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2009 Supreme(Mad) 5423
Before the Madurai Bench of Madras High Court
THE HONOURABLE MR. JUSTICE D. MURUGESAN & THE HONOURABLE MR. JUSTICE S. NAGAMUTHU
The Secretary to Government, Health and Family Welfare Department, Chennai & Others
Versus
Josuva Jebakumar & Others
W.A.(MD).Nos.446 to 461 and 224 of 2009 & M.P.Nos.2,2,2,2,2,2,2,2,2,2,2,2,2, 2,2,2, 3,3,3,3,3,3,3,3,3,3,3,3,3,3,3,3 & 2 of 2009
Decided on : 10-12-2009
For the Appearing Parties:R1 to R3, Ramaswamy Advocate General For R. Janakiramalu Special Government Pleader. R4, M. Ajmal Khan, T. Lajapathi Roy, Advocates.
Headnote:A. SERVICE LAW/RECRUITMENT - Writ Petitioners registered with employment exchange were some of candidates sponsored by employment exchange for recruitment as Lab Assistants in family Welfare Department. But out of 413 vacancies available at that time department notified only 171 vacancies to Employment Exchange. Employment Exchange sponsored 1292 candidates in ratio of 1:5. Director of public health proposed to fill up remaining vacancies from among Laboratory supervisors already working under TB control scheme for more than five years in terms of GO Ms 335. Writ Petitioners challenged government order on ground that an administrative order cannot over ride TN Public Health and Subordinate Service Rules, by which only by direct recruitment Technical Grade Class III had to be appointed. Agreeing with petitioners learned Judge quashed GO. Dismissing Appeal court HELD that Apex Court and High Court had repeatedly held that statutory rules would prevail over government order hence GO was illegal and liable to be quashed.
B. SERVICE LAW - RECRUITMENT THROUGH EMPLOYMENT EXCHANGE - The Court followed the Full Bench judgment of the court in Sivakumar R v. Ramanathapuram Mavatta Payirchipetra Edainilai Asiriyargal Sangam reported in 2007 (5) CTC 561 which in turn followed the judgments of the Apex Court in UOI and others v. N. Hargopal, reported in 19B7 (3) SCC 30B, Exercise Superintendent Nalkapatnam, Krishna District v. KBN Vishweswar Rao reported in 1996 (6) SCC 216 and Kumar Nayak v. UOI and others reported in 2006 (B) SCC 111. (Para 10 and 11).
C. SERVICE LAW - RESERVATION AND PERSONS ALREADY IN SERVICE The Court also held that reservation of certain vacancies in favour of persons already in service was in violation of Articles 14 and 16 of the Constitution of India (Para 13).
Result : Appeals dismissed with observations.
S. NAGAMUTHU, J.
Since common issues are involved in all these Writ Appeals, they were heard together and they are disposed of by means of this Common Judgment.
.2. Challenging the common Order of the Writ Court, quashing the Government Order issued in G.O.Ms.No.335, Health and Family Welfare (EAP 1/2) Department, dated 110. 2008, the official respondents in the Writ Petitions have come up with W.A.(MD)Nos.446 to 461 of 2009. The appellant in W.A.(MD.No.224 of 2009 has got himself impleaded before the Writ Court in W.P. (MD).No.10495 of 2009. Challenging the very same common Order, he has come up with the said Writ Appeal.
3. The Writ Petitioners claim that they have got basic qualification for being appointed as Lab Assistants in the Health and Family Welfare Department. Admittedly, they have registered their names with the local Employment Exchange. During the year 1998, there were total number of 413 vacancies, out of which, the Director of Public Health and Preventive Medicine, Chennai, notified 171 vacancies to the local Employment Exchange. In response to the said notification, the Commissioner of Employment and Training Department, Guindy, Chennai, sponsored 1292 candidates including the Writ Petitioners in the ratio of 1:5. It was also proposed by the Director of Public Health and Preventive Medicine, Chennai, to fill up the remaining vacancies by absorbing the Laboratory Technicians/Laboratory Supervisors, who are working in the Revised National Tuberculosis Control Programme for more than five years and to satisfy the educational qualification prescribed in the Rules for the post of Laboratory Technicians Grade III in terms of the above said Government Order.
4. According to the Writ Petitioners, the said Government Order impugned in the Writ Petitions, which is an administrative order, cannot override the Special Rules for Tamil Nadu Public Health and Subordinate Service Rules, according to which, the post of Laboratory Technician Grade III can be filled up only by way of direct recruitment. It was further contended that because major chunk of the vacancies have been reserved for certain candidates, who are already in service, as indicated above, the Writ Petitioners, who are fully eligible for the said post, are kept out of the purview of consideration, and thus, there is gross violation of Articles 14 and 16 of the Constitution of India.
5. However, it was contended by the official appellants before the Writ Court that the Government Order impugned in the Writ Petitions was issued in the following circumstances, viz., If candidates are recruited through Employment Exchange to fill up these vacancies, junior candidates to these persons now working in the Revised National Tuberculosis Control Programme (Government Programme) will get regular employment in Government Service whereas the Seniors who were appointed through paper advertisement with rich experience in the Medical Institutions could not get absorbed against the regular appointments as most of them are over aged and many of them are working in the programme for more than nine years. However, the services of the Laboratory Technicians and Laboratory Supervisors are being utilized in "Varumun Kappom Thittam" Camps and other Public Health Programmes. In those circumstances, the Government decided to accept the recommendations of the State Tuberculosis Officer and Director of Public Health and Preventive Medicine so as to issue a direction for absorption of these Laboratory Technicians/Laboratory Supervisors, who are working in the Revised National Tuberculosis Control Programme for more than five years and who are fully qualified.
.6. It was further contended before the Writ Court that after filling up the vacancies from out of the qualified service candidates, the remaining vacancies would be filled up by selecting the suitable candidates sponsored through the Employment Exchange. It was also contended that there is no discrimination, as it
