Madras High Court
Jawaharlal Institute Of Post Graduate vs The Registrar on 30 September, 2022
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Writ Petition No.23865 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on : 28.09.2022
Judgment Pronounced on : 30.09.2022
CORAM :
THE HON'BLE MR. JUSTICE PARESH UPADHYAY
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.P.No.23865 of 2022 & W.M.P.No.22862 of 2022
Jawaharlal Institute of Post Graduate,
Medical Education and Research (JIPMER)
By its Director, Puducherry – 605 006. ... Petitioner
Versus
1. The Registrar,
Central Administrative Tribunal,
High Court Campus,
Chennai – 104.
2. Pondicherry Employees & Employee Dependents
Welfare Association,
Rep. by General Secretary, Mr.Sugumar
No.23, Middle Street, Thilaspet,
Puducherry – 605 009.
3. Vignesh
4. Vineeth
5. Vasuki
6. P.Sathya
7. K.Meenakshi
8. K.Vengatesh
9. M.Ezhilvendhan
https://www.mhc.tn.gov.in/judis
1/14
Writ Petition No.23865 of 2022
10. R.Radiavel
11. B.Napolean
12. S.Sasikumar
13. R.Tamilselvan
14. P.Sathyamoorthy
15. S.Valli
16. L.Karthikeyan
17. S.Subashnan
18. R.Thilagavathy
19. P.Bikas Chetry
20. N.Lakshmi Narayanan
21. R.Charles Mutheyan
22. R.Augustin
23. V.Murugan
24. S.Saravanan
25. L.Mythili Jothilakshmi
26. K.Amodalanayaguy
27. S.Sivachandran
28. P.Kalpana
29. R.Rathika
30. R.Bagyalakshmi
31. R.Rakesh
32. K.Prammal
33. L.Mageshwara
34. G.Soundari
35. N.Tamiljeval
36. A.Sakthivel ... Respondents
Prayer: Writ Petition filed under Article 226 of Constitution of
India to issue a Writ of Certiorari or any other Writ or other, direction in the
nature of Writ calling for the records of 1st respondent in O.A.No.588 of 2020
dated 12.04.2022 in allowing the O.A filed by the 2nd to 5th respondents with
directions and quash the same.
https://www.mhc.tn.gov.in/judis
2/14
Writ Petition No.23865 of 2022
For Petitioner : Ms.Sunita Kumari
For Respondents : Mr.J.Srinivasa Mohan,
for M/s.T.V.J. Associates,
(for R2 to R5)
ORDER
(The Order of this Court was made by Mr.Justice.D.Bharatha Chakravarthy) This Writ Petition is filed by the JIPMER Administration, aggrieved by the order of the Central Administrative Tribunal in O.A.No.588 of 2020, dated 12.04.2022, in and by which, the Tribunal allowed the original application filed by the respondents 2 to 5 herein, whereby the Tribunal quashed the order dated 24.07.2020, showing the 31 trainees who were working under the JIPMER Administration, as the candidates in the revised waiting list for compassionate appointment, and consequently directed the JIPMER Administration to prepare revised waiting list from the year 2012 by including the names of the applicants who are actually waiting for the appointment on compassionate grounds.
2.The undisputed facts of this case are as follows. The second respondent/first applicant is an association of employees and their dependants, whose members are waiting for the appointment after making an application https://www.mhc.tn.gov.in/judis 3/14 Writ Petition No.23865 of 2022 under compassionate appointment scheme. The respondents 3 to 5/ applicants 2 to 4, are such candidates who were awaiting their turn to be considered by the petitioner/Management. The petitioner is an institute of National importance, originally functioning under the Ministry of Health and Family Welfare, Government of India, and thereafter constituted as an autonomous body under the JIPMER Act, 2008. The institution hitherto and as of now, is following the scheme for compassionate appointment as framed by the Government of India from time to time. While so, because of the policy decision taken during the late 1990's, Group D posts were abandoned/abolished. On account of thereof, due to non-availability of vacancies in Group “C” and Group “D” posts within the 5% quota of compassionate appointment, a number of deserving candidates were kept in the waiting list. While so, on 11.12.2009, the Government of India, issued an Official Memorandum, bearing reference in F.No.14014/2/2009-Estt(D), which reads as follows:-
“The modification of the existing Scheme for Compassionate Appointment has been considered in the light of the recommendation of the 6th CPC as contained in para 2.2.9 and 2.2.10 of its Report. Accordingly, in partial modification of the Scheme for Compassionate Appointment issued by https://www.mhc.tn.gov.in/judis 4/14 Writ Petition No.23865 of 2022 this Department vide O.M.No.14014/6/94Estt.(D) dated 9" October, 1998, as amended from time to time, it has been decided in consultation with the Department of Expenditure that for appointment on compassionate grounds, in exceptional circumstances Government may consider recruiting persons not immediately meeting the minimum educational standards. Government may engage them as trainees who will be given the regular pay bands and grade pay only on acquiring the minimum qualification prescribed under the recruitment rules. The emoluments of these trainees, during the period of their training and before they are absorbed in the Government as employees, will be governed by the minimum of the — 1S pay band of Rs. 4440-7440 without any grade pay. In addition, they will be granted all applicable Allowances, like Dearness Allowances, House Rent Allowance and Transport Allowance at the admissible rates. The same shall be calculated on the minimum of — 1S pay band without any grade pay. The period spent in the —1S pay band by the future recruits will not be counted as service for any purpose as their regular service will start only after they are placed in the pay band PB-1 of Rs.5200- 20200 along with grade pay of Rs.1800.” https://www.mhc.tn.gov.in/judis 5/14 Writ Petition No.23865 of 2022
3.It may be seen that the above official memorandum only enables the Government to consider recruiting persons not immediately meeting the minimum educational standards on compassionate grounds to be appointed as 'trainees' in the minimum pay band of Rs.4440 – Rs.7440/-, without any grade pay, until they obtain the minimum educational qualification and granting they regular pay band or grade pay once they acquire the minimum educational qualification as per rules.
4.The officials of the petitioner administration, read the above official memorandum as if it permitted them to appoint all the deserving candidates as trainees without reference to the 5% quota and therefore, took a decision in the year 2011 to appoint a total number of 56 persons who were waiting for compassionate appointment as trainees. It may be seen that of the said 56 persons, 39 persons were having the basic minimum qualification. However along with the persons who did not have basic a minimum qualification, all the 56 persons, who were applicants and found to satisfy the criteria for compassionate appointment were en-masse appointed as trainees. https://www.mhc.tn.gov.in/judis 6/14 Writ Petition No.23865 of 2022
5.Thereafter, it seems that the petitioner administration had adjusted 24 out of 56 persons appointed as Multi Tasking Staff subsequently during the years 2012-2021. Of the remaining 32 trainees, one person expired in the year 2019 and 31 persons are still working as trainees. When the Government of India issued fresh guidelines for compassionate appointment vide the Official Memorandum dated 20.05.2019, so as to comply with the same, waiting list of persons who were waiting for the compassionate appointment was published by the impugned order on 24.07.2020, which included only 31 trainee persons who were all already working on compassionate appointment. Therefore, the second respondent/applicant association along with the aggrieved members, filed the original application in O.A.No.588 of 2020 before the Central Administrative Tribunal, Madras Bench, challenging the said order and for the consequential directions.
6.The original application was contested by the petitioner administration by filing a reply statement. It is contended that originally 56 persons were appointed in the spirit of the Official Memorandum, dated 11.12.2009 as one time measure, so that, they can be absorbed against the 5% future vacancies in Group “C” and “D” posts and therefore, they are now shown in the waiting list, as persons seeking compassionate appointment https://www.mhc.tn.gov.in/judis 7/14 Writ Petition No.23865 of 2022 under the 5% quota. The Tribunal, after considering the rival submissions made by the parties and perusing the materials on record, found that the crux of the matter is whether the persons are already in job can be shown as waiting for the compassionate appointment. It considered as to whether the process of adjusting the trainees who are appointed as in the excess of quota has any relevance to the compassionate appointment as such. The Tribunal held that the said action of making appointment in the year 2010 and trying to adjust the future vacancies for the same is against the objects of the compassionate appointment and not justifiable and therefore, declared that the action as illegal and allowed the original application, on the terms as stated supra. Aggrieved by the same, the present Writ Petition is filed before this Court.
7.Heard Mrs.Sunitha Kumari, learned Counsel appearing on behalf of the Writ Petitioner and Mr.J.Srinivasa Mohan, learned Counsel appearing for the respondents 2 to 5.
8.Learned Counsel appearing on behalf of the Writ petitioner/JIPMER Administration, would submit that the persons who are appointed and working as trainees are also deserving persons entitled for regular and proper employment with grade pay under the compassionate https://www.mhc.tn.gov.in/judis 8/14 Writ Petition No.23865 of 2022 scheme. Therefore, there can be no error in appointing them, in the year 2011 as the same is in accordance with the official memorandum, dated 11.12.2009. Once they are appointed they have to be adjusted within the 5% quota and therefore, only for the said purpose they are shown in the waiting list. Therefore, she would submit that the Tribunal completely erred in setting aside the said list, which was published by the JIPMER administration.
9.Per contra, Mr.J.Srinivasa Mohan, learned Counsel appearing for the respondents 2 to 5/original applicants, would submit that a clear reading of the official memorandum dated 11.12.2009, it would be clear that in addition to the rules framed for compassionate appointment, the official memorandum, only additionally provided that even the persons who do not posses minimum educational qualification can be immediately appointed as trainees under expectational circumstances and thereafter once they obtained the minimum educational qualification, can be absorbed in the regular cadre posts. The appointment as trainees itself is a valid appointment on compassionate basis and they are proper Government servants having all the rights and benefits of employment and the said fact will be clear by the official memorandum dated 03.04.2012, issued by the Government of India, by way of clarifications. A perusal of the said Memorandum, it is clear for that except for granting of https://www.mhc.tn.gov.in/judis 9/14 Writ Petition No.23865 of 2022 increment, and designation, they are government servants for all practical purposes. As a matter of fact, if they die in harness while in service, even their dependents are entitled to compassionate appointment. Therefore, there is no question of again appointing them on compassionate under 5% quota, much less keeping them in the waiting list. He would further submit that there is no other impediment for the respondents to grant them the regular pay band and grade pay on acquiring minimum qualification once they were appointed. But, however, the same cannot be in the 5% of vacancies meant for the compassionate appointment. If the original appointment is made for in excess of 5%, it is for the administration to appoint them in such vacancies available to them and there is no justification for bringing them as if they are candidates waiting for compassionate appointment.
10.We have given our anxious consideration to the submissions made on either side and perused the material records of this case.
11.At the outset, the impugned exercise is an exercise under the compassionate appointment scheme preparing the list of candidates who are waiting for the compassionate appointment. Therefore, perse, bringing the candidates who are already in employment as trainees under the said list is https://www.mhc.tn.gov.in/judis 10/14 Writ Petition No.23865 of 2022 impermissible. The Tribunal had also categorically found that if such trainees were appointed as en masse long before, that is in the year 2010 and thereafter, continuously and now even in the year 2022, if the future vacancies are to be appropriated for regularising the said trainees, the same operates directly against the object of the compassionate appointment scheme, which is to provide immediate succor to the families in penury on account of the sudden death of the sole breadwinner. Therefore, either by the plain reading of the exercise or going by the object of the compassionate appointment scheme, the impugned exercise of the petitioner administration is unjustifiable.
12.As rightly pointed out by the learned Counsel for respondents 2 to 4, this seems to be an exercise of setting right the mistakes in the old file. The official memorandum dated 11.12.2009 is extracted above. It does not in any manner require or enable the petitioner administration to appoint all the candidates en masse. It did not empower the petitioner management to appoint the candidates who were actually possessing the minimum educational qualification also as 'trainees'. From the list of the candidates, which is filed along with the Writ petition, it is clear that as many as 39 candidates were possessing the minimum qualification of 10th standard, which is a relevant minimum educational qualification at the time. Only 17 candidates did not https://www.mhc.tn.gov.in/judis 11/14 Writ Petition No.23865 of 2022 have the basic minimum educational qualification. Therefore, if the petitioner administration in respect of these 56 deserving candidates made appointments in excess of the 5% quota, and the said persons were working for the past 12 years. In order to set right the anomalous situation, there is no prohibition for the administration to designate the trainees as holding appropriate Group C or D posts, once they obtained the minimum educational qualification. The official memorandum itself categorically states that once they obtained the minimum qualification, they can be absorbed in the regular pay band and grade pay. The petitioner administration, having not read the 5% quota at the time of appointing persons, pursuant to the said official memorandum, is now, artificially reading the 5% quota when it comes to designation/absorption. Once they had obtained an appointment as trainees, then as per the official memorandum, if they subsequently or otherwise possess the minimum educational standards, they have to be designated/absorbed as holding appropriate posts as per the available vacancies. The exercise of the petitioner administration in bringing them again in the waiting list of candidates, seeking compassionate appointment is wholly unjustifiable.
13.It is also brought to our notice across the bar, considering the nature of work which is required in the Hospital, more number of posts in the https://www.mhc.tn.gov.in/judis 12/14 Writ Petition No.23865 of 2022 Group “C” category, as Multi Tasking Staff are created in the petitioner administration. Over and above the same, the post of Multi Purpose Worker has also been created and there are ample vacancies to designate/absorb these 31 persons according to their eligibility and qualification. In that view of the matter, the insistence of the petitioner management, that they will accommodate/adjust the employees working as trainees only under the 5% quota, is unjustified. Therefore, the Tribunal was right in passing the order impugned in the Writ Petition.
14.In the result, the Writ Petition is dismissed. There shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
(P.U., J.) (D.B.C., J.)
30.09.2022
Index : Yes/No
Speaking/Non-Speaking order
klt
To
The Registrar,
Central Administrative Tribunal, High Court Campus,Chennai – 104. https://www.mhc.tn.gov.in/judis 13/14 Writ Petition No.23865 of 2022 PARESH UPADHYAY, J., and D.BHARATHA CHAKRAVARTHY, J., klt Pre-Delivery Judgment in W.P.No.23865 of 2022 & W.M.P.No.22862 of 2022 30.09.2022 https://www.mhc.tn.gov.in/judis 14/14