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Article 226 in The Constitution Of India 1949
Article 309 in The Constitution Of India 1949

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Madras High Court
S.Sivaguru vs State Of Tamil Nadu on 23 July, 2010

DATED: 23 / 07 / 2010

CORAM:

THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO

AND

THE HONOURABLE MR. JUSTICE D.HARIPARANTHAMAN

W.P.NOS.23893 OF 2006, 34401 OF 2007

8339, 12654, 14592, 17578, 25844 AND 27982 OF 2008

AND W.A.NO.312/2008 AND CONNECTED MISCELLANEOUS PETITIONS

W.P.No.23893 of 2006

S.Sivaguru .. Petitioner

versus

1.State of Tamil Nadu

Rep. by Secretary to Government

Health and Family Welfare Department

Chennai  600 009.

2.The Director of Public Health and

Preventive Medicine

Teynampet, Chennai  600 006. .. Respondents

PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorarified mandamus, calling for the concerned records relating to the letter No.57425/N2/2005-09/Health, dated 24.01.2006 passed by the 1st respondent in so far as it proposed to impart inservice training for a period of one week for all the Health Inspectors Grade  IB at the respective Deputy Director's office so as to consider them to be designated as Health Inspectors Grade  I and quash the same and consequently direct the 2nd respondent not to make the Health Inspectors Grade  IB as Health Inspectors Grade  I.

For Petitioner : Mr.M.Gnanasekar

For Respondents : Mr.S.Naganathan

Government Advocate

W.P.No.34401 of 2007

S.Sivaguru

(cause title amended as per order

dated 06.12.2007 in M.P.No.4/2007

in W.P.No.34401/2007) .. Petitioner

versus

1.State of Tamil Nadu

Rep. by Secretary to Government

Health and Family Welfare Department

Chennai  600 009.

2.The Director of Public Health and

Preventive Medicine

Teynampet,

Chennai  600 006. .. Respondents

PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorari calling for the concerned records relating to the G.O.Ms.No.382, dated 12.10.2007, passed by the 1st respondent and quash the same.

For Petitioner : Mr.M.Gnanasekar

For Respondents : Mr.S.Naganathan

Government Advocate

W.P.No.8339 of 2008

S.Syed Ibrahim .. Petitioner

versus

1.The State of Tamil Nadu

Rep. By its Secretary to Government

Health and Family Welfare Department

Fort St.George, Chennai  600 009.

2.The Director of Public Health and

Preventive Medicine

DMS Compound, Anna Salai,

Teynampet, Chennai  600 006. .. Respondents

PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorarified mandamus, calling for the records of the 1st respondent in G.O.(Ms) No.73, Health and Family Welfare (N1) Department, dated 28.02.2008 and quash the same as ultravires the adhoc rules framed under Article 309 of the Constitution for the posts coming under the Multi Purpose Health Workers Scheme and consequently direct the respondents to draw the panel for the post of Block Health Supervisor of the persons holding the post of Health Inspector Grade  I without insisting on the possession of Sanitary Inspector Course Certificate as a prerequisite for being considered for the post of Block Health Supervisor under the Multi Purpose Health Workers Scheme in the Health and Family Welfare Department, Government of Tamil Nadu.

For Petitioner : Mrs.Nalini Chidambaram

Senior Counsel

for Ms.C.Uma

For Respondents : Mr.S.Naganathan

Government Advocate

W.P.No.12654 of 2008

1.Venkatramanan

2.M.Elango .. Petitioners

versus

1.The Secretary to the Government

Health and Family Welfare Department

Fort St. George, Chennai  600 009.

2.The Director of Public Health and

Preventive Medicine

DMS Campus, Anna Salai,

Madras  6.

3.B.Kumar

4.J.S.Jaganathalu

(R3 and 4 impleaded as per order dated

14.07.2008 in M.P.No.3/2008 in

W.P.No.12654/2008) .. Respondents

PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorarified mandamus, calling for the records on the file of 1st respondent in G.O.Ms.No.382, dated 12.10.2007 and further quash the same as illegal, incompetent and without jurisdiction with respect to clause (iv) and (v) in paragraph 6 of the order and further direct the respondents to fix the seniority on and from the date of joining as on 01.08.1997.

For Petitioners : Mr.V.Raghavachari

For Respondents 1&2 : Mr.G.Sankaran

Special Government Pleader

For Respondents 3&4 : Mr.R.Thiyagarajan, Senior Counsel

for Mr.S.M.Subramaniam

W.P.No.14592 of 2008

1.O.M.Duraisamy

2.L.Loganathan

3.R.Kulandaivelu

4.C.Jayabalan

5.K.Gunasekaran

6.K.Thangavel

7.C.Rajagopal

8.S.Jayakandan

9.R.Shanmugham

10.T.Suburayan

11.Singaram

12.Chellam

13.T.Meenambal .. Petitioners

versus

1.The Government of Tamil Nadu

Rep. by its Secretary

Health and Family Welfare Department

Fort St. George, Chennai  600 009.

2.The Director of Public Health and

Preventive Medicine

DMS Compound, Anna Salai,

Chennai. .. Respondents

PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorari, calling for the records on the file of the 1st respondent in G.O.73 dated 28.02.2008 and further quash the same as illegal, incompetent and without jurisdiction.

For Petitioners : Mr.V.Raghavachari

For Respondents : Mr.S.Naganathan

Government Advocate

W.P.No.17578 of 2008

1.M.Padmanaban

2.D.Ragu

3.K.P.Shanmugam .. Petitioners

versus

1.The State of Tamil Nadu

Rep. by its Secretary to the Government

Health and Family Welfare Department

Fort St. George, Chennai  600 009.

2.The Director of Public Health and

Preventive Medicine

DMS Campus, Teynampet, Anna Salai,

Chennai  600 006.

3.S.Sivaguru

(R3  impleaded as per order dated 03.09.2009

in M.P.No.1/2009 in W.P.No.17578/2008) .. Respondents

PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorarified mandamus, calling for the records of the 1st respondent in G.O.Ms.No.382, dated 12.10.2007, Health and Family Welfare (N-1) Department and quash the same in so far as clause i, iv and v of paragraph 6 of G.O.Ms.No.382, dated 12.10.2007 are concerned and direct the respondents to re-designate the petitioners as Health Inspector Grade  I with effect from 01.08.1997 with attendant benefits of salary and seniority.

For Petitioners : Mrs.Nalini Chidambaram, Senior Counsel

for Ms.C.Uma

For Respondents 1&2 : Mr.G.Sankaran

Special Government Pleader

For Respondent 3 : Mr.R.Thiyagarajan, Senior Counsel

for Mr.S.M.Subramaniam

W.P.No.25844 of 2008

1.K.Jagannathan

2.A.Thangavel

3.K.Ramaiyan .. Petitioners

versus

1.State of Tamil Nadu

Rep. by its Secretary to the Government

Health and Family Welfare Department

Fort St. George, Chennai  600 009.

2.Directorate of Public Health and

Preventive Medicine

DMS Compound, Anna Salai,

Chennai  600 006.

3.R.Arulraj .. Respondents

PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorarified mandamus, calling for the records of the 1st respondent made in G.O.Ms.No.382 (Health and Family Welfare Department) dated 12.10.2007 in so far as clause (iv) and (v) of para 6 are concerned and quash the same and consequently direct the respondents 1 and 2 to prepare a common seniority list as on 01.08.1997 from among the Health Inspectors Grade (IA) and Health Inspectors Grade (IB) by re-designating the petitioners as Health Inspector Grade  I w.e.f. 01.08.1997 and fix the corresponding pay scale of Rs.1350/- (re-fixed as Rs.4500/-) w.e.f. said date.

For Petitioners : Mr.S.Silambanan, Senior Counsel

for M/s.Silambanan & Associates

For Respondents 1&2 : Mr.G.Sankaran

Special Government Pleader

For Respondent 3 : Mr.R.Thiyagarajan, Senior Counsel

for Mr.S.M.Subramaniam

W.P.No.27982 of 2008

1.C.Selvaraj

2.A.Parivallal

3.R.Arumugam

4.C.Sakthivel

5.R.Madeswaran

6.Saravanan .. Petitioners

versus

1.State of Tamil Nadu

Rep. by its Secretary to the Government

Health and Family Welfare Department

Fort St. George, Chennai  600 009.

2.Directorate of Public Health and

Preventive Medicine

DMS Compound, Anna Salai,

Chennai  600 006.

3.S.Sivaguru

(R3 impleaded as per order dated 03.08.2009

in M.P.No.1/2009 in W.P.No.27982/2008) .. Respondents

PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorarified mandamus, calling for the records of the 1st respondent made in G.O.Ms.No.382 (Health and Family Welfare Department) dated 12.10.2007 in so far as clause (iv) and (v) of para 6 are concerned and quash the same and consequently direct the respondents 1 and 2 to prepare a common seniority list as on 01.08.1997 from among the Health Inspectors Grade (IA) and Health Inspectors Grade (IB) by re-designating the petitioners as Health Inspector Grade  I w.e.f. 01.08.1997 and fix the corresponding pay scale of Rs.1350/- (re-fixed as Rs.4500/-) w.e.f. said date.

For Petitioners : Mr.S.Kumar

For Respondents 1&2 : Mr.G.Sankaran

Special Government Pleader

For Respondent 3 : Mr.R.Thiyagarajan, Senior Counsel

for Mr.S.M.Subramaniam

W.A.No.312 of 2008

1.Narasimhalu

2.K.Krishnan .. Appellants

versus

1.V.Vedapuri

2.Government of Tamil Nadu

Rep. by Secretary to Government

Health and Family Welfare Department

Fort St. George, Chennai  600 009.

3.The Director of Public Health and

Preventive Medicine

D.M.S. Compound, Chennai  6.

4.R.Jagadeesan

5.M.Ulaganathan

6.V.Balabaskaran

7.V.Thanikachalam

8.G.Sampath

9.S.Kaliappan

10.B.Venkataraman

11.N.Thangavelu

12.T.Ramachandran

13.M.Sahabudeen

14.P.Balakrishnan

15.A.C.Rajasekaran

16.M.Narayanasamy

17.T.Doraisamy

18.A.Uthandi

19.Syed Anwar Basha

(RR16 to 19 impleaded as party

respondents vide order of

court dated 27.05.2008 made in

M.P.No.2/2008 in W.A.No.312/2008)

20.A.Rajendran

21.G.Subramaniyam

(RR20 and 21 impleaded as party

respondents vide order of Court

dated 01.07.2008 made in

M.P.No.3/2008 in W.A.No.312/2008) .. Respondents

PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent against the order dated 21.11.2007 passed in W.P.No.25608 of 2006.

For Appellants : Mr.N.Thiyagarajan

Senior Counsel for Mr.R.Lakshminarayanan

For Respondents 2&3 : Mr.S.Naganathan

Government Advocate

For Respondents 4  21 : Mr.S.M.Subramaniam

COMMON JUDGMENT

D.HARIPARANTHAMAN, J.

Successful eradication of Leprosy by the National Leprosy Eradication Programme (NLEP) made the services of the employees in the National Leprosy Eradication Programme redundant, leading to integration of those employees into Multi Purpose Health Worker Scheme, which, in turn, led to disputes relating to inter-se seniority between the serving employees and the integrated employees in the said Scheme by way of these writ petitions.

2.Para 1 of the Government Order in G.O.(Ms).No.320, Health and Family Welfare (G-1) Department, dated 27.06.1997 gives the reason for integration and the same is extracted hereunder:

"The National Leprosy Eradication Programme is in operation in Tamil Nadu from 1955. With the introduction of the Multi Drug Therapy (MDT) comprising three drugs, DAPSONE, RIFAMPCIN and CLOFAZIMINE, incidence of leprosy has been brought down considerably. Tamil Nadu has done a commendable work in the leprosy control Programme over the years. The prevalence of leprosy in Tamil Nadu was 118 per 10,000 in 1983 which has been reduced to 7 per 10,000. The reduction in prevalence rate for the last two years is not very significant. Recently, India hosted an International Meet on Eradication of leprosy, and the Prime Minister has set a goal that the leprosy should be eradicated from India by 2000 A.D. The IWHO has also taken similar efforts globally. The eradication of leprosy means bringing down the prevalence rate to 1 per 10,000."

3.In those circumstances, the Government of India suggested integration of Leprosy services with General Health services. Accordingly, integration took place by absorbing the employees employed in Leprosy Eradication Programme under the control of Director of Medical Services into General Health Services under the control of Director of Public Health and Preventive Medicine.

4.One of the categories of employees absorbed in Public Health Services were the Leprosy Inspectors. On transfer to the Directorate of Public Health and Preventive Medicine, the Leprosy Inspectors were re-designated as Health Inspectors Grade  IB as per the aforesaid G.O.Ms.No.320. Then prevailing scale of pay of Rs.1200-30-1560-40-2040 of Leprosy Inspectors was protected in their re-designated post. The Health Inspectors Grade  I, who were already serving in the Public Health Services under the control of Director of Public Health and Preventive Medicine were re-designated as Health Inspectors Grade1A and their scale of pay was fixed as Rs.1350-30-1440-40-1800-50-2200. As per G.O.Ms.No.320, referred to above, the Health Inspectors Grade  IB were to attend and undertake various Public Health activities as per the job chart provided for Health Inspector Grade  IA, in addition to Leprosy control work and similarly, the Health Inspectors Grade  IA and Grade  II were to attend Leprosy control work apart from their existing duties after necessary training. That is, on transfer to Public Health Services, the duties and responsibilities of the Health Inspector Grade  IA and Grade  IB were similar and identical. As per the aforesaid G.O.Ms.No.320, the process of integration, placement of various categories of Staff were to be completed before 31.07.1997 and accordingly, the absorption took place from 01.08.1997.

5.The grievance of the absorbed Health Inspectors Grade  IB, i.e. the erstwhile Leprosy Inspectors, is that they should have been absorbed as Health Inspectors Grade  I and there was no necessity to re-designate them as Health Inspectors Grade  IB and to re-designate the already serving Health Inspectors Grade  I as Health Inspectors Grade  IA and that they should have also been paid the scale of pay of Rs.1350-2200 since both were discharging the same / similar duties after integration into Public Health Services. The Health Inspectors Grade  IB were demanding parity with Health Inspectors Grade  IA from the date of their absorption. Though their scale of pay was not brought on par with the Health Inspectors Grade  IA, the fixed travelling allowance paid to the Health Inspectors Grade  IB was brought on par with the fixed travelling allowance paid to Health Inspectors Grade  IA by increasing the amount from Rs.140/- to Rs.200/-. It is relevant to note that the Government decided to examine the question of merger of both the categories of Health Inspector Grade  IA and Grade  IB into a single category at the time of next Pay Commission.

6.At this juncture, it is relevant to state that the following are the scales of pay of Health Inspector Grade  IA, Health Inspector Grade  IB, Health Inspector Grade  II and Laboratory Assistant.

Before V pay commission

Health Inspector Grade  IA - Rs.1350-30-1440-40-1800-50-2200

Health Inspector Grade  IB - Rs.1200-30-1560-40-2040

Health Inspector Grade  II - Rs.975-25-1150-30-1660

Laboratory Assistant - Rs.950-20-1150-25-1500

Revision after V pay commission recommendations

Health Inspector Grade  IA - Rs.4500-125-7000

Health Inspector Grade  IB - Rs.4000-100-6000

Health Inspector Grade  II - Rs.3200-85-4900

Laboratory Assistant - Rs.3050-75-3950-80-4590

7.The aforesaid prescription of scales of pay makes it clear that the Health Inspectors Grade  II and Laboratory Assistants, were paid lesser pay than Health Inspectors Grade  IB. Further, the channel of promotion to Health Inspector Grade  II and Laboratory Assistant is Health Inspector Grade  IA and thereafter to Block Health Supervisor and Technical Personal Assistant. But the personnel of Health Inspector Grade  IB could not be promoted as Block Health Supervisor and Technical Personal Assistant.

8.On the other hand, the channel of promotion to Health Inspector Grade  IB is Non-medical Supervisor and Health Educator that were prescribed in the National Leprosy Eradication Programme. That is, in practice, there was no possibility for further promotion, due to the eradication of Leprosy.

9.The only reason for not absorbing the Leprosy Inspectors as Health Inspectors Grade  I and instead re-designating them as Health Inspectors Grade  IB was that they did not possess Sanitary Inspectors Course certificate or long term Multi Purpose Health Workers Training course certificate, as prescribed under the special rules framed under Article 309 of the Constitution for the post of Multi Purpose Health Assistant (Health Inspector Grade  II) and Multi Purpose Health Supervisors (Health Inspector Grade  I) vide G.O.Ms.No.1507, Health Indian Medicine and Homeopathy and Family Welfare Department, dated 16.08.1989. But it is an admitted fact that the Sanitary Inspectors Course was rescinded with long back and the long term Multi Purpose Health Worker Training course was also stopped from 1992-1993.

10.In these circumstances, the Secretary to Government, Health and Family Welfare Department, vide his letter dated 24.01.2006, requested the Director of Public Health and Preventive Medicine to send a necessary detailed proposal for imparting inservice training for a period of one week for all the Health Inspectors Grade  IB, so as to re-designate them as Health Inspectors Grade - I. The Director of Public Health and Preventive Medicine, vide his letter dated 17.02.2006, informed that considering the length of service of Health Inspectors Grade  IB, they could be re-designated as Health Inspectors GradeI, without imparting any training to them.

11.While so, a batch of writ petitions, including W.P.No.23893 of 2006, were filed by the Health Inspectors Grade  IA, who were promoted from Health Inspectors Grade  II and Laboratory Assistants, to quash the aforesaid letter dated 24.01.2006 of the Secretary to Government, Health and Family Welfare Department, addressed to the Director of Public Health and Preventive Medicine. While writ petitions in W.P.Nos.7892 and 7893 of 2006 were dismissed on 22.03.2006 with an observation that before any orders are passed by the Government on the re-designation of Health Inspectors Grade  IB as Health Inspectors Grade  I, objections should be heard and an interim order dated 20.01.2007 was passed in W.P.No.23893 of 2006 to the effect that any re-designation shall be subject to the outcome of the writ petition.

12.In these circumstances, the Government of Tamil Nadu issued an order in G.O.(Ms) No.382, Health and Family Welfare (N1) Department, dated 12.10.2007 re-designating the Health Inspectors Grade  IB as Health Inspectors Grade-I by relaxing the prerequisite qualification of passing Sanitary Inspectors Course on the ground that the Sanitary Inspectors Course was stopped long back. On re-designating the Health Inspectors Grade  IB as Health Inspectors Grade  I, a merger of Health Inspectors Grade  IB into Grade  IA took place and both became Health Inspectors Grade  I. However, as per the said G.O., the designation of Health Inspector Grade  IB as Health Inspector Grade-I was with effect from the date of the said G.O. and the scale of pay of Health Inspector Grade  IB was revised to Rs.4500-7000 from the date of the G.O. Clause 6(iv) of G.O.Ms.No.382 states that the re-designated Health Inspectors Grade-I would be placed in the seniority list of Health Inspector Grade  I below the last person of the Health Inspector Grade  I already working in the Department. Clause 6(v) of the said G.O. states that the re-designated Health Inspector Grade  I cannot claim promotion to the post of Block Health Supervisor and Technical Personal Assistant, till the last person in the existing list of Health Inspector Grade I gets promotion as Block Health Supervisor and Technical Personal Assistant.

13.Clause 6(iv) and 6(v) of the aforesaid G.O.Ms.No.382 is put to challenge in W.P.Nos.17578, 12654, 25844 and 27982 of 2008 by the re-designated Health Inspectors Grade  I. According to them, the re-designation should relate back to their absorption on 01.08.1997 when the integration took place pursuant to G.O.(Ms).No.320, Health and Family Welfare (G-1) Department, dated 27.06.1997 by fixing them in the scale of pay of Rs.1350-2200 and corresponding revision of Rs.4500  7000, when the Health Inspectors Grade  I were given.

14.According to Health Inspectors Grade  IB (erstwhile Leprosy Inspectors) who were re-designated as Health Inspector Grade  I, vide the impugned G.O.Ms.No.382, when integration of Uni Purpose Health Workers into Multi Purpose Health Worker Scheme took place by G.O.Ms.No.1936, Health and Family Welfare Department, dated 29.09.1982, the absorption into the Multi Purpose Health Worker Scheme of the erstwhile Uni Purpose Health Workers namely, Basic Health Workers, Vaccinators, Cholera Workers etc. took place as Multi Purpose Health Assistants and in those cases, the requirement of Sanitary Inspectors Course certificate or Multi Purpose Health Workers Training Course certificate was not insisted upon. Later, due to the tussle between the different groups of employees, writ petitions and writ appeals were filed and the above said G.O.Ms.No.1936 could not be implemented in 1982. The actual implementation of the said G.O came into effect on 04.11.1988. Though as per the Special Rules framed under Article 309 of the Constitution, the qualification prescribed for the Multi Purpose Health Assistant was possession of Sanitary Inspector Course certificate or Long Term Multi Purpose Health Worker Training course certificate, the Uni Purpose Health Workers were absorbed as Multi Purpose Health Assistants, without possessing those certificates. The Uni Purpose Health Workers namely, Basic Health Workers, Vaccinators, Cholera Workers etc. in Tamil Nadu Public Health Subordinate Service could also be promoted as Multi Purpose Health Supervisors after a minimum period of five years of service as Basic Health Workers, Vaccinators, Cholera Workers etc. This was done by amending the Special Rules framed under Article 309 of the Constitution vide G.O.(Ms)No.4, Health and Family Welfare Department, dated 04.01.1993.

15.By G.O.Ms.No.782, Health and Family Welfare Department, dated 20.12.1995, the name of "Multi Purpose Health Supervisor" was substituted as "Health Inspector Grade  I" and the name of the "Multi Purpose Health Assistant" was substituted as "Health Inspector Grade II". When the Uni Purpose Health Workers namely, Basic Health Workers, Vaccinators, Cholera Workers etc., were brought to Multi Purpose Health Workers Scheme with effect from 04.11.1988 as Multi Purpose Health Assistants, by re-designating them as Multi Purpose Health Assistants, all of them were promoted as Multi Purpose Health Supervisors in the year 1995 i.e. all became Health Inspectors Grade  I. Those Basic Health Workers, Vaccinators, Cholera Workers etc., were absorbed as Multi Purpose Health Assistants without having the Sanitary Inspector Course Certificate or Multi Purpose Health Workers Training Course certificate. Though the service rules framed under Article 309 of the Constitution by G.O.Ms.No.1507, Health Indian Medicine and Homeopathy and Family Welfare Department, dated 16.08.1989 with effect from 04.11.1988, prescribed possession of those certificates as the required qualification for Multi Purpose Health Assistants, they were absorbed as Multi Purpose Health Assistants and they were further promoted as Health Inspectors Grade  I, without possessing those certificates. According to the Health Inspectors Grade  IB, the same treatment should be given to them. The Government took note of the fact that the Uni Purpose Health Workers viz., Basic Health Workers, Vaccinators, Cholera Workers etc. were absorbed into Multi Purpose Health Workers Scheme in 1988, without possessing the Sanitary Inspector Course Certificate or Multi Purpose Health Workers Training Course certificate, for not insisting the said certificates for re-designating the Health Inspectors Grade  IB as Health Inspectors Grade  I by the impugned G.O.Ms.No.382. If it is so, according to the Health Inspectors Grade  IB, they should have been treated as Health Inspectors Grade  I from the date of their integration as was done in the case of Uni Purpose Health Workers viz., Basic Health Workers, Vaccinators, Cholera Workers etc. in the year 1988. In this process, they lost their services for about ten years from 1997 to 2007.

16.According to the Health Inspectors Grade  IB, who were re-designated as Health Inspectors Grade  I, the Health Inspectors Grade  II and also Laboratory Assistants, who were promoted as Health Inspectors Grade  IA, after the integration of Leprosy Inspectors into Multi Purpose Health Workers Scheme, have already marched over the senior Health Inspectors Grade  IB and the others would also march over as Block Health Supervisors and Technical Personal Assistants, as the impugned G.O. placed en bloc the Health Inspectors Grade  IB below all those persons.

17.The serving Health Inspectors Grade  I, who were promoted from Health Inspectors Grade  II etc. got impleaded in those writ petitions, challenging Clause 6(iv) and 6(v) of G.O.Ms.No.382 and according to them, without possessing the requisite Sanitary Inspector Course Certificate or Multi Purpose Health Workers Training Course certificate, they could not get re-designation as Health Inspectors Grade  I at all. In fact, they challenged G.O.Ms.No.382 re-designating them as Health Inspector Grade  I, without the required certificates, referred to above, by filing a writ petition in W.P.No.34401 of 2007. But the Government has not chosen to file counter affidavit refuting the allegations made by the petitioners.

18.While on one side, there was a tussle between the Health Inspectors Grade  IB, who were re-designated as Health Inspectors Grade  I and the serving Health Inspectors Grade  IA, who became Health Inspectors GradeI after G.O.Ms.No.382, there was another tussle between the Laboratory Assistants, who were promoted as Health Inspectors Grade  I and the directly recruited Multi Purpose Health Assistants, who were promoted as Health Inspectors Grade  I on the one hand and the Uni Purpose Health Workers, who got absorbed into Multi Purpose Health Workers Scheme in 1988 and became Health Inspectors Grade  I in 1995 on the other hand. While the Uni Purpose Health Workers did not possess Sanitary Inspector Course Certificate or Multi Purpose Health Workers Training Course certificate, the other categories of staff possessed those certificates. 30 of those, who were in possession of those certificates, filed a batch of writ petitions in W.P.Nos.2249, 10807, 17550 and 25608 of 2006 and 8987, 8988 and 9185 of 2007 with a prayer to restrain the Department from drawing the panel for the post of Block Health Supervisor, by including the names of Health Inspectors GradeI, who did not possess the certificates as referred to above i.e. the crux of the prayer was to deny promotion to the Uni Purpose Health Workers, who were promoted as Health Inspectors Grade  I, further promotion to the post of Block Health Supervisors on the ground that they did not possess the Sanitary Inspector Course Certificate or Multi Purpose Health Workers Training Course certificate.

19.A learned single Judge of this Court allowed those writ petitions on 21.11.2007 on the ground that the erstwhile Uni Purpose Health Workers cannot ask for further promotion from the post of Health Inspectors Grade-I to Block Health Supervisors taking advantage of a one time concessional benefit given to them, waiving the requirement of possession of Sanitary Inspector Course Certificate or Multi Purpose Health Workers Training Course certificate and that they could not equate themselves with the persons, who are in possession of the necessary certificates.

20.The said order dated 21.11.2007 of the learned single Judge of this Court was implemented by the Government vide G.O.(Ms)No.73, Health and Family Welfare (N1) Department, dated 28.02.2008.

21.Thereafter, writ petitions in W.P.Nos.8339 and 14592 of 2008 were filed by the Health Inspectors Grade  I (erstwhile Uni Purpose Health Workers) who were not in possession of the required certificates, to quash the aforesaid G.O.(Ms).No.73 and they also filed writ appeal in W.A.No.312 of 2008, challenging the order dated 21.11.2007 passed by the learned single Judge in the batch of writ petitions. The relevant portion of the order dated 21.11.2007 passed by the learned single Judge is as follows:

"Under the circumstances this Court is of the considered opinion that the respondents 3 to 16 and the persons place alike, cannot be allowed to take advantage of one time concessional benefit given to them pursuant to G.O.593, to ask further promotion to the post of Block Health Supervisors, equating themselves with those who have got the requisite qualification by holding necessary certificates. But, the respondents 3 to 16 and persons alike them can be allowed to continue in the present post, but cannot be considered for further promotion to the post of Block Health Supervisors. As regards the G.O.Ms.No.593, for the reasons stated above, this Court is unable to see any reason to strike it down. But, at the same time, on the strength of the said G.O., the State cannot be allowed to prepare a panel including the respondents 3 to 16 or persons alike them, for promotion to the post of Block Health Supervisor. Accordingly, the State is restrained from preparing such a panel. However, it is made clear that such a panel if prepared should not be given effect."

22.Thus, the above order of the learned single Judge is contrary to G.O.Ms.No.256, Health and Family Welfare Department, dated 15.05.1996, notifying the amendment to special rules framed under Article 309 of the Constitution. As per the said G.O., the qualification prescribed for the post of Block Health Supervisor is as follows:

"5.Qualification: No person shall be eligible for appointment to the Post unless he has experience for a total period of not less than 5 years in the category of Multi Purpose Health Supervisor of Health Inspector or Basic Health Inspector in the Tamil Nadu Public Health Subordinate Service."

23.Therefore, the only requirement to become eligible for the post of Block Health Supervisor is that one should have a minimum service of 5 years in the post of Multi Purpose Health Supervisor (Health Inspector GradeI). Further, the very G.O.Ms.No.593, Health and Family Welfare (N2) Department, dated 11.09.1995 relied on by the learned single Judge to deny promotion to the persons, who were not in possession of the certificates, contains the following passage:- "2............ Further, at the time of absorption of the persons in the categories of Basic Health Workers, Vaccinators and Cholera workers as Multipurpose Health Assistant under the Multipurpose Health Worker Scheme no pre-condition regarding the possession of Sanitary Inspectors Course Certificate was prescribed. Prior to their absorption, they were fully qualified to hold the posts they were holding. In order to protect the service rights of the absorbed Multipurpose Health Assistants it has also been decided to introduce necessary saving clause in the adhoc rules for the post of Multipurpose Health Assistant."

That is, concession was not granted in G.O.Ms.No.593 in the year 1995. It was granted as early as in the year 1988 itself i.e. on 04.11.1988, when the Uni Purpose Health Workers were absorbed into Multi Purpose Health Workers Scheme without the requisite certificates as Multi Purpose Health Assistants. They were all promoted as Multi Purpose Health Supervisors in the year 1995, vide the aforesaid G.O.Ms.No.593 and the Multi Purpose Health Supervisors were re-designated as Health Inspectors Grade  I.

24.The learned single Judge is not correct in holding that the promotion to Health Inspectors Grade  I without possessing the required certificates itself is not proper and that therefore, they cannot claim further promotion as Block Health Supervisors. It is stated that the learned single Judge proceeded on the ground that since they were promoted as Health Inspectors Grade-I long back, he was not inclined to disturb the same. This conclusion of the learned single Judge is totally erroneous and is opposed to the well-settled law of the judgments of the Division Bench of this Court in THE GOVERNMENT OF TAMIL NADU VS. M.N.RAGHUNATHAN (W.A.No.106 of 1979 decided on 05.01.1982); R.THIRUVENKADAM VS. GOVERNMENT OF TAMIL NADU (W.A.No.327 of 1990 decided on 25.04.1990) and THE TAMIL NADU WATER SUPPLY AND DRAINAGE BOARD VS. T.JEYASINGH AND OTHERS (W.A.No.824 of 2005 decided on 27.06.2008) wherein it has been categorically held that the concession given as one time measure relaxing the qualification could be available for all subsequent promotions. Furthermore, the requirement of possession of certificate was waived only for absorption of Uni Purpose Health Workers as Multi Purpose Health Assistants. Thereafter, as per G.O.Ms.No.4, Health and Family Welfare Department, dated 04.01.1993, the requirement of five years service as Basic Health Workers, Vaccinators, Cholera Workers in the Tamil Nadu Public Health Subordinate Service was sufficient for promotion to the post of Health Inspectors Grade  I. Likewise, as stated above, five years service in the post of Health Inspector Grade  I is sufficient to get promotion as Block Health Supervisor. The rule nowhere contemplates that the Health Inspector Grade  I, who did not possess the required certificates could not be promoted as Block Health Supervisors. The only requirement is five years service as Health Inspector Grade  I.

25.In any event, the Division Bench of this Court has categorically held in more than one occasion that the relaxation given at the time of initial recruitment could be continued for the promotions also, the promotion could not be denied on the ground that the person did not possess the requisite qualification that was necessary for the purpose of initial recruitment. Hence, we are inclined to interfere with the order of the learned single Judge as well as G.O.(Ms)No.73, Health and Family Welfare (N1) Department, dated 28.02.2008 and accordingly, the same stand set aside. It is made clear that the Health Inspectors Grade  I who are not in possession of the Sanitary Inspector Course Certificate or Multi Purpose Health Workers Training Course certificate, are eligible for promotion to the post of Block Health Supervisor from the date on which their juniors were promoted with all benefits.

26.Let us now revert back to the case of Health Inspectors GradeIB. As far as the Health Inspectors Grade  IB who were re-designated as Health Inspectors Grade  I by G.O.Ms.No.382 could not be made as Health Inspectors Grade  I only from the date of the said G.O., and it should take effect from the date of integration that took place on 01.08.1997. When the integration took place on 01.08.1997, the erstwhile Leprosy Inspectors were not merged into the cadre of Health Inspectors Grade  I on the sole ground that they did not possess the Sanitary Inspector Course Certificate or Multi Purpose Health Workers Training Course certificate. There was no other reason for the non-merger. Because they did not possess the certificates, the serving Health Inspectors Grade  I were re-designated as Health Inspectors Grade  IA and the Leprosy Inspectors who got integrated into the Multi Purpose Health Workers Scheme were re-designated as Health Inspectors Grade  IB. The integration G.O., itself makes it very clear that the nature of duties and responsibilities of the Health Inspectors Grade  IB and the Health Inspectors Grade  I are one and the same. But the Health Inspectors Grade  IB were given the scale of Rs.1200  2010 which they received as Leprosy Inspectors, while the scale of pay of Rs.1350-2200 was given to Health Inspectors Grade  IA which was the scale of Health Inspectors Grade  I. However, difference in scale of pay could not come in the way of equivalence of posts. In fact, at the time of integration, the Leprosy Inspectors ought to have been designated as Health Inspectors GradeI by granting the scale of Rs.13502200, as given in the case of Uni Purpose Health Workers viz., Basic Health Workers, Vaccinators and Cholera Workers etc. when they were absorbed on 04.11.1988 as Multi Purpose Health Assistants without possessing the required certificates. In fact, G.O.Ms.No.382 states that the Government decided to examine the question of merger of both the categories of Health Inspector Grade  IA and Grade  IB into a single category at the time of next Pay Commission. Since their duties and responsibilities are one and the same and the only thing that came in the way of merging the Leprosy Inspectors (Health Inspectors GradeIB) into Health Inspectors GradeI was the non-possession of the certificates referred to above, the Leprosy Inspectors should have been re-designated as Health Inspectors GradeI with effect from 01.08.1997 when they got integrated from the National Leprosy Eradication Programme into Multi Purpose Health Worker Scheme and that they should have been granted the scale of Health Inspectors Grade  I.

27.At this juncture, it is relevant to extract a relevant para from the judgment of the Hon'ble Apex Court in SUB-INSPECTOR ROOPLAL AND ANOTHER VS. LT.GOVERNOR reported in 2000 (1) SCC 644, that deals with the equivalence of posts by considering various other judgments of the Hon'ble Apex Court on the subject. "17.............. These four factors are: (i) the nature and duties of a post; (ii) the responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post; and (iv) the salary of the post. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criteria. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different would not in any way make the post "not equivalent". "

By applying the said principles and also taking into account the facts, the Uni Purpose Health Workers were absorbed into Multi Purpose Health Worker Scheme from the date of absorption without having the necessary certificates in the same Department and the same treatment should be given to the Leprosy Inspectors by absorbing them as Health Inspectors Grade  I from the date of their integration.

28.As stated above, all the Uni Purpose Health Workers were promoted as Health Inspectors Grade  I in the year 1995 itself much prior to the integration of Leprosy Inspectors into Multi Purpose Health Worker Scheme. But the others who got promoted from Health Inspectors Grade  II or from Laboratory Assistants to Health Inspectors Grade  IA after the Leprosy Inspectors were re-designated as Health Inspectors Grade  IB are now treated as seniors to the Health Inspectors Grade  IB since the Health Inspectors Grade  IB is not treated on par with Health Inspectors Grade  IA (Grade  I) with effect from the date of integration. Admittedly, those Health Inspectors Grade  II and Laboratory Assistants were in receipt of lower scales of pay and they were treated as inferior to both Health Inspectors Grade  IA and Grade  IB.

29.For all those reasons, more particularly, taking into account the fact that in the same Department, the Uni Purpose Health Workers were absorbed as Multi Purpose Health Assistants from the date of their absorption without insisting the required certificates, referred to above, the Leprosy Inspectors could not be denied the same benefit as that of the Uni Purpose Health Workers, when the Leprosy Inspectors were got integrated into Multi Purpose Health Worker Scheme. Therefore, G.O.Ms.No.382, Health and Family Welfare (N1) Department, dated 12.10.2007 is not correct in treating the Health Inspectors Grade  IB as Health Inspectors Grade  I with effect from the date of G.O., and granting them the scale of pay of Rs.4500-7000 from the date of the said G.O., and the Leprosy Inspectors who were absorbed into Multi Purpose Health Worker Scheme on 01.08.1997 are entitled to be re-designated as Health Inspectors Grade  I with the scale of Rs.1350  2200 from 01.08.1997 and they should be given the scale of Rs.4500-7000 when the Health Inspectors Grade  I were granted with all consequential benefits.

30.Likewise, paras 6(iv) and (v) of G.O.Ms.No.382 are bad and illegal as clause (iv) of para 6 places Health Inspectors Grade  IB who were re-designated as Health Inspectors Grade  I by G.O.Ms.No.382 en bloc below the last person of the Health Inspector Grade  I already working in the Department. Clause (v) of para 6 is also not correct in denying promotion to the re-designated Health Inspectors Grade  I to the post of Block Health Supervisor and Technical Personal Assistant till the last person in the existing list of Health Inspectors Grade  I gets promotion as Block Health Supervisor and Technical Personal Assistant. The Leprosy Inspectors on integration into Multi Purpose Health Workers as on 01.08.1997 should be treated as Health Inspectors Grade  I and they should be given promotion as Block Health Supervisor and Technical Personal Assistant from the date of which their juniors were promoted, with all consequential benefits. However, it is made clear that on re-designating the Leprosy Inspectors as Health Inspectors Grade  IA / Grade  I as on 01.08.1997, they could be placed at the bottom of the seniority of the serving Health Inspectors Grade  I as on 01.08.1997.

31.In the result, the writ petitions in W.P.Nos.8339, 12654, 14592, 17578, 25844 and 27982 of 2008 and the writ appeal in W.A.No.312 of 2008 stand allowed. The writ petitions in W.P.Nos.23893 of 2006 and 34401 of 2007 stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed.

TK

To

1.The Secretary to Government

Government of Tamil Nadu

Health and Family Welfare Department

Fort St.George, Chennai  600 009.

2.The Director of Public Health and

Preventive Medicine

DMS Compound, Anna Salai,

Teynampet,

Chennai 600 006