered the validity of appointment made de hors to the rules in Secretary, State of Karnataka v. Umadevi AIR 2006 SC 1806: (2006) 4 SCC 1: (2006)2 MLJ 326: 2006-II-LLJ-722. In paragraphs 11 and 12 the Supreme Court held thus at p.336 of MLJ:
"11. ....... the equality clause represented by Article 14 of the Constitution, Article 16 has specifically provided for equality of opportunity in matters of public employment. Buttressing these fundamental rights, Article 309 provides that subject to the provisions of the Constitution, Acts of the legislature may regulate the requirement and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State. In view of the interpretation placed on Article 12 of the Constitution by this Court, obliviously, these principles also govern the instrumentalities that come within the purview of Article 12 of the Constitution. With a view to make the procedure for selection fair, the Constitution by Article 315 has also created a Public Service Commissions for the Union and the Public Service Commissions for the States. Article 320 deals with the functions of the Public Service Commissions and mandates consultation with the Commission on all matters relating to methods of recruitment to civil services and for civil posts and other related matters. As a part of the affirmative action recognised by Article 16 of the Constitution, Article 335 provides for special consideration in the matter of claims of the members of the Scheduled Castes and Scheduled Tribes for employment. The States have made Acts, rules or regulations for implementing the above constitutional guarantees and any recruitment to the service in the State or in the Union is governed by such Acts, rules and regulations. The Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set down therein.
12.In spite of this scheme, there may be occasions when the sovereign State or its instrumentalities will have to employ persons, in posts which are temporary, on daily wages, as additional hands or taking them in without following the required procedure, to discharge the duties in respect of the posts that are sanctioned and that are required to be filled in terms of the relevant procedure established by the Constitution or for work in temporary posts or projects that are not needed permanently. This right of the Union or of the State Government cannot but be recognised and there is nothing in the Constitution which prohibits such engaging of persons temporarily or on daily wages, to meet the needs of the situation. But the fact that such engagements are resorted to, cannot be used to defeat the very scheme of public employment. Nor can a Court say that the Union or the State Governments do not have the right to engage persons in various capacities for a duration or until the work in a particular project is completed. Once this right of the Government is recognised and the mandate of the constitutional requirement for public employment is respected, there cannot be much difficulty in coming to the conclusion that it is ordinarily not proper for the Courts whether acting under Article 226 of the Constitution or Article 32 of the Constitution, to direct absorption in permanent employment of those who have been engaged without following a due process of selection as envisaged by the Constitutional scheme'. (emphasis supplied).
21. In (2008) 1 SUPREME COURT CASES - 798 (NAGENDRA CHANDRA AND OTEHRS Vs. STATE OF JHARKHAND AND OTHERS), it has been held that appointment made in infraction of the recruitment Rules are liable to be cancelled as it is violative of Article 14 and 16 of the Constitution of India. Paragraph 19 (9) of the said judgment is usefully extracted hereunder:-
"9.In view of the foregoing discussion, we have no option but to hold that if an appointment is made in infraction of the recruitment rules, the same would be violative of Articles 14 and 16 of the Constitution and being nullity would be liable to be cancelled. In the present case, as the vacancies were not advertised in the newspapers, the appointments made were not only in infraction of Rule 663(d) of the Bihar Police Manual but also violative of Articles 14 and 16 of the Constitution, which rendered the appointments of the appellants as illegal; as such the competent authority was quite justified in terminating their services and the High Court, by the impugned order, was quite justified in upholding the same.
22. Now, considering the present case on hand, the Government could have directed Laboratory Technicians/Laboratory Supervisors working in RNTCP Programme to compete with candidates of CMLT. However, since the Government had preferred them over the CMLT candidates, disaster has started. Such preference given to the persons who have not been appointed through employment exchange cannot stand legal scrutiny.
22. The learned Additional Advocate General, relying on the decision reported in (2008) 7 SUPREME COURT CASES - 153 (PRAMOD KUMAR Vs. U.P.SECONDARY EDUCATION SERVICES COMMISSION AND OTHERS), contended that though illegality cannot be cured, irregularity can be cured. Since in the present case on hand, employment of contract Laboratory Technicians/Laboratory Supervisors working in RNTCP Programme could not be considered as illegal but could only be irregular and it could be cured.
23. Yet another decision that has been relied upon by the Additional Advocate General is reported in (2007) 4 SUPREME COURT CASES - 54 (ASHOK KUMAR SONKAR Vs. UNION OF INDIA AND OTHERS). Emphasis was made on paragraph 34 which is usefully extracted hereunder:-
"It is not a case where appointment was irregular. If an appointment is irregular, the same can be regularised. The Court may not take serious note of an irregularity within the meaning of the provisions of the Act. But if an appointment is illegal, it is non est in the eye of the law, which renders the appointment to be a nullity."
24. However, in the present case on hand, the question of illegal or irregular appointment does not arise. When the Service Rules have been amended by virtue of G.O.Ms.No.115, Health and Family Welfare (C 2) Department dated 3/4/2007 amending the Special Rules for the Tamil Nadu Public Health Subordinate Service creating a post of Laboratory Technician Grade III by fixing the following qualifications namely:-
(i) must have passed plus two examination
(ii). must possess certificate in Medical Lab Technology (one year duration course)
(iii). must have a good physique, good vision and capacity to do outdoor work, whether the Government by way of G.O., without amending the Rules could direct the appointment of Lab Technicians and Lab Supervisors working in RNTCP on contract basis to the said post. The only answer that could be given is that such Notification by the Government without amending the Special Rules especially in the background of G.O.Ms.No.115 Health and Family Welfare (C 2) Department referred to above prescribing qualifications for the said post, is totally erroneous. The various pronouncements referred to above would indicate that such appointment is bad in law and violative of Article 14 and 21 of the Constitution of India.
25. In fine, G.O.Ms.No.335 Health and Family Welfare (EAP 1/2) Department dated 15/10/2008 issued by the first respondent seeking to appoint contract Laboratory Technicians/Laboratory Supervisors working in RNTCP programme in the existing Lab Technician/Grade III vacancies is liable to be quashed and accordingly quashed.
26. These writ petitions stand allowed. No costs. Consequently, the connected Miscellaneous Petitions are closed.
mvs To
1. The Secretary to Government Health and Family Welfare Department Fort St. George, Chennai.
2. The Director of Public Health and Preventive Medicine, Chennai.
3. The Commissioner Employment and Training Department Guindy, Chennai 600 032.