W.P.(MD) No.9212 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.01.2020
CORAM:
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
W.P.(MD) No.9212 of 2015
and
M.P(MD).Nos.2 and 3 of 2015
Dr.P.Sudharsen … Petitioners
vs.
1.The State of Tamil Nadu
Represented by its Secretary to Government
Health and Family Welfare Department
Secretariat
Chennai 600 009
2.The Secretary
Tamil Nadu Public Service Commission
Chennai
3.The Director of Public Health Preventive Medicine
Office of the Director of Public Health
Preventive Medicine
No.359, Anna Salai
Chennai 600 006
4.The Deputy Director of Health Services
Palani
Dindigul District … Respondents
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W.P.(MD) No.9212 of 2015
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
for issuance of writ of Certiorarified Mandamus, to call for the records
relating to the impugned order passed by the 3rd respondent in his
proceedings in R.No.24981/E5/A3/2013, dated 18.04.2013 and the
consequential order passed by the 2nd respondent vide his proceedings
memorandum No.6783/OTD-A4/2006 dated 19.01.2015 and quash the
same as illegal and consequentially to direct the 2nd respondent to publish
the result of the petitioner in the Special Qualifying Examination – 2007
for regularization of temporary service in the post of Assistant Surgeon in
the Tamil Nadu Medical Service and reinstate the petitioner as Assistant
Surgeon with all other consequential benefits.
For Petitioner : Mr.H.Mohamed Imran
For M/s.Ajmal Associates
For R1, R3 R4 : Mr.S.Dhayalan
Government Advocate
For R2 : Mr.K.K.Senthil
ORDER
The Writ petition has been filed to call for the records relating to
the impugned order passed by the 3rd respondent in his proceedings in
R.No.24981/E5/A3/2013, dated 18.04.2013 and the consequential order
passed by the 2nd respondent vide his proceedings memorandum No.
6783/OTD-A4/2006 dated 19.01.2015 and quash the same as illegal and
consequentially to direct the 2nd respondent to publish the result of the
petitioner in the Special Qualifying Examination – 2007 for regularization
of temporary service in the post of Assistant Surgeon in the Tamil Nadu
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W.P.(MD) No.9212 of 2015
Medical Service and reinstate the petitioner as Assistant Surgeon with all
other consequential benefits.
2. The case of the petitioner is that as per G.O(D).No.31, Health
and Family Welfare Department dated 03.03.2005, the Government
decided to fill up the vacancies of Medical Officers in all the Government
Health Institutions. The required qualification is M.B.B.S. degree duly
registered with Tamil Nadu Medical Counsel. The person who are
appointed under Rule 10(a)(i) will have to undergo Special qualifying Test
to be conducted by the respondents and their services would be
regularized upon successful participation in the Special Qualifying Test.
Accordingly, the petitioner was appointed as Assistant Surgeon on
18.03.2005 on consolidated pay purportedly under Rule 10(a)(i) of the
Tamil Nadu State and Subordinate Services Rules. Though the
appointments were made under Rule 10(a)(i) of the Tamil Nadu State and
Subordinate Services Rules, those appointments are only temporary in
nature and it was intended to be made as permanent by following the
above procedure. While appointing the petitioner, the communal
reservation was strictly adhered. In pursuance of the petitioner’s
appointment, the Government vide G.O.(Ms).No.302, Health and Family
Welfare (B2) Department, dated 20.11.2006 brought the petitioner and
similarly placed persons under the time scale of pay and decided to
absorb petitioner and similarly placed persons by conducting the special
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W.P.(MD) No.9212 of 2015
qualifying examination. While so, the petitioner also participated in the
Special qualifying examination and the results were published on
02.11.2008 where the petitioner’s name was withheld on account of
verification of the genuineness of his community certificate, for which, an
enquiry was conducted by the District Vigilance Committee and after
thorough verification, the Committee submitted its report holding that
the petitioner’s community certificate is genuine. Though the report of
the District Vigilance Committee was brought to the knowledge of the
second respondent, no action was taken to publish the petitioner’s result
of Special qualifying examination. In spite of his repeated request, the
second respondent did not publish the result. While so, there was a
difference of opinion between the petitioner and his wife and the same
was resulted in lodging a police complaint alleging demand of dowry. In
pursuance thereof, FIR was registered as against the petitioner in Crime
No.5 of 2013 for alleged offences punishable under Sections 498A and
506(i) I.P.C. The petitioner was directed to appear before the police
official for enquiry. Accordingly, he appeared on 16.03.2013 and he was
remanded to judicial custody. Subsequently, he was enlarged on bail vide
order dated 23.03.2013 by the Judicial Magistrate, Palani.
3.Be that as it may, the third respondent vide his proceedings in
R.No.24981/E5/A3/2013, dated 18.04.2013 terminated the petitioner
from service without any reason. Though the order of termination was
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W.P.(MD) No.9212 of 2015
said to have been passed under Rule 10(a)(v) of the Tamil Nadu State and
Subordinate Service Rule, no reason was assigned for termination. Under
this circumstance, the petitioner was constrained to file a Writ petition in
W.P(MD).No.8705 of 2013 to quash the order passed by the third
respondent, dated 18.04.2013 and with consequential direction to
regularize his service with all other consequential benefits. The said Writ
petition is still pending. The learned counsel for the petitioner would
submit that the second respondent by his impugned proceedings dated
19.01.2015 informed the petitioner that his provisional selection for the
post of Assistant Surgeon in the special qualifying examination has been
cancelled as his temporary service was terminated, since he has involved
in a criminal case. The petitioner’s result was earlier withheld for
pending verification of the genuineness of his community certificate. The
result of the community certificate was also furnished holding that the
petitioner’s community is genuine. Further, the criminal case foisted
against the petitioner was also withdrawn and as such the respondents
have no right to terminate the service of the petitioner. The action of the
respondents in terminating the petitioner’s service is wholly illegal.
Hence, the petitioner is before this Court and prayed for allowing this
Writ petition.
4.The learned counsel for the petitioner in support of his
contention relied on the order of this Court reported in (2012) 1 MLJ
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W.P.(MD) No.9212 of 2015
728 ( G.Selvin Stephen Vs. The Deputy Inspector General of
Police, Technical Services, Police Telecommunication Branch,
Chennai- 4) in which, paras 15 to 21 read as follows:
“15.As rightly contended by the learned counsel for
the petitioner, the mere involvement in a criminal case could
not be construed as misconduct. It is a different matter, if a
charge memo is issued on the same allegations, for which, a
criminal prosecution is also initiated. The allegation in the
charge memo is that he was shown as an accused in Crime
No.453 of 2001 under Section 420 of IPC on the file of
Ukkadam Police Station, Coimbatore. Among four witnesses
examined in the enquiry, the first and fourth witness
deposed about the registration of criminal case and the
arrest of the petitioner based on the complaint. Both the
witnesses 1 and 4 were police officials. The charge was not
that the petitioner had cheated one Venugopal to the tune of
Rs.1,80,000/- and the same Venugopal was not examined in
the enquiry.
16.On the other hand, the charge was that the
petitioner was an accused in the criminal case.
17.Therefore, in my considered view that mere
involvement in the criminal case could not be made as a
charge in a departmental proceeding.
18.As rightly contended by the learned counsel for the
petitioner, the Department could place the petitioner under
suspension during the pendency of the criminal case. Rule
3(e)(1) of the Rules is extracted in this regard as hereunder.
“3(e)(1) A member of service may be placed under
suspension from service, where:-
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W.P.(MD) No.9212 of 2015
(i)an enquiry into grave charges against him is
contemplated or is pending, or
(ii) a complaint against him of any criminal offence is
under investigation or he is under trial and if such
suspension is necessary in the public interest”
19.Further as rightly contended by the learned
counsel for the petitioner, if the Government employee is
convicted in a criminal case, the Department could proceed
against him under Rule 3(c)(i)(1) of the Rules.
20.Rule 3(c)(i)(1) of the Rules is extracted as here-
under:
“The requirement of sub-rule (b) shall not apply where
it is proposed to impose on a member of the service any
such penalty as is referred to in the Clause (i) of that sub-
rule on the basis of fact which have led to his conviction in a
criminal Court (Whether or not he has been sentenced at
once by such court to any punishment), but he shall be given
a reasonable opportunity of making any representation.
(G.O.Ms.No.2642, Home, dated 20.10.1982)”
21.As stated above, the Department is not helpless
and they could place him under suspension or they could
take a departmental action on the alleged charges, for
which, a criminal case is instituted. In this case, both did not
take place. It is stated that the criminal case is still pending.
Hence, the dismissal based on the second charge is bad and
illegal.”
where it has been found that mere involvement in the criminal case
itself could not be construed as misconduct.
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W.P.(MD) No.9212 of 2015
5.The learned Government Advocate appearing for the respondents
1, 3 4 and the learned counsel appearing for the second respondent
would submit that since the petitioner involved in a criminal case, his
service was terminated. Hence, they prayed for dismissal of this Writ
petition.
6.Heard the learned counsel appearing for the petitioner and the
learned Government Advocate appearing for the official respondents and
the learned counsel appearing for the second respondent.
7.Perusal of record shows that the result of Special Qualifying
Examination has been withheld only on account of verification of the
genuineness of the petitioner’s community certificate and after
conducting enquiry by the District Vigilance committee, it is seen that the
petitioner’s community certificate is genuine one. Hence, the petitioner
ought to have been appointed. On account of his difference of opinion
between the petitioner and his wife, a criminal complaint has been
lodged. Due to that, the petitioner was arrested and remanded to judicial
custody and subsequently, he was enlarged on bail. Now, the criminal
case against the petitioner was ended in acquittal and the complaint
lodged by his wife was also withdrawn and the same was enclosed in the
typed set of papers where the criminal case was ended in acquittal by an
order dated 29.01.2015 in C.C.No.225 of 2013 on the file of the learned
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W.P.(MD) No.9212 of 2015
Judicial Magistrate, Palani. Now, there is no impediment for the
respondents to reinstate the petitioner into service since the criminal
proceedings itself ended in acquittal. It is also seen that the result has
been withheld only on account of verification of community certificate
and the concerned District Vigilance Committee submitted its report
holding that the petitioner’s community certificate is genuine. Therefore,
there is no justification to keep him out of service by the respondents. In
view of the above, this Court is of the opinion that the action of the
respondents in terminating the petitioner’s service is wholly illegal.
Therefore, the impugned order passed by the third respondent dated
18.04.2013 and the consequential order passed by the second respondent
dated 19.01.2015 are set aside. The respondents are directed to publish
the result of the petitioner in the Special Qualifying Examination and to
reinstate him into service, within a period of twelve weeks from the date
of receipt of a copy of this order.
8.With the above directions, this Writ petition is disposed of. No
costs. Consequently, connected miscellaneous petitions are closed.
10.01.2020
Index : Yes / No
Internet: Yes / No
msa
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W.P.(MD) No.9212 of 2015
To
1.The Secretary to Government
State of Tamil Nadu
Health and Family Welfare Department
Secretariat
Chennai 600 009
2.The Secretary
Tamil Nadu Public Service Commission
Chennai
3.The Director of Public Health Preventive Medicine
Office of the Director of Public Health
Preventive Medicine
No.359, Anna Salai
Chennai 600 006
4.The Deputy Director of Health Services
Palani
Dindigul District
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W.P.(MD) No.9212 of 2015
J.NISHA BANU,J
msa
W.P.(MD) No.9212 of 2015
and
M.P(MD).Nos.2 and 3 of 2015
10.01.2020
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