Abarna v. The State Of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 21.12.2023

CORAM:

THE HONOURABLE MR.JUSTICE M.S.RAMESH W.P.Nos.15814, 15815, 15817 and 15819 of 2023 and WMP Nos.15259, 15260, 15262, 15263, 15265, 15267,15266 and 15268 of Abarna ... Petitioner in W.P.No.15814 of 2023 G.Vijayakanth ... Petitioner in W.P.No.15815 of 2023 S.Dhinakaran ... Petitioner in W.P.No.15817 of 2023 G.Thilagavathy ... Petitioner in W.P.No.15819 of 2023 -Vs1. State of TamilNadu Rep by The Principal Secretary to Government, Health and Family Welfare Department, Secretariat, Chennai-600 009.

2. The Director, Directorate of Public Health and Prevetive Medicine (DPHS), No.359, Anna Salai, DMS Complex, Teynampet, Chennai-600 006/ 1/10

3. The Deputy Director Health Service, Filaria Officer (incharge) Public Health and Preventive Medicine National Filaria Control Unit Chengalpet, Kanchipuram District .... Respondents PRAYER: Writ Petitions filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari to call for the entire records connected with the impugned show cause notice passed by the third respondent vide 1472/A2/202321 dated 21.04.2023 and quash the same. For Petitioners : Mr.S.Vinod For Respondents : Mr.S.Silambannan Addl.Advocate General assisted by Mrs.V.Yamuna Devi Special Government Pleader COMMON ORDER Heard Mr.S.Vinod learned counsel for the petitioners and Mr.Silambannan, learned Additional Advocate General for the respondents.

2. In all these writ petitions, the legal issue involved is one and the same 2/10

and therefore, all the writ petitions are disposed of through a common order.

3. All the petitioners herein were appointed in the sanctioned post of hospital workers/sanitary workers/mazdoors/sweepers. All these posts are termed as Multipurpose Hospital Workers.

4. At the time of appointment, all these petitioners herein were appointed on regular time scale of pay by the Deputy Director of Health Services and were posted to various Government Hospitals/Primary Health centres. According to the respondents, their appointments ought not to have been made under the guidelines issued by the Government of Tamil Nadu in G.O.M.No.325, Health and Family Welfare Department dated 20.11.2022, which permits such absorption only on contract basis on consolidated pay and therefore, the present appointment of the petitioners on regular time scale of pay in the sanctioned posts is not in accordance with the Government Order and therefore, show cause notice has been issued for terminating their services. The said show cause notice is put under challenge in these writ petitions.

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5. Learned counsel for the petitioners submits that since the appointments have been made only in the sanctioned vacancies and all the petitioners possess the necessary qualifications to be appointed through various posts, there is no illegality in such appointments and the mistake committed on the part of the respondents shall not be put against these petitioners.

6. On the other hand, Mr.S.Silambannan, learned Additional Advocate General, appearing for the respondents, submits that as per G.O.Ms.No.325, Health and Family Welfare Department dated 20.11.2022, appointments can be made only on contract basis and on consolidated pay alone and since it is subsequently found that the petitioners were brought under regular time scale of pay, their appointments cannot be continued and therefore, show cause notice was issued for terminating the petitioners.. With this submission, learned Additional Advocate General sought for dismissal of all the writ petitions.

7. It is not in dispute that all the petitioners herein have been appointed in sanctioned vacancies and they were brought under regular time scale of pay. In the counter affidavit filed by the respondents, the appointments are not termed as 4/10

illegal. If that be so, the mistake committed by the respondents in absorbing the petitioners in regular time scale of pay instead of contract basis on consolidated pay can be termed only to be a irregular appointment and not an illegal appointment.

8. Such a proposition has already been upheld by the Hon'ble Supreme Court in several decisions and held that such irregularities committed in the appointments can be cured since there is no illegality in them. In the case of Secretary, State of Karnataka vs Uma Devi reported in 2006 4 SCC 1, the Hon'be Supreme Court has held that irregular appointments would not render appointment as illegal and thereby directed the Government to regularise such irregular appointments. In the case of Secretary, State of Karnataka & Others Vs. Umadevi & Others reported in 2006 (4) SCC 1 had held that, 'irregular appointments' would not render the appointments as "illegal" and thereby directed the Government to regularise such irregular appointments as a one time measure.

9. In B.N. Nagarajan & Others Vs. State of Karnataka & Others reported in 1979 (4) SCC 507, the Hon'ble Apex Court had categorically held that all 5/10

irregularities can be regularised, but illegalities cannot be. Likewise, in the State of Madhya Pradesh & Others Vs. Lalit Kumar Verma reported in 2007 (1) SCC 575, the Hon'ble Apex Court had made a distinction between "irregular appointment" and "illegal appointment" in the following manner: "12.The question which, thus, arises for consideration, would be : Is there any distinction between 'irregular appointment' and 'illegal appointment'? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is State within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance of the constitutional scheme as also the rules have been made, the appointment may be irregular in the sense that some provisions of some rules might not have been strictly adhered to."

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10. In the case of Post Master General, Kolkata & Others Vs. Tutu Das reported in 2007 (5) SCC 317, the Constitutional Bench of the Hon'ble Apex Court had upheld the ratio that an 'irregular appointment' does not stand equated to that of an 'illegal appointment'. As such when irregular appointments can be ratified on the strength of all these decisions of the Hon'ble Supreme Court and by taking note of the fact that the respondents themselves have only claim certain alleged irregularities in the selection process and not illegalities, the cancellation of the appointment orders on account of such alleged irregular selection process, cannot be sustained. Even otherwise, these alleged infirmities may not strictly termed to be as "irregularities" also for the reasons stated in the foregoing paragraphs of this order.

11. All these present cases are similar to the findings of the Hon'ble Supreme Court, wherein, the respondents have pointed out that the appointment of the petitioners are only irregular in nature and not illegal. Hence, by applying the ratio laid down by the Hon'ble Supreme Court, the consequential action taken by the respondents in issuing show cause notice for terminating the petitioners' services cannot be legally sustainable.

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12. Accordingly, the impugned show cause notice dated 21.04.2023 passed by the third respondent is quashed and in view of quashing of the show cause notice, there shall be a direction to the Director of Public Health and Preventive Medicine, No.359, Anna Salai, DMS Complex, Teynampet, Chennai-600 006 and the Deputy Director Health Service, Filaria Officer (incharge), Public Health and Preventive Medicine, National Filaria Control Unit, Chengalpet, Kanchipuram District to forthwith pass appropriate orders for reinstating the petitioners back into service, together with all service and monetary benefits. Such order shall be passed within a period of four weeks from the date of receipt of a copy of this order.

13. With the above direction, all the Writ Petitions are allowed. No costs. Consequently, connected miscellaneous petitions are closed. 21.12.2023 Index:Yes Internet:Yes sr 8/10

To 1.The Principal Secretary to Government, State of Tamil Naud, Health and Family Welfare Department, Secretariat, Chennai-600 009.

2. The Director, Directorate of Publilc Health and Prevetive Medicine (DPHS), No.359, Anna Salai, DMS Complex, Teynampet, Chennai-600 006/

3. The Deputy Director Health Service, Filaria Officer (incharge) Public Health and Preventive Medicine National Filaria Control Unit Chengalpet, Kanchipuram District 9/10

M.S.RAMESH,J., sr 21.12.2023 10/10