Madras High Court
R.Poongodi vs Secretary To Government on 24 July, 2013
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 24/07/2013 Coram:- The Hon'ble Mr. Justice T.Raja Writ Petition No.21208 of 2008 & M.P. No.2 of 2008 R.Poongodi .. Petitioner Vs. 1. Secretary to Government Health and Family Welfare Government of Thamizh Naadu Chennai 600 009. 2. Director of Medical Eduction Kilpauk, Chennai 600 010. 3. Joint Director of Health Services, Vellore, Vellore District. 4. Dean Govt. Vellore Medical College and Hospital Vellore-11. 5. Superintendent (G) Government TB Sanatorium Adukkamparai Vellore-11. 6. Director King Institute Guindy Chennai 600 032. 7. Director Government Leprosy and Research Centre Chengalpet 603 001. 8. Jesudoss Lab Technician Grade-II Government Tuberculosis Sanatorium, Government Medical College and Hospital, Vellore-11. 9. Veeramani, Lab Technician Grade-II, Government Tuberculosis Sanatorium, Government Medical College and Hospital, Vellore-11. 10. Kavitha Lab Technician Grade-II, Government Tuberculosis Sanatorium, Government Medical College and Hospital, Vellore-11. 11. Arivazhagan Lab Technician Grade-II, Government Tuberculosis Sanatorium, Government Medical College and Hospital, Vellore-11. 12. K.Baskar Lab Technician Grade-II, Government Tuberculosis Sanatorium, Government Medical College and Hospital, Vellore-11. .. Respondents Writ Petition under Article 226 of the Constitution of India for the issuance of a writ of certiorarified mandamus as stated therein. For petitioner : Dr.A.E.Chelliah, Sr. Counsel for Ms.Vasanthakumari Chelliah For R1 to R7 : Mr.M.Digvijaya Pandian, Addl. Government Pleader. For R8, R9, R11 and R12 : Mr.P.Narayanamoorthy For R10 : Mr.B.Ravi O R D E R
The petitioner herein seeks for issuance of a writ of certiorarified mandamus to call for the records of R4-Dean, Government Vellore Medical College and Hospital, Vellore-11, in regard to preparation of panel for promoting Laboratory Technician Grade-II to Laboratory Technician Grade-I, vide proceedings R. No.8741/E5/06, dated 04.07.2008, quash the same and also to quash the letter, dated 30.05.2008, of the fourth respondent in Na.Ka.No.8471/Ni.5/06, and direct the respondents concerned to promote the petitioner as Lab Technician Grade-I.
2. Dr.A.E.Chellaiah, learned Senior Counsel appearing for the petitioner, submitted before this Court that the petitioner, after passing +2 Course and one year Lab Technician Course from a recognized Institute viz., Central Leprosy Treatment and Research Institute (in short "CLTRI"), Chengalpet, during 1987-1988, was appointed as Lab Technician Grade-II in 1988 and posted at the Government TB Centre, Adukkamparai, Vellore, functioning under the control of the 2nd respondent. Subsequently, she was posted at the Government Vellore Medical College and Hospital, Vellore. Learned Senior Counsel referred to Section 21 in Volume III of the Tamil Nadu Service Manual, 1970 with reference to Special Rules for the Tamil Nadu Medical Subordinate Service and pointed out that the provision relating to Class-III clearly prescribes the educational qualification for the post of Lab Technician Grade-II and also for the promotional post of Lab Technician Grade-I. As per the said provision, for the post of Lab Technician Grade-II falling under Category-2, the candidate should possess a Certificate or Diploma in Medical Laboratory Technology course with two years duration, conducted by the King Institute of Preventive Medicine or from any other Institution recognized by the Government of Tamil Nadu. The said provision also clarifies that if candidates with the above qualification are not available, then, candidates with Certificate in Medical Laboratory Technology (One Year) duration conducted by the Institutions recognized by the Government of Tamil Nadu for this purpose shall be appointed. According to the learned Senior Counsel, having regard to the above provision relating to Grade-II cadre, the petitioner is fully qualified to hold the said post. Further, the provision also prescribes the qualification for the post of Lab Technician Grade-I as a Pass in the Diploma or Certificate Course in Medical Technology conducted by the King Institution of Preventive Medicine, and other Institutions recognized in this behalf by the Government of Tamil Nadu. Therefore, when the petitioner was appointed to the post of Lab Technician Grade-II with sufficient qualification, she is also eligible to get promotion to the post of Lab Technician Grade-I. Moreover, G.O. Ms. No.958, H dated 14.05.1986, also makes it abundantly clear that the Government recognized the Certificates issued by CLTRI, Thirumani, Chengalpet, where the petitioner underwent the course, as equivalent to the Lab Technician Course conducted by the King Institute, Guindy.
Learned Senior Counsel pointed out with all stress that even those individuals, who received Certificates from the Government of Tamil Nadu, showing Grade-I were not even appointed straightaway to Grade-I cadre and, in usual and routine course, appointments were made against Grade-II Cadre and only on promotion, individuals are given Grade-I Cadre. In the case of the petitioner, she possessed the qualification as prescribed in G.O. Ms. No.958 H, dated 14.05.1986, and she also underwent a short-term course conducted by the National Tuberculosis Institute, Bangalore, the only Institute in South India of its kind. The petitioner, who got married, wanted to avoid transfer and therefore, she made a representation, dated 21.07.2000, to the authorities stating that she forgoes promotion for one year and for such representation, vide letter dated 21.09.2000, by citing the rules that promotion shall have to be relinquished at least for three years, a reply was sought for, whereupon, the petitioner, by reply dated 25.09.2000, expressed that she was not willing to forego the promotion. While so, R-3/Joint Director of Health Services, Vellore, by his proceedings, dated 08.11.2000, approved a panel of Grade-II Lab Technicians for promotion to Grade-I cadre for the year 2000-2001. Although 7 names were shown in the panel, the petitioner, being the senior-most, was left out from the Panel. Aggrieved by the same, the petitioner sent an Appeal through proper channel to the authority concerned on 27.11.2000 followed by a request, dated 04.07.2005, which was also sent through proper channel and forwarded to R-4 on 12.07.2005. Again, she sent a representation, dated 07.03.2008 to R-1. In the meantime, by letter, dated 06.04.2006, R4 asked the petitioner to send all testimonials towards filling up of the post in Grade-I cadre. But, by communication, dated 23.06.2006, R-4 returned the papers stating that, due to administrative reasons, Grade-I posts could not be filled up. Thereafter, on 13.11.2006, R-5 forwarded the petitioner's request dated 30.10.2006 to R-4/Dean, but, by letter dated 23.02.2007, the Dean asked the petitioner to furnish some more testimonials including a certificate for completing Lab Technician Training fit for Grade-I. Complying with the said request, the petitioner sent the papers on 02.03.2007 followed by reminder dated 15.10.2007.
Learned Senior Counsel, adding further, stated that when the petitioner was fully eligible, as per Rules, for both the posts in Feeder category/Grade-II and promotional post/Grade-I, ironically, R-4, asked the Director of CLTRI, Chengalpet, for certain clarifications as to whether the Institute was a recognized one by the Government of Tamil Nadu and whether the course was recognized and whether the certificate issued to the petitioner is genuine. The said clarification sought for by the fourth respondent exhibits the ignorance of the said authority with reference to the clear position relating to qualification as prescribed in the service manual and also the wordings in G.O. Ms. No.958 H, dated 14.05.1986, making it clear that the course imparted by the Institute/CLTRI where the petitioner underwent the course is equivalent to the Lab Technician Course conducted by the King Institute, Guindy.
It was pleaded further that the petitioner having waited for a long time also brought to the notice of the authorities details about persons/R8 to R11, who were not qualified and holding posts based on bogus certificates, by enclosing G.O. Ms. No.958 H, dated 14.05.1986. However, neither any enquiry was conducted thereon nor the name of the petitioner was included in the panel for promotion.
Continuing the submissions, it was stated that, when the petitioner, in her various representations made to the official respondents, clearly demonstrated that, as per Section-21 of the Service Manual, the petitioner is eligible and qualified to be promoted to Grade-I cadre, at one stage, the respondents, indicating that the petitioner was not prepared to forego promotion for three years as she has come forward to forego it only for one year, expressed that they are unable to promote her. On 06.04.2006, they themselves directed the petitioner to submit the testimonials for considering her promotion to Grade-I cadre. Again, on 23.06.2006, after calling for the testimonials for the purpose of promotion, for the reasons best known, they expressed their inability to promote the petitioner by attributing administrative exigency. Once again, they had gone to clarify the genuineness of the Institution where she underwent the course and also the certificate issued by the Institute to the petitioner. Further, even after being satisfied with the recognition of the Institution and the genuineness of the certificate issued in favour of the petitioner, they took another inconsistent stand that the petitioner did not undergo short-term course for one year relating to Lab Technician Grade-I. The above conduct of the official respondents in preparing panel for promotion to Grade-I without including the petitioner, who is the senior-most person, despite the fact that she is fully qualified to hold the promotional post, clearly depicts the malafide intention and the vindictive approach of the authorities.
By referring to a Division Bench decision of this Court reported in 2010-4-CTC-407 (G.Rajaram v. T.K.Rajendran), wherein, it is observed that when the Government is defended by the Officers, such officers should approach the Court with fair mind and understanding that they are only assisting the court in the process of defending the Government and they must put forth only the true facts which are reflected in the records and any deviation in the statements which are contrary to the record would amount to filing of a false statement before the Court and would obviously result in interference with the administration of justice, learned Senior Counsel would add that, in the present case, the official respondents, while filing counter affidavit, made blatantly false statement that the petitioner relinquished the right of promotion for three years, whereas, the third respondent, in his own proceedings, dated 21.09.2000, clearly admitted the fact that the petitioner did not want to relinquish her right of promotion for three years as she wanted to relinquish such right only for one year in view of her marital status. Further, for the letter dated 21.09.2000, addressed to the petitioner by the third respondent calling upon the petitioner to relinquish the promotion for three years, the petitioner also, in her representation dated 25.09.2000, made it clear that she is not willing to forego promotion for three years and as a result, she was not even willing to relinquish the right even for one year and in fact, insisted upon the authorities to grant promotion to her or else to permit her to move an appeal before the Government. That being so, when the respondents have made a false statement in the counter affidavit, this Court, by taking serious note of the same and the conduct of the official respondents in denying promotion to the petitioner under one pretext or other, may impose exemplary damages and simultaneously issue a suitable direction to redress the longstanding genuine grievance of the petitioner.
One another false statement, he submitted, was made in para-19 of the counter affidavit stating that Bangalore NTWI is a centre giving training for Tuberculosis Eradication alone for all Medical and Para-medical personnel and the training received there cannot be taken into consideration to grant promotion. Such statement is again a blatant falsehood for the reason that the petitioner was officially deputed by the Director of Medical and Rural Health Services, Chennai, in proceedings K.Dis No.110776/TB/1/97, dated 15.12.1997, to undergo training on T.B. Programme at the National T.B. Institute, Bangalore, for about two months from 5th January, 1998 to 27th February, 1998. It was also made clear therein that the petitioner was entitled to receive a stipend of Rs.620/- per month for meeting the expenditure during the training period. It was further stated that the State Governments are at liberty to sanction Daily Allowance in lieu of the stipend and the candidates may accept either the stipend or draw T.A. and Daily allowance from state funds after their return to their Headquarters and they cannot claim both. The petitioner was officially sent for the said training and after successful completion of the training programme, the Ministry of Health & Family Welfare, Directorate General of Health Services, National Tuberculosis Institute, Bangalore, also issued Certificate, dated 27.02.1998, certifying that the petitioner has successfully undergone a course of instruction including practical training in Trainers' Training Programme at the National Tuberculosis Institute, Bangalore. Moreover, when the State Government deputed four persons - one Medical Officer and three others, the petitioner was the only Lab Technician and therefore, when the petitioner underwent a short-term course on T.B. conducted almost at the National Level, the statement in the counter affidavit to the effect that the said certificate cannot be taken into consideration for promotion to Grade-I cadre is so vague and absolutely misleading. For these reasons, while seeking for a positive direction to the authorities to effect promotion to the petitioner from the date on which her juniors and persons standing on equal footing were promoted to Grade-I cadre, learned Senior Counsel pleaded that this is deserving a case for imposing exemplary costs having regard to the false statements made in the counter affidavit.
3. Mr.Digvijaya Pandian, learned Additional Government Pleader appearing for the official respondents-1 to 7, would state that although the petitioner was appointed to Grade-II Post on 14.05.1988 as she was qualified to hold the said post based on the one year course underwent by her from CLTRI, Chengalput, during 1987-88, for promotion to Grade-I Cadre, she could not be considered in view of the reason that she did not complete any short term course to get promotion to such cadre. The short term course said to have been undergone by the petitioner from National Tuberculosis Institute at Bangalore will not help her case, for, the said course was a mere training in regard to TB only which could not be considered for promotion to Grade-I cadre. By referring to the service manual containing Section-21 which deals with qualification for Lab Technician Grade-I and also for Grade-II, which was already highlighted in the course of arguments by the petitioner's side as well, learned Additional Government Pleader has stated that, by virtue of G.O. Ms.No.308, Health and Family Welfare Department, dated 04.07.1996, Special Rules for the T.N. Medical Subordinate Service (Section 21 in volume III of the TN Service manual, 1970) underwent amendment to the following effect:
"1. For the entry in Column (2) against the Category 1, Technician Grade I in column (1) thereof the following entry shall be substituted namely:-
"A pass in the Diploma or Certificate Course in Medical Laboratory Technology conducted by the King Institute of Preventive medicine or any other Institution recognized in this behalf by the Government of Tamilnadu".
2.For the entry in Column(2), against the Category 2, Technician Grade II, in Column (1) thereof the following entry shall be substituted namely:-
Certificate of having successfully completed the shortened Technician's Course conducted by the Medical Colleges in the State of Tamilnadu."
According to him, inasmuch as the petitioner is not possessing a certificate for having successfully completed a short-term course in terms of the above amended rule, the authorities could not promote the petitioner to Grade-I cadre.
By referring to a decision of the Apex Court in Bimla Devi v. State of H.P. (2010-11-SCC-710), learned Additional Government Pleader highlighted the proposition that whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject and since the court has no such expertise, the decision of the Selection Committee can be interfered with only on limited grounds such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection or proved mala fides affecting the selection itself.
Referring to another decision of the Apex Court in N.Suresh Nathan v. Union of India (2010-5-SCC-692), he stated that the comparative merit of the petitioner is found insufficient and hence, she could not be given promotion to Grade-I cadre. Therefore, when the authorities acted as per the Service Manual especially the amended rules, the impugned proceedings cannot be found fault with and consequently, the writ petition may be dismissed.
4. Mr.P.Narayanamoorthi, learned counsel appearing for Respondents-8, 9, 11 and 12, made his submissions based on the counter affidavits filed on behalf of the individual respondents.
As regards R-8, it is submitted that, after completing +2 and undergoing the Lab Technician Grade-1 Course for one year at Lakshmi Bala Paramedical & Nursing Institute by successfully passing Final Examination in August, 1994 conducted by the Government of Tamil Nadu, he was appointed to Grade-II cadre in the respondent/Govt. Vellore Medical College and Hospital through Employment Exchange on 06.08.2002. It is claimed that the said respondent has fulfilled the requirements for promotion to Grade-I cadre.
As regards R-9, it is submitted that he passed +2 and underwent 1 year course of Lab Technician Grade-1 in the Institute of Lab Technology, Madras-10, and thereafter, he was appointed as Lab Technician Grade-II through Vellore Employment Exchange and joined duty at the respondent/Hospital on 05.02.2002. It is claimed that the said respondent has fulfilled the requirements for promotion.
The counter affidavit filed by R-11 shows that he completed B.Sc (Chemistry) in May, 1978 and thereafter, obtained Lab Technician Diploma from the Christian Medical College and Hospital, Vellore, on 31.08.1979. With that qualification, he was appointed as Lab Technician Grade-II through Employment Exchange and posted at the respondent/Hospital on 11.04.1980. It is stated that he had also undergone a short-term training in Lab Technician Grade-I (One Year course) in Government Stanley Medical College, Chennai. Based on his seniority-cum-qualification and considering his 27 years of long service, he was promoted to Grade-I Cadre on 04.07.2008 vide Panel published by the fourth respondent. Therefore, the petitioner cannot have any grievance against him.
It is the case of R-12 that, after completing +2, he underwent Lab Technician Grade-1 Course and after successfully completing the one year course in May, 1991, he was appointed on 04.03.1992 as Lab Technician Grade-II through Employment Exchange and posted at the respondent/Hospital.
It is pleaded by the learned counsel appearing for the above respondents that since the petitioner cannot have any grievance against these respondents, the writ petition may have to be dismissed.
5. Mr.B.Ravi, learned counsel appearing for R-10, would submit that the grievance of the petitioner in not promoting her to Grade-I cadre may have to be answered by the competent authorities concerned. In fact, the petitioner wrongly arrayed R-10 as a party to the writ petition with false allegations about the certificate possessed by R-10. When the impugned proceedings are not relating to the 10th respondent, the writ petition may have to be dismissed as against the said respondent.
6. I have carefully considered the rival submissions advanced on either side.
The petitioner, who was appointed as Lab Technician Grade-II on 14.05.1988 in the Government T.B. Centre, Adukkamparai, Vellore, was subsequently posted at Vellore Medical College and Hospital along with others. As she passed +2 course and the one year course during 1987-88 from CLRTI, Chengalpet, she was appointed as Lab Technician Grade-II. G.O. Ms. No.958 H dated 14.05.1986, also shows that the Government of Tamil Nadu have issued suitable amendments to the Tamil Nadu Medical Subordinate Service Rules so as to enable the holders of Diploma issued by the Gandhigram Rural Institute, Periyar College of Pharmaceutical Science for Girls, Tiruchirapalli, and the Central Leprosy Treatment and Research Institute, Tirumani and Schefflin Leprosy Research and Treatment Centre, Karigiri, for being appointed as Laboratory Technician Grade-II in the various Medical Institutions and in the Leprosy Institution in the State. Therefore, as per the above said G.O., the petitioner having possessed +2 qualification and completed the one year Lab Technician Course from CLTRI, Tirumani, Chengalpet, had become eligible for being appointed as Lab Technician Grade-II. While so, after putting in more than a decade of service, having regard to her marital status and with an intention to avoid transfer for one year, by letter dated 21.07.2000, the petitioner expressed that she is not willing to get promotion for one year. On receipt of the said letter, Respondent No.3 addressed the petitioner by letter, dated 21.09.2000, stating that she sought to forego promotion for one year, whereas, as per rules, one has to forego promotion at least for three years and therefore, called for a clarification from her as to whether she was willing to relinquish promotion for three years. By letter dated 25.09.2000, it was replied that, in that case, she is not willing to forego promotion and she also insisted that she was fully eligible for promotion. The above correspondence by the authorities, in particular, the letter dated 21.09.2000 emanated from R-3 would show that if the petitioner was not actually eligible for promotion to Grade-I cadre, the Department would not have sought clarification regarding the period of relinquishment, rather, they would have straightaway made it clear that she was not eligible for promotion. Also, the said letter did not find fault with the petitioner regarding her qualification for further promotion.
7. Now, it is relevant to extract below the Rules primarily governing Cadre-1 and Cadre-II from the Tamil Nadu Medical Subordinate Service (Section 21 in Volume III of the Tamil Nadu service Manual, 1970).
" Class III Category 1 Laboratory Technician Grade I - A pass in the Diploma or Certificate Course in Medical Technology conducted by the King Institution of Preventive Medicine, and other Institution recognized in this behalf by the Government of Tamil Nadu.
Category 2 Laboratory Technician Grade-II - Certificate of Diploma in Medical Laboratory Technology course (two years duration conducted by the King Institute of Preventive Medicine or from any other institution recognized by the Government of Tamil Nadu for this purpose).
Provided that if candidates with the above qualification are not available then candidates with Certificate in Medical Laboratory Technology (One year) duration conducted by the Institutions recognized by the Government of Tamil Nadu for this Purpose shall be appointed. "
As regards appointments to these categories, the Rules under BRANCH-IV - GENERAL, provide thus, "Category 1 Laboratory Technician Grade I Promotion of Laboratory Technicians Grade-II; or Direct recruitment; or for special reasons, recruitment by transfer from any other service.
Category 2 Laboratory Technician Grade II I) By direct recruitment (or) II)By recruitment by transfer from the post of Laboratory Assistant (malaria) in the Tamil Nadu Public Health Subordinate Service. "
The above provisions make it clear that, in normal course, Grade-II cadre is filled up by direct recruitment and the qualification therefor is Certificate or Diploma in Medical Laboratory Technology course (two years duration conducted by the King Institute of Preventive Medicine or from any other institution recognized by the Government of Tamil Nadu for this purpose. Alternatively, it is also provided that if candidates with the above qualification are not available then candidates with Certificate in Medical Laboratory Technology (One year) duration conducted by the Institutions recognized by the Government of Tamil Nadu for this Purpose shall be appointed. Therefore, when the petitioner was already appointed with +2 qualification and certificate for having undergone a one year Lab Technician Course from CLTRI, Thirumani, Chengalpet, she had the requisite qualification to hold the said post. In the year 1998, the petitioner was also deputed to undergo training on T.B. Programme at the National T.B. Institute, Bangalore, starting from 5th January, 1998 to 27th February, 1998. Relevant proceedings, dated 15.12.1997 also shows that the National T.B. Institute would pay a stipend of Rs.800/- per month to the Medical Officers and Rs.620/- per month to the Paramedicals for meeting the expenditure during the training period. The said proceedings also state that the State Governments are also at liberty to Sanction Daily Allowance in lieu of the stipend and on that basis, the candidates may accept either the stipend or draw T.A. and Daily allowance from state funds after their return to their Headquarters. Further, the proceedings, dated 27.02.1998, issued by the Government of India, National Tuberculosis Institute, Directorate General of Health Services, Bangalore-3, also shows that four candidates from Tamil Nadu were sent on deputation for the said training and among those four, the petitioner herein is the only Lab Technician.
8. As pointed out above, in terms of the original rules, the qualification for Grade-1 Cadre prescribed was a pass in the Diploma or Certificate Course in Medical Technology conducted by the King Institution of Preventive Medicine, and other Institution recognized in this behalf by the Government of Tamil Nadu, and the primary mode of appointment for the said post is promotion of Lab Technicians Grade-II. While so, G.O. Ms. No.308, Health and Family Welfare Department, dated 04.07.1996, by which amendment was brought to the original Rules, also shows that the qualification for Grade-I cadre is a pass in the Diploma or Certificate Course in Medical Laboratory Technology conducted by the King Institute of Preventive Medicine or any other Institution recognized in this behalf by the Government of Tamil Nadu. For Grade-II cadre, the amendment provided the qualification as Certificate of having successfully completed the shortened Technician's course conducted by the Medical Colleges in the State of Tamil Nadu. In terms of both the original and amended rules regarding qualification, it could be seen that the petitioner, at the time of her appointment to Cadre-II about 20 years back, was possessing the qualification for Grade-I. In other words, she was having +2 qualification as well as a pass in the diploma/Certificate Course conducted by an Institute, which is undoubtedly a recognized institute as mentioned in G.O. Ms. No.958 H, dated 14.05.1986. When duration of the diploma or certificate course was not mentioned in the amended rule and the petitioner like that of others also completed the one year course from a recognized Institute and was appointed to Grade-II Cadre and with such qualification and seniority for 20 years, she is fully eligible to get promotion for the next cadre ie., Grade-I, this Court is not able to find even any slight justification in the stand taken by the official respondents to persistently deny the promotion due to her. Apart from the requisite qualification, she has also completed a training program/short term course conducted by the National T.B. Institute for about two months. Further, the one year additional training course said to have been undergone by two of the Grade-II Technicians by name K.Bhaskar and G.Arivazhagan/R-12 and R-11 respectively has not been made as necessary qualification either in the Special Rules or in the amended rules. Therefore, denial of promotion to the petitioner by stating that she does not possess Grade-I training as underwent by the above two respondents is wholly untenable in law. Very strangely, when the petitioner, who was appointed in Grade-II post with requisite qualification to hold the said post and also, she has put in a long service of more than twenty years, was denied promotion to Grade-I on flimsy grounds and thereby constrained to file the present writ petition, by letter dated 30.11.2012, addressed by R4/Dean and enclosed with a communication dated 27.08.2012 from the Directorate of Medical Education, Chennai, she was instructed to withdraw the writ petition for consideration of her request for promotion by the authorities. It is useful to extract below the relevant portion from the letter dated 27.08.2012.
"2. The Dean, Vellore Medical College Hospital, Vellore, is also informed that Tmt.R.Poongodi, Lab. Technician Grade II, Vellore Medical College Hospital, Vellore has filed a W.P. No.21208/2008 at High Court of Madras with a prayer to promote her as Lab. Technician Grade I and it is still pending in the High Court of Madras.
3. Therefore the individual may be requested to withdraw the W.P.No.21208/2008 in the first instance and to produce the copy of orders of High Court accepting the withdrawal of the Writ Petition by the petitioner, so as to consider her request for appointment as Lab. Technician Grade I."
In the above proceedings also, the authorities did not say that the petitioner was lacking in qualification, rather, they instructed her at the first instance to withdraw the writ petition for consideration of her claim. Such an approach on the part of the authorities is wholly unwarranted. Therefore, on a careful analysis of the entire records made available, this Court is of the view that the petitioner is fully eligible to hold the Grade-I post both in terms of qualification and also seniority. Since one post of Grade-I Lab Technician is kept vacant on the interim orders passed by this Court, the first respondent is hereby directed to forthwith issue orders, promoting the petitioner to Grade-I with effect from the date on which actually the petitioner should have been promoted and it is needless to mention that the monetary benefits accruing from the actual promotion date shall have to be settled without any delay.
9. Before winding up, another vital aspect regarding misinformation/false statement made before this Court by the official respondents and the claim by the petitioner for damages over such false statement and vindictive approach of the authorities which ultimately resulted in prolonged denial of promotion to the petitioner against Grade-I as well as mental agony and financial implications underwent by her shall have to be gone into. Even though it is clearly borne out from the records of none else than the official respondents themselves that the petitioner only expressed that she intended to forego promotion for one year, it is falsely averred in the counter affidavit filed by Respondent Nos.1 to 5 at para No.14 thus, " 14. With regard to the averments made in para 13 of the affidavit, it is submitted that the petitioner relinquished the right of promotion for 3 years. ...... ".
Now, it is relevant to extract below the proceedings, dated 27.11.2000, of R-3 and R-5, who are parties to the above counter affidavit, interestingly affirming the case of the petitioner that she sought for relinquishment of promotion for one year and that never she addressed the authorities to forego the right for three years, VERNACULAR (TAMIL) PORTION DELETED The above letter makes it clear that the petitioner did not forego promotion for three years as falsely stated in the counter. Therefore, a conjoint reading of the counter affidavit and relevant contents from the proceedings as extracted above would abundantly make it clear that the authorities, even after recording the fact that the petitioner never expressed to relinquish the right of promotion for three years and that she only intended to forego it just for one year, came up with a false claim before this Court and therefore, they have not come with clean hands and good intention. That is why, in a similar circumstance, rebuking such bad approach on the part of the authorities, a Division Bench of this Court, in G.Rajaram's case, heavily reprimanded that officers defending State Government before Courts should not make statements which are contrary to the record as it would amount to filing of a false statement before the Court and would obviously result in interference with the administration of justice. The said decision also highlights the aspect that when the complainant, due to the conduct of the authorities in misrepresenting before court by way of filing false statements, has been made to fight a long battle which resulted in physical and mental harassment apart from financial implications, necessarily, compensation can be readily awarded, quantifying it depending on facts and circumstances of each case.
10. At the risk of repetition, it must be added here that on the one hand, the authorities are yelling now that the petitioner is not qualified for Grade-I cadre as she does not possess the short-term/shortened course of one year, whereas, the records/rules are mute about the period of such course. Such position is even admitted by the learned Additional Government Pleader. Further, as per the governing Rules produced before this Court which aspect has been exhaustively dealt with above, when the petitioner was eligible to hold the Grade-II cadre and she is eligible to move on promotion, based on seniority, to Grade-I and she being the only Lab Assistant among four others deputed from Tamil Nadu to undergo a Two Month Training Course conducted by the National Tuberculosis Institute at Bangalore, it is very unfortunate that the authorities denied promotion to the petitioner by acting in a total partisan manner. If really the petitioner did not possess the qualification, they would have straightaway informed so, but, with the full knowledge that she is a qualified candidate to move for Grade-I, they simply informed that if at all, she desires to relinquish, she should at least forego it for three years at the minimum. In other words, they meant that, in that case, only after three years period of relinquishment, the petitioner would be allowed to move to the promotional post of Grade-I. Not stopping with that and going one step further, they made it a condition precedent to consider for promotion only if the petitioner withdraws the present writ petition. With these unwanted instances, the authorities have set an example for vindictive approach, because of which, as rightly submitted by the learned Senior Counsel, the petitioner has been made to fight a long battle resulting in physical and mental harassment apart from financial implications. When a case like this absolutely warrants imposition of damages, a let-loose and slight approach would only further encourage the authorities in playing foul games even before Courts. Therefore, in line with the Division Bench decision in G.Rajaram's case, this Court is of the view that this is a much deserving case where a sum of Rs.10,000/- (Rupees ten thousand only) shall have to be imposed as damages payable by the official respondents to the petitioner. Consequently, the official respondents are directed to pay the said sum towards damages to the petitioner by each contributing equally.
11. In the result, Writ Petition stands ordered. The first respondent is hereby directed to forthwith issue orders, promoting the petitioner to Grade-I against one such post that is kept vacant on the interim orders passed, with effect from the date on which actually the petitioner should have been promoted and it is needless to mention that the monetary benefits accruing from the actual promotion date as well as the damages imposed on the official respondents payable to the petitioner shall have to be settled without any delay. No costs. Connected Miscellaneous Petition stands closed.
JI.
To
1. Secretary to Government, Health and Family Welfare Government of Thamizh Nadu, Chennai 600 009.
2. Director of Medical Eduction, Kilpauk, Chennai-10.
3. Joint Director of Health Services Vellore, Vellore District.
4. Dean, Govt. Vellore Medical College and Hospital, Vellore-11.
5. Superintendent (G), Government TB Sanatorium Adukkamparai, Vellore-11.
6. Director, King Institute Guindy, Chennai 600 032.
7. Director Government Leprosy and Research Centre Chengalpet 603 001