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TMI Blog2013 (5) TMI 1079X X X X Extracts X X X X X X X X Extracts X X X X ..... g out of SLP (C) No. 2194 of 2011), Civil Appeal No. 4499 of 2013 (Arising out of SLP (C) No. 3485 of 2011), Civil Appeal No. 4500 of 2013 (Arising out of SLP (C) No. 15221 of 2011), Civil Appeal Nos. 4501-4502 of 2013 (Arising out of SLP (C) Nos. 4710-4711 of 2012), Civil Appeal Nos. 4503-4504 of 2013 (Arising out of SLP (C) Nos. 10939-10940 of 2012), Contempt Petition (Civil) No. 133 of 2012 in Civil Appeal No. 4498 of 2013 (Arising out of SLP (C) No. 2194 of 2011) and Contempt Petition (Civil) No. 145 of 2012 in Civil Appeal No. 4492 of 2013 (Arising out of SLP (C) No. 4572 of 2011) Hon'ble Judges S.S. Nijjar and H.L. Gokhale, JJ. For Appearing Parties: P.P. Rao, V. Giri, A.K. Ganguli, P.S. Patwalia, Nalini Chidambaram, Jaideep Gupta, Sr. Advs., S. Gomathi Nayagam, AAG, V. Mohana, Puja Singh, P.R. Kovilan Poongkuntran, Geetha Kovilan, Naresh Kumar, V. Ramasubramanian, T. Harish Kumar, Vikas Mehta, V. Raghavachari, G. Balaji, Mahalakshmi Pavani, Mukesh Kumar Singh, Advs. for Mahalakshmi Balaji and Co., Vivek Jain, Chinmayee Chandra, Advs. for Vikas Mehta, Adv., Satya Mitra Garg, Plato Aristotle, Manju Aggarwal, S. Ravi Shankar, B. Balaji, N. Ramaiah and R. Rakesh Sharma, Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... promotions of Multipurpose Health Supervisors as Block Health Supervisors. Vide G.O. Ms. No. 4 dated 4th January, 1993 some of the categories were added in the feeder posts of Multipurpose Health Supervisor and Multipurpose Health Workers. These rules were, however, applicable only to those who joined the service under the Tamil Nadu Public Health Services. 5. Again the Health and Family Welfare Department, through G.O. No. 593 dated 11th September, 1995, categorized Multipurpose Health Supervisors and Multipurpose Health Assistants as Health Inspectors Grade I and Grade II. The G.O. further provided that all Multipurpose Health Assistants were to be promoted as Multipurpose Health Supervisors provided they had served on the post for 20 years and had crossed the age of 50 years. This relaxation was given as a one time measure by upgradation of the post. It is pertinent to mention here that the Multipurpose Health Assistants promoted under this G.O. included the Unipurpose Health Workers who had been absorbed pursuant to the integration in 1982. The aforesaid G.O. No. 593 was challenged by certain aggrieved persons in Writ Petition Nos. 17550 of 2006 and 25608 of 2006. Prior to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000 which was being covered at that time by the leprosy inspectors. The Government of Tamil Nadu had also upon considering, for quite some time, the question of integrating the leprosy services with Multipurpose Health Workers Scheme, under the Primary Health Care Services, constituted a committee by the G.O. Ms. No. 1705 dated 18th December, 1996 to go into the various aspects of integration and submit a report. The recommendations submitted by the aforesaid Committee were examined by the Government and accepted with some modifications. Thus, the G.O. (Ms.) No. 320 dated 27th June, 1997 was issued integrating Leprosy Control Scheme with Multipurpose Health Workers Scheme. The G.O. made elaborate provisions with regard to: (i) the administrative control of the National Leprosy Eradication Programme, which was to be vested with the Director of Public Health and Preventive Medicine, who was to be responsible for the implementation of the National Leprosy Eradication Programme activities in the State. At the District level, the Deputy Director of Medical Services (Leprosy) would be the in-charge of the hospital based units and would be the Programme Officer, assisted by Deputy Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atters of the Leprosy staff other than those coming under Director of Medical and Rural Health Services. Further one Assistant will be transferred from the Office of the Deputy Director (Lep.) to the Deputy Director of Health Services in the Districts. The administrative control of the above staff will vest with the Director of Public Health and Preventive Medicine. The remaining ministerial staff sanctioned for Leprosy Control Programme will be transferred and posted to the institutions under the control of Director of Medical and Rural Health Services. The establishment matters of all the ministerial staff including the staff attached to the Director of Public Health and Preventive Medicine will, however, continue to be with the Director of Medical and Rural Health Services for the purpose of future promotions in the respective categories. The salary and allowances of the ministerial staff attached to the Director of Public Health and Preventive Medicine will be met from the existing budget allotment under Demand-10 Medical by Director of Public Health and Preventive Medicine. In respect of other ministerial staff salary and other allowances will be met by Director of Medical and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the issue was not examined in the official Committee of 1998. From the above narration, it becomes clear that there was complete integration of the Leprosy Control Scheme with the Multipurpose Health Scheme through the G.O. Ms. 320 dated 27th June, 1997. Also, the fact that non-possession of Sanitary Inspector Course by the Leprosy Inspectors was not viewed with any serious concern is evident from the fact that the 1997 scheme was never challenged by the Appellants. 12. Thereafter, the Director of Public Health and Preventive Medicine in his letters dated 17th February, 2006 and 15th July, 2006 set proposals for redesignation of post of Health Inspectors Grade IB as Health Inspector Grade I considering their length of service in the department, without imparting any training to them. He had suggested the aforesaid proposal for administrative convenience. At the same time, the Public Health Department Officials Association (Leprosy) had been requesting the Government repeatedly for re-designating them as Health Inspector Grade I. By letter dated 24th January, 2006, the Government requested the Director of Public Health and Preventive Medicine to send the necessary detailed propo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under: The Government has therefore decided to accept the proposals of the Director of Public Health and Preventive Medicine to re-designate the Health Inspectors Grade-I(B) as Health Inspector Grade-I for the purpose of administrative convenience and to allow the scale of pay of Rs. 4500-125-7000. The rule relating to possession of Sanitary Inspector Course (or) Multi Purpose Health Worker (Male) Training Course is relaxed in favour of these Health Inspectors Grade-I(B) to designate them as Health Inspector Grade I, without affecting the rights of the existing Health Inspector Grade-I working in Public Health Department. The Government accordingly issue the following orders: i) The post of Health Inspector Grade-I (B) shall hereafter be designated as Health Inspector Grade-I and the scale of pay of Rs. 4500-125-7000 be allowed to them from the date of issue of the order. (ii) Fixation of pay in the revised scale of pay shall be allowed only from the date of issue of orders under FR 23 at the same stage if there is a stage or next stage if there is no such stage. They are eligible for monetary benefits only from the date of issue of the Government order. (iii) The above re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led a batch of writ petitions viz. Writ Petition 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 Grade I, who did not possess either Sanitary Inspector Course Certificate or Multipurpose Health Course Certificate. It is pertinent to note here that the Unipurpose Health Workers who got absorbed into Multipurpose Health Scheme in 1988 and were made Health Inspectors Grade I in 1999 did not possess the aforesaid certificates and this very fact was the grievance made against the said Unipurpose Health Workers. The Petitioners in the aforesaid bunch of writ petitions were in possession of the said certificates. It was their case that since Unipurpose Health Workers were promoted as Health Inspectors Grade I as a one time measure after completing 20 years of services, they were not entitled to further promotion on the post of Block Health Supervisor. Their promotion was, therefore, sought to be challenged on the twin grounds that: (i) they did not possess the necessary certificate and (ii) they were already recipient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SLP (C) No. 25442 of 2010, Civil Appeal No. 4500 of 2013 arising out of SLP (C) No. 15221 of 2011, Civil Appeal No. 4501-4502 of 2013 arising out of SLP (C) No. 4710-4711 of 2012 and Civil Appeal No. 4503-4504 of 2013 arising out of SLP (C) No. 10939-10940 of 2012. 18. By the impugned judgment, the Division Bench of the High Court has held that even though Unipurpose Health Workers had been given a concession of one time promotion, it would not act as an embargo on their subsequent promotion. Furthermore, the requirement of possession of certificate was waived only for absorption of Unipurpose Health Workers as Multipurpose Health Assistants. Thereafter, G.O. Ms. No. 4 dated 4th January, 1993 provided that the requirement of 5 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 Inspector Grade I. Similarly, 5 year's service in the post of Health Inspector Grade I was sufficient for promotion as Block Health Supervisor. The High Court emphasised that Rule nowhere contemplates that Health Inspector Grade I, who did not possess the required certificate could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in support of this submission. This submission has been reiterated by all the counsel for the Appellants. Mr. S. Gomathinayagam, relies upon the case of Prafulla Kumar Das and Ors. v. State of Orissa and Ors. (2003) 11 SCC 614, Pradip Chandra Parija and Ors. v. Pramod Chandra Patnaik and Ors. 2002) 1 SCC 1, Uday Pratap Singh and Ors. v. State of Bihar and Ors. 1994 Sup (3) SCC 451 and D.N. Sinha and Ors. v. State of Bihar and Ors. Civil Appeal No. 3671 of 1988. 22. The second contention of Mr. P.P. Rao is that the academic qualifications prescribed for a post cannot be relaxed and the length of experience cannot be a substitute for educational qualifications prescribed (Relies on: Syed Khalid Rizvi and Ors. v. Union of India and Ors. (1993) Supp. 3 SCC 575; Suraj Prakash Gupta and Ors. v. State of J and K and Ors. (2000) 7 SCC 561; R.S. Garg v. State of U.P. and Ors. (2006) 6 SCC 430; Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. (2006) 4 SCC 1 and State of M.P. and Anr. v. Dharam Bir (1998) 6 SCC 165). Thus, it has been pointed out that relaxation given firstly vide G.O. Ms. No. 593 dated 11th September, 1995; and then vide G.O. (Ms.) No. 382 dated 12th October, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to the said Leprosy Inspectors on the basis of G.O. Ms. No. 382 dated 12.10.2007. Mr. Ganguly, learned senior counsel, has relied upon Sanjay Kumar Manjul v. Chairman, UPSC and Ors. (2006) 8 SCC 42. Besides, Mr. Giri, learned senior counsel, has relied upon the case of R.K. Sethi and Anr. v. Oil and Natural Gas Commission and Ors. (1997) 10 SCC 616 in support of the submission that there is no valid merger in the present case. 26. Premising her contentions on the aforesaid submissions, Ms. Mohanna, Learned Counsel, pointed out that the G.O.(Ms.) No. 320 dated 27th June, 1997 which culminated in effectuating the second integration was never challenged by the Health Inspectors Grade IB, though they claimed that the duties being performed by them are similar to Health Inspectors Grade I. This, according to her, cannot be the ground for equating the post of Health Inspectors Grade IB with that of Health Inspectors Grade I. Thus, the judgment of the High Court is not correct insofar it has equated the aforesaid two posts. It has also been argued by the learned Addl. Advocate General that the latter G.O. Ms. No. 382 was a consequential order based on earlier G.O. No. 320 and, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned senior counsel submitted that a policy decision to merge two or more posts, cadres or services can be made implemented/enforced through an executive order/instructions as long as the executive order/or instructions do not run counter to the Rules. [Reliance for this submission was placed upon Indian Airlines Officers' Assn. v. Indian Airlines Ltd. and Ors. (2007) 10 SCC 684 and Vinay Kumar Verma and Ors. v. State of Bihar and Ors. (1990) 2 SCC 647 Mr. Jaideep Gupta, learned senior counsel, has pointed out that the G.O. through which the integration and merger has been ordered are in the nature of executive instructions. These instructions have not supplanted the statutory rules and are within the ratio of Sant Ram Sharma (supra) and Dhananjay Malik and Ors. v. State of Uttaranchal and Ors. (2008) 4 SCC 171. 30. The next submission of Mr. Patwalia, which is reiterated by the other learned senior counsel for the Respondents, is that since the second integration was complete in all respects, the Leprosy Inspectors cannot be discriminated against in consideration of their eligibility for further promotion to the post of Block Health Supervisor, on the ground of initial rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the already existing Health Inspectors Grade I, with effect from 27th June, 1997. 33. Mr. Patwalia has further submitted that the insistence for qualification (Sanitary Inspector Course) for entry level/feeder post-Health Inspector Grade II for re-designation of Leprosy Inspectors as Health Inspector Grade I in 2007 is misplaced since the State Government has passed a reasoned order to this effect, after considering the report of the Special Committee constituted for integration. He further submitted that the argument of the Appellants that since education qualifications are different, nature of duties are different, there cannot be any integration, has been specifically rejected in the Indian Airlines Officers' Assn. case (supra). Similarly, the argument that the absorption must be from the entry level in the new cadre was also rejected in the aforesaid case. Further, since the Sanitary Inspector Course has long been discontinued, it would be an impossible condition to fulfill. 34. We may also notice here that the submission of Mrs. Nalini Chidambram, learned senior counsel, that since Rule 5 of Notification III under G.O. Ms. No. 1507 dated 16th August, 1989 does not ment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns can not supplant the statutory rules, in view of the ratio of law laid down in the case of Sant Ram Sharma (supra). The aforesaid ratio has been reiterated by this Court on numerous occasions. It is not necessary to make a reference to any of the subsequent decisions as it would be a mere repetition of the accepted ratio, noticed above. We are, however, of the opinion that the ratio of law laid down in Sant Ram Sharma's case (supra) would not be applicable in the facts and circumstances of this case. The qualification of having passed the one year long term Multi Purpose Health Worker (Male) Training Certificate or Sanitary Course Certificate with short term Multi Purpose Health Workers (Male) Training Certificate are the statutory requirements for recruitment and appointment on the post of Health Inspector Grade II. These qualifications would, therefore, be possessed by some of the incumbents on the promotional post of Health Inspector Grade II being Multi Purpose Health Supervisor/Health Inspector Grade I as well. It is a matter of record that even in the cadre of Health Inspector Grade II, there were many incumbents who did not possess these qualifications. There was a ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as Multi Purpose Health Supervisor/Health Inspector Grade I. It was wholly unnecessary, unjustified and unfair to re-designate the Multi Purpose Health Supervisors as Health Inspectors Grade IA and Health Inspectors Grade IB. 40. From the above, it becomes apparent that the G.O. Ms. No. 320 dated 27th June, 1997 did not have the effect of amending the rules. It is also clear that the aforesaid G.O. did not supplant the statutory provisions. It is also further clear that there was no relaxation of the qualifications on the post of Multi Purpose Health Assistant (Health Inspector Grade II) or on the post of Multi Purpose Health Supervisor (Health Inspector Grade I). Therefore, in our opinion, upon integration of Leprosy Inspectors into the cadre of Multi Purpose Health Supervisors, the further categorization into Health Inspector Grade IA and Health Inspector Grade IB was wholly unjustified. It had no rational nexus with any object sought to be achieved, and therefore, violated Articles 14 and 16 of the Constitution of India. 41. We may notice here that under the G.O. Ms. No. 320 dated 27th June, 1997, Clause 7 had provided that the post of Health Educator, Non-Medical Superviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would also not be possible to accept the submission of Mr. Rao that the relaxation given to the Leprosy Inspectors was either arbitrary or discriminatory. The State was within its powers to relax the aforesaid qualification in exercise of its powers of the Tamil Nadu State and Subordinate Services Rules, 1955. Rule 48 of the aforesaid rules provides as under: 48. Notwithstanding anything contained in these rules or in the special rules, the Governor shall have power to deal with the case of any person or class of persons serving in a civil capacity under the Government of Tamil Nadu or of any person who has or of any class of persons who have served as aforesaid or any candidate or class of candidates for appointment to a service in such manner as may appear to him to be just and equitable: Provided that, where any such rule is applicable to the case of any person or class of persons, the case shall not be dealt with in any manner less favourable to him or them than that provided by that rule. 43. Therefore, the provision contained with regard to any relaxation given to any of the categories under G.O. Ms. No. 320 dated 27th June, 1997 and under G.O. Ms. No. 382 dated 12th O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le) Training Certificate and Sanitary Course Certificate with short term Multi Purpose Health Worker (Male) Training Certificate were not the essential qualifications for appointment as Health Inspector Grade I, the post of Health Inspector Grade I was unnecessarily split into Health Inspector Grade IA and Grade IB. 44. Learned Counsel for the Petitioner had also submitted that relaxation even if valid can only be prospective in its application. The aforesaid proposition of law also would not be applicable in the facts and circumstances of this case. We are of the opinion that injustice had been done to the Leprosy Inspectors at the time of the 1997 merger/integration. In spite of a complete merger, G.O. Ms. No. 320 dated 27th June, 1997 still provided in Paragraph 4 of Clause 7 of the G.O. that the incumbents of the post of Health Inspector Grade IB, although brought under the control of Director of Public Health and Preventive Medicine for programme implementation shall be placed in a separate seniority list, and the promotions of the respective categories will continue in the existing channels. Although Inspectors Grade IB were placed in a lower pay scale, they were to attend v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the G.O.(Ms.) No. 382 of 2007 i.e. 12th October, 2007. Further, they were placed en bloc at the bottom of the seniority list of Health Inspector Grade I. This denial of seniority was justified on the ground that "as the redesignation of Health Inspector Grade I is given only from the date of the issue of the order in relaxation of rule relating to possession of Sanitary Inspector Course, they can not claim the benefit of service since integration on 27th June, 1997." The re-designated Health Inspector Grade I were also denied promotion on the post of Block Health Supervisor and Technical Personal Assistant till the last person in the category of Health Inspector Grade I is promoted as Block Health Supervisor. They were given the alternate route of promotion as Non-Medical Supervisor and Health Educator, till their turn comes for promotion, as per their seniority. 46. Upon merger of the two posts, it was no longer permissible to treat the re-designated Health Inspector Grade IA differently from Health Inspector Grade IB. Since 1997, all incumbents on the posts of Health Inspector Grade IA and Health Inspector Grade IB were performing the same duties. There was intermi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the State to treat the re-designated Health Inspector Grade I differently from the Health Inspector Grade IA, on the basis of the initial source of recruitment. 48. The birth mark was obliterated on the merger of the post of Leprosy Inspector with Health Inspector Grade I. There was no justification of putting Health Inspector Grade IB in the pay scale of Rs. 1200-2010, whilst Health Inspector Grade IA was placed in the pay scale of Rs. 1350-2200. At the time of integration, both categories had to be given the same pay scale i.e. Rs. 1350-2200. In this respect, the principle of law laid down by this Court, time and again, is that a classification based on the birth mark that stood obliterated after integration of officers, coming from different sources into a common cadre/category, would be wholly unjustified and discriminatory. This principle was relied upon by this Court in the case of B. Manmad Reddy (supra), wherein this Court reiterated the observations of this Court in Paragraph 5 of Roshan Lal Tandon v. Union of India (1968) 1 SCR 185: In our opinion, the constitutional objection taken by the Petitioner to this part of the notification is well founded and must be acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent has to be fixed in the cadre of Health Inspector Grade I by giving the benefit of service from 27th June, 1997. Further, they are eligible to be promoted on completion of 5 years service on the post of Health Inspector Grade I, though, they can be placed at the bottom of the seniority of serving Health Inspector Grade I as on 1st August, 1997. 55. We may also mention here about the extent of interference of this Court in matters relating to integration or fusion of employees. This Court held in the Indian Airlines Officers Association's case (supra) that the matter of integration or the fusion of employees, being one of policy, could not have been challenged by the employees unless the said decision was arbitrary, unreasonable or capricious. and as noticed earlier, that none of the Government Orders vide which integration was effectuated, suffers from any of the aforesaid irregularities. The High Court has merely undone the injustice done to the Respondents. We are, therefore, not inclined to interfere in the well reasoned order of the Division Bench of the High Court. 56. We have given considerable thought to the law laid in the judgments cited and relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Grade IB. vi. Since Paragraph 6(iv) and 6(v) of G.O. Ms. No. 382 dated 12th October, 2007 was in violation of Articles 14 and 16 of the Constitution of India, they have been correctly struck down by the High Court. vii. The denial of seniority to the re-designated Health Inspectors Grade IB, i.e., erstwhile Leprosy Inspectors on the post of Health Inspector Grade I w.e.f. 1st August, 1997 to 12th October, 2007 violated Articles 14 and 16 of the Constitution of India. The Division Bench of the High Court has correctly concluded that the integrated Leprosy Inspectors, re-designated as Health Inspector Grade IB are to be re-designated as Health Inspector Grade I and to be given seniority as well as consequential reliefs such as seniority and further promotions. viii. The provision contained in Clause 6(v) of G.O. Ms. No. 382 dated 12th October, 2007 denying promotion of the re-designated Health Inspector Grade I 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, has been rightly held by the High Court to be violat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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