SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Dr.P.Sudharsen vs The State Of Tamil Nadu on 10 January, 2020

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

1/11
http://www.judis.nic.in
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

2/11
http://www.judis.nic.in
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

3/11
http://www.judis.nic.in
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

4/11
http://www.judis.nic.in
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

5/11
http://www.judis.nic.in
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:-

6/11

http://www.judis.nic.in
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.

7/11
http://www.judis.nic.in
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

8/11
http://www.judis.nic.in
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

9/11
http://www.judis.nic.in
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

10/11
http://www.judis.nic.in
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

11/11
http://www.judis.nic.in

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation