Madras High Court
Dr.Saravanan vs The Health Secretary
Author: D.Krishnakumar
Bench: D.Krishnakumar
W.P.Nos5105 of 2021 etc., batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESEVED ON: 12.04.2022
DELIVERED ON: 26.04.2022
CORAM:
THE HON'BLE MR. JUSTICE D.KRISHNAKUMAR
W.P.Nos.5105, 14203, 14249, 14366, 14456, 24257 & 14616 of 2021
and WMP.Nos.15084, 15161, 15276, 15343, 15501, 25571, 5690 of 2021
W.P.No.5105 of 2021
1.Dr.Saravanan
2.Dr.Palaniappan
3.Dr.P.R.Thirumalai Kumar
4.Dr.G.Venkatesh
5.Dr.M.Bharatha Devi
6.Dr.J.Gayathri
7.Dr.Vinoth
8.Dr.V.Balaji
9.Dr.T.SudhaNanthini
10.Dr.K.Chandrakala
11.Dr.M.S.Gayathri .. Petitioners
vs.
1.The Health Secretary,
Health and Family Welfare Department,
The Secretariat Nirmal Bhawan,
C Wing, New Delhi-110 001.
2.The Secretary of NMC,
Health and Family Welfare Department,
Sector 8, Dwarka Phase I,
New Delhi-110 077.
https://www.mhc.tn.gov.in/judis
1
W.P.Nos5105 of 2021 etc., batch
3.The Secretary,
Ministry of Health and Family Welfare,
Chennai.
4.The Director of Medical Education,
Tamil Nadu Health and Family Welfare,
E.V.R.High Road,
Kilpauk, Chennai-600 010.
5.The Directorate of Medical Service,
The Medical and Rural Health Services,
DMS Complex, 361, Anna Salai,
Chennai.
6.The DPH,
Director of Public Health Services,
DMS Complex, 361, Anna Salai,
Chennai.
7.Dr.U.N.Priyadharshini
8.Dr.D.Gayathri Priya
9.Dr.M.Subarathi
10.Dr.S.Arrchana,
11.Dr.R.Senthamizhselvi
12.Dr.M.Prakash
13.Dr.T.Meenakshi
14.Dr.T.Siyamala Devi
15.Dr.S.Anusha
16.Dr.N.Preetha
17.Dr.K.Kokila
18.Dr.S.Sudharshini .. Respondents.
(R7 to R18 impleaded vide order dated
12.04.2022 in WMP.No.13623 of 2021)
Prayer in W.P.No.5105 of 2021: Writ Petition filed under Article 226 of the
Constitution of India praying for issuance of a Writ of Certiorarified
Mandamus to call for the records having reference No.46986/E1/5/2020
https://www.mhc.tn.gov.in/judis
2
W.P.Nos5105 of 2021 etc., batch
dated 19.02.2021 issued by the fourth respondent of Tamil Nadu Medical
Service Counseling for the post of Associate Professor in various schemes for
the panel year 2020-2021 in the Director of Medical Education and quash the
same and consequently directing the respondents to frame a new scheme of
guidelines for regularization services by getting out the anomaly of automatic
regularization prevailing in the bonding Doctors and to give preference for in-
service Medical Officers like petitioners as per CML seniority to be permitted
in their promotional avenues than the Bonding Medical Officers.
For Petitioners : Mr.AR.L.Sundaresan, Senior Counsel
in all W.Ps. for Mr.C.Kanagaraj
For Respondents : Mr.R.Neelakandan,
Additional Advocate General
assisted by
Mr.V.Veluchamy, Addl. Government Pleader
for R3 to R6
Mr.A.R.Sakthivel, Senior Panel Counsel
for R1
Mr.Shubharanjaniananth,
Standing Counsel for R2
COMMON ORDER
The petitioners, challenging the proposal of the Government for regularizing the Post Graduation two years bonding period from the date of entry, vide proceedings of the fourth respondent dated 19.02.2021 and thereby they are losing their promotion from the date of entry into service by the Government of Tamil Nadu, have filed the present writ petitions. https://www.mhc.tn.gov.in/judis 3 W.P.Nos5105 of 2021 etc., batch
2. The case of the petitioners is that they are Doctors, appointed as Assistant Surgeons and Assistant Professors during 2005 to 2011 and registered themselves with the Tamil Nadu Medical Council and have put in about 15 years of service as Government Doctors and discharging his duties in various Government Hospitals and Government Primary Health Centres without any black mark. According to the petitioners, the appointment of Non service PG Bond doctors is purely temporary and obligatory bond service in DME side, which is totally against Tamil Nadu Medical Service Rules and G.O.(Ms)No.354, Health and Family Welfare dated 23.10.2009. The Non- Services Post Graduates, while entering PG course, have signed bond to serve in the Tamil Nadu Government for 2 years after completing their PG course. If they are not willing to serve in Tamil Nadu Government, they have to pay Rs.40/- lakhs to Tamil Nadu Government, because they are getting stipend and using the resources from Government during their Post Graduation course and so their service is purely a temporary bond service and they have to be terminated after completing continuous two years of bond service.
3. The petitioners would contend that appointment of Non-Service PG https://www.mhc.tn.gov.in/judis 4 W.P.Nos5105 of 2021 etc., batch Bond doctors are temporary and they have to be terminated after completion of 2 years bond period and if they want to enter into Government service, they have to appear for the Medical Recruitment Board [MRB] examination to get selected for permanent post and they should be regularized from the date of passing MRB examination and not from the date of bond entry. But on the contrary, their services were counted and regularized from the date of joining the bond service.
4. The petitioners would further contend that proviso to Rules 17(1) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2015 says that “no appointment by direct recruitment made under this Section shall be of any person other than the one sponsored by the Commission from its regular or reserve list of successful candidates to any of the posts within the purview of the Commission”. Proviso to Rule 17(1) also says that “direct recruitment shall be made only where new post with new qualifications are created temporarily and where the Commission does not have a regular or reserve list of successful candidates for sponsoring, but not for the already sanctioned regular post”. The same Section says that any post filed by temporary appointment under this Section, the temporary candidate has to https://www.mhc.tn.gov.in/judis 5 W.P.Nos5105 of 2021 etc., batch be subsequently replaced by regular service candidate as soon as possible. According to the petitioners, in the case on hand, bond candidates appointed temporarily as Assistant Professors are never been replaced by regular eligible service candidates and in addition, the temporary candidates have been given subsequent promotions as Associate Professor and Professor, by treating them on par with regular appointment and promotion of temporary candidates permanently blocks the promotional opportunities of regular candidates.
5. The petitioners would further contend that when a temporary candidate is appointed on the basis of agreement as per Rule 19(1) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, they shall not be regarded as a member of the service in which post they are appointed and shall not be entitled to any preferential claim to any other appointment in that service as per Section 19(2). So a temporary candidate cannot claim to write MRB exam while doing bond service. Hence allowing them to write MRB during bond period and regularizing them from the date of bond appointment is totally against Tamil Nadu Government Servants (Conditions of Service) Act, 2016. The petitioners submits that in letter No.46250/B1/2021-4 dated 31.01.2022, Health & Family Welfare (B1) https://www.mhc.tn.gov.in/judis 6 W.P.Nos5105 of 2021 etc., batch Department dated 31.01.2022, the respondent mentioned that they have issued appointment order for Non-Service Post Graduates as Assistant Surgeon based on Tamil Nadu Medical Service in relaxation of Rule 17(1) of Tamil Nadu Government Servants (Conditions of Service) Act, 2016 in Government medical institutions and they are not sponsored by the Tamil Nadu Public Service Commission / Medical Recruitment Board as laid down in Tamil Nadu Government Servants (Conditions of Services) Act, 2016.
6. The petitioners also submits that Section 17(3) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016 says that the appointment made under Section 17(1) of the Act shall be replaced as soon as possible by a member of the service qualified to hold the post and in any case he shall not be continued for a period of more than one year from the date of his temporary appointment. Hence, appointment of bond candidates to fulfill 2 years of bond service cannot be done as per Section 17(1) of the Act. So the temporary appointment of bond candidate under Section 17(1) is a clear violation of The Tamil Nadu Government Servants (Conditions of Service) Act, 2016. The petitioners further submits that Section 17(5) of the Act says that a person appointed under Section 17(1) shall not be regarded as a https://www.mhc.tn.gov.in/judis 7 W.P.Nos5105 of 2021 etc., batch probationer and shall not be entitled to any preferential claim to future appointment to such service. The service of a person appointed under Section 17(1) of the Act shall be liable to be terminated by the appointing authority without any notice and without any reason. In contrast to this rule, the respondent considered the bond period as probationary period and issued probation declaration and also regularized their service instead of terminating them after completion of bond period. Rule 17(7) of the Act also says the same. Hence, appointment of temporary bond candidates in regular sanctioned post and considering the bond period as probationer period and regularizing them from the date of joining bond service, instead of termination is a clear violation of Sections 17(1), 17(2), 17(3), 17(5), 17(6) and 17(7) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016. Hence, regulation and promotion of bond candidates should be reverted.
7. Mr.AR.L.Sundaresan, learned Senior Counsel assisted by Mr.C.Kanagaraj, learned counsel for the petitioners made the following contentions:
(i) Regularizing the bond service doctors on par with in-
service doctors were bad in law, depriving the promotional avenue for the petitioners and directly violates Article 19(1)(g) https://www.mhc.tn.gov.in/judis 8 W.P.Nos5105 of 2021 etc., batch of the Constitution of India.
(ii) It is a customized practice where regularization can be fixed from the date of completion of bonding service, but not from the entry period. In this case, the impugned order of the respondent without assessing the attendance of Medical Leave, Earned Leave and other leave period without performance and break in service and directly getting regularization automatically after the two years period will cause serious hardship to the petitioners.
(iii) The impugned order not only deprive the right of promotional avenue but also puts the petitioners in the same position till their retirement, without getting higher post in their services.
(iv) The very appointment of the PG Bond Doctors were through backdoor irregular method, without facing TNPSC exam presently MRB recruitment.
(v) As per G.O.(Ms)No.245, Health and Family Welfare (A1) Department dated 30.10.2013, only CML seniority should be taken for preparation of panel for the post of Associate Professor. The Non-Service PG Bond Doctors never complete https://www.mhc.tn.gov.in/judis 9 W.P.Nos5105 of 2021 etc., batch the mandatory medical Government Service and whereas the in- service PG doctors after completing PG period, they are working in DPH and DMS side, but not in DME, even though they served in rural service before doing PG especially for non clinical service PGs. But the bond candidates are appointed directly through DME without serving in DPH or DMS. The learned Senior Counsel for the petitioners, in support of his submissions, has placed reliance on the following decisions:
(i) Order dated 02.02.2011 in W.P.Nos.26180 of 2010 etc., batch [Dr.R.Senthilnathan & Others v.
Dr.R.Velmurugan & Others]
(ii) Judgment dated 05.09.2019 in W.P.No.14112 of 2019 [T.K.Saravanan v. The State of Tamil Nadu, Health and Family Welfare Department, Chennai and another]
(iii) Order dated 14.08.2019 in W.P.Nos.15215 of 2019 etc., batch [Dr.B.Minu Rekha v. The State of Tamil Nadu and others].
8. Mr.R.Neelakandan, learned Additional Advocate General assisted by Mr.V.Veluchamy, learned Additional Government Pleader for the respondents 3 to 6 has drawn the attention of this Court to the counter affidavit of the Assistant Director of Medical Education, Kilpauk, Chennai, dated 23.03.2022, filed on behalf of the respondents 3 to 6, wherein it has been https://www.mhc.tn.gov.in/judis 10 W.P.Nos5105 of 2021 etc., batch stated as follows:
(i) Though the petitioners are seniors in service than that of the Medical Officers, who were approved in the regular panel for the year 2020-2021, they have not completed 5 years of teaching experience in their specialties as per the norms of the Medical Council of India / National Medical Commission and as per the existing rule for the panel year 2020-2021 i.e., as on the crucial date of 15.03.2021. Hence, their names were not considered for promotion to the post of Associate Professor during the panel year 2020-2021. As and when the petitioners complete the teaching experience, they will be considered for promotion as Associate Professor subject to available vacancies.
(ii) In case of Non-Service Medical Officers, who have joined in bond service after completing Post Graduation, they have cleared (Special Qualifying Examination) SQE conducted by Tamil Nadu Public Service Commission / Medical Services Recruitment Boar by duly following the norms. After regularization of their services, they have also been appointed on regular basis in the Tamil Nadu Medical Services with effect from the date of their joining duty in Tamil Nadu Medical Services on par with the other Medical Officer appointed through the Tamil Nadu Public Service Commission / Medical Services Recruitment Board. Hence, the bond service candidates are fully qualified and eligible for promotion in the https://www.mhc.tn.gov.in/judis 11 W.P.Nos5105 of 2021 etc., batch Medical Council of India / National Medical Commission / Special Rules for Tamil Nadu Medical Service.
(iii) As per the orders issued in G.O.(Ms.)No.215, Health and Family Welfare Department dated 12.06.2007, the non-
service Post Graduate candidates were appointed as Assistant Professor in their respective specialties in regular time scale of pay after completion of their PG degree. Further, while working in the bond period of two years, the Non-Service PG Medical Officers have appeared in the Special Qualifying Examination (SQE) conducted by the recruiting agency viz., Tamil Nadu Public Service Commission / Medical Services Recruitment Board and regularly appointed as Assistant Professor from the date of original appointment. The duties and responsibilities of the Service PG candidates and Non-Service PG candidates are same. Both are having regular scale of pay and service / leave rules are one and the same. After entering into Tamil Nadu Medical Service, there is no discrimination between Service and Non-Service PG candidates and they are treated equally.
(iv) CML seniority will be assigned to Non-Service PG candidates only after passing SQE Test conducted by the recruiting agency i.e., Medical Services Recruitment Board (MSRB) i.e., formerly TNPSC. As on 15.03.2020, the https://www.mhc.tn.gov.in/judis 12 W.P.Nos5105 of 2021 etc., batch petitioners do not have the experience prescribed by the Medical Council of India / National Medical Commission and the Special Rules for the Tamil Nadu Medical Service. Hence, the request of the petitioners is unsustainable. Further, after completion of years teaching experience in their specialties, the name of the petitioners will be considered for promotion to the post of Associate Professor.
9. Heard Mr.A.R.Sakthivel, learned Standing Counsel for the first respondent and Ms.Shubharanjaniananth, learned Standing Counsel for the second respondent and also perused the materials on record.
10. The first respondent viz., Principal Secretary to Government, Health & Family Welfare Department, Secretariat, Chennai-600 006 has filed an affidavit dated 11.04.2022 stating as under:
“9. It is respectfully submitted that the Government have now issued a letter to the Director of Medical and Rural Health Services, Director of Public Health and Preventive Medicine and Director of Medical Education, vide Government Letter dated 31.01.2022 that “The appointment of Non-Service Post Graduate as Assistant Surgeon in Tamil Nadu Medical Service is temporary, towards fulfilling their bond condition to serve in Government medical institutions. They are not sponsored by the Tamil Nadu Public Service Commission / Medical Recruitment Board as laid down in Section 17(1) Tamil Nadu Government Servants (Conditions https://www.mhc.tn.gov.in/judis 13 W.P.Nos5105 of 2021 etc., batch of Service) Act, 2016 (the then 10(a)(i) of Tamil Nadu State and Subordinate Service Rules). Hence, their temporary appointments are made by agreement as per Section 19(1) of Tamil Nadu Government Servants (Conditions of Service) Act, 2016 (Tamil Nadu Act 14 of 2016).”
10. It is respectfully submitted that a person appointed under sub-Section (1) of Section 19 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, he / she shall not be regarded as a member of the service in which the post to which he is appointed is included and shall not be entitled by reason only of such appointment to any preferential claim to any other appointment in that service or any other service.
11. It is respectfully submitted that the appointment of Non-Service Post Graduate students as Assistant Surgeon is under Section 19(1) of the said Tamil Nadu Government Servants (Conditions of Service) Act, 2016 (Tamil Nadu Act 14 of 2016) and hence, after completion of 2 years bond period, it is not mandatory for Government to provide them with permanent employment in Tamil Nadu Medical Service.
Medical officers may be immediately relieved if they have completed requisite period of service as per the bond conditions. If they want to joint Tamil Nadu Medical Services as regular candidates, they have to appear for open competitive Examination conducted by Medical Services Recruitment Board (MSRB). Their regular service period will be counted after selected by MSRB only.”
11. The crux of the stand taken by the first respondent reads as follows::
(i) The appointment of Non-Service Post Graduate as Assistant Surgeon in Tamil Nadu Medical Service is https://www.mhc.tn.gov.in/judis 14 W.P.Nos5105 of 2021 etc., batch temporary, towards fulfilling their bond condition to serve in Government medical institutions. They are not sponsored by the Tamil Nadu Public Service Commission / Medical Recruitment Board as laid down in Section 17(1) Tamil Nadu Government Servants (Conditions of Service) Act, 2016 (the then 10(a)(i) of Tamil Nadu State and Subordinate Service Rules). Hence, their temporary appointments are made by agreement as per Section 19(1) of Tamil Nadu Government Servants (Conditions of Service) Act, 2016 (Tamil Nadu Act 14 of 2016”
(ii) A person appointed under sub-Section (1) of Section 19 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, he / she shall not be regarded as a member of the service in which the post to which he is appointed is included and shall not be entitled by reason only of such appointment to any preferential claim to any other appointment in that service or any other service.
(iii) Non-Service Post Graduate students as Assistant Surgeon, after completion of 2 years bond period, it is not mandatory for Government to provide them with permanent employment in Tamil Nadu Medical Service. Medical officers may be immediately relieved if they have completed requisite period of service as per the bond conditions. If they want to joint Tamil Nadu Medical Services as regular candidates, they have to appear for open competitive https://www.mhc.tn.gov.in/judis 15 W.P.Nos5105 of 2021 etc., batch Examination conducted by Medical Services Recruitment Board (MSRB). Their regular service period will be counted after selected by MSRB only.
12. It is the specific contention of the learned Senior Counsel for the petitioners that Non-Service Post Graduate doctors, after completion of two years bond period are being regularized in regular sanctioned post in the Tamil Nadu Medical Service and they never been replaced with eligible regular service candidates with same MD qualification passing out every year and the place occupied by Bond and temporary candidates has never been shown as vacant during the counseling conducted regularly in every year for regular service candidates. The contentions / grievances / apprehensions raised by the petitioners were duly answered in paras 9 to 11 of the affidavit filed by the first respondent dated 11.04.2022, as extracted above and no further adjudication is required in these writ petitions.
13. Recording the aforesaid affidavit of the first respondent dated 11.04.2022, these writ petitions stands disposed of. No costs. Consequently, connected miscellaneous petitions are closed.
https://www.mhc.tn.gov.in/judis 16 W.P.Nos5105 of 2021 etc., batch 26.04.2022 Index : Yes / No Internet : Yes / No Jvm To 1.The Health Secretary, Health and Family Welfare Department, The Secretariat Nirmal Bhawan, C Wing, New Delhi-110 001. 2.The Secretary of NMC, Health and Family Welfare Department, Sector 8, Dwarka Phase I, New Delhi-110 077. 3.The Secretary, Ministry of Health and Family Welfare, Chennai. 4.The Director of Medical Education, Tamil Nadu Health and Family Welfare, E.V.R.High Road, Kilpauk, Chennai-600 010. D.KRISHNAKUMAR. J Jvm 5.The Directorate of Medical Service, The Medical and Rural Health Services, DMS Complex, 361, Anna Salai, Chennai. https://www.mhc.tn.gov.in/judis 17 W.P.Nos5105 of 2021 etc., batch 6.The DPH, Director of Public Health Services, DMS Complex, 361, Anna Salai, Chennai. Common Order in W.P.Nos.5105 of 2021 etc., batch 26.04.2022 https://www.mhc.tn.gov.in/judis 18