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2021 Supreme(Mad) 926
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.S. RAMESH, J.
Dr. S. Ravindran - Appellant
Versus
State rep. by the Secretary to Government, Government of Tamil Nadu, Department of Higher Education, Chennai & Another - Respondent
W.P. No. 27439 of 2017 & WMP. Nos. 29328 & 36136 of 2017
Decided On : 06-05-2021
Advocate Appeared:
For the Petitioner:Thomas T. Jacob, Advocate.
For the Respondents: S. Thangavel, SGP, Manisundar Gopal, Standing Counsel.
Point of Law: continuation of services of any Government employee, in a non sanctioned post, would not be permissible in law. Likewise, the High Court exercising its powers under Article 226 of the Constitution of India, will not also be justified in directing the State for creation and sanction of a post, which is the prerogative of the executive powers
Headnote:
Constitution of India- Article 226- Termination of the petitioner's appointment as a Medical Officer- To quash the same and reinstate the petitioner with back wages – Termination on the sole ground that the post of Medical Officer, as well as six other paramedical posts were not sanctioned posts by the Government of Tamil Nadu and in view of the Audit objections, the termination was effected – Directions issued
Finding of the Court:
when the petitioner herein had challenged the termination order before this Court, the termination order itself came to be stayed by this Court. However, the University had not permitted the petitioner to join the services as a Medical Officer. In this given scenario, the petitioner would be eligible for the service benefits from the date of termination- some time could be consumed for considering the University's requisition for sanction of post of Medical Officer and the supporting paramedical posts and staff and by taking into account of the ongoing pandemic, along with the welfare of the faculty, staff and students of the University, it would be appropriate to permit the University to forthwith continue the services of the petitioner herein as a Medical Officer as well as the supporting paramedical team/staff of the Medical Care Centre, without awaiting for the order of sanction from the Government of Tamilnadu.
Result: Petition allowed
JUDGMENT :
(Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, calling for the relevant records relating to the termination of the petitioner's appointment as a Medical Officer vide second respondent's official Communication No.F.1(B)/EStT/2017/R-51 dated 22.08.2017 and to quash the same and reinstate the petitioner with back wages.)
1. The present Writ Petition is heard through Video Conferencing on 30.04.2021.
2. Heard Mr.Thomas T. Jacob, learned counsel appearing for the petitioner and Mr.S.Thangavel, learned Special Government Advocate appearing on behalf of the first respondent State, as well as Mr.Manisundar Gopal, learned Standing counsel for the second respondent University.
3. The brief facts of the case are as follows:-
3.1. The University of Madras, established in the year 1857, is one of the oldest and reputed University in India. The organizational structure of the University, insofar as the appointments of its staffs and faculties are concerned, is by the Syndicate of the University.
3.2. Pursuant to the decision of the Syndicate, the University had called for applications for the post of a Medical Officer in the University, through an advertisement in the Newspaper. Subsequently, the petitioner herein, who is a registered Medical Practitioner, was appointed to the post of a Medical Officer at the Medical Care Centre at the University of Madras, on 26.12.2006, on a consolidated pay of Rs.12,000/- per month for a period of one year, on contract basis. His contractual services was thereafter periodically extended and the petitioner's services, as a Medical Officer at the Medical Care Centre, were confirmed through an order dated 25.11.2015 and the petitioner was brought in the pay band of Rs.15600-39100 with GP of Rs.6600/-. On 25.07.2016, an Agreement of Service Contract between the petitioner and Syndicate of the University was entered into.
3.3. On 22.08.2017, the petitioner's services were abruptly terminated through the impugned order of the second respondent herein, on the sole ground that the post of Medical Officer, as well as six other paramedical posts were not sanctioned posts by the Government of Tamil Nadu and in view of the Audit objections, the termination was effected. There was no prior notice or opportunity given to the petitioner to put-forth his objections to the termination. Aggrieved against the order of termination, the present Writ Petition has been filed.
4. The one and only ground on which the petitioner's services as a Medical Officer was terminated is that, his post was not sanctioned by the Government of Tamil Nadu, which was brought to the notice of the University through the Audit objections.
5. Mr. Manisundar Gopal, learned Standing counsel for the University would submit that, though the Syndicate had appointed the petitioner to a non sanctioned post, they are unable to continue his services, ever since the factum of non sanction of post was brought to their notice in the Audit objections.
6. This Court, while admitting the Writ Petition, had granted an order of interim stay of the termination letter, pending disposal of the Writ Petition on 26.10.2017. However, the petitioner's services were not retained.
7. In normal circumstances, continuation of services of any Government employee, in a non sanctioned post, would not be permissible in law. Likewise, the High Court exercising its powers under Article 226 of the Constitution of India, will not also be justified in directing the State for creation and sanction of a post, which is the prerogative of the executive powers. This proposition of law has been well settled by the Hon'ble Supreme Court in various decisions.
8. But the peculiar circumstances of this case in hand warranted this Court to explore the possibility of having a Medical Care Centre, within the University Campus. The reason being, the University had terminated the entire Medical Care Centre team consist
