`Creamy layer': court notice to Tamil Nadu

http://www.thehindu.com/2006/09/12/stories/2006091204371300.htm

``Only State yet to identify it''

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Tamil Nadu has not followed the directions contained in a Supreme Court judgment Benefits of reservation not passed on to really deserving persons NEW DELHI: The Supreme Court on Monday issued notice to the Tamil Nadu Government on a public interest litigation petition that sought a direction to implement the Court's directions in the 1992 Mandal judgment, viz. to identify and exclude the "creamy layer" from among the backward class communities in the State. A Bench of Justices A.K. Mathur and Altamas Kabir issued the notice after hearing senior counsel K.M. Vijayan. He submitted that Tamil Nadu was the only State, which was yet to identify the "creamy layer" as per the Mandal judgment. Binding on Government In its petition, Voice (Consumer Care) Council said that as per the Mandal judgment, the Centre, States and Union Territories were directed to constitute a permanent body to entertain, examine and recommend for inclusion and complaints of over/under inclusion in the lists of the other backward classes. The advice tendered by such body would be binding on the government. The petitioner said Tamil Nadu had not followed the directions contained in the judgment, though many years had passed. The benefits of reservation to the backward classes had been continued to them in education and in appointments to State services, without excluding the "creamy layer" and such benefits of reservation had not been passed on to the really deserved persons belonging to such backward classes. The petitioner contended that Tamil Nadu, by not identifying the creamy layer for more than a decade, had literally affected the reservation of the needy lower strata of society. "Great injustice" The State had done great injustice to the really backward class citizens, as all the affluent classes in such backward class communities were taking away the reservation benefits. The petitioner said that if reservation were provided without removing the "creamy layer" it would have a counter effect on the very basis of the Constitutional right. The petitioner said that it must be noted that in Tamil Nadu majority of the castes had been included in the backward classes list. As a result, the backward classes got a major portion of the seats in professional colleges, as well as in employment. It sought a direction to Tamil Nadu to identify and exclude the "creamy layer" and consequently exclude them from the benefit of reservation.

SC gives nod to 27 per cent quota for OBCs

In a major boost to reservation, the Supreme Court on Thursday upheld the Constitution amendment law providing for 27 per cent quota for Other Backward Classes in IITs, IIMs and other Central educational institutions, but excluded the creamy layer from the benefit.

A five-judge Constitution bench cleared the Central Educational Institutions (Reservation in Admission) Act, 2006 providing for the quota, by a unanimous verdict.

The bench headed by Chief Justice K G Balakrishnan excluded the creamy layer among the OBCs from the quota benefit.

The court held that the Act does not violate the basic structure of the Constitution.

The verdict came on a bunch of petitions by anti-quota activists challenging the Act. They vehemently opposed government's move saying caste cannot be the starting point for identifying backward classes.

The inclusion of creamy layer in the reservation policy was also questioned by the anti-quota petitioners.

With this judgment, the interim order of March 29, 2007 staying the implementation of the Act has been lifted.

In effect, the reservation policy can be put in place for the 2008-09 academic session.

The court held that the Constitution (93rd Amendment) Act, under which the government came out with the law providing 27 per cent quota in Centrally-aided institutions, was not violative of the basic structure of the Constitution.

All judges favoured periodic revision on the implementation of the 27 per cent quota.

The court ruled that the delegation of power to the Centre to determine OBCs was valid.

The parameter applied for identifying the creamy layer among the OBCs for jobs as per the office memorandum of September 8, 1993, will be applicable, the court said.

It also held as valid the exclusion of minority institutions from the ambit of quota under the Act.

Besides the Chief Justice, the bench comprised Justices Arijit Pasayat, C K Thakker, R V Raveendran and Dalveer Bhandari.

Contract Staff need not be regularised and cannot claim regularisation

CASE NO.:
Appeal (civil) 6337 of 2003

PETITIONER:
National Fertilizers Ltd. & Ors.

RESPONDENT:
Somvir Singh

DATE OF JUDGMENT: 12/05/2006

BENCH:
S.B. Sinha & P.P. Naolekar

JUDGMENT:
J U D G M E N T

W I T H
CIVIL APPEAL NOS. 464, 465, 466, 467 of 2004 AND 7575 of 2005


S.B. SINHA, J :

The Appellant is a Government Company. It is a public sector
undertaking. It is a 'State' within the meaning of Article 12 of the
Constitution of India. A policy decision was taken by the Appellant not
to make any further recruitment in Marketing Division in any category of
post stating:

"It has been decided that with immediate effect the
strength of the Marketing Division be pagged to the
number of individuals in position in the Marketing
Division as on 31.03.1998. It has also been decided
that no further recruitment be made in the Marketing
Division in any category of post. However, as and
when if any post is required to be filled up in any
category due to exigencies of work, the approval of
D(F)/MD be obtained and the paper routed through
the Corporate Office Personnel Department."

Despite such ban the Respondents had been appointed. Before
such appointment the employment exchange was not intimated about the
vacancy in terms of the provisions of Employment Exchange
(Compulsory Notification of Vacancies) Act, 1959 (for short "the 1959
Act"). Admittedly, no advertisement was also issued. According to the
Respondent, he worked at the Shimla Office of the Appellant for a period
of six months and, thus, he was entitled for recruitment in terms of Rule
1.5(g) of the Recruitment and Promotion Rules. Rule 1.5(g) of the Rules
does not envisage regular recruitment but a recruitment on a contractual
basis. The Respondent, thus, on his own showing was appointed on a
contractual basis. It is trite that a person who obtained recruitment on
contractual basis cannot claim regularisation in service. The
Respondents herein filed applications for their recruitment without any
vacancy having been notified. They were said to have been interviewed
on 24.3.1991 by a purported Committee constituted by the General
Manager. Appointment letters were issued on or about 9.4.1991. An
advertisement was admittedly issued only on 30.11.1993 for the post of
Peon-cum-Messenger.

The Appellant in the year 1994, however, took a decision to fill up
the posts in the Marketing Division inter alia stating:

"During the coordination committee meeting held in
October 1994, at C.O. the recognized union of
marketing division requested for removal of ban in
filling up vacant posts in marketing division. It was
agreed that action to fill up the vacant posts in
marketing division will be taken by marketing
division, keeping in view the recruitments within the
overall manpower strength."

Actions were initiated to fill up the vacant posts on permanent
status by following the recruitment procedure. The Respondents were
also granted an opportunity to file applications thereagainst. Relaxation
of age to the extent of their services as temporary employees had also
been granted.

The Appellant has framed its own Recruitment and Promotion
Rules. The recruitment of an employee is governed by the said Rules.
The terms and conditions of services are also governed by the same
Rules. In terms of Rule 1.5 of the said Rules, recruitment of various
posts were to be made inter alia from the following sources:

(a) Employment Exchange as per the provisions of the 1959 Act.
(b) Zila Saink Boards Director General Resettlement.
(c) Direct Recruitment by advertisement.

Rule 1.6.1 provides for method and procedure for recruitment in
terms whereof all posts in the scale of pay of Rs. 1560-2160 is required to
be considered as 'corporate level'. Direct recruitment can be resorted to
only when no suitable candidate for promotion was available in the
appropriate rank. Rule 1.6.8 provides for the mode and manner in which
the advertisement is to be issued. Rule 1.6.9 provides for reservation.
The manner in which Selection Committee has to be constituted has been
laid down in paragraph 1.11. Such Selection Committee inter alia must
consist of two members from the discipline for which recruitment is to be
made apart from an officer from the Personnel Department as Member
Secretary. In the event, a selection is to be made for reserved category,
an officer of appropriate status belonging to SC/ST will be included as a
member. In a case of recruitment to Group C & D posts, a member
representing minority community will also be associated in the selection
committee. The matter relating to interview is provided for in paragraph
12.1. Appointments are to be made in terms of paragraph 1.13.

The said Rules, therefore, lay down in great details as to how and
in what manner the selection process was to be initiated, the minimum
qualification therefor, the constitution of Selection Committee and other
relevant factors.

It is not in dispute that the Respondents herein were appointed
without any advertisements and without any intimation to the
employment exchange. Appointments are said to be made at the instance
of two officers. Only after retirement of the said officers, writ petitions
were filed before several High Courts including Chhattisgarh, Punjab and
Haryana, Himachala Pradesh, Delhi, Madhya Pradesh and Rajasthan.

The writ petitions involved 52 employees. Different views were
expressed by different High Courts.

The writ petitions filed by the Respondents were allowed directing
the Appellant to regularise the services of the Respondents to pay them
all monetary benefits in terms of the appointment letters.

Mr. Bhaskar P. Gupta, learned senior counsel appearing on behalf
of the Appellant submitted that the matter relating to regularisation of
services recruited on ad hoc basis is no longer res integra in view of the
recent Constitution Bench decision of this Court in Secretary, State of
Karnataka and Others v. Umadevi and Others [2006 (4) SCALE 197].

Mr. Ashok Mathur, learned counsel appearing on behalf of the
Respondents, on the other hand, submitted that the appointments of the
Respondents may be irregular but not illegal and in that view of the
matter, the impugned judgments need not be interfered with.
The Respondents herein were appointed only on applications made
by them. Admittedly, no advertisement was issued in a newspaper nor
the employment exchange was notified as regard existence of vacancies.
It is now trite law that a 'State' within the meaning of Article 12 of the
Constitution of India is bound to comply with the constitutional
requirements as adumbrated in Articles 14 and 16 thereof. When
Recruitment Rules are made, the employer would be bound to comply
with the same. Any appointment in violation of such Rules would render
them as nullities. It is also well-settled that no recruitment should be
permitted to be made through backdoor.

It was contended that for Class IV employees, the Employment
Exchanges were not required to be notified in view of Section 3(1)(d) of
the 1959 Act. Section 3(1)(d) of the 1959 Act reads as under:

"3. Act not to apply in relation to certain vacancies
 (1) This Act shall not apply in relation to
vacancies 
(a) ***
(b) ***
(c) ***
(d) in any employment to do unskilled office
work;"

Such a plea does not appear to have been raised before the High
Court. The question as regards the nature of duties required to be
performed by the Respondents having not been raised. No material was
placed by the employer to show as to whether the job of the Respondents
was within the purview of the aforementioned provision. The
Respondents themselves stated that they raised the question of
applicability of the said provision of the Act in a suit filed at Jagadhri
when another person was appointed as Peon-cum-Messenger. It,
therefore, cannot be said that they were not aware of the statutory
provisions contained in the said suit.

The order of ban suggests that if any appointment was to be made
due to exigencies of work, the approval of the Director (Finance) or
Managing Director was to be obtained and the paper routed in respect
thereof should be through the corporate office. The Respondents contend
that as at the point of time the Managing Director, Shri S.S. Jain had been
placed under suspension, the file was placed before the General Manager
(Marketing). The said plea cannot be accepted for more than one reason.
If the regular incumbent or the Managing Director was placed under
suspension, somebody else must be incharge of the said post.
Furthermore, the file could be placed before the Director (Finance). The
General Manager by no stretch of imagination could accord approval for
appointment.

Submission of the learned counsel appearing on behalf of the
Respondents to the effect that the ban was only on paper is not a matter
which would fall for consideration of this Court inasmuch as it is not in
dispute that the ban was lifted only on 16.12.1994. On what premise, an
advertisement was issued on 30.11.1993 is not known. It is not the case
of the Respondent that despite existence of ban some other workman was
appointed prior to the lifting thereof. Even if, recruitments have been
made illegally, the Respondents cannot claim any legal right on the basis
thereof.

Regularisation, furthermore, is not a mode of appointment. If
appointment is made without following the Rules, the same being a
nullity the question of confirmation of an employee upon the expiry of
the purported period of probation would not arise. The Constitution
Bench in Umadevi (supra) made a detailed survey of the case laws
operating in the field.

The referral order to the Constitution Bench was made by a 3-
Judge Bench of this Court stating:

"1. Apart from the conflicting opinions between
the three Judges' Bench decisions in Ashwani Kumar
and Ors. Vs. State of Bihar and Ors., reported in
1997 (2) SCC 1, State of Haryana and Ors vs., Piara
Singh and Ors. Reported in 1992 (4) SCC 118 and
Dharwad Distt. P.W.D. Literate
Daily Wage Employees Association and Ors. Vs.
State of Karnataka and Ors. Reported in 1990 (2)
SCC 396, on the one hand and State of Himachal
Pradesh vs. Suresh Kumar Verma and Anr., reported
in AIR 1996 SC 1565, State of Punjab vs.
Surinder Kumar and Ors. Reported in AIR 1992 SC
1593, and B.N. Nagarajan and Ors. Vs. State of
Karnataka and Ors., reported in 1979 (4) SCC 507
on the other, which has been brought out in one of
the judgments under appeal of Karnataka High Court
in State of Karnataka vs. H. Ganesh Rao, decided on
1.6.2000, reported in 2001 (4) Karnataka Law
Journal 466, learned Additional Solicitor General
urged that the scheme for regularization is repugnant
to Articles 16(4), 309, 320 and 335 of the
Constitution of India and, therefore, these cases are
required to be heard by a Bench of Five learned
Judges (Constitution Bench).

2. On the other hand, Mr. M.C. Bhandare,
learned senior counsel, appearing for the employees
urged that such a scheme for regularization is
consistent with the provision of Articles 14 and 21 of
the Constitution.

3. Mr. V. Lakshmi Narayan, learned counsel,
appearing in CC Nos.109-498 of 2003, has filed the
G.O. dated 19.7.2002 and submitted that orders have
already been implemented.

4. After having found that there is conflict of
opinion between three Judges Bench decisions of
this Court, we are of the view that these cases are
required to be heard by a Bench of five learned
Judges.
5. Let these matters be placed before Hon'ble the
Chief Justice for appropriate orders."

The Constitution Bench opined that any appointment made in
violation of the Recruitment Rules as also in violation of Articles 14 and
16 of the Constitution would be nullity. The contention raised on behalf
of the employees that those temporary or ad hoc employees who had
continued for a fairly long spell, the authorities must consider their cases
for regularisation was answered, thus:

"With respect, why should the State be allowed to
depart from the normal rule and indulge in
temporary employment in permanent posts? This
Court, in our view, is bound to insist on the State
making regular and proper recruitments and is bound
not to encourage or shut its eyes to the persistent
transgression of the rules of regular recruitment.
The direction to make permanent -- the distinction
between regularization and making permanent, was
not emphasized here -- can only encourage the
State, the model employer, to flout its own rules and
would confer undue benefits on a few at the cost of
many waiting to compete. With respect, the
direction made in paragraph 50 of Piara Singh
(supra) are to some extent inconsistent with the
conclusion in paragraph 45 therein. With great
respect, it appears to us that the last of the directions
clearly runs counter to the constitutional scheme of
employment recognized in the earlier part of the
decision. Really, it cannot be said that this decision
has laid down the law that all ad hoc, temporary or
casual employees engaged without following the
regular recruitment procedure should be made
permanent."

It was furthermore opined:

"26. It is not necessary to notice all the decisions of
this Court on this aspect. By and large what emerges
is that regular recruitment should be insisted upon,
only in a contingency an ad hoc appointment can be
made in a permanent vacancy, but the same should
soon be followed by a regular
recruitment and that appointments to non-available
posts should not be taken note of for regularization.
The cases directing regularization have mainly
proceeded on the basis that having permitted the
employee to work for some period, he should be
absorbed, without really laying down any law to that
effect, after discussing the constitutional scheme for
public employment."

Taking note of some recent decisions of this Court, it was held that
the State does not enjoy a power to make appointments in terms of
Article 162 of the Constitution of India. It further quoted with approval a
decision of this Court in Union Public Service Commission v. Girish
Jayanti Lal Vaghela & Others [2006 (2) SCALE 115] in the following
terms:

"The appointment to any post under the State can
only be made after a proper advertisement has been
made inviting applications from eligible candidates
and holding of selection by a body of experts or a
specially constituted committee whose members are
fair and impartial through a written examination or
interview or some other rational criteria for judging
the inter se merit of candidates who have applied in
response to the advertisement made. A regular
appointment to a post under the State or Union
cannot be made without issuing advertisement in the
prescribed manner which may in some cases include
inviting applications from the employment exchange
where eligible candidates get their names registered.
Any regular appointment made on a post under the
State or Union without issuing advertisement
inviting applications from eligible candidates and
without holding a proper selection where all eligible
candidates get a fair chance to compete would
violate the guarantee enshrined under Article 16 of
the Constitution..."

It was clearly held:
"These binding decisions are clear imperatives that
adherence to Articles 14 and 16 of the Constitution
is a must in the process of public employment."

The contention of the learned counsel appearing on behalf of the
Respondents that the appointments were irregular and not illegal, cannot
be accepted for more than one reason. They were appointed only on the
basis of their applications. The Recruitment Rules were not followed.
Even the Selection Committee had not been properly constituted. In view
of the ban in employment, no recruitment was permissible in law. The
reservation policy adopted by the Appellant had not been maintained.
Even cases of minorities had not been given due consideration.

The Constitution Bench thought of directing regularisation of the
services only of those employees whose appointments were irregular as
explained in State of Mysore v. S.V. Narayanappa [(1967) 1 SCR 799],
Nanjundappa v. T. Thimmiah & Anr.[(1972) 2 SCR 799] and B.N.
Nagarajan & Ors. v. State of Karnataka & Ors. [(1979) 3 SCR 937]
wherein this Court observed:

"In B.N. Nagarajan & Ors. Vs. State of Karnataka &
Ors. [(1979) 3 SCR 937], this court clearly held that
the words "regular" or "regularization" do not
connote permanence and cannot be construed so as
to convey an idea of the nature of tenure of
appointments. They are terms calculated to condone
any procedural irregularities and are meant to cure
only such defects as are attributable to methodology
followed in making the appointments"

Judged by the standards laid down by this Court in the
aforementioned decisions, the appointments of the Respondents are
illegal. They do not, thus, have any legal right to continue in service.

It is true that the Respondents had been working for a long time. It
may also be true that they had not been paid wages on a regular scale of
pay. But, they did not hold any post. They were, therefore, not entitled
to be paid salary on a regular scale of pay. Furthermore, only because the
Respondents have worked for some time, the same by itself would not be
a ground for directing regularisation of their services in view of the
decision of this Court in Uma Devi (supra).

In view of the authoritative pronouncement of the Constitution
Bench, in our opinion, the impugned judgments cannot be sustained.
They are set aside accordingly.

S/Shri Somvir Singh, Hansraj Benewal, Malkiat Singh, Ranjit
Singh are said to be working. They may be relieved of their posts. We
may, however, observe that their cases may be considered for future
appointment and age bar, if any, in view of the policy decision of the
Appellant itself may be relaxed to the extent they had worked. The salary
or any remuneration paid to them, however, may not be recovered. This
order, however, is being passed in exercise of our jurisdiction under
Article 142 of the Constitution of India keeping in view the principles
embodied in Section 70 of the Contract Act. The appeals are allowed. No
costs.

Amendment in Human Organ Transplantation Act

The Hon’ble High Court of Delhi in CWP No. 813/2004 vide its order dated 06.09.2004 had set up a Committee to examine the provisions of Transplantation of Human Organs Act, 1994, and the Transplantation of Human Organs Rules, 1995. The report was submitted on 25.05.2005.


A National Consultation was held on 18.05.2007 and the report was submitted in the second fortnight of August 2007. The recommended changes required amendments in the Transplantation of Human Organs Act, 1994 and the Rules framed there under. These changes are intended to facilitate genuine cases, increase transparency in transplantation procedures and to provide deterrent penalties for violation of the law. In so far as the Act is concerned, the following amendments have been proposed:

1. To empower Union Territories, specially Government of NCT of Delhi to have their own appropriate authority instead of DGHS and / or Additional DG (Hospitals).

2. To make the punishments under the Act harsh and cognizable for the illegal transplantation activities to deter the offenders from committing this crime.

3. To provide for registration of the centres for removal of organs from the cadavers and brain stem dead patients for harvesting of organs instead of registration of centres for transplantations only.

4. To allow swap operations between the related donor and recipients who do not match themselves but match with other similar donors / recipients.

Sale / purchase of human organs is already prohibited under Transplantation of Human Organs Act, 1994. Appropriate authorities established under this Act are responsible and empowered to check the illegal activities of human organs trafficking.


A Clinical Establishments (Registration and Regulation) Bill 2007 has been introduced in Lok Sabha on 30.08.2007. The Bill seeks to provide for registration and regulation of clinical establishments in the country. National Council for clinical establishments has been set up to determine the standards for clinical establishments, classify the clinical establishment into different categories, develop minimum standards and their periodic review, compile, maintain and update a national register of clinical establishments, perform any other function determined by the Central Government, from time to time.


This information was given by the Minister for Health & Family Welfare, Dr. Anbumani Ramadoss in a reply to a question in the Rajya Sabha.

Source-PIB
SRM/L

HC for maximum 50% internal quota in UPPGMEE

The Allahabad High Court has quashed a government notification allowing MBBS/BDS graduates of only UP medical colleges to appear in the UP Post-graduate Medical Entrance Examination, 2004. The court refused to cancel the examination and issue a mandamus for fresh tests saying it will lead to complications.

The notification of November 19, 2003, modified by an order of December 15, 2003 allowed for 75 per cent of seats to be filled by the UPPGMEE qualifiers, leaving only 25 per cent seats to be filled by those qualifying the all-India Post-graduate Medical Examination.

Justice DP Singh observed that the notification providing for 100 per cent institutional reservation, issued under section 28 (5) of the UP State Universities Act, was violative of Article 14 and 21 of the Constitution.

Justice Singh further directed the state to frame guidelines providing maximum 50 per cent institutional reservation for various medical colleges and the universities of the state of UP for admission to UPPGMEE and in the rest 50 per cent seats, candidates who are residents of UP and others may be admitted.

The state government cannot directly or indirectly deprive the candidates who are permanently or otherwise residing in the state of UP from admission to UPGMEE even if they have studied outside UP unless the institution from where they got their medical degree has been derecognised, the court added.

Justice Singh remarked that the rules, regulations or orders issued in pursuance of power conferred under section 28 (5) is a sub-ordinate legislation hence it could not be issued in contravention of the provisions contained in the Act itself. There is no such provision of providing 100 per cent institutional reservation in the Act, he added. However, the above order was made applicable only to those petitioners who had appeared at the UPPGMEE -2004 following the court’s interim order.

Extension to PG Candidates Illegal

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 22/11/2007

CORAM: THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR

W.P(MD)No.9694 of 2007
and
M.P(MD)No.1 of 2007
W.P(MD)No.9695 of 2007 and
M.P.(MD)No.1 of 2007

Dr.D.Ramachandran ... Petitioner in
W.P.No.9694/2007

Dr.N.Praveen ... Petitioner in
W.P.No.9695/2007
Vs.

The Director of Public Health
& Preventive Medicine,
Chennai - 6. ... Respondent in
both writ petitions


PRAYER


Writ Petitions filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorari calling for the records relating to the impugned
order passed by the respondent in his proceedings R.No.47018/E5/A3/06 dated 9-
11-2007 and quash the same as illegal.


!For Petitioners ... Mr.C.Venkateshkumar
for Mr.M.Ajmal Khan

^


:COMMON ORDER


In both the writ petitions, petitioners seek to quash the order dated
9.11.2007 passed by the respondent in his proceedings R.No.47018/E5/A3/06.

2. Petitioner in W.P.No.9694 of 2007 had completed M.B.B.S. Course and
applied for selection to the post of Assistant Surgeon in the Tamil Nadu Medical
Service during 2003-2004, conducted by the Tamil Nadu Public Service Commission.
He was selected for the post under Category-2 of Class-1 of the Tamil Nadu
Medical Service by order dated 15.7.2006. Petitioner also got selected to
undergo the course M.D.(General Medicine) in Thanjavur Medical College in May,
2006, duration of the course being three years. According to the petitioner, he
had applied for relaxation of Rule 21(a) of the Special Rules for Tamil Nadu
Medical Services and the respondent by proceedings dated 29.7.2006 permitted the
petitioner to join in the post of Assistant Surgeon in the Primary Health
Centre, immediately after completion of the course. Petitioner is continuing
his M.D. Course till date and the said P.G. Degree course will be over by March,
2009. Meanwhile, on 9.11.2007, the respondent issued the impugned order,
directing the petitioner to report for duty within seven days, failing which his
name will be removed from the selection list and the waiting list candidate will
be accommodated in his place. The said order is challenged in this writ
petition on the ground that in W.P.No.46644 of 2006, this Court issued direction
to release the reserve list, in which the petitioner was not a party and the
relaxation of Rule 21(a) having been granted with condition to join duty on
completion of the P.G.Degree course, the impugned order passed by the respondent
is unsustainable and therefore the petitioner has got a right to continue the
P.G. course and he can join in service after completion of the course.

3. The petitioner in W.P.No.9695 of 2007, who completed the MBBS
course in the year 2003 also applied for the post of Assistant Surgeon 2003-2004
as per the notification issued by the TNPSC and was selected to the post of
Assistant Surgeon under Category-2, Class-1 and he was posted at the Primary
Health Centre, Melakodumalur, Paramakudi, by order dated 28.6.2006. He was also
selected to undergo P.G.Diploma course in Radio Diagnosis and he is undergoing
the course in Thanjavur Medical College from June, 2006, the duration of the
course being two years. This petitioner also obtained permission to join duty
after completion of the P.G.Diploma course in relaxation of Rule 21(a), which
was granted by order dated 29.7.2006 with condition to join the post
immediately on completion of the course and he will be completing the course in
the year 2008. The grievance of the petitioner is that the said order is now
withdrawn and the impugned order is passed and the same is challenged on the
very same ground as stated supra.

4. Heard the learned counsel for the petitioner.

5. Admittedly the petitioners have applied for the post of Assistant
Surgeon in the Tamil Nadu Medical Service for the year 2003-2004 in terms of the
notification issued by the TNPSC by advertisement No.067. In the said
advertisement inviting applications, certain conditions were imposed and the
relevant conditions (ii), (iii) and (vi) are extracted hereunder,
(ii) Candidates selected for appointment should join duty within 30 days. No
extension of joining time will be granted under any circumstances, even if they
are undergoing higher studies/Post Graduate Course. The name of the candidates
who do not join duty within the stipulated time would be removed from the
approved list without assigning any reasons therefor.
(iii) Those who are undergoing Post-Graduate Course and applying for the post of
Assistant Surgeon, should submit a declaration to the effect that they will join
duty within the time limit of 30 days in the event of their appointment to the
post of Assistant Surgeon.
(iv) .........
(v) .........
(vi) Candidates selected and appointed as Assistant Surgeon after joining duty
shall not be permitted to undergo P.G. Course within a period of 2 years
excluding leave.
(Emphasis supplied)
Admittedly the petitioners have applied for selection by accepting the said
conditions. Even though the petitioners were not selected for P.G. Course at the
time of submitting applications and on the date of selection, they were put on
notice that on their selection, they will not be permitted to undergo P.G.
Course within a period of two years, excluding the leave.

6. Now, the petitioners having applied for selection by accepting the
said conditions, whether they have got any right to challenge the impugned
order, is the question to be decided in the present writ petitions.

7. The learned counsel for the petitioners submitted that the
petitioners were given time by relaxation of rule 21(a) by the respondent and
they can join duty on their completion of P.G.Degree/P.G.Diploma course and the
relaxation having been granted, the impugned order directing the petitioners to
join in the post of Civil Surgeon within seven days cannot be sustained.

8. From the conditions imposed in the instructions to candidates, it is
evident that no extension of joining time will be granted under any
circumstances even if they are undergoing higher studies-P.G.Degree/P.G.Diploma
courses and that the name of the candidate, who do not join duty within the
stipulated time would be removed from the approved list without assigning any
reason and those candidates who were undergoing P.G.degree course shall submit a
declaration to the effect that they will join duty within the time limit of 30
days in the event of appointment to the post of Assistant Surgeon. Hence the
relaxation sought for by the petitioners and the grant of the same will not
confer any benefit on the petitioners, particularly when the candidates were put
on notice that relaxation will not be granted under any circumstances. The said
notification nowhere stipulates that in deserving cases, relaxation can be
applied for and granted. In the absence of any such clause in the notification,
petitioners are not entitled to apply for relaxation and the relaxation granted
is also in contravention of the said notification and therefore the said
relaxation earlier granted will not confer any right on the petitioners to
contend that they be allowed to join after completion of their respective
course.

9. It is well settled in law that unless the power of relaxation is
stated in the notification, no one can claim relaxation as a matter of right.
Further, if relaxation power is stated in the notification many candidates,
similarly placed with that of petitioners might have applied and opted for
selection to the Assistant Surgeon Post and might have applied for relaxation of
the rule seeking joining time. Hence the contention of the petitioners that the
respondents cannot withdraw the relaxation granted earlier, is not sustainable.

10. In W.P.No.46644 & 45484 of 2006 dated 4.9.2007, this Court passed an
order directing the Director of Public Health and Preventive Medicine, Chennai,
to send a proposals with regard to the details of candidates, who have not
joined duty within four weeks, to the TNPSC for issuing appointment orders to
the candidates in the reserved list. The said order has been implemented by the
Director of Public Health and Preventive Medicine, Chennai-6, by sending the
list to all the candidates, who have not joined duty, in spite of selection and
the said vacancies are sought to be filled up from the reserved list.
Petitioners cannot contend that they are not party to the said proceedings and
therefore the said direction cannot be put against them. The direction given in
the said writ petition was at the instance of reserved list candidates.

11. Admittedly the petitioners have not joined in their respective
posts. If the petitioners have joined and availed leave it will be a different
matter as the posts are already filled up and the vacancies can be treated only
as leave vacancies. Admittedly the petitioners have not joined in the posts on
their selection and therefore those posts shall be treated as vacant posts.
Therefore the reserve list candidates are entitled to be considered in the said
vacant posts.

12. The post of Assistant Surgeon in the Government Hospitals cannot be
kept vacant till the petitioners complete their P.G.Degree/Diploma Courses.
Filling up of vacancies of Assistant Surgeons in the Government Hospitals is a
paramount duty of the Government to look after the health of the general public,
especially to the poor and needy. In every Government Hospital, Assistant
Surgeons shall be present at all times to attend to emergency treatments. If
the Doctors posts are not filled up in time, the general public will be very
much affected and their right to health, which forms part of basic human right,
guaranteed under Article 21 of the Constitution will be seriously prejudiced.
(a) The right of an injured citizen to get immediate medical treatment
is emphasised by the Supreme Court in the decision reported in AIR 1989 SC 2039
= (1989) 4 SCC 286 (Parmanand Katara v. Union of India) and in paragraphs 7 to
9, it is held as follows,
"7. There can be no second opinion that preservation of human life is of
paramount importance. That is so on account of the fact that once life is lost,
the status quo ante cannot be restored as resurrection is beyond the capacity of
man. The patient whether he be an innocent person or be a criminal liable to
punishment under the laws of the society, it is the obligation of those who are
in charge of the health of the community to preserve life so that the innocent
may be protected and the guilty may be punished. Social laws do not contemplate
death by negligence to tantamount to legal punishment.
8. Article 21 of the Constitution casts the obligation on the State to
preserve life. The provision as explained by this Court in scores of decisions
has emphasised and reiterated with gradually increasing emphasis that position.
A doctor at the government hospital positioned to meet this State obligation is,
therefore, duty bound to extend medical assistance for preserving life. Every
doctor whether at a government hospital or otherwise has the professional
obligation to extend his services with due expertise for protecting life. No law
or State action can intervene to avoid/delay the discharge of the paramount
obligation cast upon members of the medical profession. The obligation being
total, absolute and paramount, laws of procedure whether in statutes or
otherwise which would interfere with the discharge of this obligation cannot be
sustained and must, therefore, give way. ....
9. We are of the view that every doctor wherever he be within the
territory of India should forthwith be aware of this position and, therefore, we
direct that this decision of ours shall be published in all journals reporting
decisions of this Court and adequate publicity highlighting these aspects should
be given by the national media as also through the Doordarshan and the All India
Radio. The Registry shall forward adequate number of copies of this judgment to
every High Court so that without delay the respective High Courts can forward
them to every Sessions Judge within their respective jurisdictions and the
Sessions Judges in their turn shall give due publicity to the same within their
jurisdictions. The Medical Council of India shall forward copies of this
judgment to every medical college affiliated to it. Copies of the judgment shall
be forwarded to every State Government with a direction that wide publicity
should be given about the relevant aspects so that every practising doctor would
soon become aware of the position."
(b) Right to get timely medical treatment to persons in need was
considered by the Supreme Court in the decision of Paschim Banga Khet Mazdoor
Samity v. State of W.B., reported in, (1996) 4 SCC 37 in para 9 which reads as
follows,
"9. The Constitution envisages the establishment of a welfare State at
the federal level as well as at the State level. In a welfare State the primary
duty of the Government is to secure the welfare of the people. Providing
adequate medical facilities for the people is an essential part of the
obligations undertaken by the Government in a welfare State. The Government
discharges this obligation by running hospitals and health centres which provide
medical care to the person seeking to avail of those facilities. Article 21
imposes an obligation on the State to safeguard the right to life of every
person. Preservation of human life is thus of paramount importance. The
government hospitals run by the State and the medical officers employed therein
are duty-bound to extend medical assistance for preserving human life. Failure
on the part of a government hospital to provide timely medical treatment to a
person in need of such treatment results in violation of his right to life
guaranteed under Article 21. ...."
13. It is well settled in law that when individual rights and public
interests are pitted against each other, the Court should always lean towards
the public interest instead of the rights of a private person. Therefore, it is
the duty of the respondent to fill up the vacant post of the Assistant Surgeon
posts in the Government Hospitals on emergent basis by issuing appointment
orders to the candidates in the reserve list, if the selected candidates fail to
join duty.

14. There is no justification on the part of the petitioners to contend
that they should be allowed to continue the P.G. Degree/Diploma courses and
after completion of their respective course, they shall be permitted to join
duty as Assistant Surgeon. Petitioner in W.P.No.9694 of 2006 is completing the
course in March, 2009, and the petitioner in W.P.No.9695 of 2006 is completing
the course in June, 2008. Till such long period the Assistant Surgeon Posts in
the Government Hospitals cannot at all be kept vacant, particularly when reserve
list candidates are available to join duty immediately, on their selection.

15. From the order of this Court made in W.P.No.46644 & 45484 of 2006
dated 4.9.2007, it could be seen that the respondents herein requested the TNPSC
to release the candidates from the reserve list for filling up 469 vacancies
prevailing in three Directorates, which arose due to non-joining of the selected
candidates. Thus, it is evident that not only the petitioners, but several
other selected candidates numbering 469 have not joined in the post of Assistant
Surgeon by one reason or the other. The respondent cannot be a silent spectator
by not filling up such large number of vacancies when number of candidates
placed in the reserve list are willing to join duty immediately, if selected.

16. The binding nature of the instructions to the candidates is well
settled. In fact, the very same notification/instructions to candidates issued
by the TNPSC for the year 2003-3004, came up for consideration before a Division
Bench of this Court in the decision reported in 2006 WLR 574 (Dr.M.Vennila v.
Tamil Nadu Public Service Commission). In paragraph 16, the question as to
whether the requirement as stated in the Notification/Information Brochure are
to be strictly complied with or not and whether they are mandatory was
considered. In paragraphs 19 and 25, the Division Bench held thus,
"19. The principle that the prospectus is binding on all persons
concerned has been laid by the Supreme Court in Punjab Engineering College,
Chandigarh vs. Sanjay Gulati (AIR 1983 Supreme Court 580 = 1983 (96) LW 172
S.N.). Following the same, a Division Bench of this Court has also observed in
Rathnaswamy, Dr.A. Vs. Director of Medical Education (1986 WLR 207) that the
rules and norms of the prospectus are to be strictly and solemnly adhered to.
The same view is also taken by another Division Bench of this Court in Nithiyan
P. and S.P.Prasanna vs. State of Tamil Nadu (1994 WLR 624). The same principle
is reiterated in the case of Dr.M.Ashiq Nihmathullah vs. The Government of Tamil
Nadu and others reported in 2005 WLR 697. It is clear that the prospectus is a
piece of information and it is binding on the candidates as well as on the State
including the machinery appointed by it for identifying the candidates for
selection and admission.
20. ...........
21. ...........
22. ...........
23. ...........
24. ...........

25. In the earlier part of our order we have extracted relevant
provision, viz., Instructions, etc. to Candidates as well as the Information
Brochure of the Tamil Nadu Public Service Commission, we hold that the terms and
conditions of Instructions, etc. to Candidates and Information Brochure have the
force of law and have to be strictly complied with. We are also of the view
that no modification/relaxation can be made by the Court in exercise of powers
under Article 226 of the Constitution of India and application filed in
violation of the Instructions, etc. to Candidates and the terms of the
Information Brochure is liable to be rejected. We are also of the view that
strict adherence to the terms and conditions is paramount consideration and the
same cannot be relaxed unless such power is specifically provided to a named
authority by the use of clear language. As said at the beginning of our order,
since similar violations are happening in the cases relating to admission of
students to various courses, we have dealt with the issue exhaustively. We make
it clear that the above principles are applicable not only to applications
calling for employment, but also to the cases relating to the admission of
students to various courses. We are constrained to make this observation to
prevent avoidable prejudice to other applicants at large."

17. In the impugned order, the respondent only reiterates the clause
contained in the instructions to candidates, which the petitioners also
undertook to abide by while filling their application forms. They have
participated in the examination, attended interview and also subjected
themselves for selection after accepting all the terms and conditions.
18. Whether a person accepting the conditions contained in the norms for
selection can challenge the said conditions after participating in selection,
came up for consideration before the Supreme Court in the decision reported in
AIR 1998 SC 795 (Union of India and another v. N.Chandrasekharan and others),
wherein in paragraph 13 it is held thus,

"13. We have considered the rival submissions in the light of the facts
presented before us. It is not in dispute that all the candidates were made
aware of the procedure for promotion before they sat for the written test and
before they appeared before the Departmental Promotion Committee. Therefore,
they cannot turn around and contend later when they found they were not selected
by challenging that procedure and contending that the marks prescribed for
interview and confidential reports are disproportionately high and the
authorities cannot fix a minimum to be secured either at interview or in the
assessment on confidential report. ......."
19. The principle of estoppel is considered by the Honourable Supreme
Court in various decisions.
(i) In the decision reported in AIR 1978 SC 28 (I.L.Honnegouda v. State
of Karnataka and others) the Honourable Supreme Court held thus,
"In view of our judgment in Appeals Nos.883 and 898 to 905 of 1975 :
(Reported in AIR 1977 SC 876) which has just been delivered and the fact that
the appellant acquiesced to the 1970 Rules by applying for the post of the
Village Accountant, appearing before the Recruitment Committee for interview in
1972 and 1974 and taking a chance of being selected, the present appeal which
questions the constitutionality of Rules 4 and 5 of the 1970 Rules cannot be
allowed. It is accordingly dismissed but without any order as to costs."
(ii) In 1986 (Supp) SCC 285 (Om Prakash Shukla v. Akhilesh Kumar Shukla)
in paragraph 24, the Honourable Supreme Court held thus,
"24. Moreover, this is a case where the petitioner in the writ petition
should not have been granted any relief. He had appeared for the examination
without protest. He filed the petition only after he had perhaps realised that
he would not succeed in the examination. The High Court itself has observed that
the setting aside of the results of examinations held in the other districts
would cause hardship to the candidates who had appeared there. The same
yardstick should have been applied to the candidates in the district of Kanpur
also. They were not responsible for the conduct of the examination."

(iii) In AIR 1995 SC 1088 = (1995) 3 SCC 486 (Madan Lal v. State of Jammu
& Kashmir), (SCC p.9) it is held thus,
"9. ........ The petitioners also appeared at the oral interview conducted
by the Members concerned of the Commission who interviewed the petitioners as
well as the contesting respondents concerned. Thus the petitioners took a chance
to get themselves selected at the said oral interview. Only because they did not
find themselves to have emerged successful as a result of their combined
performance both at written test and oral interview, they have filed this
petition. It is now well settled that if a candidate takes a calculated chance
and appears at the interview, then, only because the result of the interview is
not palatable to him, he cannot turn round and subsequently contend that the
process of interview was unfair or the Selection Committee was not properly
constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla (AIR 1986
SC 1043) it has been clearly laid down by a Bench of three learned Judges of
this Court that when the petitioner appeared at the examination without protest
and when he found that he would not succeed in examination he filed a petition
challenging the said examination, the High Court should not have granted any
relief to such a petitioner."
(iv) The above said decisions of the Supreme Court were followed by the
Full Bench of this Court in the decision reported in AIR 2000 MADRAS 174
(R.Murali v. R.Kamalakkannan)(FB) and in paragraph 55, question No.2 was
answered thus,
"Question No.2: We hold that writ petitioners are not entitled to
challenge the selection after having participated in the written examination on
the principle of estoppel."

20. The above referred judgments are followed in a recent decision of a
Division Bench of the Principal Bench at Madras in (2007) 5 MLJ 648 (Indian
Airlines Ltd. v.K.Narayanan), wherein the contention of the management therein
that person participated in selection in terms of the notification are estopped
from challenging the mode of selection or the conditions contained in the
instructions/rules was upheld.

21. In the cases on hand, petitioners are not justified in contending
that the Government, having granted time to complete the course and permitted
them to join duty immediately on completion of the course. As already stated the
said relaxation is contrary to the notification as no authority is vested with
the power as per the said notification. The very same issue is answered in 2006
WLR 574 (cited supra) and in paragraph 25 it is clearly stated that 'we are also
of the view that strict adherence to the terms and conditions is paramount
consideration and the same cannot be relaxed unless such power is specifically
provided to a named authority by the use of clear language'. If such power is
stated in the notification similarly placed persons i.e., persons who were
undergoing P.G.Degree Course and persons, who were awaiting to join P.G.Degree
Course could have also applied and participated in selection and availed similar
relaxation of Rule 21(a). Hence the relaxation granted, contrary to the
conditions contained in the instructions to candidate is violative of Articles
14 and 16 of the Constitution denying equal opportunity to similarly placed
persons.

22. In the light of the above conclusion, I am of the view that there is
no merit in the writ petition and the same is dismissed in limine. Connected
miscellaneous petitions are also dismissed.


vr

To

The Director of Public Health & Preventive Medicine,
Chennai - 6.

High Court paves way for filling vacancies in PHCs

From http://www.hindu.com/2008/02/13/stories/2008021352510300.htm

For earlier news, please see Extension of Joining Time Illegal - Chennai High Court

Relaxation granted for candidates selected in 2006 held invalid

MADURAI: The Madras High Court has paved the way for filling 469 vacancies of Assistant Surgeon in primary health centres (PHCs) across the State as