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2011 Supreme(Mad) 1760
High Court of Judicature at Madras
S. MANIKUMAR
Dr. S.S. Abdul Khuddus Azami
Versus
The Principal Secretary to Government, Health and Family Welfare Department & Another
Writ Petition No.16309 of 2010 & M.P.Nos.1 & 2 of 2010
Decided on : 29-03-2011
For the Petitioner:K. Rajkumar, Advocate. For the Respondents: G. Sankaran, Spl. GA (Edn.).
The main legal point established in the judgment is the requirement for the government to consider relaxation of rules for a government servant who has rendered unblemished service and made unsuccessful attempts to pass a mandatory test, to avoid discrimination and hardship.
Headnote:
TNPSC - Service Dispute - Rule 12A of General Rules for Tamil Nadu State and Subordinate Service Rules - G.O.Ms.No.118, G.O.(3D)No.37, G.O.Ms.No.1120, G.O.Ms.No.946 - The court discussed the application of Rule 12A of the General Rules for Tamil Nadu State and Subordinate Service Rules, the government orders G.O.Ms.No.118 regularizing the petitioner's appointment, G.O.(3D)No.37 discharging the petitioner from service, G.O.Ms.No.1120 granting relaxation of passing departmental or any other test, and G.O.Ms.No.946 relaxing the passing of the Second Language Test in Tamil for another individual. The court highlighted the petitioner's unblemished service, unsuccessful attempts to pass the Second Language Test, and the government's failure to consider his case for relaxation, leading to discrimination and violation of Article 14 of the Constitution of India.
Fact of the Case:
The petitioner, a Bachelor of Unani Medicine and Surgery, was appointed as Assistant Medical Officer and later as Assistant Lecturer in Government Unani Medical College. The government rejected his request for relaxation of rules regarding passing 'Tamil' as Second Language Test, leading to his removal from service. The petitioner challenged the order in this writ petition.
Finding of the Court:
The court found that the government's order of removal was a colorable exercise of power and a violation of Article 14 of the Constitution of India. It held that the petitioner's unblemished service and unsuccessful attempts to pass the Second Language Test warranted consideration for relaxation of rules, and the government's failure to do so caused discrimination and hardship to the petitioner.
Issues: The issues involved the application of Rule 12A of the General Rules for Tamil Nadu State and Subordinate Service Rules, the government's orders regularizing the petitioner's appointment and discharging him from service, and the petitioner's request for relaxation of rules regarding passing the Second Language Test.
Ratio Decidendi: The court held that the government's order of removal was a colorable exercise of power and a violation of Article 14 of the Constitution of India. It emphasized the petitioner's unblemished service, unsuccessful attempts to pass the Second Language Test, and the government's failure to consider his case for relaxation, leading to discrimination and hardship.
Final Decision: The court set aside the impugned order and directed the respondents to allow the petitioner to retire from service by granting relaxation of the rules, with consequential service and monetary benefits, including retiral benefits and pension, with effect from the date of attaining the age of superannuation and disburse the arrears.
1. After acquiring a Bachelor Degree in Unani Medicine and Surgery and selected to the post of Assistant Medical Officer by TNPSC and by an order, dated 17.03.1996 of the Director of Indian Medicine, Homeopathy, the petitioner joined the Department of Indian Medicine of Homepathy as Assistant Lecturer in Government Unani Medical College, Arignar Anna Government Hospital of Indian Medicine, Chennai. He has rendered 24 years of service, without earning any promotion and that he was due to retire on 31.05.2010, on attaining the age of superannuation. The Government, after considering the request of the petitioner for relaxation of the relevant rules, regarinding passing 'Tamil' as Second Language Test, has rejected the same, vide order in G.O.(2D)No.49, Health and Family Welfare Department, dated 29.05.2010 and consequently, removed the petitioner from service, as per Rule 12A of the General Rules for Tamil Nadu State and Subordinate Service Rules. The said order is challenged in this writ petition.
2. Assailing the correctness of the impugned order, Mr.K.Rajkumar, learned counsel for the petitioner submitted that when the Government have issued G.O.Ms.No.118, Indian Medicine and Homeopathy Department, dated 07.10.1987, regularising the services of the petitioner, along with the others, from the date of his initial appointment, i.e., on 24.03.1986, the date on which, the petitioner was temporarily appointed under Rule 10 (a)(i) of the General Rules for Tamil Nadu State and Subordinate Service, the respondents have no jurisdiction to invoke Rule 12A of the abovesaid rules and remove the petitioner on the ground that he has not passed the Second Language Test. He further submitted that if a candidate, selected by the TNPSC and appointed to a service, fails to pass any test, he cannot be removed from service, which is nothing but imposing a major penalty and therefore, it is violative of Article 311(2) of the Constitution of India.
3. He further submitted that when the Government have issued G.O.(3D)No.37, Health and Family Welfare (IMAHI) Department, dated 05.05.1998, discharging the petitioner from service, the same was challenged in O.A.No.9552 of 1998 before the Tamil Nadu Administrative Tribunal, Chennai and the Tribunal, by its order, dated 15.05.2001, has stayed the order of discharge. Subsequently, the said O.A., was transferred to this Court and re-numbered as W.P.No.4807 of 2006. According to him, when stay of discharge is in force from 2001 onwards, the action of the respondent, in removing the petitioner from service, would be amounting to dis-obedience of the orders of this Court.
4. Learned counsel for the petitioner submitted that as per G.O.Ms.No.1120, P & AR Department, dated 30.10.1984, the Government have powers to grant relaxation of passing departmental or any other test, subject to satisfying the following conditions, viz., (1) He should not be below 53 years, (ii) He should have attempted atleast 5 times to write the special examinations and (iii) He should have a satisfactory records of service.
5. Referring to the unblemished service of the petitioner and his unsuccessful attempts, learned counsel for the petitioner submitted that though the petitioner could not pass the Second Language Test in Tamil for some reason or the other, there was no complaint from any quarters, whatsoever, regarding the manner, in which, he had discharged nor deficiency in service, was recorded on account of his failure to pass the test.
6. Learned counsel for the petitioner further submitted that as an Assistant Lecturer in Government Unani Medical College and Doctor in Unani Medicine, there was no complaint either from the students or the faculty in or communicating with the patients and therefore, considering the fact that the petitioner has satisfied the conditions set out in G.O.Ms.No.1120, P & AR Department, dated 30.10.1984, the Government ought to have granted relaxation to him. He further submitted that the impugn
