Case against Contract Period

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(SPECIAL ORIGINAL JURISDICTION)

W.P.No. 4016 of 2008

1. Dr. Shyam Sundar Singh,
29, Thalavai Amman Koil Street,
Samathanapuram, Palayamkottai,
Tirunelveli – 627 002.

2. Dr. V. Sundarajan,
No.5 Yadava Street,
Udayar Patti,
Thirunelveli 627 001

3. Dr. V. Karthikeyan,
Plot No. 8, Bell Amorces Colony II,
Opposite to Court, Palayamkottai,
Thirunelveli – 627 002

4. Dr.K. Prakash Bose,
No. 8, Puladi Ramasamy Iyer Street,
South Gate, Madurai – 625 001. ..Petitioners


Vs.

1. The Government of Tamil Nadu,
Rep. by its Secretary to the Government,
Health and Family Welfare (B2) Department.
Fort St.George,
Chennai – 600 009.

2. The Director of Public Heath and Preventive Medicine,
1st Floor, DMS Building,
No.359, Anna Salai, Teynampet,
Chennai – 600 006.

3. Tamil Nadu Government Doctors Association,
Rep. by the State Secretary,
No.208, Government Rajaji Hospital,
Madurai-625 020 …Respondents

A. By GO 302 dated 20-11-2006 the government, in exercise of the powers conferred under rule 48 of the General rules contained in part II TN state and subordinate Service Rules in Vol I of the TN Service Manual relaxed rule 10 (a ) (1) of General Rules for TN state and subordinate Services to enable the government to appoint 153 contract medical officers and 1352 Contract medical Consultants temporarily as Assistant Surgeons without any exams being conducted, in the TN Medical Service pending passing of Special qualifying exam proposed to be conducted by the TNPSC for regularizing their services. This appointment was not done through the appointing Authority (Director of Public Health and Preventive Medicine, Chennai). However it is pertinent to note that the some doctors who were not even registered in Employment Exchange were given postings. Moreover a doctor who had registered later in one district was given posting before another doctor who had registered earlier in another district as appointments were made district wise. 

B. By GO No. 302 dated 20-11-2006 they were permitted to appear for the special TNPSC and they were appointed as Assistant Surgeons temporarily in the TN Medical Service in relaxation of rule 10(a) (1) of the General Rules. when the services of the contract doctors were regularized and they joined as permanent Assistant Surgeons in Tamil Nadu Medical Service. The Petitioners have no objection in the regularization of the services of the 153 contract medical officers and 1352 Contract medical Consultants . However even before GO No. 302 dated 20-11-2006, 213 contract doctors passed the TNPSC exam and pursuant thereto they were appointed as Assistant surgeons w.e.f from 29-06-2006.

C. But the Petitioners are aggrieved by the GO 95 dated 05-02-2008 by which the period prior to their appointment as Assistant Surgeon on 29-06-2006 after passing the TNPSC exam (excluding their leave period ) it has been stated that their services as contract doctors shall be taken into consideration in order only to apply for Post Graduate course as service candidates to fulfil the mandatory service of 3 years as on 31.03.2008. As already mentioned there are 213 such Assistant surgeons who fall under this category and will get the benefit of this GO. It has to be noted that the same GO states that medical officer should not claim the period prior to 29-06-2006 for retrospective regularisation of their services in the post of Assistant Surgeon. Thus while the working as contract medical officers during the period prior to 29-06-2006 is not taken note of for regularisation with retrospective effect it is arbitrary to take note of the period while they worked as contract medical officers prior to their regularisation of service ie 29-06-2006 (excluding their leave period) shall be taken into consideration in order only to apply for Post Graduate course as service candidates to fulfil the mandatory service of 3 years as on 31.03.2008. There is no rationale for giving the benefit of mandatory 3 year period to contract medical officers even before their services were regularised after qualifying in the TNPSC exam. The Petitioners qualified in the TNPSC exam much before the said Contract Medical Officers & Consultants and they cannot be asked to compete with persons who have not put in mandatory service of 3 years after qualifying in the TNPSC Exam. The petitioners are MBBS doctors who have been regularly appointed as Assistant Surgeons in the Tamil Nadu Medical Service after passing the TNPSC exam even in the year 2000. Thus permitting Assistant Surgeons appointed on 29-06-2006 and who have not put in 3 years of regular service after passing the TNPSC as on 2008 to write the PG entrance test along with Assistant Surgeons who passed the TNPSC in the year 2000 and got regularly appointed as Assistant Surgeons in the Tamil Nadu Medical Service in the year 2000 satisfying the 3 year mandatory requirement amounts to treating unequals as equals and thus violating article 14 of the Constitution. The GO 95 dated 05-02-2008 is liable to be set aside as violative of article 14 of the constitution.

D. The prospectus for the Post Graduate exams for 2008-2009 which is proposed to be conducted on 24.02.2008 has laid down a number of eligibility criteria among which doctors who are in Service and who have less than 3 years mandatory service after being selected by regular TNPSC would not be qualified as service candidates (CLAUSE 23). Besides that Clause 55 of the said Prospectus also lays down that Medical Officers selected by the TNPSC and appointed in Tamil Nadu Medical service on regular basis who have put in a minimum of 3 years continuous service as 31.03.2008 will be treated as Service candidates . The number of PG seats available for service candidates is approximately 250. Therefore it will highly prejudicial to the petitioners and similarly placed service candidates if around 213 contract doctors who do not have the mandatory 3 year after passing the TNPSC are being allowed to be considered as service candidates under the impugned G.O to compete with the Petitioners for the PG seats reserved for service candidates it will affect the chances of the petitioners in getting admission to PG Course. GO 95 dated 05-02-2008 is illegal in so far as it allows the said 213 contract medical doctors to write the PG exam as service candidate.

E. Even while the Contract doctors were appointed as medical officers and consultants they were clearly informed in G.O.No.197 dated 07-06-2004 and GO 31 dated 03-03-2005 that the contract appointee shall not claim any rights as a full time member of service since it was purely a contract appointment and the contract period shall not give entitlement to claim eligibility for admission to a post graduate course as a service candidate and that the contract appointee shall not be entitled to probationary or any other rights. Hence it is unreasonable to suddenly change the policy and take the period of contract employment for the purpose of the 3 year mandatory government service and make them eligible for the PG seats reserved for Service candidates having 3 years mandatory service while the 213 contract doctors passed theTNPSC  exam only in 2006 and got regularly appointed as Assistant Surgeon in Tamil Nadu Medical service only on 29-06-2006.Any change in policy should be informed by reason. No reason has been assigned to permit the 213 contract doctors to have the benefit of the contract period for reckoning the 3 year mandatory requirement of service except to state that the impugned G.O. has been passed based on the representation of the 3rd Respondent Association and the recommendation of the 2nd Respondent. The Impugned G.O is arbitrary and is liable to be set aside.