Madras High Court
Government Of Tamil Nadu vs M.Vincent on 22 April, 2016
Bench: S.Manikumar, G.Chockalingam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 22.04.2016
CORAM
THE HONOURABLE Mr.JUSTICE S.MANIKUMAR
and
THE HONOURABLE Mr.JUSTICE G.CHOCKALINGAM
Writ Appeal(MD)No.743 of 2015
and
M.P.(MD)No.1 of 2015
1.Government of Tamil Nadu,
rep.by its Secretary,
Department of Health and Family Welfare,
Fort St.George, Chennai-600 009.
2.The Secretary,
Department of Finance,
Fort St.George, Chennai-600 009.
3.The Accountant General,
Office of the Principal Accountant General,
(Accounts & Entitlement) Tamil Nadu,
No.361, Anna Salai, Chennai-600 018.
4.The Director of Medical Education,
Kilpauk, Chennai.
5.The Dean,
Thoothukudi Government Medical College,
Thoothukudi. .... Appellants/
Respondents
vs.
1.M.Vincent
2.Magdalene
3.Selvarani
4.Kanagalakshmi
5.Rajaram
6.lMuthushankar
7.Ramesh
8.U.Ganesan
9.Solaiappan
10.S.Sivakumar
11.M.Ganesan
12.Kapali
13.Jancy Kala
14.Selvakumar
15.Mariappan
16.Rajesh
17.Balamurugan
18.Arumugasamy
19.Maheswari
20.Soosai Sahaya Ambrose
21.Devakani
22.Chellappa
23.Balakrishnan
24.Sornam
25.A.Suyambukumar
26.S.Karuppasamy
27.Venkateshan
28.D.Chellamma
29.G.Jeyakrishnan
30.Radasannasi
31.Petchimuthu
32.Ramesh
33.Am Baby ... Respondents/
Writ Petitioners
Writ Appeal filed under Clause 15 of Letters Patent, against the
order made in W.P.(MD)No.15909 of 2012, dated 09.01.2015.
!For Appellants : Mr.K.Chellapandian,
Addl.Advocate General,
assisted by
Mr.A.K.Baskarapandian,
Spl.Govt.Pleader.
^For Respondents : Mr.A.Selvam for
1 to 5, 7 to 18, Mrs.J.Padmavathy
20 to 27 and 30 to 33
:JUDGMENT
Challenge in this appeal is to the order, dated 09.01.2015, passed in W.P.(MD)No.15909 of 2012, allowing the writ petition filed by the respondents herein and directing the appellants to regularise the respondents, in their respective posts in which they have been working, in regular time scale of pay, with effect from the date of their appointment, within a period of eight weeks from the date of receipt of a copy of the order.
2.Short facts necessary for the disposal of the appeal are as follows:
(a)In G.O.Ms.No.495, Health and Family Welfare Department, dated 02.09.1998, the Government of Tamil Nadu ordered for starting a new Government Medical College at Thoothukudi. Thereafter, considering the proposals sent by the Director of Medical Education, requesting for sanction of posts and sanction of expenditure for the newly established Government Medical College at Thoothukudi, the Government accorded sanction in G.O.(Ms)No.87, Health and Family Welfare Department, dated 04.03.1999, for the creation of posts mentioned in the Annexure-I to the said G.O. G.O.Ms.No.87, dated 04.03.1999, reads as under:
"ORDER:
The Government have issued orders to start a new Government Medical College at Thoothukudi in the G.O.first read above.
2.The director of Medical Education has sent proposals for the creation of posts and sanction of expenditure of Rs.175 lakhs towards purchase of equipments and furniture etc., for the new Government Medical College at Thoothukudi.
3.The Government have examined the proposals of the Director of Medical Education and they accord sanction for the creation of the posts mentioned in the Annexure-I to this order, temporarily for a period of one year from the date of employment or till the need therefore ceases, whichever is earlier, to work in Government Medical College at Thoothukudi, subject to the following conditions:
"(i)The teaching posts be actually filled up just before student admissions are to take place.
(ii)Administrative staff left behind by the Director of Medical and Rural Health Services for the Hospital be redeployed within the new sanction of posts.
(iii)The posts of Office Assistants, Sweepers, Sanitary Workers and Watchman be filled up by redeployment. If they are not available sufficiently, the jobs be executed by service contracts.
(iv)An electronic extension system be installed avoiding the creation of the post of Telephone Operator.
4.The holders of the posts are eligible to draw, besides pay, Dearness Allowance and other allowances at the rates admissible under the orders in force.
5.Sanction is further accorded to the incurring of a non-recurring expenditure of Rs.175.00 lakhs (Rupees one hundred and seventy five lakhs only) towards the purchase of equipments, furniture as detailed in Annexure II to this order.
6.The Government direct the Director of Medical Education to accommodate the recurring and non-recurring expenditure within the savings of Budget Estimate for 1998-99.
7.the expenditure shall be debited to the following new Sub Head of account to be opened under the Demand No.18 Medical:-
"2210.Medical and Public Health--05. Medical Education, Training and Research--105 Allopathy--I. Non-Plan--BG Government Medical College at Thoothukudi" (D.P.Code 2210.05.105.BG-0002).
8.The Director of Medical Education (Code No.1102) is the estimating controlling and reconciling authority for the above head of account.
9.The Pay and Accounts Officer/Treasury Officer is requested to open the above new head of account in the accounts.
10.The Director of Medical Eduction is directed to issue proceedings for opening of relevant detailed/sub-detailed heads of account and mark a copy to Finance/(BG.II) Department for assigning necessary Data Processing Code.
11.The expenditure is on a New Service and the approval of the Legislature will be obtained in due course. Pending approval of the Legislature, the expenditure will be met initially by an advance from the contingency fund, orders regarding which will be issued from the Finance (BG.I) Department. The Director of Medical Education is requested to send an application in the prescribed form to the Finance (BG.I) Department together with a copy of this order.
ANNEXURE.I Sl.No. Name of the Post and scale of pay Number of posts Anatomy Department Physiology Department Bio-Chemistry Department Community Medicine Department Total 1 2 3 4 5 6 7 I. MEDICAL/NON MEDICAL POSTS
1. Professor (Rs.12750-375-16500) 1 1 1 1 4
2. Reader/Associate Professor (Rs.10000-325-15200) 2 2 1
-5
3. Assistant Professor (Rs.9100-275-13500) 3 3 2 1 9 4 Tutor (Non Medical) (Rs.8000-275-13500) 4 4 2 1 11 5 Lecturer (Bio-Physics) (Rs.8000-275-13500)
-1
-
-1 6
Laboratory Technician Gr.I (Rs.4500-125-7000) 1 1 1 ` 3 7 Laboratory Technician Gr.II (Rs.4000-100-6000) 2 3 1
-6 8
Laboratory Attendant Gr.II (Rs.2550-55-2660-60- 3200) 4 3 2
-9 9
Assistant for Store (Rs.4000-100-6000) 1 1 1
-3 10
Modeller (Rs.5000-150-8000) 1
-
-
-1 11
Entomologist (Rs.8000-275-13500)
-
-
-1 1
Sl.No. Name of the post and scale of pay No. of Post.
1.
2.
3. II ADMINISTRATIVE WING:
1.
Junior Administrative Officer (Rs. 6900-200-11000) 1
2. Office Superintendent (Rs.5300-150-8300) 2
3. Assistant (Rs. 4000-100-6000) 3
4. Junior Assistant (Rs.3200-85-4900) 4
5. Typist (Rs. 3200-85-4900) 2
6. Record Clerk (Rs.2610-60-3180-65-3540) 1
7. Steno-typist (Rs.4000-100-8000) 1
8. Librarian (Rs.5000-200-9900) 1
9. Library Attender (Rs.2,550-55-2660-60-3200) 1
10. Sweeper (Rs.2,550-55-2660-60-3200) 1
11. Office Assistant (Rs.2,550-55-2660-60-3200) 3
12. Sanitary Worker (Rs.2,550-55-2660-60-3200) 2
13. Watchman (Rs.2,550-55-2660-60-3200) 2 ............"
(b)Thereafter, the Government issued G.O.Ms.No.252, Health and Family Welfare Department, dated 19.09.2011, creating certain posts for conducting II Year M.B.B.S.Course. The said G.O.reads as follows:
"Read:
1)G.O.Ms.No.87, Health & Family Welfare, dated 04.03.1999.
2)G.O.(Ms)No.219, Health, dated 16.8.2001.
Read also:
3.From the Director of Medical Education, Letter No.29589/P&D/3/99, dated 23.8.2001.
*** ORDER:
In the G.O., second read above, the Government sanctioned 22 posts for conducting II year MBBS Course at Thoothukudi Medical College, Thoothukudi on temporary basis for a period of one year from the date of employment or till the necessity ceases, which ever is earlier.
2)The Director of Medical Education in his letter third read above has reported to Government that the Government have sanctioned only 22 posts in the Government order second read above as against his proposal for sanction of 86 posts for conducting II year MBBS Course at Thoothukudi Government Medical College, Thoothukudi. The Director of Medical Education has further stated that the posts suggested by him are the minimum requirement and has insisted that all the 86 posts proposed by him originally may be sanctioned.
He has therefore requested the Government to sanction the following additional 84 posts to the Thoothukudi Government Medical College, Thoothukudi.
Designation No.of post 1) Professor 6 2) Assistant Professor 7 3) Tutor 14 4)Laboratory Technician, Grade-I 9 5) Store-Keeper 2 6) Steno-typist 3 7) Record Clerk 1 8) Laboratory Assistant 10 9) Sweeper 8 10) Junior Assistant 2 11) Artist 1
3)The Government have carefully examined the proposal of the Director of Medical Education and have decided to sanction a total of 57 posts only to the Thoothukudi Government Medical College, Thoothukudi for conducting II year MBBS in supersession of the orders issued in the G.O., second read above, the Government sanction 57 posts mentioned in the Annexure to this order temporarily upto 30.06.2004 or till the necessity ceases, whichever is earlier to the Thoothukudi Government Medical College, Thoothukudi for conducting the II year MBBS Course.
4)The Government direct that 50% of the posts of Tutor be filled up on redeployment and the posts other than teaching be filled up on contract basis on consolidated pay. The Director of Medical Education is requested to send proposals indicating the details of posts to be redeployed for issue of Government orders identifying the posts to be redeployed.
5)The holders of the posts are eligible to draw in addition to pay, the usual allowances at the rates admissible as per the rules in force and orders issued from time to time. Necessary Funds will be provided in Revised Estimate/Final Modified Appropriation 2001-02. Director of Medical Education is requested to send necessary proposal to Finance Department for inclusion in Revised Estimate/Final Modified Appropriation 2001-02.
6)The expenditure shall be debited to "2210.Medical and Public Health--
05. Medical Education, Training and Research--105 Allopathy--I. Non-Plan--BG Government Medical College at Thoothukudi" (D.P.Code 2210.05.105.BG-0002).
7)This order issues with the concurrence of Finance Department vide its U.O.No.532/(TK)/2001, Dated 19.9.2001.
ANNEXURE Sl.No. Designation and Scale of Pay No.of Posts to Pathology Dept. No.of Posts to Pharmacology Dept. No.of Posts to Micro-Biology Dept. No.of Posts to Forensic Science Dept. Total 1 Professor/ Reader (Rs.12750-375- 16500) 4 2 2 2 10 2 Assistant Professor (Rs.9100-275- 12550) 3 2 1 1 7 3 Tutor (Rs.8000-275- 13500 6 4 2 2 14 4 Pharmacist
-
1-
-
1 5Laboratory Technician- Grade II 5 2 2 2 11 6 Assistant (Store Keeper) 1 1 1 1 4 7 Laboratory Attendant 3 2 2 2 9 8 Artist 1
-
-
-
1(Post mentioned in Sl.No.4 to 8 above shall be made on contract basis on consolidated pay.)"
(c)According to the respondents, since there was difficulty in recruiting the candidates for all the posts to run the institution, effectively, the authorities were constrained to resort to filling up some of the jobs through service contract, as directed in G.O.Ms.No.87, dated 04.03.1999 and G.O.Ms.No.252, dated 19.09.2001. It was the case of the respondents that they were duly qualified to hold their respective posts in which they were working and they have also duly registered themselves on the rolls of Employment Exchange. Therefore, they were appointed in their respective jobs, through a Service Contractor by name Mr.Rex and another Service Contractor by name Mr.Jothimani. Earlier there was another service contractor by name Mr.M.Balasubramaniam. According to the respondents, the third appellant, periodically, shuffled contractors. The respondents have rendered their duties in a responsible manner and this has been specifically noted by the 5th appellant in his Office Communications addressed to higher authorities. Thus, the respondents have been continuously working in the 5th appellant institution for more than 4 years.
(d)Whileso, apprehending that they would be ousted from service, earlier the respondents filed W.P.(MD)No.4282 of 2005 seeking for issuance of a writ of mandamus, directing the 1st appellant to consider the case of the respondents for regularising their services in their respective posts in which they were working in the 5th appellant institution. When the said writ petition came up for hearing, the writ Court by order dated 11.05.2005, issued an order of interim injunction, if the respondents were in service.
One A.Suyambukumar, working as Store-keeper, also filed a writ petition in W.P.(MD)No.4829 of 2005 with the same prayer. Thereafter, both the writ petitions were disposed of by a common order, dated 04.02.2008. The operative portion of the said order reads as under:
"4.Any appointment to a post is to be made by the authority concerned only in accordance with Recruitment Rules, namely Tamil Nadu State and Subordinate Service Rules, under Rule 10(a). Such an appointment for a post, which has not been covered under the Tamil Nadu State and Subordinate Service Rules, is to be made only by calling for eligible candidates from the local Employment Exchange. Admittedly, such a procedure has not been followed in the appointment of these petitioners. However, considering the interest of the Institution and also considering the fact that there was urgency to fill up the posts when the college was started, the Government issued the above stated G.O. to deviate from the service rules and to appointment them on contract basis. It is needless to say that unless the Government deems it fit to regularize the services of these petitioners, treating them as special case, considering the fact that they have been working in the said post only as per the issuance of such Government orders, this Court, as of now, cannot give any relief to the petitioners directing the respondents to regularize them at all, if at all such a relief is to be granted, there should be some provision under the recruitment rule for regularisation of such contract labourers. Since no such rule is brought to my notice, such relief as prayed for in these writ petitions, cannot be granted. It is for the petitioners to approach the Government with appropriate representation to consider their case sympathetically and it is only for the Government to take decision in this matter.
5.In view of the above position, these writ petitions are dismissed. However, liberty is given to the petitioner to approach the Government for appropriate relief in this matter. Connected miscellaneous petitions are also dismissed. No costs."
(e)Aggrieved by the said common order, the respondents filed W.A.(MD)Nos.339 and 340 of 2008. A Hon'ble Division Bench of this Court disposed of those writ appeals by the following order, dated 28.08.2008.
"The issue involved in these writ appeals is squarely covered by the order given by Division Bench of this Court in W.P.No.4920 of 2004 on 9.11.2006.
2.In view of the above, following the order passed by the Division Bench of this Court in W.P.No.4920 of 2004, these writ appeals are also disposed of. No costs. Consequently, connected MPs are closed."
(f)The common order passed in W.P.(MD)No.4920 of 2004, etc.batch, dated 09.11.2006, by a Hon'ble Division Bench of this Court, reads as under:
"All these petitioners have been working as substitute workers in the Government Hospitals and other hospitals attached to Medical Institutions and T.B.Sanatorium, Tambaram, Chennai from the date of their respective appointments. The appointment of all these petitioners were made after their name have been sponsored by the Employment Exchange. According to the petitioners, when they were appointed, it has been mentioned tht they would be absorbed in the permanent vacancies. Though they had put in service for years together ranging between 10 to 14 years, their appointments have not been regularized and no regular time scale of pay were paid. Aggrieved by this, all the petitioners have preferred their respective original Applications before the Tribunal seeking for a direction to the Government to regularize their appointment and bring them under regular time scale of pay as Hospital Workers. By the orders impugned in these Writ petitions, the Tribunal has not granted the relief as sought for by the petitioner and upheld the policy decision of the Government in implementing the Outsourcing of Basic Government Servants in Government Hospitals. Challenging the same, the petitioners have preferred these writ petitions.
2.While admitting these Writ petitions, this court ordered to maintain status quo on 14.07.2004 and the same has been made absolute on 14.06.2005.
3.Today, when these Writ petitions are taken up for final disposal, Mr.K.Balu, learned Addl.Government Pleader appearing for the respondents placed G.O.Ms.No.22, P & AR Department, dated 28.02.2006, in and by which, the Government have issued instructions to regularize the services of daily wages employees who have rendered 10 years of service as on 01.01.2006. The learned Addl.Government Pleader submitted that based on this issue, proposals have been sent in respect of the petitioners to regularize their services by relaxing relevant rules vide Director of Medical Education Ref.No.18228/E4/3/2006, dated 03.08.2005 and it is under consideration of the Government.
4.Recording the same, since the Government itself has taken appropriate action in regularizing the services of petitioners and necessary proposals were also sent by the Director of Medical Education, while disposing of these writ petitions, we feel it appropriate to direct the Government/first respondent to finalise the proposals sent by the Director of Medical Education in Ref.No.18228/E4/3/2006, dated 03.08.2006 in regard to regularization of services of the petitioners forthwith without any further delay. No costs. Consequently WPMPs are closed."
(g)Aggrieved by the said order of the Hon'ble Division Bench, the appellants filed Special Leave Petitions to Appeal (4577 and 4578 of 2011) with applications for condoning the delay in filing Special Leave Petitions. Those Special Leave Petitions were dismissed by the Hon'ble Supreme Court on the grounds of delay, by order dated 11.02.2011.
(h)However, the first appellant, the Secretary to Government, in Letter No.23466/C2/2006-07, Health and Family Welfare Department, dated 27.11.2012, rejected the request of the respondents for regularisation of their services. The above said Letter of the first respondent, dated 27.11.2012, reads as under:
"I am directed to invite attention to the references, cited and to state that in G.O.(Ms)No.87, Health and Family Welfare Department, dated 04.03.1999 and G.O.(Ms)No.252, Health and Family Welfare Department, dated 19.09.2001, the Government sanctioned various categories of posts to the newly formed Thoothukudi Medical College and it was ordered therein that Non- Teaching posts shall be filled up on contract basis on consolidated pay. Accordingly, various categories of posts were filled up on outsourcing basis without following the rule of reservation.
2)Some of the said contract employees approached the Madurai Bench of Madras High Court, Madurai with a prayer for regularization of their services in the respective posts. The Hon'ble Madurai bench of Madras High Court, Madurai, in its common order dated 04.02.2008 dismissed the Writ Petitions.
Against the above order of the Madurai Bench of Madras High Court, they filed Writ Appeals and the Division Bench of Madurai High Court, Madurai in its Judgment dated 28.08.2008 in W.A.No.339 and 340 of 2008 has given the following orders:-
"The issue involved in these writ appeals is squarely covered by the order given by Division Bench of this Court in W.P.No.4920 of 2004 on 09.11.2006. In view of the above, following the order passed by the Division Bench of this Court in W.P.No.4920 of 2004, these writ appeals are also disposed of."
3)Against the orders of Hon'ble High Court dated 28.8.2008 in W.A.No.339/2008 and 340/2009 and M.P.No.2&2/2008 the Government filed SLP before the Supreme Court of India, but the Hon'ble Supreme Court has dismissed the SLP on the ground of delay.
4)The Government have carefully considered the case for regularisation of their services as per the judgment of the Madurai Bench of Madras High Court, Madurai, dated 28.8,2008 in W.A.No.339 and 340 of 2008, and accordingly it is observed as follows:
(i)They were not appointed either through the Employment exchange or by the Dean, Thoothukudi Medical College, Thoothukudi, but through outsourcing agencies on contract basis.
(ii)There is no agreement between them and the Government.
(iii)The salary of the contract employees are paid through the private Agencies.
(iv)Rule of reservation has not been followed, while appointing them.
(v)The petitioners in W.P.No.4920/2004, were appointed through employment exchange as Hospital Workers and therefore, their services were regularized, by relaxing the relevant rules.
(vi)The Government have taken a policy decision to terminate the outsourced personnel and to fill up the vacancies through the Employment Exchange and orders were issued accordingly in G.O.(Ms)No.59, Health and Family Welfare Department, dated 15.2.2008.
(vii)The Hon'ble High court in its order dated 17.8.2011 in W.P.No.13001 of 2008 and 3742 to 3748 of 2009 filed by Tamil Nadu Arasu Paniyalar Sangam interalia to absorb the services of the outsourced employees in time scale of pay and other attendant benefits has dismissed the Writ Petition with the following observation, namely:-
5.It was contended that the Government through a policy decision decided to fill up 12 categories of vacancies coming under Grade C and D by outsourcing them through various agencies. The selection were made by the agencies only and the Government has no connection whatsoever. The agencies selected those candidates, whether or not they have registered their names in the employment exchange, and no criteria for communal rotation was followed and therefore the outsourced persons cannot be absorbed in the Government service.
5.3.It is also stated that the members of the petitioners/association cannot claim perpetual right for their continuance. By G.O.Ms.No.59, Health and Family Welfare department, dated 15.2.2008, the Government decided to revoke the policy of outsourcing and fill up the post of paramedical staff on regular time scale of pay. The Government also rejected the request of absorption of outsourced personnel, as they wre engaged through private agencies and not through employment exchange and while recruiting them, the rules of reservation were not followed.
11.The Supreme Court in State of Karntaka vs. Uma Devi (3), [2008] 4 SCC 1 has clearly laid down tht the appointment for all Government employments will have to be made in terms of the recruitment rules and any other recruitment will be against Articles 14 and 16 of the of the Constitution of India.
12.Even if ad hoc appointees, whoare appointed directly, work for more than ten years under interim orders of the court, the court cannot show any misplaced sympathy of protecting such ad hoc employees only because they have worked for long time and the Supreme court held that in such cases, the decision in Uma Devi, (3) Case, supra, is binding and has to be applied , vide judgment in State of West Bengal vs. Banibrata Ghosh, (2009), 3 SCC
250.
14.Similarly in Hariminder Kaur v. Union of India (2009) 13 SCC 90, the Supreme Court held that the long service rendered by ad hoc employees cannot be a ground for regularization and regularization cannot be a mode of appointment. Even on the question of age relaxation of such appointees for being considered for future recruitment, the Supreme Court only gave a non-
binding direction to the respondents/State to consider such issues on their own.
18.The members of the petitioner/association were recruited not even by the Government but by outsourcing agencies and as rightly contended in the counter affidavit, the Government was not even aware of their qualification and no communal roster was followed in respect of their recruitment."
(viii)Further, the absorption of outsourced employees on regular basis will run contrary to recruitment rules and it will be in violation of Articles 14 and 16 of the Constitution of India.
5)In the aforesaid circumstances, the services of the employees who have been appointed through outsourcing agencies on contract basis, without following the rule of reservation, cannot be regularized."
(i)Challenging the above said order of the the first appellant, the respondents filed W.P.(MD)No.15909 of 2012 and also for a consequential direction to the appellants to regularise the services of the respondents from the date of joining. The said writ petition was allowed by a learned Single Judge of this Court, by order dated 09.01.2015. The relevant portion of the order of the learned Single Judge reads as under:
"7.Heard the rival submissions made on both sides and perused the records.
8.It is not in dispute that the petitioners were appointed against the sanctioned posts on contract basis on consolidated pay. The appointment so made is in terms of G.O.Ms.No.87 Health and Family Welfare Department dated 4.3.1999 and G.O.Ms.No.252 Health and Family Welfare Department dated
19.9.2001. The reading of the contents of the proposals sent by the Dean of the fifth respondent College from time to time would reveal that the individuals registered themselves in the employment exchange and possessed the requisite qualification as per the service rules and they have not been directed to work through the agency approved by the TNMSC at the rate prescribed for out sourcing and they have been working for more than 10 years on contract basis at the rate of daily wages different from that of out sourcing introduced by the Government through TNMSC and hence, they do not come under the purview of out sourcing introduced in 2004.
9.As far as the manner of appointment of the petitioners is concerned, there is deviation with regard to mode of recruitment under the relevant rules only in terms of G.Os above cited. In other words, the mode of appointment was relaxed by way of G.Os insofar as the recruitment to the posts newly sanctioned for effective management of newly established 5th respondent medical college and hospital. The petitioners though duly registered in the employment exchange, they were not sponsored through employment exchange and were appointed only to meet out the exigencies, as such, their entry into the service cannot be termed as illegal or backdoor entry. After having completed the service for more than 7 years as on the date of disposal of the earlier writ petitions in the year 2008 and more than 10 years as on the date of the present writ petition, the status of the petitioners as regular employees is yet to be recognised by the Government. The earlier writ petitions filed by them was disposed of by observing that it is for the Government to consider the same sympathetically.
10.The writ appeals filed by them was disposed of in terms of the order made in WP.No.4920 of 2004 etc, wherein, the Division Bench directed the Government to finalise the proposals already sent by the Director of Medical Education in regard to regularisation of services of the petitioners forthwith without any further delay. SLP filed against the same was dismissed, thereby confirming the judgment made in the writ appeals by the Division Bench. If that is so, the respondents have no valid ground for not taking steps to regularise their service in terms of the order passed in WA.Nos.399 and 340 of 2008 and the respondents cannot be any longer permitted to raise any objection regarding mode of their selection, which was absolutely in terms of the Government orders.
11.In all the judgments of the Hon'ble Supreme court reported in
(i)(2006) 4 SCC 1 (State of Karnataka v. Uma Devi and others); (ii)(2009) 13 SCC 90 (Hariminder Kaur v. Union of India); (iii)(2010) 13 SCC 448 (Union of India v. A.S.Pillai); and (iv) (2014) 4 SCC 769 (Secretary to Government, School Education Department, Chennai v. R.Govindaswamy and others), the principle laid down is that the persons, who have been employed on daily wages or temporarily or on contractual basis, without following the regular mode of appointment, consistent with the requirements of Articles 14 and 16 of the constitution, cannot be treated equally with the other employees, who are regularly employed and they cannot make a claim for absorption into the service.
12.However, in the decision reported in (2011) 2 SCC 429 (State of Rajasthan v. Daya Lal), the Hon'ble Apex Court has considered the scope of regularisation of irregular or part time appointments in all possible eventualities and laid down well settled principles relating to regularisation and parity in pay relevant in the context of the issues involved therein and five principles were enunciated in Clause (i) to (v) of para 12 of the decision. In my considered view, the case of the petitioners herein does not fall under Clauses (ii) to (v) referred to therein, but falls under later part of clause 12.1, wherein it is clearly stated that the service of the person, who was appointed by deviating one of the elements in the selection process, which does not go to the root of the process, can be reguarlised and back door entries appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
13.As far as the present case is concerned, the mode of recruitment through employment exchange was relaxed and the posts were directed to be filled up on contract basis on consolidated pay. As such, the case of the petitioners has to be considered under clause 12.1 of the decision in State of Rajasthan v. Daya Lal case, which is also applied in the latest judgment of the Apex Court reported in (2014) 4 SCC 769 (Secretary to Government, School Education Department, Chennai v. R.Govindaswamy and others) (cited supra). The Hon'ble Supreme Court in para 53 of the judgment reported in (2006) 4 SCC 1 (State of Karnataka v. Uma Devi and others) has clearly held that if the persons appointed on adhoc, casual or contract basis were duly qualified and were working against the sanctioned posts and continued to work for several years without any intervention of the order of the court, in such an eventuality, the process of regularisation could be made.
14.As a matter of fact, the Government under G.O.Ms.No.134 Public Works (C2) Department dated 7.5.2010 considered similar claim of regularisation of the the daily wages employees (NMR) in PWD department and issued appropriate orders for regularisation of those who completed 10 years and above and regularisation was taken into effect from the date of completion of 10 years of service. While doing so, the Government decided to relax the rules relating to age, educational qualification and general rule of recruitment. However, similar benefit was denied to the petitioners herein. Thus, for the discussions held above, the petitioners are, having regard to the circumstances under which they were appointed and the mode of selection and the fact that they have possessed requisite other qualifications, entitled to claim the right of absorption and to seek regularisation of their services. The impugned order denying such benefit is arbitrary, discriminatory in nature and unjustified and in violation of the right guaranteed under constitution and is hence legally unsustainable.
15.In the result, the writ petition is allowed and the impugned order passed by the first respondent dated 27.11.2012 stands quashed, with direction issued to the respondents to regularise the petitioners in their respective posts, in which, they have been working in regular time scale of pay with effect from the date of their appointment, within a period of 8 weeks from the date of receipt of the copy of this order. Consequently, connected miscellaneous petitions are closed."
3.Aggrieved by the same, the appellants are before this Court with the present appeal, contending inter alia as follows:
(i)The respondents were not appointed by the appellants at any point of time and further they were engaged by the contractors and their wages have been paid by the contractors.
(ii)The writ court ought to have considered the fact that the posts filled up on consolidated pay through private agencies on outsourcing are not eligible for regular pay and allowances as per the rules in force.
(iii)The writ court ought to have considered the fact that rule of reservation, age and educational qualification prescribed in the rule were not followed and so the engagement of the respondents is not legally acceptable and no relief could be granted to them.
(iv)The writ court has failed to consider the fact that the petitioners in W.P.(MD)No.4920 of 2004 were all appointed through employment exchanges as Hospital Workers in the regular posts and therefore their services were regularised by relaxing the relevant rules.
(v)The Writ Court has not considered the directions of the Hon'ble Supreme Court in (i) Secretary, State of Karnataka and others v. Uma Devi (3) and others - (2006) 4 SCC 1; (ii)State of West Bengal and others v.
Banibrata Ghosh and others - (2009) 3 SCC 250; and (iii)Harminder Kaur and others v. Union of India and others - (2009) 13 SCC 90.
4.It is not in dispute that the Government have sanctioned certain posts for the Administrative Wing of the newly established Government Medical College at Thoothukudi, in regular time scale of pay vide G.O.Ms.No.87, dated 04.03.1999, which we have extracted above. However, as stated earlier, those posts were to be filled, subject to the following conditions:
"(i)The teaching posts be actually filled up just before student admissions are to take place.
(ii)Administrative staff left behind by the Director of Medical and Rural Health Services for the Hospital be redeployed within the new sanction of posts.
(iii)The posts of Office Assistants, Sweepers, Sanitary Workers and Watchman be filled up by redeployment. If they are not available sufficiently, the jobs be executed by services contracts.
(iv)An electronic extension system be installed avoiding the creation of the post of Telephone Operator."
5.It is the contention of the appellants that the respondents were not appointed by the appellants from and out of the candidates sponsored by the Employment Exchange but, they were all persons engaged by the contractors, as per condition No.3, extracted above, and therefore they are not entitled for regularisation. It is their further contention that absorption of outsourced employees on regular basis would run contrary to recruitment rules.
6.The above contention of the appellants are liable to be rejected, in view of G.O.Ms.No.87, dated 04.03.1999 and G.O.Ms.No.252, dated 19.09.2001 and Tamil Nadu Basic Service Rules. In G.O.Ms.No.87, dated 04.03.1999 and G.O.Ms.No.252, dated 19.09.2001, the posts held by the respondents herein were sanctioned. Except one or two posts, such as Store Keeper, Pharmacist, Lab-Technician Grade-II, all other posts are governed by the Special Rules for Tamil Nadu Basic Service, framed under proviso to Article 309 of the Constitution of India. The said Rules provides for mode of recruitment, qualification, age, reservation in appointments, etc.
7.In this case, the Government itself, while sanctioning the posts with time scale of pay, has issued executive instructions that the jobs of Office Assistant, Sweeper, Sanitary Worker and Watchman be executed by service contracts, in contravention of the above Rules. It is, pursuant to the said executive instructions only, the respondents herein have been engaged by Service Contractors to execute the jobs of Office Assistants, Sweepers, Sanitary Worker and Watchman. Though the respondents were engaged by Service Contractors, after the said Contractors had expressed their difficulties in continuing their services, the appellants have permitted the respondents to render their service and they have been paid by the appellants. In such circumstances, the appellants cannot be permitted to contend that the appointment of the respondents are not in accordance with the relevant service rules and therefore their services cannot be regularised. Further, when the respondents apprehended ousting of their services, they had immediately approached this Court by filing W.P.(MD)No.4282 of 2005 and obtained an order of interim injunction and thereafter they have been continuing in service.
8.Though initially salary has been paid to the respondents only by the Service Contractors, when the Service Contractors expressed their inability to continue their services, the respondents were paid directly by the appellants, as is evident from the Letter Na.Ka.No.74297/Ni.4/1/2011, dated 15.11.2012, of the Director of Medical Education, addressed to the Principal Thoothukudi Medical College, Thoothukudi, which reads as follows:
"nghUs;: ephthfk; - J}j;Jf;Fb kUj;Jtf; fy;Y}hp. J}j;Jf;Fb - xg;ge;jjhuh; rpy tptuq;fs; - njhlh;ghf.
ghh;it: 1)e.f.vz;.4570/ep4-2-2011. ehs; 28.10.11. Kjy;th;. J}j;Jf;Fb kUj;Jtf; fy;Y}hp. J}j;Jf;Fb.
2),t;tpaf;ff fbjk; e.f.vz;.74297-4-1-2011. ehs 04.09.2012.
3)e.f.vzl.4570-ep4-2011. ehs; 12.11.2012. Kjy;th;. J}j;Jf;Fb kUj;Jtf; fy;Y}hp. J}j;Jf;Fb.
.....
ghh;itapy; fhZk; fbjq;fspd;ghy; Kjy;thpd; ftdk; <h;f;fg;gLfpwJ. ghh;it 2y; fhZk; fbjk; thapyhf Mf];l; 2012 tiu rk;gsk; ngw;Wj;jug;gl;l gzpahsh;fSf;F NkYk; nrg;lk;gh; 2012 Kjy; etk;gh; 2012 tiuAs;s khjq;fSf;F kl;Lk; Vw;fdNt rk;gsk; ngw;Wj;je;j jiyg;gpd; fPo; ,Ug;gpy; cs;s epjpapd; %yk; rk;gsk; ngw;W toq;f eltbf;if Nkw;nfhs;SkhW Kjy;th; Nfl;Lf;nfhs;sg;gLfpwhh;." From the above letter of the Director of Medical Education, it is clear that the respondents have been paid by the appellants.
9.The next contention of the appellants is that the writ court has not followed the directions issued by the Hon'ble Supreme Court and this Court in various decisions while considering the claim for regularisation of employees working on contract basis. This contention of the appellants is also liable to be rejected for the reason that the learned Single Judge has considered various decisions of the Hon'ble Supreme Court on this aspect and has come to the conclusion that the respondents are entitled for regularisation in the post in which they are presently employed.
10.The Hon'ble Supreme Court in State of Rajasthan vs. Dayal Lal - (2011) 2 SCC 429, has laid down the well settled principles relating to regularisation and parity in pay. Those principles read as follows:
"(i)The High Courts, in exercising power under Article 226 of the Constitution will not issue directions for regularisation, absorption or permanent continuance, unless the employees claiming regualrisation had been appointed in pursuance of a regular recruitment in accordance with relevant rules in an open competitive process, against sanctioned vacant posts. The quality clause contained in Articles 14 and 16 should be scrupulously followed and Court should not issue a direction for regularisation of services of an employee which would be violative of the Constitutional Scheme. While something that is irregular for want of compliance with the one of the elements in the process of selection which does not go to the root of the process, can be regualrised, back door entries, appointments contrary to the constitutional scheme and/or appointment of ineligible candidates cannot be regularised.
(ii)Mere continuation of service by a temporary or adhoc or daily-wage employee, under a cover of some interim orders of the court, would not confer upon him any right to be absorbed in to service, as such service would be-
litigious employment. Even temporary, adhoc or daily wage service for a long number of years, let alone service for one or two years, will not entitle such employee to claim regularisation, if he is not working against a sanctioned post. Sympathy and sentiment cannot be grounds for passing any order of regularisation in the absence of a legal right.
(iii)Even where a scheme is formulated for regularisation with a cut off date (that is a scheme providing that persons who had put in a specified number of years of service and continuing in employment as on the cut off date), it is not possible to others, who are appointed subsequent to the cut off date, to claim or contend that the scheme should be applied to them by extending the cut off date or seek a direction for framing of fresh schemes providing for successive cut off dates.
(iv)Part time employees are not entitle to seek regularisation as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularisation or permanent continuance of part time temporary employees.
(v)Part time temporary employees in a Government run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can employees in private employment, even if serving full time, seek parity in salary with Government employees. The right to claim a particular salary against the State must arise under a contract or under a statute. "
11.The learned Single Judge has considered the above principles and has come to conclusion that the case of the respondents would fall under the later part of Clause (i) extracted above. Clause(iv) states that part- time employees are not entitled to seek regularisation as they are not working against any sanctioned posts. But, in the case on hand, the respondents are working against sanctioned posts and this fact is clear from G.O.Ms.No.87, Health and Family Welfare Department, dated 04.03.1999 and G.O.Ms.No.252, Health and Family Welfare Department, dated 19.09.2001, extracted above. Therefore, in our considered opinion, the appointment/engagement of the respondents were only against sanctioned posts and their appointment/engagement was only as per the directions of the Government itself, which sanctioned those posts.
12.In State of Karnataka v. Umadevi (3) - (2006) 4 SCC 1, the Honb'le Supreme Court has held as follows:
"48...... There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since a regulr appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules."
13.But, in this case, the Government having sanctioned the posts in time scale of pay, which are governed by Special Rules for Tamil Nadu Basic Service, which provides for mode of recruitment, qualification, age, etc., directed the authorities not to go for recruitment process in conformity with the rules governing the field but, directed the authorities, by way of executive instructions, to get the jobs done through service contractors, thereby denying the opportunity of respondents taking part in the recruitment process. It is not the case of the appellants that the respondents were neither qualified nor over aged in 1999 when they were engaged by the Service Contractors, as per G.O.Ms.No.87, dated 04.03.1999. It is the specific case of the respondents that they have duly registered their names on the rolls of the Employment Exchange and all of them are duly qualified to hold their respective posts in which they are presently working. Further, the writ court, at paragraph No.13 of its order, has observed that the Hon'ble Supreme Court in para 53 of the judgment, reported in (2006) 4 SCC 1, (State of Karnataka v. Uma Devi and others) has clearly held that if the persons appointed on adhoc, casual or contract basis were duly qualified and were working against the sanctioned posts and continued to work for several years without any intervention of the order of the court, in such an eventuality, the process of regularisation could be made.
14.It is also pertinent to state that as stated earlier, in 2005, apprehending ousting, the respondents filed W.P.(MD)Nos.4282 and 4829 of 2005, seeking for issuance of a writ of mandamus to the appellants to regularise their services. A learned Single Judge of this Court has dismissed both the writ petitions, however, granting liberty to the respondents to approach the Government for appropriate relief in this matter. We have already extracted the operative portion of the common order of the learned Single Judge, dated 04.02.2008. Feeling aggrieved by the said order, the respondents filed W.A.(MD)Nos.339 and 340 of 2008 and those writ appeals were disposed of by a Hon'ble Division Bench, by judgment dated 28.08.2008, observing that the issue involved in the above writ appeals is squarely covered by the order given by a Hon'ble Division Bench of this Court in W.P.No.4920 of 2004 etc.batch, dated 09.11.2006. Not satisfied with the judgment of the Hon'ble Division Bench, the appellants filed Special Leave Petitions with petitions to condone delay. Those Special Leave petitions were dismissed by the Hon'ble Supreme Court on the grounds of delay, by order dated 11.02.2011. Thus, the judgment of the Hon'ble Division Bench, dated 28.08.2008, rendered in W.A.(MD)Nos.339 and 340 of 2008, has become final and the appellants are bound to extend the benefit of the order passed in W.P.No.4920 of 2004 etc. batch, dated 09.11.2006. Even according to the appellants, the order passed by a Hon'ble Division Bench of this Court in W.P.No.4920 of 2004 etc., batch dated 09.11.2006, has been complied with by regularizing the services of the petitioners therein. In fact, one of the grounds raised by the appellants in the present appeal confirms the same and it reads as follows:
"6.The Hon'ble Learned Judge ought to have considered that the petitioners in W.P.No.4920/2004 were appointed through employment exchange as Hospital workers in the regular posts and therefore their services were reguarlized by relaxing the relevant rules."
Therefore, this Court is of the view that the appellants have no other option except to extend the benefit of the order of the Hon'ble Division Bench in W.P.No.4920 of 2004, as directed in the judgment in W.A.(MD)Nos.339 and 340 of 2008.
15.In fact, after dismissal of the Special Leave Petitions filed by the appellants, the respondents made a representation dated 09.08.2011, to the Director of Medical Education, Kilpauk, Chennai-10, the 4th appellant herein, through the Dean, Thoothukudi Medical College, Thoothukudi, requesting to send proposals for regularisation. The said representation reads as under:
"With reference to the above, the Government filed the Special Leave Petition before the Supreme Court of India against W.A.Nos.339 & 340/2008 Dated: 28.08.08 filed by the Contract workers on daily wages M.Vincent & Others and the same have been dismissed by the Supreme Court of India on 11.02.2011. But there is no action has been taken till this date in this regard. We are giving sincere service to this college for the past ten years. So I request you to kindly make necessary action to regularize the service of the contract employees on daily wages at the earliest."
16.Pursuant to the said representation, the Dean, Thoothukudi Medical College, Thoothukudi, vide his letter Ref.No.4570/E4/2011, dated 14.10.2011, forwarded his proposal to the Director of Medical Education, Kilpauk, Chennai-10, setting out the entire episode in detail. The last two paragraphs of the proposals, dated 14.10.2011, read as follows:
"I therefore request that in compliance with the directions issued by the Hon'ble Madurai Bench of Madras High Court in Writ Appeal No.339 & 340/08 and W.P.No.9774/08 and in accordance with G.O.Ms.No.22/P & AR (F) Dept., Dated 28.02.06, the contract workers mentioned in the annexure working in posts sanctioned for the college in the G.O.'s I & II cited who have completing 10 years of service on the date noted against each as the annexure enclosed may kindly be absorbed into the Govt.service in the relevant time scale of pay and orders issue at the earliest.
Eventhough almost for the contract workers posses the required qualification and within the age limit at the time of the joining, relaxation of the service rules related to age as on the date of completion of 10 years service may be required now. Necessary proposals for relaxation of age & qualification if any required will be sent after receipt of Govt.orders absorbing them into Govt.service and before regularization of service. I request early orders."
17.It is also useful to extract the Annexures to the proposal sent by the Dean, Thoothukudi Medical College, Thoothukudi, dated 14.10.2011, which read as under:
"THOOTHUKUDI MEDICAL COLLEGE, THOOTHUKUDI PARTICULARS OF CONTRACT WORKERS Under G.O.Ms.No.87 H&FW Dept. Dt.04.03.99 Sl.
No. Name of the person Name of the Post No.of Post sanctioned No.of Post filled up Date of joining Community 1
1.Thiru M.Vincent
2.Thiru S.Karuppasamy
3.Thiru A.Suyambukumar Store Assistant 3 Posts 3 Posts 01.10.2001 01.10.2001 15.09.2002 BC BC BC 2
1.Thiru K.Muthusankar
2.Thiru M.Ganesan
3.Thiru J.Rajesh
4.Thiru Radasannasi
5.Thiru M.Soosai Sahaya Ambrose
6.Thiru S.Ramesh
7.Thiru Petchi Muthu
8.Thiru L.Ramesh
9.Thiru A.Arumugam* (Late) Lab Attendant 9 Posts 9 Posts 01.10.2001 01.09.2000 01.02.2001 24.07.2001 01.10.2001 01.10.2001 01.10.2003 01.10.2002 01.09.2000 SCA SCA BC SCA MBC SCA MBC SCA SCA 3 Vacant Library Assistant 1 Post
-
-
-4
1.Tmt.Selvarani
2.Tmt.D.Chellamma
3.Thiru D.Jeyakrishnan Office Assistant 3 Post 3 Post 01.02.2001 24.12.2001 15.07.2002 BC MBC BC 5
1.Thiru S.Kapali
2.Thiru M.Mariappan Sanitary Worker 2 Post 2 Post 01.09.2000 01.09.2000 SCA SCA 6
1.Thiru Sivakumar Sweeper 1 Post 1 Post 01.09.2000 SCA 7 Vacant Watchman 2 Post
-
-
-
*Note: Thiru A.Arumugam (Late) worked as Lab Attendant from 01.09.2000. He has expired on 7.02.2010 while in service Tmt.A.Mariammal, W/o.A.Arumugam working in this place from 01.07.2010.
Dean i/c THOOTHUKUDI MEDICAL COLLEGE, THOOTHUKUDI PARTICULARS OF CONTRACT WORKERS Under G.O.Ms.No.252/H & FW Dept., Dt:19.09.01 Sl.
No. Name of the person Name of the Post No.of Post sanctioned No.of Post filled up Date of joining Community 1
1.Thiru S.P.Arumugasamy Reg.No.11968/A2 Pharmacist 1 Post 1 Post 01.10.2001 OC 2
1.Thiru G.Venkatesh
2.Tmt.Baby Lab Technician Grade II 11 Posts 2 Posts 11.09.2000 09.01.2003 BC SC 3
1.Tmt.A.Janeykala
2.Tmt.N.Magdalene
3.Tmt.S.Kanagalakshmi
4.Tmt.B.Maheswari Store Keeper 4 Posts 4 Posts 01.10.2001 01.10.2001 01.10.2001 01.10.2001 BC MBC OC MBC 4
1.Thiru K.Selvakumar
2.Thiru M.Chellappa
3.Thiru S.Balamurugan
4.Thiru U.Ganesan
5.Thiru K.Balakrishnan
6.Thiru S.K.Solaiappan
7.Selvi N.Devakani
8.Thiru S.Sornam
9.Thiru J.Rajaram Lab-Attendant 9 Post 9 Post 01.10.2001 01.10.2001 01.10.2001 01.10.2001 01.10.2001 01.10.2001 01.10.2001 11.10.2002 01.02.2001 SCA SCA SCA SCA SCA SCA BC MBC SCA 5
1.Thiru J.Marimuthu Artist 1 Post 1 Post 01.10.2001 SCA Dean i/c"
18.In the same proposal, the Dean, Government Medical College at Thoothukudi, has stated further as follows:
"For functioning the 8 non clinical departments of the college the individuals noted in column 2 of the annexure were employed on contract with effect from the dates noted against each in the posts sanctioned for the first and second year non clinical departments of the college in the G.O.1st and 2nd cited. Various Dean's who worked in the college from starting of the college from 2000-01 to till date have sent proposals to the Director of Medical Eduction, Chennai then and therefore to absorb the above contract workers into regular Govt.service for the following reasons.
1.The then Dean in Lr.Ref.No.438/E1/02-03 dated 29.01.03 & 09.07.03 (Copy enclosed) has stated that the above contract workers have worked to the entire satisfaction of the concerned Heads of the Departments and they have been very useful in getting MCI recognition to this college as they rendered good service during Medical Council of India inspection and also for running the college.
2.Another Dean in his Lr.Ref.No.1070/E4/05, Dated 07.01.06 (copy enclosed) have stated tht the above contract workers were much sincere and duty oriented and they have worked as regular government servants in important posts by working hardly.
He has further stated that even though they were paid very meagre amount as monthly wages their hard work hd been very much useful for getting Medical Council of India permission for renewal of admission for 5 years from 200-01.
3.Another Dean in his Lr.Dated 19.10.07 (copy enclosed) has stated that with the expertise, experience and hard work rendered by the above contract workers only it had been possible to run the college smoothly and obtain MCI permission for renewal of admission each year.
The above Deans have further opined that on perusal of the records and files of the college, it was evident that all the Deans worked in the college were of the same opinion as stated above."
19.Upon receiving the above proposal of the Dean, Thoothukudi Medical College, Thoothukudi, the Director of Medical Education, Kilpauk, Chennai-10, the 4th appellant, vide Letter No.74297/Ni.4/1/2011, dated 11.01.2012, in turn has addressed the Government and requested for orders for taking further action in the matter. In fact, the Director of Medical Education has also recommended for regularisation of the services of the respondents.
20.However, the first appellant, by the Government Letter No.23466/C2/2006-27, dated 27.11.2012, which we have extracted above, relying upon a subsequent Government Order issued in G.O.Ms.No.59, Health and Family Welfare Department, dated 15.02.2008, and also relying upon an order of a learned Single Judge of this Court, dated 17.08.2011, passed in W.P.Nos.13001 of 2008 and 3742 to 3748 of 2009, has refused to regularise the services of the respondents, under the guise of implementation of the judgment of this Court in W.A.(MD)No.339 and 340 of 2008, ated 28.08.2008. Subject column of the said letter reads as under:
"Sub:Judgment of the Madurai Bench of High Court of Madras dated 28.08.2008 in W.A.No.339 of 2008 and W.A.No.340 of 2009 - implementation - Regarding."
21.It is settled law that in order to nullify a judicial pronouncement, no Act or Rule or amendment to any Act or Rule could be made or any executive instructions could be issued. If at all made or issued, it would have only prospective effect and not otherwise. Therefore, in our considered opinion, the act of the first appellant in issuing the Government Letter, dated 27.11.2012, in violation of the order of the Hon'ble Division Bench in W.A.(MD)Nos.339 and 340 of 2008, dated 28.08.2008, is not acceptable.
22.From the above proposals sent by the Dean of the institution in which the respondents are working, it is clear that the services rendered by them are appreciable and their expertise, experience and hard work rendered by them were very much useful in the running of the college smoothly. Thus the services of the respondents are very much essential and there is necessity for continuing their services. All along the appellants 4 and 5, taking into account the services rendered by the respondents, as recorded by various Deans of the institution, through various communications addressed to the Government, have requested for regularisation of the services of the respondent, for the smooth functioning of the institution. The learned Single Judge, taking into account all the facts and circumstances and considering the judicial pronouncements on the issue involved, in our considered opinion, has rightly allowed the writ petition and granted the relief as prayed for. we find no reason to interfere with the well considered and detailed order the writ court.
23. Accordingly, the writ appeal is dismissed. No order as to costs. Connected miscellaneous petition is also dismissed.
To
1.The Secretary to Government, Government of Tamilnadu, Department of Health and Family Welfare, Fort St.George, Chennai-600 009.
2.The Secretary, Department of Finance, Fort St.George, Chennai-600 009.
3.The Accountant General, Office of the Principal Accountant General, (Accounts & Entitlement) Tamil Nadu, No.361, Anna Salai, Chennai-600 018.
4.The Director of Medical Education, Kilpauk, Chennai.
5.The Dean, Thoothukudi Government Medical College, Thoothukudi.
.