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Judgment
D. Hariparanthaman, J.—The petitioners in all these writ petitions are all Medical Officers appointed in the Panchayat Union Dispensaries.
Those Panchayat Union Dispensaries were functioning under the control of Commissioner of Rural Development. All the petitioners possessed
M.B.B.S. Degree and they were serving in rural areas. The services of the petitioners belong to Local Body Service.
By G.O.Ms. No. 109, Health Department, dated 12.01.1989, the Government of Tamil Nadu took a policy decision to upgrade the existing
Panchayat Union Dispensaries as Government Primary Health Centers and on upgradation, the administrative control of the establishment would
come under the Director of Primary Health Centres from the Commissioner of Rural Development.
By G.O.Ms. No. 572, Health Department, dated 29.03.1990, 41 Panchayat Union Dispensaries were taken over from the administrative
control of Commissioner of Rural Development to the Director of Primary Health Centres on ""as is where is basis"" for conversion into Primary
Health Centres. The conversion of Panchayat Union Dispensaries into Primary Health Centres was subject to the condition that the staff of all
those 41 Panchayat Union Dispensaries were to be absorbed into the services of Primary Health Centres in consultation with the Tamil Nadu
Public Service Commission.
By way of another G.O.Ms. No. 435, Health Department, dated 21.03.1991, 43 Panchayat Union Dispensaries were taken over from the
administrative control of Commissioner of Rural Development to the Director of Primary Health Centres on ""as is where is basis"" for conversion
into Primary Health Centres. The conversion of Panchayat Union Dispensaries into Primary Health Centres was subject to the condition that the
staff of all those 43 Panchayat Union Dispensaries are absorbed into the services of Primary Health Centres in consultation with the Tamil Nadu
Public Service Commission.
While 84 Panchayat Union Dispensaries were converted into Primary Health Centres pursuant to G.O.Ms. Nos. 572 and 435 referred to
above, 80 Medical Officers employed in those Panchayat Union Dispensaries were brought into Tami Nadu Medical Service from Local Body
Service.
By G.O.Ms. No. 464, Health and Family Welfare Department, dated 29.10.1999, the Government absorbed the services of the 80 Medical
Officers of Panchayat Union Dispensaries as Assistant Surgeons in Primary Health Centres. While absorbing them in Tamil Nadu Medical Service,
the absorption was only from the date of upgradation of Panchayat Union Dispensaries as Primary Health Centres, that is, the earlier services
rendered in Panchayat Union Dispensaries were ignored altogether.
The said G.O.Ms. No. 464 is put under challenge in the Original Applications in O.A. Nos. 2516 of 2002 and 2705 of 2002 and para 4 of the
same is is extracted here-under:
The Government Examined the issue in detail and accept the recommendation of the Director of Medical and Rural Health Services and direct
that the 80 Medical Officers as detailed in the Annexure to this order be regularly appointed as Assistant Surgeons in Tamil Nadu Medical Service
with effect from the date of actual date of upgradation of Panchayat Union Dispensaries as Primary Health Centres as Mentioned in column against
each in the Annexure to this order.
While all the staff employed in the erstwhile Panchayat Union Dispensaries were absorbed into the service of the Primary Health Centres, the
services rendered in the Panchayat Union Dispensaries were counted for all the purposes. In their case, the date of initial appointment in the
Panchayat Union Dispensaries is taken for the purpose of seniority, after their absorption in Primary Health Centres. But, in the case of Medical
Officers, the same was not done and the services rendered by them in Panchayat Union Dispensaries were ignored altogether.
On absorption into Tamil Nadu Medical Service, the Medical Officers of Panchayat Union Dispensaries were placed below the directly
recruited Assistant Surgeons under Tamil Nadu Medical Service of the year in which those Medical Officers were absorbed into Tamil Nadu
Medical Service from the Local Body Service. That is, the erstwhile Medical Officers of Panchayat Union Dispensaries absorbed into Tamil Nadu
Medical Service, are treated as juniors to the Assistant Surgeons, who joined in the service after the initial appointment of the Medical Officers in
the Panchayat Union Dispensaries. Hence, the Medical Officers were denied their due promotion and consequential benefits.
Even before the Government took up the policy decision in the year 1989 to upgrade Panchayat Union Dispensaries into Primary Health
Centers, provincialisation of Panchayat Union Dispensaries into that of Primary Health Centres took place vide G.O.Ms. No. 664, Health
Department, dated 18.04.1978. Pursuant to such provincialisation, some of the Panchayat Union Dispensaries were converted into Primary Health
Centres and the staff employed therein including the Medical Officers were brought to Tamil Nadu Medical Service from Local Body Service.
Barring the Medical Officers, all others were given the benefit of their services rendered in the Local Body Service for all purposes including to
reckon seniority. As far as the Medical Officers were concerned, on their absorption from Local Body Service into Tamil Nadu Medical Service,
the services rendered in the Local Body Service were ignored for fixation of seniority, promotion and for other consequential benefits.
The Medical Officers, who were absorbed into Tamil Nadu Medical Service from Local Body Service, have filed Original Applications in
O.A. Nos. 4616/2000, 6880/2000, 5397/2002, 2516/2002 and 2705/2002 before the Tamil Nadu Administrative Tribunal, seeking for a
direction to the respondents to count their service rendered in the Panchayat Union Dispensaries for fixation of seniority and for consequential
promotion and other benefits. While seeking to count their services rendered in Panchayat Union Dispensaries, the Medical Officers in O.A. Nos.
2516/2002 and 2705/2002, further seek to quash G.O.Ms. No. 464, Health and Family Welfare Department, dated 29.10.1999 and the Medical
Officer in O.A. No. 5397/2002 seeks to quash G.O.(2D) No. 5, Health and Family Welfare (B2) Department, dated 08.02.2002 and
consequential letter dated 12.08.2002.
On abolition of the Tamil Nadu Administrative Tribunal, those Original Applications got transferred to this Court and renumbered as W.P.
Nos. 41500/2006 (O.A. No. 4616/2000); 45693/2006 (O.A. No. 6880/2000); 5233/2007 (O.A. No. 5397/2002); 8440/2007 (O.A. No.
2516/2002); and 8441/2007 (O.A. No. 2705/2002).
The respondents have filed detailed counter affidavits in O.A. No. 4616 of 2000 (W.P. No. 41500 of 2006) and in O.A. No. 5397 of 2002
(W.P. No. 5233 of 2007). In the counter affidavits filed by the respondents, it is states as follows:
(a) Since the upgradation of the existing Panchayat Union Dispensaries as Government Primary Health Centres was pursuant to the policy decision
taken by the Government, consent or option of the employees serving in the Panchayat Union Dispensaries is not necessary. It is stated that the
consent or option of individuals could be obtained only when there is a ""transfer of service"". But in the instant case, the petitioners were absorbed
from the Local Body Service into Tamil Nadu Medical Service. That is, if a person is transferred from one service to another service in
Government, then only option could be obtained and since the petitioners did not belong to Government Service and instead they belong to Local
Body Service, consent or option is not necessary.
(b) Since the Government Service is a superior service by all standard, they could not claim absorption from the date of their initial appointment in
Local Body Service.
(c) The Assistant Surgeons are directly recruited to Tamil Nadu Medical Service after being successful in the examinations conducted by the Tamil
Nadu Public Service Commission. The petitioners need not face the examinations for their absorption into Tamil Nadu Medical Service.
(d) There is no Rule or Law that whenever an undertaking is taken over by the another undertaking, the date of first appointment in the first
undertaking should be considered for all purpose.
(e) The proposal for counting the Local Body service could not be decided by the Government until the disposal of the Original Applications (writ
petitions).
Heard the submissions made on either side and perused the materials available on record.
The service details of those Medical Officers/petitioners as per Annexure to G.O.Ms. No. 464, Health and Family Welfare Department are
given below:
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Name of the petitioner Petitioner in Date of appointment Date of absorption
W.P. No. in Panchayat Union into Government
Dispensaries service
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Dr. R.N. Krishnamoorthy 41500/2006 15.09.1973 01.07.1991
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Dr. R. Venkatraman 41500/2006 18.12.1975 01.04.1990
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Dr. R. Gangatharan 41500/2006 19.08.1974 01.04.1991
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Dr. G. Mathiazhagan 41500/2006 20.09.1974 01.04.1990
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Dr. Syed Shafiudeen 41500/2006 15.11.1976 01.04.1990
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Dr. D. Gunasekaran 41500/2006 25.08.1977 01.06.1991
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Dr. V. Chandrasekaran 41500/2006 26.07.1978 01.04.1990
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Dr. S. Ramamoorthy 41500/2006 27.09.1978 01.04.1990
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Dr. A.S. Rajendran 41500/2006
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Dr. R. Gurusamy 41500/2006 12.01.1979 01.04.1991
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Dr. Venkatachalam 41500/2006
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Dr. Baburaj 41500/2006 06.09.1979 01.05.1990
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Dr. R. Jayaraman 41500/2006 10.10.1979 01.06.1991
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Dr. S.T. Balasubramaniyan 41500/2006
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Dr. S. Devaraj 45693/2006
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Dr. M. Krishnakumar 45693/2006 25.03.1985 01.04.1991
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Dr. K.K. Sekar 45693/2006 15.10.1981 01.05.1991
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Dr. M. Sekar 45693/2006
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Dr. T. Parthasarathy 45693/2006
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Dr. K. Durairaj 45693/2006
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Dr. N. Palaniappan 45693/2006 15.05.1987 01.06.1991
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Dr. M. Sekar 45693/2006
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Dr. V. Sukumar 45693/2006
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Dr. C. Srinivasan 45693/2006
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Dr. T. Krishnaraj 45693/2006 23.02.1984 01.04.1991
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Dr. P. Kathirvel 45693/2006
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Dr. V.K. Chandrasekaran 45693/2006 15.06.1983 01.04.1991
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Dr. T. Theenadayalan 45693/2006 30.09.1985 01.04.1991
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Dr. A. Sreerangan 45693/2006 18.11.1978 01.04.1990
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Dr. R. Govindarajan 5233/2007 12.06.1975 21.05.1982
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Dr. M.S. Santhanakrishnan 8440/2007
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Dr. V. Selvaraj 8441/2007 21.06.1984 01.04.1990
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Dr. S. Appadurai 8441/2007 05.05.1984 01.04.1991
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The claim of the petitioners is that their absorption into the Tamil Nadu Medical Service should be from the date of their initial appointment in
the Local Body Service and not from the date of provincialisation of the Panchayat Union Dispensaries.
The learned Counsel for the petitioners made the following submission in support of the claims of the petitioners.
(a) The petitioners hold the same qualification as required for the post of Assistant Surgeons in Tamil Nadu Medical Service. They have discharged
similar duties as Assistant Surgeons. The duties and responsibilities are identical to both the Medical Officers in Local Body Service and the
Assistant Surgeons in the Tamil Nadu Medical Service. Both the Medical Officers in the Panchayat Union Dispensaries and the Assistant Surgeons
in the Primary Health Centres were paid the same scale of pay. The working hours for the Panchayat Union Dispensaries and the Primary Health
Centres are also same. That is, when both the posts are equivalent, if one is transferred to another service, the services rendered in the earlier post
should also be taken into account.
In this regard, reliance is placed on the judgment of the Hon''ble Apex Court in S.I. Rooplal and Another Vs. Lt. Governor Through Chief
Secretary, Delhi and Others, and a judgment of a Division Bench of this Court in Tamil Nadu Government (Converted) Rwo Association v. The
State of Tamil Nadu reported in CDJ 2005 MHC 879.
(b) Further, while the services rendered in the Local Body Service were counted for grant of Selection Grade and Special Grade, the same should
be counted for fixation of seniority also.
(c) Since the Medical Officers are also considered as in-service candidates for the purpose of Post Graduate studies in Medicine as that of
Assistant Surgeons in Tamil Nadu Medical Service, their services in the Local Body Service should be counted.
(d) When the Government took up a policy decision to provincialise the Panchayat Union Dispensaries into Primary Health Centres, that should
not be done to the prejudice of the Medical Officers in the Panchayat Union Dispensaries, particularly, when no option was sought before
provincialisation. It was an unilateral act by the Government. Hence, their services in the Local Body Service should be counted.
(e) As the services rendered in the Local Bodies were counted for all other staff employed in the Panchayat Union Dispensaries, when they were
absorbed into Tamil Nadu Medical Service, the same should be applied to the Medical Officers also.
The learned Advocate General made his submissions based on the counter affidavits referred to above.
Considering the facts and circumstances of the case, I am of the considered view that the submissions made by the learned Counsel for the
petitioners are well founded. It is very clear that the Medical Officer post and the Assistant Surgeon posts are equivalent pose, in view of similar
duties and responsibilities attached to both the posts, qualification required to hold both the posts, the working hours of Panchayat Union
Dispensaries and the Primary Health Centres and the scale of pay applicable to the posts. If the posts are equivalent and one is transferred from
one post to another post, even if the post belong to different services, the service rendered in the earlier service should not be ignored, as
categorically held by the Honourable Apex Court in S.I. Rooplal and Another Vs. Lt. Governor Through Chief Secretary, Delhi and Others, and
the judgment of a Division Bench of this Court in Tamil Nadu Government (Converted) Rwo Association v. The State of Tamil Nadu reported in
CDJ 2005 MHC 879. I am not in agreement with the submissions made by the learned Advocate General that the counting of service in the earlier
service would arise only if a person is transferred from one Government service to another Government service and not from different service to
Government service.
In the Sub-Inspector Rooplal''s case (cited supra), the Sub-Inspectors belonging to Border Security Force were absorbed into Delhi Police
Service. The service rendered in the Border Security Force was not taken into account for fixation of seniority. The Honourable Apex Court after
referring to its earlier decisions in K. Madhavan and Another Vs. Union of India (UOI) and Others, ; R.S. Makashi and Others Vs. I.M. Menon
and Others, and Wing Commander J. Kumar Vs. Union of India (UOI) and Others, held that even if persons belonging to different service are
transferred from one service to another, the earlier service rendered has to be taken into account for all purposes, if both the posts are equivalent.
The factors that would determine the equivalency of the posts were given by the Honourable Apex Court and the relevant passage from para 17 of
the judgment in Sub-Inspector Rooplal''s case is extracted here-under:
...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.
Applying the said principles, it is very clear that the Medical Officer post and the Assistant Surgeon posts are equivalent and that therefore, if
the Medical Officers in Panchayat Union Dispensaries are transferred as Assistant Surgeons in Primary Health Centres, the service rendered in the
Panchayat Union Dispensaries should be taken into account for all purposes.
In the Division Bench judgment of this Court in Tamil Nadu Government (Converted) RWO Association''s case referred to above, the transfer
is from one Government service to another Government service. That is, the persons in Agricultural Department were transferred to Rural Welfare
Department. The village level workers belonging to Agricultural Department came to the service of the Rural Welfare Department as
Gramasevaks"". The employees from Rural Development Department opposed for counting the services rendered by those persons in the
Agricultural Department. This Court has categorically held that the service rendered by the persons in Agricultural Department in the earlier service
has to be counted.
Furthermore, it is also not disputed that the service rendered by the Medical Officers in Panchayat Union Dispensaries was counted for the
grant of Selection Grade and Special Grade and the same was considered for the purpose of Post Graduate studies in Medicine like Assistant
Surgeons in Primary Health Centres.
It is also not disputed that others who served in the Panchayat Union Dispensaries were given the benefit of counting the service in the Local
Body Service barring the Medical Officers. The reasoning of the respondents that the Assistant Surgeons are recruited through the Tamil Nadu
Public Service Commission examination could not be a ground to deny the benefit of the earlier service rendered by the Medical Officers in the
Panchayat Union Dispensaries, particularly, when the provincialisation of Panchayat Union Dispensaries as Primary Health Centres was pursuant
to the policy decision of the Government and it was the making of the Government and the Medical Officers had nothing to do with the same. As
the Medical Officers were absorbed into Tamil Nadu Medical Service without facing any examinations from the Tamil Nadu Public Service
Commission, the same could not be cited to deny the benefit of the earlier service rendered by them in Panchayat Union Dispensaries.
I am not in agreement with the submissions of the learned Advocate General that option is not necessary as it was a policy decision. If
prejudice is caused to an employee, option should have been called for. Therefore, it does not lie in the mouth of the respondents to say that the
Government service is a superior service when the Medical Officers were not given option. In any event, whether the consent was obtained from
the persons or not, it is very clear that the respondents are bound to count the services rendered by the Medical Officers in the Local Body
service, as held by the Honourable Apex Court. In fact, in the counter affidavits, it is stated that the Government was not able to decide on the
proposal for counting the Local Body service due to the pendency of this case. It is surprising to note such an averment as there is no bar for the
Government to grant the relief which is sought for by the petitioners. The pendency of the original applications (writ petitions) is not a bar for the
Government to grant the benefit on its own.
The following passage in para 16 of the judgment of the Honourable Apex Court in Gurmail Singh and Others Vs. State of Punjab and Others,
fortifies the aforesaid conclusions of mine.
...This is where, as here, the transferor and/or transferee is a State or a State instrumentality, which is required to act fairly and not arbitrarily
(see the recent pronouncement in Mahabir Auto Stores v. Indian Oil Corporation and the court has a say as to whether the terms and conditions
on which it proposes to hand over or take over an industrial undertaking embody the requisite of ""fairness in action"" and could be upheld. We think
that, certainly, in such circumstances it will be open to this Court to review the arrangement between the State Government and the Corporation
and issue appropriate directions. Indeed, such directions could be issued even if the elements of the transfer in the present case fall short of a
complete succession to the business or undertaking of the State by the Corporation, as the principle sought to be applied is a constitutional
principle flowing from the contours of Article 14 of the Constitution which the State and Corporation are obliged to adhere to. We are making this
observation because it was attempted to be argued on behalf of the State and the Corporation that only certain assets of the State ''industry'', viz.
the tubewells, were taken over by the latter and nothing more....
It is also surprising to note the following passage in the reply affidavit:
...The applicant has not cited any rule provision or law for their clam that whenever undertaking is taken over by another undertaking the date
of first appointment in the first undertaking should be considered for all purpose and therefore their contention could not be taken into account.
If two different undertakings are owned by the Government and the Government thought of merging one undertaking into another or transferring
from set of personnel to another pursuant to the policy decision, the Government could not say that there is no rule to count the first appointment in
the first undertaking could be counted on transfer to the second undertaking.
Accordingly, para 4 of G.O.Ms. No. 464, Health and Family Welfare Department, dated 29.10.1999 depriving the benefit of services
rendered by the Medical Officers in Panchayat Union Dispensaries is quashed. Likewise, G.O.(2D) No. 5, Health and Family Welfare (B2)
Department, dated 08.02.2002 treating the Medical Officers absorbed from Panchayat Union Dispensaries into Primary Health Centres as Juniors
to the Assistant Surgeons and the consequential letter dated 12.08.2002 are quashed. A direction is issued to the respondents to count the
services of the Medical Officers rendered in Panchayat Union Dispensaries i.e. Local Body service on their absorption into Primary Health Centres
i.e. Tamil Nadu Medical Service as Assistant Surgeons, for all purposes including seniority, promotion etc. The Medical Officers should be placed
below the directly recruited Assistant Surgeons of the year in which those Medical Officers were appointed in the Panchayat Union Dispensaries.
That is, it is made clear that if a Medical Officer was recruited to Local Body service in a particular year and an Assistant Surgeon was recruited to
Tamil Nadu Medical service in the same year, the Medical Officer absorbed into the Tamil Nadu Medical service could be treated as juniors to
those Assistant Surgeons who were recruited in the same year in which those Medical Officers were recruited by the Local Body service.
With the above observation and directions, all these writ petitions are allowed, except the sixth petitioner namely Mr. K. Durairaj in W.P. No.
45693 of 2006, since the writ petition in respect of the sixth petitioner in W.P. No. 45693 of 2006 was already dismissed as withdrawn. No
costs.