Madras High Court
Dr.K.Santhanam vs The Director on 23 January, 2020
Author: M.Govindaraj
Bench: M.Govindaraj
WP.No.34155 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.01.2020
CORAM
THE HON'BLE Mr. JUSTICE M.GOVINDARAJ
W.P.No.34155 of 2012
Dr.K.Santhanam ... Petitioner
Vs.
1.The Director,
Local Fund Audit Department,
Kuralagam, Chennai.
2.The District Collector,
Erode District.
3.The Commissioner,
Sathyamangalam Panchayat Union,
Erode District. ... Respondents
Prayer : Petition filed under Article 226 of the Constitution of India praying to
issue a writ of certiorarified Mandamus to quash the impugned notice by the 1st
respondent dated 07.08.2012 bearing Na.Ka.No.24220 dated 07.08.2012 and
direct the respondents herein to calculate the revised pension and arrears of
pension based on G.O.Ms.408 Finance (Pension) Department dated 25.08.2009
from the petitioner's date of appointment and award the same.
For Petitioner : Mr.K.M.Ramesh
For Respondents : Mr.P.Chinnadurai
Additional Government Pleader
[for RR1 to R3]
*****
http://www.judis.nic.in
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WP.No.34155 of 2012
ORDER
The petitioner was appointed as a Rural Medical Officer in Thukkanayakkampalayam Panchayat Union on 24.01.1977 and continued the service without any break and retired on 29.02.1996. By virtue of G.O.Ms.No.16 Rural Development Department dated 29.01.1998 placed all the Rural Medical Officers on time scale of pay w.e.f. 01.10.1984. Thus the petitioner is also entitled to time scale of pay from 1984. In G.O.Ms.No.250 Rural Development Department dated 14.09.2000, government ordered that Rural Medical Officers are part time workers and they are not entitled to pension. The said Government Order was challenged in W.P.No.30003 of 2002 before this Court. A Hon'ble Division Bench of this Court has extensively dealt with the issue and held that all the Rural Medical Officers shall be treated as regular officers in the following lines:-
"22.G.O.Ms.No.250, dated 14.09.2000 proceeds on the basis that there are two types of dispensaries, namely regular dispensaries and part-time rural dispensaries in the control of the Panchayat Unions. The said G.O.Ms.No.250 also proceeds on the basis that "the part time rural medical officers working in Panchayat Union were placed under the time scale of pay as per the orders of the Madras High Court from 01.10.1984"
and it also starts on a query as to whether the rural medical dispensaries shall continue as part time dispensaries and http://www.judis.nic.in 2/12 WP.No.34155 of 2012 whether vacancies should be filled up and whether the Rural Medical Officers are entitled for the other benefits that of other regular employees. Clause (a) of paragraph 3 of G.O.Ms.No.250 proceeds on the basis that the functions of the rural dispensaries were not assessed so far and therefore, there was a need to assess the necessity of continuing the Panchayat Union dispensaries and their functions and till such assessment is made, pending Government decision, the Panchayat Unions were restrained from opening rural dispensaries. Clause (b) of paragraph 3 of G.O.Ms.No.250 states that since primary health centres are available in all Panchayats in Tamil Nadu, the rural dispensaries shall function as part-time dispensaries. Clause (d) of paragraph 3 of G.O.Ms.No.250 accepts that the post of Rural Medical Officers are occupied by graduates and certificate holders like B1, B2, C registered medical practitioners and of different qualifications. It however adds that they do the same work and they are all part-time Rural Medical Officers and the salary should be paid in terms of G.O.Ms.No.16, Rural Development Department, dated 29.01.1998 and as per the orders of the High Court. Clause (e) of paragraph 3 of G.O.Ms.No.250 denies pension benefits to the Rural Medical Officers on the ground that the post is a part-time post and therefore, the part-time Rural Medical Officers are not entitled to the pension benefits. Consequently, the other terminal benefits applicable for regular employees like selection grade, special http://www.judis.nic.in 3/12 WP.No.34155 of 2012 grade, compassionate ground appointments, group insurance, provident fund, encashment of earned leave and surrender, are not made applicable to the part-time medical officers. Clause (g) of paragraph 3 of G.O.Ms.No.250 deals with payment of stipend during the period in which they are undergoing post-graduation course. Clause (h) of paragraph 3 of G.O.Ms.No.250 deals with denial of rural allowance and personal pay on the ground that the responsibilities of rural medical officers are less than that of the medical officers working in primary health centres and the Government Doctors.
23.In spite of clear and categorical finding by this Court that the rural medical officers are holding the post on permanent basis and working on the prescribed working hours on regular basis and not on part-time basis, the impugned G.O. proceeds on the basis that the post is part-time post. This is in spite of the fact that the order of the learned single Judge as well as the Division Bench of this Court have clearly held that the rural medical officers should be given the benefit of time scale of pay as they were working on regular basis. The Government has from time to time prescribed the working hours and granted the service benefits like special pay, special compensatory allowance, medical allowance, payment on surrender of earned leave, selection grade, medical leave, earned leave, etc. to the petitioner in W.P.No.20316 of 2002, namely Dr.J.Krishnamoorthy, however the only claim which http://www.judis.nic.in 4/12 WP.No.34155 of 2012 was denied to this petitioner is the pension and other terminal benefits based on the impugned G.O.Ms.No.250.
25.On a clear reading of the various orders of this Court and the proceedings of the Government cited and on going through the impugned G.O.Ms.No.250, we have no hesitation to come to the conclusion that the impugned G.O.Ms.No.250 at the best deals with the status of the rural medical dispensaries for the future. It also speaks about the vacancies to be filled up. However, a portion of the G.O.Ms.No.250 deals with the service condition of rural medical officers who are already employed full-time and on a permanent basis. In this regard, Clause (e) of paragraph 3 of the G.O.Ms.No.250 becomes relevant as it seeks to deny the pensionary benefit to the rural medical officers on the ground that the post of rural medical officer is a part-time post and therefore, they are not entitled to pension benefits. Though Clause (e) of paragraph 3 of the G.O. can be said to be prospective, it is in effect retrospective in nature. However, on a reading of Clause (f) of paragraph 3 of the G.O., it is seen that a reference is made to the time scale of pay paid to rural medical officers pursuant to the orders of the High Court. In respect of Clause (f), the employees are referred to as part- time medical officers. In the same manner, the opening paragraph of G.O.Ms.No.250, dated 14.09.2000 also refers to the part-time rural medical officers and that their time scale of pay has been fixed pursuant to the orders of this Court. It is on http://www.judis.nic.in 5/12 WP.No.34155 of 2012 the basis of this observation in the G.O.Ms.No.250, the pensionary benefits were denied on the ground that the pensionary benefits are eligible only for permanent employees and not to part time employees.
26.The impugned G.O.Ms.No.250 insofar as it refers to post of rural medical officer as part-time post and the rural medical officers as part-time rural medical officers, is clearly opposed to and contrary to the judgments of this Court in W.P.No.863 of 1989, dated 08.03.1995 and the order of the First Bench of this Court in W.A.No.922 of 1995 etc., dated 01.02.1996. It is also contrary to various Government Orders already issued fixing the time scale of pay insofar as the rural medical officers are concerned. Several correspondences between the Government and the authorities which we have referred to earlier, show that the rural medical officers are regular employees working on the prescribed working hours and therefore, it will be incorrect to state at the present, that they are part-time rural medical officers employed in the part- time post. The impugned G.O.Ms.No.250 which refers to the medical officers as part-time medical officers employed in part-time post, is incorrect and has to be necessarily interfered with. The rural medical officers cater to the health needs of the people living in remote villages. In the earlier part of this order, we have referred to G.O.No.2446, Education and Public Health Department (Public Health), dated 24.09.1937, where the Government has even allowed the http://www.judis.nic.in 6/12 WP.No.34155 of 2012 Presidents of the Local Boards to fix the working hours of rural dispensaries. It is therefore apparent that the rural dispensaries have been functioning for more than six decades. However, surprisingly, it is for the first time in the year 2000 that the Government has woken up from its slumber to state that the functions of the Panchayat Unions dispensaries should be assessed. It only speaks about the lethargy on the part of the authorities concerned in having failed to address themselves to the needs of the rural people and the working of the rural dispensaries.
28.........It may be that the Government as a policy decision, has decided not to fill up the vacancies to the post of rural medical officers or maintain the dispensaries; but it cannot deny the benefits to the rural medical officers who are regularly working as rural medical officers on permanent basis and who have been granted the benefit of time scale of pay pursuant to the orders of the Court. The impugned G.O.Ms.No.250 insofar as it impinges upon the rights of the petitioners to the benefits of pension and other terminal benefits, will have to be struck down as arbitrary and irrational.
2. Thereafter, the Government passed another order in G.O.Ms.No.408 Finance (Pension) Department dated 25.08.2009, wherein a decision was taken to count the services rendered by the Rural Medical Officers in Government http://www.judis.nic.in 7/12 WP.No.34155 of 2012 Departments irrespective of Non-Provincialised service, on Consolidated Pay, Honorarium or Daily wages for the purpose of calculating pension. However, it was not extended to part time Rural Medical Officers. The said GO dated 25.08.2009 came under the scanner of this Court in W.P.Nos.53 to 56 of 2011, wherein this Court has held that;
"6.When a party gets a right under a judgment, the said accrued right cannot be denied based upon an artificial classification. There is absolutely no basis for treating the petitioners differently than that of the other employees inspite of the ratio laid down by the Honourable Division Bench of this Court on the earlier occasions. When the petitioners have been given all other benefits treating them on par with the regular employees, for the purpose of computing the pension alone they cannot be treated differently, even after the judgment of the Honourable Division Bench of this Court, directing the Government to give them the benefits on par with the other employees. It is to be seen that the Government Orders gives the benefit to the erstwhile consolidated and daily rated employees who are not in a better position than the petitioners.
7.In other words, this Court on the earlier occasions found that such a classification cannot be sustained in the eye of law. The denial of computation of pension to the petitioners in accordance with the Government Order passed in G.O.Ms.No.408, Finance (Pension) Department, dated http://www.judis.nic.in 8/12 WP.No.34155 of 2012 25.08.2009 is nothing but an attempt to interfere with the orders passed by this Court. What has to be seen is the ratio laid down by the Court of law and on a mere technical ground the petitioners cannot be non-suited. The very object of the Government Order passed in G.O.Ms.No.408, Finance (Pension) Department, dated 25.08.2009 is to give benefits to the employees, who were working earlier on consolidated as well as daily rated wages. Therefore, the petitioners without any basis cannot be denied the said benefits as such a benefit will have to be extended to the petitioners as well.
8.In the light of the discussions made above, this Court is of the view that the orders impugned will have to be set aside and accordingly, they are set aside and consequently, the respondents are directed to calculate the revised pension and arrears of pension in accordance with the Government Order passed in G.O.Ms.No.408, Finance (Pension) Department, dated 25.08.2009 to the petitioners, within a period of three months from the date of receipt of a copy of this order."
3. As such there cannot be any classification as part time or full time Rural Medical Officers. Those who have joined after 01.01.1961, be it Non-
Provincialised service or on Consolidated Pay, Honorarium or Daily Wages, all their services has to be counted for the purposes of pension. It is also observed that the similarly placed persons shall not driven to Court for getting the http://www.judis.nic.in 9/12 WP.No.34155 of 2012 pensionary benefits. Yet the same was denied by the respondents by way of the impugned order on untenable reasons. The officers shall implement the orders of the High Court in letter and spirit after it having been implemented in several cases. For example, the order of this Court implemented in G.O.Ms.No.339 Rural and Panchayat Development Department dated 15.09.2013. In spite of the same, mechanical orders are being passed without application of mind in an attempt to shirk away from the responsibilities. The present impugned order is one such example for non-application of mind and arbitrary exercise of power.
The impugned order is unsustainable and accordingly set aside. The respondents are directed to count the services of the petitioner between 1971- 1996 for the purposes of pension as per G.O.Ms.No.408 Finance (Pension) Department dated 25.08.2009 in the light of the judgment of this Court in W.P.Nos.53 to 56 of 2011dated 12.11.2011 and disburse the monetary benefits due to the petitioner within a period of six weeks from the date of receipt of a copy of this order and report compliance.
Post the matter for 'reporting compliance' on 10.11.2020.
23.01.2020 bri http://www.judis.nic.in 10/12 WP.No.34155 of 2012 Index : yes/No Speaking Order / Non Speaking Order To
1.The Director, Local Fund Audit Department, Kuralagam, Chennai.
2.The District Collector, Erode District.
3.The Commissioner, Sathyamangalam Panchayat Union, Erode District.
http://www.judis.nic.in 11/12 WP.No.34155 of 2012 M.GOVINDARAJ, J.
bri W.P.No.34155 of 2012 23.01.2020 http://www.judis.nic.in 12/12