E. Gopalraj vs The Director of Public Health and Preventive Medicine

S. Nagamuthu, J.—The petitioner was appointed as Cook-cum-Waterman in the Primary Health Centre, Zaminkollankondan, erstwhile Ramanathapuram District, now Virudhunagar District, on 14.05.1975, following the method of appointment. His services were regularised as per the order of the District Health Officer, Ramanathapuram at Madurai, by his Proceedings in K.Dis.1788/76/A2 dated 04.02.1977. Subsequently, he was transferred and posted as Van Cleaner at the Office of the Health Officer, Virudhunagar, as per the Proceedings of the District Health Officer, Virudhunagar in R.No.1097/A2/87 dated 28.01.1988. He was once again reverted back as Cook-cum-Waterman at the Office of the Primary Health Centre at Chatrapatti.

According to the petitioner, he is fully qualified for promotion to the post of Driver. In this regard, he made representations, but of no avail. Finally, considering his qualifications and based on certain Government Orders, the second respondent, by his Proceedings in R.No.4649/47/90/DHO/VNR, issued in the month of July 1990, promoted him as Driver, but the first respondent issued a Circular reverting the petitioner to the post of Cook- cum-Waterman, from the post of Driver. In this regard, the petitioner filed an Original Application in O.A.No.1540 of 1991, challenging the reversion order. The said Original Application was ultimately transferred to the Principal Bench of this Court and renumbered as W.P.No.5912 of 2005 and the same was allowed. The petitioner also filed a writ petition in W.P.No.35445 of 2005, and in that writ petition, this Court directed the respondents to consider his representation. The said order was not based on the merits of the matter, rather it was a simple direction to the respondents to consider his representation. Having considered the same, the first respondent passed an order in R.No.141994/E2/04/S3 dated 16.03.2006 ordering that promotion given to the petitioner as Driver was irregular and therefore, he cannot be regularised in the post of Driver with effect from the date of promotion, ie., 01.06.1988. Subsequently, the petitioner retired from service on attaining the age of superannuation on 30.04.2010. In those circumstances, the petitioner is before this Court with this writ petition, seeking a direction to the respondents to regularise his services in the post of Driver with effect from July 1990 and fix the scale of pay and increments and other attendant benefits.

I have heard the learned counsel for the petitioner and the learned Government Advocate appearing for the respondents and perused the records carefully.

The Director of Public Health and Preventive Medicine, Chennai, has filed a detailed counter, wherein he has stated that the post of Driver in the Department is governed by the Tamil Nadu Public Health and Subordinate Service Special Rules. As per the amended rule which came into effect on 24.08.1983, the post of Driver can be filled up by following the mode of recruitment as detailed below:

Recruitment by transfer from the holders of the post of Peon, Cleaner, Mazdoor, etc., under Tamil Nadu Basic Service in the office of the Director of Public Health and Preventive Medicine / Regional Assistant Director of Public Health and Preventive Medicine / Health Unit Districts / Chief Water Analyst / Filaria Offices / other Mofussil Offices under the control of Director of Public Health and Preventive Medicine.

It is further stated that as per the above amendment, there is no provision for appointment to the post of Driver from the post of Cook-cum- Waterman.

It is because of these reasons, according to the respondents, the petitioner''s services cannot be regularised in the post of Driver.

I have considered the above submissions.

As I have extracted from the counter, the amended Rule provides for recruitment by transfer from the holders of the post of Peon, Cleaner, Mazdoor etc., under the Tamil Nadu Basic Service. Here, the petitioner was neither a peon, nor a cleaner, nor a mazdoor. But at the same time, the post of Cook-cum-Waterman falls within the Tamil Nadu Basic Service as per the Tamil Nadu Basic Service Rules, vide Category-31. Therefore, the contention of the respondents that the post of Driver cannot be filled up by appointing a person who has been working as a Cook-cum-Waterman, cannot be accepted.

In view of the above settled position of law, in my considered opinion, the respondents have no right to revert the petitioner as Cook-cum- Waterman and in declining to regularise his services as Driver. In such view of the matter, the petitioner is entitled for the relief as prayer for.

In the result, the writ petition is allowed. The respondents are directed to regularise the services of the petitioner as Driver right from the date of his appointment as Driver in the month of July 1990 and accordingly, extend all the monetary benefits including the pensionary benefits, to him. It is further directed that the consequential order shall be passed within a period of three months from the date of receipt of a copy of this order. Consequently, the connected miscellaneous petition is closed. No costs.