Madras High Court
M. Ramesh Kumar vs The Secretary To Government on 17 July, 2008
Author: N.Paul Vasanthakumar
Bench: N.Paul Vasanthakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17-7-2008 CORAM: THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.7061 of 2008 & M.P.No.1 of 2008 W.P.No.7062 of 2008 & M.P.No.1 of 2008 W.P.No.7136 of 2008 & M.P.No.1 of 2008 W.P.No.7137 of 2008 & M.P.No.1 of 2008 W.P.No.7138 of 2008 & M.P.No.1 of 2008 W.P.No.7139 of 2008 & M.P.No.1 of 2008 M. Ramesh Kumar ... Petitioner in W.P.No.7061 of 2008 R. Dhanalakshmi ... Petitioner in W.P.No.7062 of 2008 V. Katturaja ... Petitioner in W.P.No.7136 of 2008 M.D. Muthu ... Petitioner in W.P.No.7137 of 2008 N. Jancy ... Petitioner in W.P.No.7138 of 2008 G. Vanithasri ... Petitioner in W.P.No.7139 of 2008 Vs. 1. The Secretary to Government, Health & Family Welfare Department, Fort St.George, Chennai - 600 009. 2. The Director of Medical Education, Chennai. 3. The Director of Medical & Rural Health Services, Chennai - 600 006. 4. The Director of Public Health & Preventive Medicines, Chennai - 600 006. 5. The Dean, Stanley Medical College, Chennai. 6. The Superintendent, Government Hospitals, Royapettah, Chennai - 600 014. 7. The Dean, Stanley Medical College, Chennai. 8. The Director, Institute of Obstetrics & Gynecology, Egmore, Chennai - 600 008. 9. The Dean, Government General Hospital, Chennai. 10. The Dean, Madras Medical College, Chennai. 11. The Director, Institute of Child Health, Egmore, Chennai - 600 008. 12. The Superintendent, Otteri T.B.Hospital, Chennai - 600 012. 13. The Director, King Institute of Preventive Medicines, Guindy, Chennai. 14. The Dean, Kilpauk Medical College, Chennai. 15. The Dean, Kilpauk Hospital, Chennai. 16. The District Employment Officer, Santhome High Road, Mylapore, Chennai - 600 004. ...Respondents in all the writ petitions COMMON PRAYER: Writ Petitions filed under Article 226 of the Constitution of India, to issue a Writ of Declaration, declaring that the recruitment of Laboratory Technician Grade-II in the State Government Service on the basis of District-wise Employment Exchange Seniority as illegal, unconstitutional, violative of Articles 14 and 16 of the Constitution of India read with the Recruitment Rules, namely the Tamil Nadu Medical Subordinate Service Rules, consequently forbearing the respondents from recruiting candidates on the basis of District-wise Employment Exchange Seniority for the post of Laboratory Technician Grade-II in the forthcoming vacancies starting from Chennai to other district. For Petitioners : Mr.K.M.Vijayan, Sr.Counsel for Mr. V.Chandrasekaran For Respondents : Mr.N.Kannadasan, Addl.Advocate General, assisted by Mr.G.Sankaran, Special Govt. Pleader & Mrs.E.Ranganayagi, Government Advocate COMMON ORDER
By consent of both parties, the writ petitions are taken up for final disposal.
2. Prayer in these writ petitions are to issue a writ of declaration, declaring that the recruitment of Laboratory Technician Grade-II in the State Government Service on the basis of District-wise employment exchange seniority is illegal, unconstitutional, violative of Articles 14 and 16 of the Constitution of India, read with Recruitment Rules, viz., Tamil Nadu Medical Subordinate Service Rules and consequently forbear the respondents from recruiting candidates on the basis of District-wise Employment Exchange Seniority for the post of Laboratory Technician Grade-II in the forthcoming vacancies.
3. The case of the petitioners is that they have successfully completed Diploma in Medical Laboratory Technology and got themselves registered before the District Employment Exchange (Petitioners in W.P.Nos.7061 & 7137 of 2008 in the year 2001; Petitioners in W.P.No.7062 & 7138 of 2008 in the year 2002; Petitioners in W.P.Nos.7136 & 7139 of 2008 in the year 1997). According to the petitioners, they are fully qualified and eligible to be appointed to the post of Lab Technician Grade-II. The Special rules for the said post viz., Tamil Nadu Medical Subordinate Service Rules, which was amended through G.O.Ms.No.39 Health and Family Welfare Department, dated 5.2.2007, states that Diploma in Medical Laboratory Technology (DMLT) candidates should be given preference for appointment as Lab Technician Grade-II. The said Government Order was also upheld by this Court in W.P.No.19237 of 2007 etc., batch by order dated 23.10.2007. When vacancies arose, the Appointing Authorities viz., respondents 5 to 15 received list of candidates from the District Employment Officer, Chennai, who is the 16th respondent, for giving appointment by following the District-wise seniority. According to the petitioners, candidates registered in the year 2007 and even in the year 2008, who are far juniors than the petitioners in the Employment Exchange registration were called for interview. The said action of the respondents 5 to 15 to call for the list of eligible candidates only from the 16th respondent viz., District Employment Office, Chennai is contrary to the Tamil Nadu Medical Subordinate Service Rules, which states that the Lab Technician Grade-II post is a State Cadre post and persons holding the said post can be transferred through out the State. The grievance of the petitioners are that when the post is a State Cadre post, preferring the employment exchange seniority of a particular district for appointment, is violative of the fundamental right guaranteed under Article 16(2) of the Constitution of India. According to the petitioners, in Kancheepuram District only 10 vacancies are available, for which 70 DMLT candidates have registered and awaiting for employment from 1997. The persons, who have completed the course long after the petitioners and registered their names in the Employment Exchange, Chennai, having been called for, without considering the State as a Unit as well as the seniority of employment registration through out the State, is violative of fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India as the petitioners are deprived of their participating in the selection.
4. Respondents 5 to 15 have filed counter affidavit wherein it is admitted that the post of Lab Technician Grade-II is governed by the Special Rules applicable to the Tamil Nadu Medical Subordinate Services under Branch IV - General under Class-III as Category No.2. It is denied in the counter affidavit that the said post is a State Cadre post and whenever vacancies arise in the respective Medical Institution, the Deans/Superintendents recruit the candidates by addressing the concerned District Employment Office and the District Employment Officer will sponsor the candidates with required qualification strictly in accordance with the District Employment Exchange registration seniority and the said practice is being adopted for several years. In paragraph 3 of the counter affidavit it is stated that if a person is appointed in a particular post in a particular Medical Institution, he will have the seniority based on his date of appointment and in case he is transferred on his own request out of the Medical Institution, where he was originally appointed, he will lose the seniority in the particular Medical Institution and he will be placed as the junior-most among the Lab Technician Grade-II, already working in the transferred Institution. Pointing out the said contentions and the prevailing present practice for several years, the respondents 5 to 15 pray for dismissal of the writ petitions.
5. The learned Senior Counsel appearing for the petitioners submits that even though in the counter affidavit it is stated about the transfer on request, the counter affidavit is silent about the transfer of Lab Technician Grade-II outside the District on administrative exigency and in fact several transfers are being made from one district to another by the Head of the Department viz., the Director of Medical and Rural Health services, the Director of Public Health and Preventive Medicines and the said fact cannot be disputed and therefore the post cannot be treated as District Cadre Post. The learned Senior Counsel also submitted that similar issue with regard to the appointment of Secondary Grade Teachers by following the seniority as per the registration in the District Employment Exchange was held illegal by a Division Bench of this Court in W.A(MD)No.119 of 2008 dated 14.5.2008 and appointment of Drawing Teachers on the basis of Employment Exchange registration seniority in the District was also found illegal by another Division Bench (First Bench) of this Court in the decision made in W.A.No.533 of 2008 dated 7.7.2008 and the said judgments are equally applicable to these cases.
6. The learned Additional Advocate General appearing for respondents submitted that in the Division Bench decision made in W.P.No.33647 of 2007 dated 29.4.2008 insofar as the ministerial post of the District Court, Tiruvallur District, District Employment Exchange registration seniority was upheld and it will not offend Articles 14 and 16(2) of the Constitution of India and therefore the request of the petitioners to appoint Lab Technicians Grade-II post on the State-wise Employment Exchange registration seniority is unsustainable.
7. I have considered the rival submissions made by the learned Senior Counsel appearing for the petitioners as well as learned Additional Advocate General appearing for the respondents.
8. Admittedly Lab Technician Grade-II post is a transferable post from one district to another district and only on request transfer one would get junior-most place in the transferred place. Further, promotions to various categories of posts are also made to higher post based on the state-wise seniority list. Hence the appointment of Lab Technician Grade-II post cannot be treated as District Cadre post. Once the post is not found to be District Cadre post, the respondents are not entitled to invite the candidates registered in a particular district for appointment as the same is violative of Articles 14 and 16(2) of the Constitution of India i.e., giving employment based on residential qualification alone. A Division Bench of this Court in the judgment made in W.A(MD)No.119 of 2008 dated 14.5.2008 (The Unemployed Secondary Grade Teachers Welfare Association v. The State of Tamil Nadu), in paragraphs 34 and 35 considered the very same issue and held as follows:
"34. As a matter of fact the decision of the Supreme Court in (2002) 6 SCC 562 (cited supra) is a complete answer to such imaginary excuses putforth by the State. In a very recent decision, the Supreme Court has expressed its grave concern relating to possible balkanization of the country because of the spread of non-tolerance displayed in some parts of the country. The submissions which are now being made by the learned Additional Advocate General or the counsel for the Interveners bring only to fore the above unwelcome trend. We do not think that such a course can ever be countenanced. As a citizen of India one has to imbibe the spirit of the Constitution and follow the adage made famous by no less a personality than Justice Krishna Iyer that "Kashmir to Kanyakumari, India is one". However, a reading of the counter filed by the State Government and the stand so painstakingly putforth by the learned Additional Advocate General, though more in desperation rather than with any conviction, one gets the feeling that even though Kashmir to Kanyakumari - India may be one, Dharmapuri to Kanyakumari - Tamil Nadu is not one. The net result of the policy hitherto followed by some curious logic is that a duly qualified person, who is born in one part of the Tamil Nadu and gets himself registered in the district of his residence, cannot seek employment under the Government in another district of the very same State. If this does not amount to denial of right to equality under Article 14 and more particularly Article 16(2) and the right under Article 19(1), we fail to imagine what else can be the denial of such fundamental rights.
35. In view of the above discussion, in our considered opinion, confining the question of selection to the candidates sponsored by the Employment Exchange of a particular district without considering the willingness, availability and suitability of similar candidates who have been registered in the other district employment exchanges, is clearly violative of fundamental rights and, therefore, cannot be countenanced. The impugned G.O.Ms.No.447, dated 16.7.1996 is liable to be quashed. Accordingly, a direction is issued to consider the question of selection of eligible candidates, even though such candidates' names have been registered in other District Employment Exchanges. For the aforesaid purpose, obviously intimation is required to be given to all the District Employment Exchanges and public advertisement throughout the State is required to be made so that any willing candidate even though registered in a different district can offer his candidature."
(Emphasis supplied) The said Division Bench Judgment was recently followed by the Division Bench of this Court (First Bench) in W.A.No.533 of 2008 dated 7.7.2008 (Senthil Kumar v. State of Tamil Nadu & others) insofar as appointment of Drawing Teachers in Government schools is concerned. The First Bench answered the said issue by observing as follows:
"................. This question has been answered by the Division Bench of this Court (Madurai Bench) in an unreported judgment dated 14.5.2008 in THE UNEMPLOYED SECONDARY GRADE TEACHERS WELFARE ASSOCIATION v. STATE OF TAMIL NADU BY ITS SECRETARY, DEPARTMENT OF SCHOOL EDUCATION AND THE DIRECTOR OF ELEMENTARY EDUCATION (W.A.No.119 of 2008).
2. Learned Government Pleader for the State submits that though the State has filed Special Leave Petition against the said judgment and fate of S.L.P. is awaited. In terms of the said judgment, the State has to publish advertisement through out the State for vacancies which shall accrue for the post of Teachers whether such vacancy accrues from another District or local Employment Exchange. In the instant case, the appellant is a Drawing Teacher and he is aggrieved by the judgment dated 3.3.2008 passed by the learned Judge, which runs as follows:-
"The only reason for this writ petition is some information that the petitioner had obtained under the Right to Information Act from the Chief Educational Officer, Namakkal, Villupuram, Nilgiris and Thanjavur. That does not give the petitioner the cause of action to seek a mandamus. There is no right to be appointed either. Hence the writ petition is dismissed."
The appellant registered his name in the District Employment Exchange, Karur, and the information of the appellant is that there are vacancies for the post of Teachers in some other Districts and he should be considered for appointment against those vacancies.
3. Since the stand of the State Government that in respect of such vacancies there shall be an advertisement in the Newspaper before such vacancies are filled up, we dispose of the writ appeal by giving a direction to the respondents that if any such advertisement appears, the appellant may apply for being considered for such vacancy even though his name has been registered in the Employment Exchange at Karur, with other candidates on merits in accordance with his seniority. This Court makes it clear that no such appointment shall be made without following the ratio of the judgment of the Division Bench without following the ratio of the judgment of the Division Bench referred to above. .........."
9. The decision of the Division Bench cited by the learned Additional Advocate General made in W.P.No.33647 of 2007 dated 29.4.2008 (Amirthaveni v. The District Employment Exchange Officer, Dharmapuri District & Others) relates to filing up of different ministerial posts such as Examiners of copies, Readers, Copyists, Senior Bailiffs, Office Assistants, Masalchies, Watchmen, Xerox Operators, Drivers, etc., in the District Court, Tiruvallur. In the said case, the posts, which are to be filed up are admittedly within the District cadre. The Division Bench, while upholding the said procedure, also held that the choice of selection cannot be restricted only from the persons sponsored by the local Employment Exchange, but also by giving a publication in the newspapers having wider circulation calling for applications, if more number of vacancies are to be filled up at a time.
10. Issue in this aspect is also well settled in the following decisions of the Honourable Supreme Court and Full Bench of this Court:
(a) In the decision reported in (1996) 6 SCC 216 (Excise Superintendent Malkapatnam, Krishna District, A.P. V. K.B.N.Visweshwara Rao and others) the Honourable Supreme Court has stated as under in paragraph 6:
"6. ............. Under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates."
(Emphasis Supplied)
(b) In (2006) 2 SCC 482 (Union Public Service Commission v. Girish Jayantilal Veghela) the Honourable Supreme Court has stated the legal position as under in paragraph 12:
"12. .......... A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution."
(Emphasis Supplied)
(c) In (2006) 8 SCC 111 (Arun Kumar Nayak v. Union of India) paragraph 9 reads as under:
"9. This Court in Visweshwara Rao, therefore, held that intimation to the employment exchange about the vacancy and candidates sponsored from the employment exchange is mandatory. This Court also held that in addition and consistent with the principle of fair play, justice and equal opportunity, the appropriate department or establishment should also call for the names by publication in the newspapers having wider circulation, announcement on radio, television and employment news bulletins and consider all the candidates who have applied. This view was taken to afford equal opportunity to all the eligible candidates in the matter of employment. The rationale behind such direction is also consistent with the sound public policy that wider the opportunity of the notice of vacancy by wider publication in the newspapers, radio, television and employment news bulletin, the better candidates with better qualifications are attracted, so that adequate choices are made available and the best candidates would be selected and appointed to subserve the public interest better."
(Emphasis Supplied)
(d) In the Full Bench decision of this Court reported in 2007 (5) CTC 561 (Sivakumarai R. v. Ramanathapuram Mavatta Payirchipetra Edainilai Asiriyargal Sangam) in para 24, it has been stated as under:
"24. Therefore, if the recruitment of about four thousand secondary grade teachers to the Government Schools, were to be made in accordance with the law laid down by the Supreme Court, the respondents ought to have followed the following procedure namely, A. Notify the Employment Exchanges.
B. Issue publications in newspapers having wide circulation, inviting applications.
C. Display the notification in the notice boards of the respective offices or make announcements in the media."
11. In the light of the above referred Supreme Court decisions, Full Bench as well as Division Bench judgments of this Court, the respondents are not entitled to select Lab Technicians Grade-II only from the list obtained from the local District Employment Exchange and intimation is required to be given to all the District Employment Exchanges and publication of advertisements through out the State is required to be made so that the willing candidates, even though registered in different districts in the State can offer their candidature for selection.
The writ petitions are allowed. No costs. Connected miscellaneous petitions are closed.
vr To
1. The Secretary to Government, Health & Family Welfare Department, Fort St.George, Chennai - 600 009.
2. The Director of Medical Education, Chennai.
3. The Director of Medical & Rural Health Services, Chennai - 600 006.
4. The Director of Public Health & Preventive Medicines, Chennai - 600 006.
5. The Dean, Stanley Medical College, Chennai.
6. The Superintendent, Government Hospitals, Royapettah,Chennai-600014
7. The Dean, Stanley Medical College, Chennai.
8. The Director, Institute of Obstetrics & Gynecology, Egmore, Chennai - 600 008.
9. The Dean, Government General Hospital, Chennai.
10. The Dean, Madras Medical College, Chennai.
11. The Director, Institute of Child Health, Egmore, Chennai - 600 008.
12. The Superintendent, Otteri T.B.Hospital, Chennai - 600 012.
13. The Director, King Institute of Preventive Medicines, Guindy, Chennai.
14. The Dean, Kilpauk Medical College, Chennai.
15. The Dean, Kilpauk Hospital, Chennai.
16. The District Employment Officer, Santhome High Road, Mylapore, Chennai 600 004