Mahalingam A v. The Director
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07.06.2023
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN A.Mahalingam ... Petitioner Vs.
1.The Director, Medical and Rural Health Services and Family Welfare, Chennai-6.
2.The Joint Director, Medical and Rural Health Services and Family Welfare, Ramanathapuram.
3.The Medical Officer, Government Hospital, Thiruvadanai, Ramanathapuram District.
... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, calling for the records connected with the impugned order passed by the 2nd respondent in Na.Ka.No.3711/Ni.-2/2019-1 dated 18.08.2022 and further order in Na.Ka.No.3711/Ni-2/2019 dated 15.09.2022 and quash 1/10
the same and consequently direct the 1st and 2nd respondents to regularize the service of the petitioner as Sanitary Worker with all monitory and service benefits on completion of 3 years of service from the initial dated of appointment on 30.08.2005 in terms of G.O.Ms.No.385 Finance Department dated 01.10.2010 which was followed by the respondents in G.O.MsNo.680 Public Health and Family Welfare Department dated 28.06.2018 and also to extend the benefit of G.O.Ms.No.341 Health and Family Welfare Department dated 19.11.2016.
For Petitioner : Mr.S.Govindan For Respondents : Mr.T.Villavan Kothai, Addl. Govt. Pleader.
ORDER
Heard the learned counsel on either side.
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2.The writ petitioner was appointed as Sanitary Worker on outsourcing basis on 24.08.2005 by the second respondent. The only question that arises for consideration is whether the petitioner is entitled to special time scale of pay as per G.O.(Ms)No.385 Finance Department dated 01.10.2010. When the petitioner's request was rejected, he filed W.P.(MD)No.16757 of 2019. Vide order dated 15.02.2022, the said writ petition was disposed of in the following terms:- "3. The Government has issued G.O.Ms.No.385, Finance (Salary) Department, dated 01.10.2010, granting special time scale of pay to daily wage employees or the employees working on consolidated pay. When the Government has issued an order granting special time scale of pay or consolidated pay in respect of the temporary employees, and the benefit of the said Government Order should be extended to all the employees, who are all complying with the norms stipulated in the Government Order.
4. The learned counsel for the petitioner, by confining the relief sought for in this writ petition, submits that the petitioner is entitled to special time scale of pay as per G.O.Ms.No.385, dated 01.10.2010.
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5. In view of the facts and circumstances, the petitioner is at liberty to submit all the documents available with him to establish his case to the first respondent and thereafter, the first respondent is directed to call for the available records from the Authorities competent and consider the case of the petitioner for grant of special time scale of pay in accordance with the Government Order issued in G.O.Ms.No.385, Finance (Salary) Department, dated 01.10.2010. Such exercise shall be completed within a period of twelve weeks from the date of receipt of a copy of this order.
However, without making any reference to the said government order, the petitioner's request was once again rejected vide orders dated 18.08.2022 and 15.09.2022. Questioning the same, the present writ petition came to be filed.
3.The learned counsel for the petitioner reiterated all the contentions set out in the affidavit filed in support of the writ petition and called upon this Court to set aside the impugned orders and grant relief as prayed for.
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4.The respondents have filed counter affidavit and the learned Additional Government Pleader took me through its contents. Initially, it was argued by the respondents that the petitioner is not in service. This was contested by the petitioner's counsel. I had a direct interaction with the In-charge Medical Officer, Government Hospital Thiruvadanai. The In-charge Medical Officer confirmed that the petitioner is as on date serving in Government Hospital Thiruvadanai but only under a scheme. In other words, the stand of the third respondent is that the petitioner is a scheme employee as on date.
5.The petitioner's request for regularization cannot be accepted. This is in view of the earlier order dated 15.02.2022 made in W.P.(MD)No.16757 of 2019. The only question that calls for consideration is whether the petitioner is entitled to special time scale pay. G.O.(Ms)No.385 Finance Department, dated 01.10.2010 is as follows:- 5/10
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6.G.O.(Ms)No.385 talks only about those drawing daily wages and those appointed on consolidated pay. The pay master will be the 7/10
Government or the concerned department or the local body. For outsourced employees, the pay master will be the agency concerned. Hence the said G.O. will not apply to outsourced employees. As on date, the petitioner is working not as an outsourced employee but only as a scheme employee. Now the pay master is the Government. Of course, the petitioner may be working as only as a scheme employee but that does not make any difference. So long as the State Government or the local body is the pay master, the petitioner can very well claim the benefit of G.O.(Ms)No.385, Finance Department dated 01.10.2010. Therefore, the respondents are directed to extend the benefit set out in the aforesaid government order to the petitioner. The petitioner will be paid arrears with effect from 16.07.2019. The impugned order is set aside to the extent mentioned above and the writ petition is accordingly allowed. No costs.
07.06.2023 NCC : Yes/No Index : Yes / No Internet : Yes/ No ias 8/10
To:- 1.The Director, Medical and Rural Health Services and Family Welfare, Chennai-6.
2.The Joint Director, Medical and Rural Health Services and Family Welfare, Ramanathapuram.
3.The Medical Officer, Govt. Hospital Thiruvadanai, Ramanathapuram District.
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G.R.SWAMINATHAN, J.
ias 07.06.2023 10/10