Madras High Court
Tamil Nadu Sanitary Supervisors ... vs )The State Of Tamil Nadu on 23 March, 2016
Bench: S.Manikumar, C.T.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.03.2016
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE C.T.SELVAM
Writ Appeal(MD)No.172 of 2016
and
C.M.P(MD)No.866 of 2016
Tamil Nadu Sanitary Supervisors Association,
Rep. by its President,
K.Karuppaiah
K.P.Nivas, No.52, Malligaipuram,
Srinivasapuram,
Thanjavur-613 009. .... Appellant
vs.
1)The State of Tamil Nadu,
Rep by its Secretary to Government,
Municipal Administration & Water Supply Department,
Secretariat, For St.George,
Chennai-600 009.
2)The State of Tamil Nadu,
Rep. by its Secretary to Government,
Public Health & Family Welfare Department,
Fort St.George,
Chennai-600 009.
3)The Commissioner of Municipal Administration,
Chepauk,
Chennai-600 009.
4)The Director of Public Health & Preventive Medicine,
Teynampet,
Chennai-600 018. .... Respondents
Appeal filed under Clause 15 of Letters Patent, against the order made
in W.P(MD)No.7994 of 2012 dated 12.02.2015.
!For Appellant : Mr.Veera Kathiravan
^For Respondents : Mr.A.K.Baskarapandian, Special Government Pleader
:JUDGMENT
(Judgment of the Court was made by Mr.Justice S.MANIKUMAR) Tamil Nadu Sanitary Supervisors Association, represented by its President, Thanjavur, has filed W.P(MD)No.7994 of 2012, for the following relief:-
''Writ of Mandamus directing the respondents, to fill up the vacancies to the post of Sanitary Inspector as per Regulation (2) of the Tamil Nadu Municipal Public Health Service Regulations, 1970 with eligible persons, working in the post of Sanitary Supervisors/Field Assistants, by recruitment by transfer, by allowing them to complete the Condensed Training Programme for Sanitary Inspector Course to be conducted by the 4th respondent within a time frame to be fixed by this Court.''
2. After hearing the learned counsel for the parties therein, and taking note of an amendment, issued to the said regulations, vide order dated 12.02.2015, the Writ Court, dismissed the abovesaid writ petition. Aggrieved by the same, present appeal is filed.
3. Facts leading to the appeal, are that the members of the appellant/petitioner's Association are employed as Sanitary Supervisors/Field Assistants, in the local bodies, within the State of Tamil Nadu and they are governed by the provisions of the Tamil Nadu Municipal (Non Centralized Regular) Public Health Establishment Regulations, 1976. According to them, they are eligible for promotion to the post of Sanitary Inspector, by transfer of service, as per the Tamil Nadu Public Health Regulations, 1970. The post of Sanitary Inspector, is in category I, class IV.
4. The appellant/petitioner's Association has further contended that in the event of no qualified candidates for appointment to the post of Sanitary Inspector, by recruitment by transfer, from the category of Sanitary Supervisors/Field Assistants, appointment should be made by direct recruitment.
5. The appellant has further contended that the qualifications for the post of Sanitary Inspector are that; one
(a) must possess a Sanitary Inspector's Certificate granted by the Additional Director of Health Services and Family Planning, Chennai, as the Chairman, Board of Examiners, constituted by Government in this behalf; or must possess a Health Inspector's Certificate awarded by the Principal, Medical College, Trivandrum; or must possess a Sanitary Inspector's Certificate awarded by the Director of Public Health, Bombay; or Sanitary Inspector Certificate awarded by the Gandhigram Rural Institute; and
(b) must possess physical fitness for camp life and satisfy the physical standard prescribed for Health Inspectors.
6. The appellant/petitioner's Association has further contended till 1981, the post of Sanitary Supervisor / Field Assistant were under the control of the Health Department. Thereafter, the above posts were brought under the control of Municipal Administration Department. Until 1981, Sanitary Inspector Certificate courses were conducted by the Health Department, so as to enable the Sanitary Supervisors/Field Assistants, working in local bodies to get promotion to the post of Sanitary Inspector.
7. According to the appellant, the training programme was abruptly stopped in the year 1981, after the post of Sanitary Supervisor and Field Assistant were brought under the control of the Municipal Administration Department. Thereafter, Sanitary Supervisors have to undergo the training course for issuance of Sanitary Inspector Certificate in Gandhigram Rural Institute, a Government recognised deemed University. The said institute has also abolished the Sanitary Inspector Certificate course and started P.G diploma in Sanitary Science, for which, the basic qualification is B.Sc., Chemistry. As Gandhigram Rural Institute no longer continued the Sanitary Inspector Certificate Course, Sanitary Supervisors working in Municipalities have lost their opportunities, to undergo the training course, for issuance of Sanitary Inspector Certificate from the said institute and consequently, lost their opportunities, to get promotion to the post of Sanitary Inspector, by recruitment by transfer.
8. When the grievance of the members of the appellant was ventilated to the Government, to restart the Sanitary Inspector Certificate Course, so as to enable them, to acquire the qualification for promotion to the post of Sanitary Inspector, by recruitment by transfer, the State Government commenced a Condensed Training Programme. Accordingly, eligible Sanitary Supervisors/Field Assistants working in various Municipalities, within the State of Tamil Nadu, were selected for six months training programme, for the Sanitary Inspector Certificate course, in the year 2005. In the first batch, 36 persons were given training and they were permitted to undergo training at their own cost. The period of training was to be treated as leave to which, they were eligible. Subsequent to the completion of training, they were promoted to the post of Sanitary Inspector, in various Municipalities, by recruitment by transfer, as per the rules.
9. Though a list of eligible persons to undergo the training, was prepared, no further action was taken, for the second batch. Taking advantage of the rule position, which states that appointment to the post of Sanitary Inspector can be made by direct recruitment, in the event of no qualified persons, the respondents started taking steps to fill up the vacancies in the post of Sanitary Inspector, by direct recruitment, by calling for a list of eligible candidates, from the District Employment Exchange.
10. As the members of the appellant's Association were not deputed for training, the Association was constrained to file W.P.31795 of 2006, for a Writ of Mandamus, forbearing the respondents therein, from filling up the post of Sanitary Inspector, by direct recruitment, in violation of Regulation (2) of the Tamil Nadu Municipal Public Health Services Regulations, 1970, and consequently, to fill up the posts of Sanitary Inspector, by recruitment by transfer, as per the Regulations, by allowing the eligible persons to complete the training programme for Sanitary Inspector Course.
11. By order, dated 07.09.2006, the abovesaid writ petition was admitted and an interim direction was granted, directing the respondents therein, to send the petitioners therein, to undergo the Condensed Training Programme for Sanitary Inspector Course, conducted by the 4th respondent. Pursuant thereto, the respondents allowed the eligible candidates, to undergo the abovesaid training, based on which, the Director of Public Health & Preventive Medicine, Chennai/4th respondent also conducted the training, as per the proceedings dated 10.04.2007. After successful completion of the training programme, Sanitary Supervisors/Field Assistants were given promotion as Sanitary Inspectors, by recruitment by transfer, as per the rules.
12. The Association has further contended that after 2007 batch, the respondents have conducted another training programme, for a batch of students in the year 2010, based on which, they were given promotion as Sanitary Inspector, in July 2010. It is further contended that after 2010, there was no sponsorship for the eligible candidates, working as Sanitary Supervisors/Field Assistants, to undergo the Condensed Training programme, to qualify themselves for promotion to the post of Sanitary Inspector. According to the petitioner's association, at the time of filing of the writ petition, there were more than 250 vacancies available in the post of Sanitary Inspector, in the Municipalities, throughout the State.
13. The appellant has further submitted that by proceedings in Na.Ka.No.37113/2011/J4 dated 16.08.2011, the 3rd respondent has called for a list of eligible persons from all the Regional Directors of Municipal Administration, who in turn, have called for the particulars from the concerned Municipalities within their jurisdiction. Accordingly, a list of 50 eligible persons working as Sanitary Supervisors/Field Assistants was forwarded to the Commissioner of Municipal Administration, Chennai/3rd respondent, to undergo the Condensed Training Programme. It is the grievance of the appellant that even after receipt of the abovesaid list, the Commissioner of Municipal Administration, Chennai/3rd respondent has not forwarded the same to the Director of Public Health & Preventive Medicine, Chennai/4th respondent, who is the authority to conduct the abovesaid training programme for the abovesaid list of candidates.
14. The appellant/petitioner's Association has further contended that it is incumbent on the part of the respondents, to assess the number of vacancies, every year, and to prepare a list of eligible persons, to undergo the training programme, in order to fill up the existing vacancies to the post of Sanitary Inspector. Therefore, the appellant has submitted that the members of Association, cannot be deprived of their promotion, by not permitting them to undergo the training programme, as required under the rules.
15. It is further contended that the members of the appellant's Association, are working in the post of Sanitary Supervisor / Field Assistant, from the date of their appointment for a long time, and they have been deprived of their promotion, due to the inaction on the part of the respondents in not permitting them to undergo the abovesaid training.
16. Adverting to the above, the Writ Court has noticed that initially the educational qualification for the post of Sanitary Supervisor was SSLC and for the post of Field Assistant, it was 8th Standard. Candidates who acquired Health Inspector Certificate, at their own cost, by undergoing the necessary training conducted by the recognised institution, were considered for promotion to the post of Sanitary Inspector. The cost of the training was borne by the candidates themselves. Taking note of the amendment issued by the Government to the abovesaid regulations prescribing B.Sc (Chemistry), as the educational qualification, for the post of Sanitary Inspector, the Writ Court has dismissed the writ petition.
17. Assailing the correctness of the order made by the Writ Court and reiterating the regulations in the matter of promotion to the post of Sanitary Inspector, by recruitment by transfer, Mr.Veera Kathiravan, learned counsel for the appellant submitted that training given to the Sanitary Inspectors and Field Assistants was stopped from 2011, and eligible candidates are diminishing.
18. By inviting the attention of this Court to the proceedings dated 14.03.2012 of the Director of Public Health and Preventive Medicine, Chennai, addressed to the Principal Secretary to the Government, Health and Family Welfare Department, Chennai, learned counsel for the appellant further submitted that though the Directorate of Public Health had identified 62 eligible Sanitary Inspectors and Field Assistants working in Town Panchayats, as eligible to undergo one year training of Sanitary Inspector Course, there was no further action and hence, the Tamil Nadu Sanitary Supervisors Association/appellant had to take up cause and filed W.P(MD)No.7994 of 2012, for a Mandamus, as stated supra.
19. Learned counsel for the appellant further submitted that it is the fault of the Government in not sending the eligible candidates. He further submitted that as on the date of filing of the writ petition, the qualifications for the post of Sanitary Inspector was SSLC with a Sanitary Inspector Course Certificate. Pending writ petition, the abovesaid Regulations have been amended, prescribing B.Sc (Chemistry) with a Sanitary Inspector's Certificate as the qualification for the post of Sanitary Inspector. According to him, the right vested to the members of the Association, under the then Regulations, to seek for training and consequential promotion to the post of Sanitary Inspector, by recruitment by transfer, cannot be denied. It is also his submission that unless and until, the amended regulations are given retrospective effect, vested rights accrued under the old Regulations, cannot be taken away and therefore, the respondents ought to have sent the members of the appellant's Association, for necessary training and consequently, ought to have considered them, for promotion to the post of Sanitary Inspector, as per the then regulation (2) of the Tamil Nadu Municipal Public Health Service Regulations, 1970. In this context, he relied on the following judgments:-
(i) State of Uttar Pradesh vs. Mahesh Narain, reported in (2013) 4 SCC
169.
(ii)A.Manoharan vs. Union of India, reported in (2008) 3 SCC 641.
(iii)L.Parameswaran vs. Chief Personal Officer, reported in (2008) 3 SCC 649.
(iv)State of Rajasthan vs. R.Dayal, reported in (1997) 10 SCC 419.
(v)K.Durai and 4 others vs. State of Tamilnadu, (W.P.No.27211 of 2015 dated 31.08.2015).
(vi)V.K.Sood vs. Secretary, Civil Aviation, reported in 1993 AIR 2285 = 1993 SCR (3) 772.
(vii)Tamil Nadu Electricity Board vs. Tamil Nadu Electricity Board Thozhilalar Aykkiya Sangam, reported in (2008) 3 SCC 359.
(viii)Tamil Nadu Agricultural Engineers Association, Chennai, vs. State of Tamil Nadu, (W.P.Nos.15795 and 17532 of 2015, dated 13.08.2015).
20. Per contra, inviting the attention of this Court to the averments made in the counter affidavit filed in the Writ Court, learned Special Government Pleader, Mr.A.K.Bhaskarapandian, learned Special Government Pleader, appearing for the respondents submitted that the post of Sanitary Inspector is classified as Class IV, Category 1 under the Tamil Nadu Municipal Public Health Service Regulations, 1970. As regards the post of Sanitary Supervisor, it is classified under The Tamil Nadu Municipal Non Centralized Regular Public Health Establishment Regulations, 1976. According to the above Service Rules, the post of Sanitary Inspector has to be filled up, by recruitment by transfer from the category of Filed Assistant or Sanitary Supervisor, coming under the Tamil Nadu Municipal [Non- Centralized Regular] Public Health Establishment Regulations 1976 or by direct recruitment, if no qualified Field Assistant or Sanitary Supervisor is available. As per the service rules, all the Municipalities were taken together, as one unit for appointment. At this juncture, we extract the Qualifications prescribed for appointment to the post of Sanitary Inspector:-
?(a) Must possess a Sanitary Inspector?s Certificate granted by the Additional Director of Health Services and Family Planning Chennai as the Chairman, Board of Examiners, constituted by Government in this behalf; or possess a Health Inspector?s Certificate awarded by the Principal, Medical College Trivandrum or must possess a sanitary Inspector?s Certificate awarded by the Director of Public Health, Bombay; or Sanitary Inspector certificate awarded by the Gandhigram Rural Institute; and
(b) Must possess physical standard prescribed for Health Inspectors.?
21. Learned Special Government Pleader further submitted that the posts covered under Municipal Public Health Establishment, especially, Sanitary Supervisors/Field Assistants were previously drafted from the department of Public Health and Preventive Medicine. Separate service rules have been framed and in order to bring these Public Health Staff under the control of the Director of Municipal Administration to effect proper administrative control in utilizing their services, properly and for maintaining the sanitation and public health program, one of the important mandatory services, to be rendered to the public, by the urban local bodies and hence, these posts were brought under the administrative control of the Director of Municipal Administration. Previously, Sanitary Supervisors/Field Assistants were the employees of Director of Public Health and Preventive Medicine and training was given by the said Department. The Certificate Course offered by the Institutes in Trivandram and Bombay, do not fall within the State of Tamil Nadu. Even, Gandhi Gram Rural Institute has upgraded its standard from Certificate Course to PG Diploma Course. In such circumstances, earlier the State Government conducted a condensed training for Sanitary Inspectors course, for a period of six months and about 36 personnel applied at their own cost, availed leave and underwent training. Consequent to that, they were promoted as Sanitary Inspectors, in the subsequent years.
22. Learned Special Government Pleader further submitted that the members of the petitioner's association, cannot claim any right to sponsor them for training and it is left open to them to acquire the qualification by themselves, by availing leave, and meeting out the expenditure. Earlier also, Sanitary Supervisors themselves applied for leave and obtained qualification, on their own.
23. It is further contended that the qualifications prescribed for the post of Field Assistant are, one (i) must have completed SSLC, (ii) must have good physique, clear vision and capacity for out door work and (iii) must have undergone the preliminary training for a period of not less than one month in the Regional Malaria Organization at Thanjavur or Coimbatore or in the Central Malaria Laboratory attached to the office of the Additional Director of Health Service and Family Planning, Chennai. Insofar as Sanitary Supervisor is concerned, they should pass III Form or VIII Standard of a recognized School, ie., maintained by or opened with the sanction of Tamil Nadu or to which recognition has been accorded by the Director of School Education under the Educational Rules of the State.
24. He further submitted that while implementing the Pay Commission, the One Man Commission, constituted to redress the grievances, in implementing the pay commission, has opined that the qualification prescribed for the post of Sanitary Inspector is very low and recommended to prescribe a higher qualification for the same. The committee has suggested that since the posts of Sanitary Inspector are to be filled up from the post of Field Assistant/Sanitary Supervisors, the qualification of above two feeder category posts may be examined. Thereafter, upon consideration of the One Man Committee's report, qualification prescribed for the Sanitary Inspector has been amended in G.O.Ms.No.104, Municipal Administration and Water Supply (ME.III) Department, dated 20.11.2012. Therefore, the minimum qualification prescribed for the post of Sanitary Inspector in Municipal Corporation, as per the Tamil Nadu Municipal Corporations Public Health Subordinate Service Rules, 1996, is that, (a) must possess B.Sc.,[Chemistry] with a sanitary Inspector?s certificate granted by the Additional Director of Health Services and Family Planning, Chennai, as the Chairman, Board of Examiners, constituted by the Government, in this behalf or must possess a Health Inspector?s Certificate awarded by the Principal, Medical College Trivandrum or must possess a Sanitary Inspector?s Certificate awarded by the Director of Public Health, Bombay or Sanitary Inspector certificate awarded by the Gandhigram Institute and (b) Must possess physical fitness for camp and satisfy the physical standard prescribed for Health Inspectors. For the abovesaid reasons, he prayed for dismissal of the writ petition.
Heard the learned counsel for the parties and perused the materials available on record.
25. Qualifications for the post of Field Assistant and Sanitary Supervisor, are as follows:
FIELD ASSISTANT SANITARY SUPERVISOR
(i) must have completed SSLC,
(ii) must have good physique, clear vision and capacity for out door work and
(iii) must have undergone the preliminary training for a period of not less than one month in the Regional Malaria Organization at Thanjavur or Coimbatore or in the Central Malaria Laboratory attached to the office of the Additional Director of Health Service and Family Planning, Chennai.
Pass III Form or VIII Standard of a recognized School, ie., maintained by or opened with the sanction of Tamil Nadu or to which recognition has been accorded by the Director of School Education under the Educational Rules of the State.
26. The post of Sanitary Inspector is classified as Class IV, Category 1 under the Tamil Nadu Municipal Public Health Service Regulations, 1970. Qualifications prescribed for appointment to the post of Sanitary Inspectors, are, (a) Must possess a Sanitary Inspector?s Certificate granted by the Additional Director of Health Services and Family Planning Chennai as the Chairman, Board of Examiners, constituted by Government in this behalf; or possess a Health Inspector?s Certificate awarded by the Principal, Medical College Trivandrum or must possess a sanitary Inspector?s Certificate awarded by the Director of Public Health, Bombay; or Sanitary Inspector certificate awarded by the Gandhigram Rural Institute; and (b) Must possess physical standard prescribed for Health Inspectors. Appointment to the said post has to be filled up, by recruitment by transfer from the category of Filed Assistant or Sanitary Supervisor, coming under the Tamil Nadu Municipal [Non- Centralized Regular] Public Health Establishment Regulations 1976 or by direct recruitment, if no qualified Field Assistant or Sanitary Supervisor is available.
27. Earlier, the Government have issued G.O.Ms.No.53, Health and Family Welfare Department, dated 12.02.2007 and G.O.Ms.No.206, Health and Family Welfare Department, dated 30.06.2008, respectively, granting permission to the Director of Public Health and Preventive Medicine, to conduct a condensed Sanitary Inspectors training, for six months, for the candidates sponsored by the Commissioner of Municipal Administration. Thereafter, to examine the pay anamolies, if any, arising out of the Official Committee, 2009, a One Man Committee has been appointed. Tamil Nadu Municipal Corporation Sanitary Inspectors Welfare Association, Coimbatore; Chennai Corporation Sanitary Inspectors and Sanitary Officers Association and Tamil Nadu Graduate Food Inspectors Association, have requested to revise the scale of pay of the post of Sanitary Inspector from Rs.4500 ? Rs.7000 to Rs.5500 ? Rs.9000 (pre-revised) with corresponding revised scale of pay from Rs.5200 ? 20200 + Grade Pay of Rs.2800/- to Rs.9300 ? 34800 + Grade Pay of Rs.4400/-. Taking note of the lower qualification of SSLC, with a Certificate in Sanitary Course, the Commission has recommended that higher revision may also be extended to Sanitary Inspectors in Municipalities and Town Panchayats, giving due protection to the existing incumbents and suggested action to be taken by the Government to issue necessary amendment to adhoc rules immediately, duly prescribing the qualification of B.Sc., (Chemistry), with Sanitary Inspectors Course for future results. Based on the report of the One Man Commission, the Commissioner of Municipal Administration, vide Roc.No.38571/2011/J1, dated 22.08.2011, has written a letter to the Secretary to the Government, Municipal Administration and Water Supply Department, Chennai, to amend the qualifications for the post of Sanitary Inspector, under Rule 6 (Class IV Category I), of the Tamil Nadu Municipal Public Health Service Regulation, 1970, as follows:
Existing Qualification under Rule 6 Qualification to be Amended under Rule 6 Class IV Category I Sanitary Inspector
a) Must possess a Sanitary Inspector?s Certificate granted by the Additional Director of Health Services and Family Planning Chennai as the Chairman, Board of Examiners, constituted by Government in this behalf; or possess a Health Inspector?s Certificate awarded by the Principal, Medical College Trivandrum or must possess a sanitary Inspector?s Certificate awarded by the Director of Public Health, Bombay; or Sanitary Inspector certificate awarded by the Gandhigram Rural Institute; and
b) Must possess physical standard prescribed for Health Inspectors
(a) must possess B.Sc.,[Chemistry] with a sanitary Inspector?s certificate granted by the Additional Director of Health Services and Family Planning, Chennai, as the Chairman, Board of Examiners, constituted by the Government, in this behalf or must possess a Health Inspector?s Certificate awarded by the Principal, Medical College Trivandrum or must possess a Sanitary Inspector?s Certificate awarded by the Director of Public Health, Bombay or Sanitary Inspector certificate awarded by the Gandhigram Institute and
(b) Must possess physical fitness for camp and satisfy the physical standard prescribed for Health Inspectors.
28. While the matter stood thus, the Director of Public Health and Preventive Medicine, in R.No.45703/Trg./S4/2009, dated 14.03.2012, has addressed a letter to the Principal Secretary to Government, Health and Family Welfare Department, Secretariat, Chennai-9, stating that 62 eligible Sanitary Inspectors and Field Assistants, working in Town Panchayats, have been identified and solicited orders for conducting one year Sanitary Inspector training course by the Director of Public Health and Preventive Medicine, Chennai.
29. In State of Rajasthan v. R.Dayal reported in 1997 (10) SCC 419, the appellant therein has convened a Departmental Promotion Committee on 13.04.1995, under Rule 24-A of the Rajasthan Service of Engineers (Building and the Roads Branch) Rules, 1954, against nine existing and anticipated vacancies, as on 01.04.1995. DPC has recommended nine candidates in accordance with the eligibility conditions prescribed under the then recruitment rules. On 24.07.1995, the recruitment rules were amended, in which, eligible conditions were changed. Amendment came into force, with immediate effect. Issue considered by the Hon'ble Apex Court, was whether, selection of two candidates was valid, when the eligibility conditions stood changed, with effect from 24.07.1997 and when option was available in the rules, to revise the select list. Though a contention has been made before the Hon'ble Apex Court that in view of the amendment, having come into force on 24.07.1997, public policy demanded and that the Government is required to apply the criteria prescribed in the amended law, taking note of the decision in Y.V.Rangaiah v. J.Sreenivasa Rao reported in 1983 (3) SCC 284, the Hon'ble Apex Court, at Paragraphs 8 and 9, held as follows:
?The posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled up in accordance with the law existing as on the date when the vacancies arose. Even a carried-forward vacancy is required to be considered in accordance with the law existing unless suitable relaxation is made by the Government.?
30. There is no quarrel over the preposition of law, laid down in R.Dayal's case (cited supra), but on the facts and circumstances of the case, when the vacancy arose, none of the members in the petitioner's association had the required certificate of having undergone the Sanitary Inspector's Certificate course, from the Institutions, which is one of the essential qualification for promotion to the post of Sanitary Inspector, by transfer.
31. In A.Manoharan v. Union of India reported in 2008 (3) SCC 641, at Paragraph 25, the Hon'ble Supreme Court held that regulations amended cannot be applied retrospectively. Any vacancy which has arisen prior to coming into force of the said amended Regulations, must be filled up in terms of law, as was existing prior thereto. The decision in State of Uttar Pradesh v. Mahesh Narain reported in 2013 (4) SCC 169, is also on the same lines.
32. The contention of the learned counsel for the appellant's association that amended rules cannot be applied retrospectively and vested rights of the members of the petitioner's association to seek for promotion to the post of Sanitary Inspector, cannot be taken away and the then existing rules, at the time of vacancy, should be applied, would be a valid ground, if only the members of the petitioner's association did possess the eligible criteria, viz., Sanitary Inspector's Certificate obtained from the prescribed institutions.
33. Even according to the petitioner, Gandhi Gram Rural Institute has already upgraded its standard from Certificate Course to PG Diploma Course and the basic qualification prescribed for the post of Sanitary Inspectors, is B.Sc., (Chemistry). That statement is also duly supported by the advertisement of the deemed University 2012-13, for P.G. Dipoloma course.
Sending a candidate for six months training, for Sanitary Inspector's course, is not mandated, under the then existing rules. However, to enable the Sanitary Supervisor/Field Assistant, to get promotion to the post of Sanitary Inspector, willing candidates have been sent for training, with a condition that they should pay the registration and course fee and make their own arrangements for visit and stay. Concession extended to those, who were willing to participate in the training, at their own cost and to avail eligible leave, cannot be put against the Government that they have failed in their duty in not sending the enumerated list of candidates.
34. At this juncture, it should also be noticed that though candidates have been permitted to undergo training in G.O.Ms.No.53, Health and Family Welfare Department, dated 12.02.2007 and G.O.Ms.No.206, Health and Family Welfare Department, dated 30.06.2008, no materials have been placed before this Court, as to whether, subsequently, such concession was extended. Moreover, the Commission has felt that the qualification for the post of Sanitary Inspector is on the lower level, with SSLC and a Certificate Course. During March' 2010, the One Man Commission has recommended that the educational qualification for the post of Sanitary Inspector has to be revised as B.Sc., (Chemistry).
35. Concession in not sending the enumerated list of candidates to avail the Sanitary Inspector's Training Course, at their own cost, cannot be said to be arbitrary, when the Government was under the process of amending the Rules, prescribing B.Sc., (Chemistry) as the educational qualification, for the post of Sanitary Inspector. Concession extended earlier, also cannot be said to have conferred a right on the members of the association that notwithstanding the One Man Commission report and examination of the government to amend the rules relating to the educational qualification SSLC, the Government was mandated to send them for training. Admittedly, members of the petitioner's association did not possess the Sanitary Inspector's Certificate and therefore, they cannot be said to have acquired any vested right for promotion, against the vacant posts.
36. Acquisition of qualification prescribed for a post, has to be done by an individual, seeking promotion to the higher post. Members of the petitioner's association cannot claim that there is a mandate on the part of the Department to sponsor their names for training. They have not acquired any vested right, on the basis of the then existing rules, prior to the amendment and hence, the decisions relied on, are not in strict sense, applicable to the facts of this case.
37. At this juncture, it is also to be noted that though in M.P.No.1 of 2012 in W.P.No.7994 of 2012, the petitioner's association has sought for an interim direction, directing the respondents to send the members of the association, for condensed training programme for Sanitary Inspector course, for not taking notice for respondents 2 to 4, the said petition has been dismissed for default. They have not even revived the petition.
39. Though the Writ Court has taken note of the amendment made in the abovesaid Rules, pending disposal of the writ petition, for the reasons, stated supra, this Court is of the view that the members of the petitioner's association are not entitled to the relief sought for. Hence, Writ Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petitions are also closed.
To
1)The Secretary to Government, State of Tamil Nadu, Municipal Administration & Water Supply Department, Secretariat, For St.George, Chennai-600 009.
2)The Secretary to Government, State of Tamil Nadu, Public Health & Family Welfare Department, Fort St.George, Chennai-600 009.
3)The Commissioner of Municipal Administration, Chepauk, Chennai-600 009.
4)The Director of Public Health & Preventive Medicine, Teynampet, Chennai-600 018..