IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.2.2009 CORAM THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR. JUSTICE K.K. SASIDHARAN WRIT APPEAL NO.1422 OF 2006 AND M.P.NO.2 OF 2006 Deputy Director of Health Services Collectorate Campus Ramanathapuram ...Appellant Vs. T.G. Madhavaraman ...Respondent Writ Appeal filed under Clause 15 of Letter Patent against the order dated 6.4.2006 made in W.P.No.26200 of 2005 this petition filed under Article 226 of the Constitution of India, praying this Court to call for the records on the file of the respondent in his proceedings Na.Ka.No.00190/A5/98 dated 07.12.1998 and directing the respondent to appoint the petitioner as per his seniority list. For Appellant : Mr. A. Arumugam Special Government Pleader For Respondent : Mr. R. Subramanian J U D G M E N T (Judgment of the Court was delivered by Prabha Sridevan, J.) The appeal is against the order granting the respondent's time scale of pay with effect from 20.6.2005, though as per G.O(D) No.373, Health and Family Welfare 99(1) Department, dated 13.5.2005, he would be brought into Time Scale of Pay only on completion of two years from the date of appointment (20.6.2005). 2. The facts of the matter are as follows: The petitioner had passed Diploma in Pharmacy in the year 1985. He registered his name with the Employment Exchange at Ramnad. He had https://hcservices.ecourts.gov.in/hcservices/ attended several interviews for the post of Pharmacist in the Primary Health Centre but without any success. On 17.12.1998, he was called for interview for the post of Pharmacist. The petitioner's seniority in the Employment Exchange was 4. He had submitted all his certificates. He apprehended that persons Junior to him might be appointed and since he was 33 years old and nearing the upper age limit for the post of Pharmacist, he moved the Tamil Nadu Administrative Tribunal by filing O.A.No.10920 of 1998. 3. A counter was filed by the appellant herein stating that four vacancies were notified for the post of Pharmacist vide Rc.No.00190/A5/98, dated 14.9.1998. The Directorate of Employment Office at Ramanathapuram sent a list of eligible candidates, wherein the applicant's name was found in Serial No.4. On that date, no instructions had been received by the office that the selection for the post of Pharmacist should be made according to the Employment Exchange Seniority. According to the counter, the Appointing Authority interviewed the candidates and selected one candidate, who was eligible for appointment after considering all aspects. On abolition of the Tribunal, the Original Application filed by the petitioner was transferred to this Court and re-numbered as W.P.No.26200 of 2005. Before the learned single Judge, the following Government Notification was produced, in which, it was stated that the Government permitted the Appointing Authority to fill up the post of Pharmacist by drawing the list of candidates from the Employment Exchange. 4. In the meantime, the respondent / writ petitioner had been appointed by order dated 20.6.2005 as a Pharmacist in the Government Primary Health Centre, Thondi for a consolidated pay of Rs.2,500/- per month. The learned single Judge felt that considering the overall circumstances, the petitioner's Employment seniority had been overlooked and that while he cannot be appointed with effect from 1998, he could be given Time Scale of Pay from the date of appointment i.e., 20.6.2005. It is this order which is challenged here. 5. The learned Special Government Pleader submitted that there was a ban on recruitment from 2001 to 2005. G.O(D) No.373, Health and Family Welfare 99(1) Department, dated 13.5.2005 was issued lifting the ban and filling up vacancies. It is by virtue of this Government Order that the appointment orders were issued and the writ petitioner/respondent was appointed and the appointment of 570 Pharmacists was governed by the following terms and conditions. " i) The persons appointed in the posts shall be designed as Contact Pharmacists and they shall be paid a consolidated pay of Rs.2500/- (Rupees two thousand five hundred only) per month. https://hcservices.ecourts.gov.in/hcservices/ ii) Such persons should work at least for two years on specified terms and conditions to be fixed by the concerned Directorates. iii) Such persons appointed on consolidated pay shall be brought into regular time scale of pay and competition of two years. iv) Contract Pharmacist shall be appointed only against the sanctioned post and the posts shall not be treated as additional sanction. While drawing the pay of the Contract Pharmacists regular sanction order (i.e. the Government Orders) and further continuance orders in respect of Temporary posts shall be quoted. v) The Pay and Accounts Officer/Treasury Officers shall admit the pay and allowances of the Contract Pharmacists as applicable to the regular time scale of pay of posts on completion of two years as per the orders in force on that date. vi) They are not transferable during the contract period and they shall work in the instructions allotted till they are absorbed in the regular vacancy. vii) The Pay and Accounts Officers/Treasury Officers shall admit the pay bills of the Contract Pharmacists in the existing vacancies without insisting the revival of the posts which are vacant for more than five months." 6. It provided that the persons appointed on consolidated pay would be brought into regular Time Scale of Pay on completion of two years. 7. The learned Special Government Pleader submitted that having accepted the appointment order under this Government Order, it is not now open to the respondent to contend that he should be brought into regular Time Scale of Pay right from the date of his appointment. The learned Special Government Pleader therefore prayed that the writ petitioner would be brought into regular Time Scale of Pay only in accordance with G.O(D) No.373, Health and Family Welfare 99(1) Department, dated 13.5.2005 and not otherwise. 8. The learned counsel appearing for the writ petitioner submitted that the learned single Judge took note of the fact that injustice had been done to the petitioner because he was not given appointment at the appropriate time. Though his Employment Exchange Seniority was No.4 both in 1998 and 2000, he was denied appointment and only to balance the interest of justice, this order was passed. https://hcservices.ecourts.gov.in/hcservices/ The learned counsel for the writ petitioner submitted that it should not be interfered with. 9. The Government has produced G.O.Ms.No.141, Personnel and Administrative Reforms (S) Department, dated 15.6.1998, which is referred to in the Government Notification, which has been produced before the learned single Judge and which is also extracted by the learned single Judge. This shows that the High Level Committee, which was vested with the responsibility of preparation of estimates, would be wound up because there was considerable delay in preparation of proper estimates and therefore, to ensure that need-based approval has been given for filling up of entry level posts, revised procedure was laid down by the Government in G.O.Ms.No.141, Personnel and Administrative Reforms (S) Department, dated 15.6.1998, which required the concerned Department to prepare an estimate of its vacancies with the detailed justification for the need to fill up such vacancies and thereafter, to give recommendations based on which the administrative department can proceed further. It is seen that in response to this, sometime in 2000, a Government Notification was passed for filling up vacancies, a copy of which is enclosed in the typed set of papers and the date of the Notification is not clear from the copy. In any event it must be after 27.4.2000, since that is the date on which the Finance Department gave its concurrence. The Government, after examining the proposals of the Director of Medical and Rural Health Services and Director of Medical Education, approved the revised procedure and permitted the Appointing Authorities to draw up a list of candidates from the Employment Exchange on the basis of seniority following the rule of reservation. Therefore, we have no material to show that in 1998, Employment Exchange seniority was insisted upon and more particularly there is absolutely no pleading that a person, who was lower in seniority, was in fact appointed overlooking the claims of the writ petitioner. In the petition filed before the Tribunal, the petitioner had merely averred that he apprehends that his juniors would be appointed. In the absence of any material to show that the juniors were in fact appointed, we are not able to accept this submission made on behalf of the respondent. 10. In G.O(D)No.373, Health and Family Welfare 99(1) Department, dated 13.5.2005, paragraphs 1 to 3 read as follows:- " 1. It has been brought to the notice of the Government that several posts of Pharmacists in the Government Hospitals/Primary Health Centres/Dispensaries are vacant due to promotion/voluntary retirement/retirement on superannuation. Due to shortage of Pharmacists the poor and needy patients are experiencing much difficulties in receiving the medicines. https://hcservices.ecourts.gov.in/hcservices/ 2. As the Pharmacists are considered they essential for running the hospitals and they are the grass root level technical personnel dealing with medical stores and distribution of medicines to the poor public, the Commissioner of Indian Medicines and Homeopathy, Director of Medical Education, the Director of Medical and Rural Health Services, the Director of Medical and Rural Health Services (ESI), and Director of Public Health and Preventive Medicine have sent proposals to the Government to fill up the posts through Employment Exchange on contract basis subject to certain conditions by lifting the ban orders issued in the G.O., first read above. 3. The Government, after careful examination, have decided to accept the proposals in Para 2 above. Accordingly, they direct that the 570 (five hundred and seventy only) vacant posts of Pharmacists under the control of Commissioner of Indian Medicine and Homeopathy, the Director of Medical Education, Director of Medical and Rural Health Services, Director of Medical and Rural Health Services (ESI) and Director of Public Health and Preventive Medicine, as detailed below, be filled up on contract basis initially for period of two years, by calling for candidates from Employment Exchange based on the seniority of their dates of registration District wise and following the rule of reservation by exempting the posts from the ban orders issued in the G.O., first read above." 11. In the absence of any material to show that in 1998, the employment had to be made on the basis of the Employment Exchange Seniority and since there is no material to show that some one lower in Employment Exchange Seniority than the petitioner had in fact been appointed, we are not able to sustain the objection of the writ petitioner that there was arbitrariness in the action of the writ appellant. Further, he had been appointed and he had accepted appointment pending disposal of his O.A., as per the conditions laid down in G.O(D)No.373, Health and Family Welfare 99(1) Department, dated 13.5.2005. In fact, when he was appointed as a Pharmacist as per G.O(D)No.373, Health and Family Welfare 99(1) Department, dated 13.5.2005, virtually the OA had become infructuous. But however, he proceeded to obtain an order, which was indeed favourable to him. The respondent was given Time Scale of Pay which he is entitled to as per the Government Order. We are not able to sustain the order of the learned single Judge. The writ petitioner will be entitled to pay as per G.O(D)No.373, Health and Family Welfare 99(1) Department, dated 13.5.2005 and all his other rights and allowances will only be in accordance with the same. https://hcservices.ecourts.gov.in/hcservices/ 12. With the above observation, the writ appeal is allowed. No costs. Consequently, connected miscellaneous petition is closed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar kb To The Deputy Director of Health Services Collectorate Campus Ramanathapuram. + 1 c.c. to Mr. R. Subramanian, Advocate. S.R.No.7041. + 1 c.c. to The Government Pleader. S.R.No.7162. W.A.NO.1422 OF 2006 RJ (CO) GSK 04.03.2009. https://hcservices.ecourts.gov.in/hcservices/