The Principal Secretary v. G.Udayakumar

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 23.01.2020 CORAM :

The Hon'ble Mr.A.P.SAHI, THE CHIEF JUSTICE AND The Hon'ble Mr.JUSTICE SUBRAMONIUM PRASAD W.A.Nos.3608, 2082 and 2717 to 2720 of 2019 and C.M.P.Nos.14095, 17557 to 17562, 17565 and 23160 of 2019 THE PRINCIPAL SECRETARY, GOVT. OF TAMIL NADU, DEPT. OF HEALTH AND FAMILY WELFARE, FORT ST. GEORGE, CHENNAI 600 009.

.. PETITIONER IN W.A.NO.3608 OF 2019 1 A.CHITRA ... PETITIONERS IN WA NO.2082 OF 2019 2 B. KALAIVANI 3 A. CATHERIN NITHYA 4 C. JAYANTHI 5 A. SAMMU 6 G. RAMALAKSHMI 7 P. GOMATHI RAJKUMAR 8 D. IVY 9 P. LALITHA 10 J. SAJITHA BEGUM 1 S.SASIKUMAR ... PETITIONERS in WA No.2717 of 2019 2 S.C.SELWYN JEBAKUMAR 3 T.L.SIVA

4 M.PONRAJ 5 N.PUSPHA 6 R.RAMADOSS 7 S.SAROPHINE 8 P.ANANDHI 9 R.SATHYAVATHY 10 S.KIRUBAKARAN 11 M.DHANALAKSHMI 12 K.KOMALA P.PALMANI ... PETITIONER in WA No.2718 of 2019 K.GOPINATHAN ... PETITIONER in WA No.2719 of 2019 R.M.VIGNESH ... PETITIONER in WA No.2720 of 2019 -vs1 G.UDAYAKUMAR ... RESPONDENTS in WA No.3608 of 2019 2 THE MEMBER SECRETARY MEDICAL SERVICES RECRUITMENT BOARD , 7 TH FLOOR DMS BUILDING NO.359 ANNA SALAI TEYNAMPET CHENNAI.

3 S. SALEESHA 4 G. MAHALAKSHMI 5 SEETHALAKSHMI 6 R. SOWRIRAJAPERUMAL 7 PRIVATE STUIDES NURSES ASSOC IATION REP.BY ITS PRESIDENT S.

SENTHILNATHAN NO.31 METTU ST VELI MADUPETTAI TINDIVANAM VILLUPURAM.

8 A.CHITRA 9 B.KALAIVANI 10 A.CATHERIN NITHYA 11 C.JAYANTHI 12 A.SAMMU 13 G.RAMALAKSHMI 14 P.GOMATHI RAJKUMAR 15 D.IVY 16 P.LALITHA 17 J.SAJITHA BEGUM 1 G.UDAYAKUMAR ... RESPONDENTS in WA No.2082 of 2019 2 THE PRINCIPAL SECRETARY GOVERNMENT OF TAMILNADU DEPARTMENT OF HEALTH AND FAMILY WELFARE FORT ST GEORGE CHENNAI-600009 3 THE MEMBER SECRETARY MEDICAL SERVICES RECRUITMENT BOARD (MRB) 7TH FLOOR DMS BUILDINGS 359 ANNA SALAI TEYNAMPET CHENNAI-600008 4 S.SALEESHA 5 MRS.G.MAHALAKSHMI 6 MRS.SEETHALAKSHMI 7 R.SOWRIRAJAPERUMAL 8 PRIVATE STUDIES NURSES ASSOCIATION REP. BY ITS PRESIDENT S.SENTHILNATHAN NO.31 METTU STREET VELLI MEDEPETTAI TINDIVANAM VILLUPURAM-604 207

1 G.UDAYAKUMAR ... RESPONDENTS in WA No.2717 of 2019 2 THE PRINCIPAL SECRETARY GOVERNMENT OF TAMILNADU DEPARTMENT OF HEALTH AND FAMILY WELFARE FORT ST GEORGE CHENNAI-600009 3 THE MEMBER SECRETARY MEDICAL SERVICES RECRUITMENT BOARD (MRB) 7TH FLOOR DMS BUILDINGS 359 ANNA SALAI TEYNAMPET CHENNAI-600008 4 S.SALEESHA 5 MRS.G.MAHALAKSHMI 6 MRS.SEETHALAKSHMI 7 R.SOWRIRAJAPERUMAL 8 PRIVATE STUDIES NURSES ASSOCIATION REP. BY ITS PRESIDENT S.SENTHILNATHAN NO.31 METTU STREET VELLI MEDEPETTAI TINDIVANAM VILLUPURAM-604 207 9.A.CHITRA 10.B.KALAIVANI 11.A.CATHERIN NITHYA 12.C.JAYANTHI 13.A.SAMMU 14.G.RAMALAKSHMI 15.P.GOMATHI RAJKUMAR 16.D.IVY 17.P.LALITHA 18.J.SAJITHA BEGUM 1 THE PRINCIPAL SECRETARY ... RESPONDENTS in WA No.2718 of 2019 GOVT. OF TAMILNADU DEPARTMENT OF HEALTH AND FAMILY WELFARE FORT ST. GEORGE CHENNAI-9

2 THE MEMBER SECRETARY MEDICAL SERVICES RECRUITMENT BOARD (MRB) 7TH FLOOR DMS BUILDINGS 359 ANNASALAI TEYNAMPET CHENNAI-600006 3 S.SALEESHA 4 G.MAHALAKSHMI 5 SEETHALAKSHMI 6 R.SOWRIRAJAPERUMAL 7 PRIVATE STUDIES NURSES ASSOCIATION REP. BY ITS PRESIDENT S.SENTHILNATHAN NO.31 METTU STREET VELLI MEDEPETTAI TINDIVANAM VILLUPURAM-604207 8 G.UDAYA KUMAR 1 THE PRINCIPAL SECRETARY ..RESPONDENT in WA No.2719 of 2019 GOVT OF TAMIL NADU DEPARTMENT OF HEALTH AND FAMILY WELFARE FORT ST GEORGE CH-9 2 THE MEMBER SECRETARY MEDICAL SERVICES RECRUITMENT BOARD (MRB) 7TH FLOOR DMS BUILDINGS 359 ANNASALAI TEYNAMPET CH-06.

3 S.SALEESHA 4 G.MAHALAKSHMI 5 SEETHALAKSHMI 6 R.SOWRIRAJAPERUMAL 7 PRIVATE STUDIES NURSES ASSOCIATION REP BY ITS PRESIDENT S.SENTHILNATHAN NO.31 METTU ST VELLI MEDEPETTAI TINDIVANAM VILLUPURAM 604207.

8 G.UDAYA KUMAR 1 THE PRINCIPAL SECRETARY ...RESPONDENTs in WA No.2720 of 2019 GOVT OF TAMIL NADU DEPARTMENT OF HEALTH AND FAMILY WELFARE FORT ST GEORGE CH-9

2 THE MEMBER SECRETARY MEDICAL SERVICES RECRUITMENT BOARD (MRB) 7TH FLOOR DMS BUILDINGS 359 ANNASALAI TEYNAMPET CH-06.

3 S.SALEESHA 4 G.MAHALAKSHMI 5 SEETHALAKSHMI 6 R.SOWRIRAJAPERUMAL 7 PRIVATE STUDIES NURSES ASSOCIATION REP BY ITS PRESIDENT S.SENTHILNATHAN NO.31 METTU ST VELLI MEDEPETTAI TINDIVANAM VILLUPURAM 604207.

8 G.UDAYA KUMAR Appeals filed under Clause 15 of the Letters Patent against the order dated 25.04.2019 passed in W.P.No.26410 of 2018 on the file of this Court.

Prayer in W.P.No.26410 of 2018:

Writ Petition filed under Article 226 of the Constitution of India Praying for issuance of a Writ of Ceritorarified Mandamus to call for the records pertaining to notice of the 2nd respondent dated 12.09.2018 in Notification No.1/MRB/2015 and quash the same and consequently direct the respondents to conduct recruitment examination afresh for the selection of nurses in the service of 1st respondent.

For Appellant in W.A.3608/2019 :

Mr.R.Udhayakumar, Addl.G.P.

For Appellant in WA.

2717/2019 :

Mr.N.G.R.Prasad for M/s.Row and Reddy For Appellants in W.As.2718 to 2020/ :

No appearance

For Respondent no.1 in W.A.3608/2019 :

:

Mr.P.Pugazh Gandhi For Respondent no.2 in W.A.3608/2019 Mr.S.R.Rajagopal, Addl. Adv. General, assisted by Mr.M.Loganathan Mr.K.Balu For Respondents 8 to in W.A.3608/2019 and Appellants in W.A.2082/ 2019 For Respondents in WA.NO.2082/2019 :Mr.Pugazh Gandhi for R1 and Mr.R.Udhaya kumar AGP for R2 WA.NO.2717/2019 Mr.S.R.Raja Gopal AAG Assisted by Mr.Logunathan for R3 For Respondents in WA.NO.2718/2019 :Mr.R.Udhaya kumar AGP for R1 MR.S.R.Raja Goplal AAG Assisted by Mr.Logunathan for R2 Mr.Pugazh Gandhi for R8

JUDGMENT

(Delivered by The Hon'ble Chief Justice) Heard Mr.N.G.R.Prasad, learned counsel appearing for the appellants in W.A.No.2717 of 2019, Mr.R.Udhayakumar, learned Additional Government Pleader appearing for the respondent State and Mr.S.R.Rajagopal, learned Additional Advocate General, appearing for respondent no.2 / Medical Services Recruitment Board.

2.The writ petitions challenge the recruitment notification dated 12.09.2018 issued by the Medical Services Recruitment Board. The said notification related to appointment to the post of Contract Nurses. The learned Single Judge, by the impugned judgment, has proceeded to hold that the entire recruitment process was vitiated and consequently, has set aside the selections with the following directions:

"47.In view of these facts and circumstances, this Court is inclined to pass the following orders:- (1)The respondents are at liberty to proceed with the process of selection by strictly following the recruitment rules in force and by following the procedures contemplated to fill up the posts

of Nurses in the Service Rules.

(2)The unsuccessful candidates of the selection process conducted during the year 2015 and appointed pursuant to G.O.(3D).No.80, Health and Family Welfare(AA1) Department dated 08.07.2016 and G.O.(3D).No.49, Health and Family Welfare (AA1) Department dated 16.10.2017 on contract basis cannot be granted with the benefit of regularization and permanent absorption in the sanctioned posts in regular time scale of pay. All these contract employees, who were appointed in violation of the Recruitment Rules by grant of illegal relaxation, shall be permitted to participate in the process of selection in the ensuing Recruitment Notification to be issued by the respondents.

(3)The respondents are directed, not to grant regularization and permanent absorption in violation of the legal principles settled by the Constitution Bench of the Hon'ble Supreme Court of India in the case of the State of Karnataka V. Umadevi[(2006)] SCC 1] are http://www.judis.nic.in 31 becomes the law of the land under Article 141 of the Constitution of India.

(4)The respondents are directed to allow the contract employees appointed in the cadre of Nurses to continue in service till the sanctioned posts, are filled up by way of regular Recruitment process in accordance with the rules in force. It is made clear that soon after the regular appointments are made in accordance with the Recruitment Rules in force, the services of all those contract employees are directed to be discharged.

(5)The respondents are directed to conduct the Recruitment for the Post of Doctors, Nurses, Para Medical Staffs etc., periodically as per the MRB Rules in force to avoid such unnecessary administrative exigencies in the matter of providing decent Medical facility to the citizen of this great Nation."

3.After we had heard the appeals on the previous occasion, we had passed the following order on 03.01.2020:- "Heard learned counsel for the parties.

2.These appeals question the correctness of the judgment dated 25.04.2019, whereby the learned Single Judge has proceeded to set aside the recruitment on the post of nurses, the advertisement whereof was issued on

19.04.2015 in respect of 7243 vacancies subject to a variation therein as contained in the advertisement. 3.It is stated at the bar that against the said vacancies, after the publication of the list of the successful candidates, 6254 joined, as a result whereof 989 vacancies still remain, apart from 10% of the vacancies assigned under Rule 7, known as the 'reserved list'. It is not the case of either of the parties that there were no sanctioned or approved posts available and therefore, the appointments could have been made as the sanctioned posts in whatever scheme was available. It appears that in the year 2018, a notification was issued on 12.09.2018 that came to be challenged by the writ petitioner contending that such vacancies which were not subject matter of the earlier advertisement dated 19.04.

2015 ought not to have been filled up and therefore, the contention raised was that this amounts to depriving an opportunity to the petitioner to compete against the said post which ought to have been included in the subsequent notification. 4.The learned Single Judge has proceeded to set aside the selections on the presumption that the selections stood invalidated on account of excess number of appointments having been made over and above the vacancies which had been advertised under the notification dated 19.04.2015 and the same being unconstitutional could not be sustained.

5.Three appeals have been filed that are before us, one by the State Government and the other two by selected candidates who contend that they have been appointed and are clearly saved on account of the procedure adopted by the State Government in proceeding to make an appointment after exercising the powers of relaxation. It is also the contention of the private appellants that their selections have been disturbed by the impugned judgment even without impleading them as parties and giving them an opportunity of hearing. The contention, therefore, is that the judgment of the learned Single Judge cannot be sustained.

6.Learned counsel for the respondent petitioner has maintained before us that so far as the writ petitioner is concerned, he cannot possibly raise a challenge nor does he have any grievance against the number of vacancies that stood advertised under the notification dated 19.04.2015 and in terms of Rule 7 thereof. But the vacancies which have also been filled up by relaxing Rule 7 later on has caused prejudice to him.

7.Learned counsel for the writ petitioner has also stated that the writ petitioner was not even eligible

on the date when the notification dated 19.04.2015 was issued and therefore, he may not have a right to question the selections which have been carried out under the said notification and in view of the aforesaid submissions raised, what we find is that the learned Single Judge has proceeded to nullify the selections which requires a scrutiny and for that, we require the learned counsel for the State to provide us with a chart relating to the number of appointments made in respect of vacancies that had remained unfilled, coupled with the 10% of the reserved list and in addition thereto, the other appointments which have been made over and above that. Let the chart be placed before us, for which the learned Additional Advocate General for the State prays for time upto 08.01.2020. Put up on 08.01.2020."

4.Today, learned Additional Advocate General has invited the attention of the Court to the status report in respect of the appointments having already been made. The tabulated portion in the said status report are extracted hereinunder:- Details of Nurses on Contract Basis Sl.No.

Period of Service Total Candidates 1.

Recruited Candidates - 2015 (MRB) Notification issued for 7243 posts and postings orders issued for 7102 candidates only Handicapped quota allotted and not applied for that Total Withheld candidates in 7102 Not joined in 7102 Joined and UAA in 7102 Joined and Resigned in 7102 Joined in 7102 MRB released the 680 candidate list in two spell (498+182) and posting orders issued to 680 candidates

Details of Nurses on Contract Basis 2.

Recruited candidates-2016-17 (MRB) G.O. (3D) No.80, dated 08.07.2016, Health and Family Welfare (AA1) Department for 1947 post and Posting issued for 1231 candidate in spell 1 and Posting issued for 716 candidate in spell Total Joined Not joined 3.

Recruited Candidates-2018 (MRB) G.O. (3D) No.49, Health and Family Welfare (AA1) Department, dated 16.10.2017 issued to select 1170 posts but posting issued for 343 candidates only Joined Not joined A perusal of the above would clearly indicate that total number of 7243 candidates were to be appointed under the notification. The Government of Tamil Nadu has issued G.O. No.36, dated 12.02.2014, which provides that in respect of open advertisements, the Medical Services Recruitment Board shall keep not more than 10% of the estimated vacancies in the reserved list. Therefore, the Government could appoint total number of 7967 medical nurses. The figures shown in the aforesaid table would show that 265 candidates over and above the total number of candidates, i.e., 7967, could have been recruited.

5.The contention of the learned Additional Advocate General is that neither the G.O.Ms.No.80, Health and Family Welfare (AA1) Department, dated 08.07.2016 nor the G.O. Ms.No.49, Health and Family Welfare (AA1) Department, dated 16.10.2017 were under challenge, whereby the State Government had proceeded to grant relaxation while proceeding to make appointments in question. Apart from this, it is also stated that the learned Single Judge, without looking into the aforesaid aspect, has overlooked the fact that the vacancies which were 7243 under the notification dated 19.04.2015 and 10% of the said figure would also be available on variation and consequently, adding the aforesaid number, the status report indicates that the appointments were not in excess of the vacancies, which were in tune with the notification, which provided for a variation in

the number of vacancies, apart from what had been advertised. His contention, therefore, is that apart from the statutory provision available for proceeding to make the appointments, the power of relaxation was also additionally available in terms of the G.Os. `dated 08.07.2016 and 16.10.2017, which were not even under challenge, yet, the learned Single Judge proceeded to set aside the entire selection.

6.After we had proceeded to hear the appellants, Mr.P.Pugazh Gandhi, learned counsel for the respondent-writ petitioner, in no uncertain terms, stated before us that the challenge was only to see that in future, the notifications that are made are in conformity with the Rules and that the writ petitioner never intended to challenge the selections and appointments already concluded by the Government. The inference that we can draw from the aforesaid submission made is that even the petitioner did not plead for the reliefs that have been ultimately granted by the learned Single Judge against the appellants. In effect, therefore, there is a total consensus between the learned counsel for the parties including learned counsel for the petitioner that the impugned judgment as it stands is unsustainable.

7.We have considered all the aforesaid aspects and we find that the learned Single Judge has, on the basis of an assumption, overstepped the jurisdiction in proceeding to assume the selections to be invalid on grounds which are otherwise not available in law. The fact that the State Government had conducted the selections and the candidates had appeared in the selection process and were selected after undergoing the process as prescribed therein remains undisputed. There is no dispute with regard to the eligibility. The only grievance that was raised was that had more vacancies been available, the same would have been available for the petitioners as well in future. 8.

In the light of what has transpired, we find that the State Government proceeded to fill up vacancies on account of the directions issued by the High Court itself in a Public Interest Litigation that mandated the filling up of the posts of nurses that were required urgently throughout the State. It is in the said background that the G.Os. dated 08.07.2016 and 16.10.2017 were issued. These aspects have been totally overlooked by the learned Single Judge. We do not find any fault either in the notification or in the selection process and therefore, the assumption by the learned Single Judge that the appointments had been made over and above the vacancies advertised, which vitiates the entire selection process does not stand to reason.

Consequently, we find substance in the argument of the learned counsel for the appellants and we, therefore, set aside the impugned judgment.

9.We, however, direct the appellant State Government that in case it proceeds to make any further recruitments in respect of the post of contract nurses under any scheme, the State Government would be bound to specify the terms and conditions including the number of vacancies that are likely to be filled and with any indication of power of relaxation which it may propose to exercise in the advertisement itself. The State Government would be under an obligation to notify vacancies as per the scheme itself.

Since health and social welfare being an exclusive subject of the State and even an obligation arising out of not only the fundamental rights guaranteed to the citizens under Article 21 of the Constitution of India, but also on account of the directive principles of State policy as contained in Article 39 of the Constitution of India, we expect that the State Government would be advertising the vacancies for the post of nurses and not let it remain unfilled for giving rise to any other Public Interest Litigation in future. The writ appeals are, accordingly, allowed, with aforesaid observations.

There shall be no order as to costs.

Consequently, connected C.M.Ps. are closed.

Sd/- Assistant Registrar(CS III) //True Copy// Sub Assistant Registrar sra To 1.The Member Secretary, Medical Services Recruitment Board (MRB), 7th Floor, DMS Buildings, 359, Anna Salai, Teynampet, Chennai 600 006.

2.The Principal Secretary, Govt. of Tamil Nadu, Dept. of Health and Family Welfare, Fort St. George, Chennai 600 009.

+3ccs to Mr.M.Padmavathy , Advocate SR.No. 5261 +1 cc to Government Pleader Sr.No.5276 +1cc to Mr.K.Balu , Advocate SR.No. 4964 +1cc to M/s.Row and Reddy , Advocate SR.No. 5056 +1cc to Mr.Pugazh Gandhi, Advocate SR.No. 5069 W.A.Nos.3608, 2082 and 2717 to 2720 of 2019 SPD A.SK(25/02/2020)