The writ petitioner has come forward with the aforesaid prayer to issue a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order passed by the 4th respondent in proceedings K.Dis.No.1122/FW/A/2012-3 dated 01.10.2012 and quash the same and consequently direct the respondents to absorb him in regular time scale either as Driver or any other equivalent cadre in Basic Service as per the orders issued by the Government with all attendant and monetary benefits.
2. The case of the petitioner is that the petitioner and some other persons were employed through outsourcing in various hospitals all over the Tamil Nadu to look after the hospital services. The petitioner herein was appointed as a Driver by way of a proceedings dated, 20.05.2005 and he was posted in the Government Primary Health Center, Arudesam, Kanyakumari District. Subsequently, the Government took a policy decision to ban the contractual appointment through outsourcing. Thereafter also, the persons like the petitioner were permitted to work. Subsequently, they approached this Court by way of filing writ petitions in W.P.(MD).Nos.11780 to 11784 of 2011 seeking a mandamus directing the respondents to regularize their services. During the pendency of the writ petitions, without issuing any show-cause notice, their services were terminated. They brought the said fact to the attention of this Court and this Court passed an order on 26.04.2013, directing the third respondent to consider the representation of the petitioners therein and submit appropriate proposal on the petitioners' claim to the second respondent for examining the matter on merits and in accordance with law and for passing appropriate orders thereon as expeditiously as possible. It was also observed by this Court that even though this Court directed the representation of the petitioners to be considered, it does not mean that it would give some preference to them and their case would purely be considered on merits.
3. It is the further case of the petitioner that thereafter, similarly placed persons have approached this Court and this Court, vide order dated 02.07.2014, passed an order in W.P.(MD).Nos.15229 to 15531 of 2012, which was based on the earlier orders of this Court, dated 23.10.2009, passed in W.P.(MD).Nos.30105 to 30111 of 2008 and directed the respondents to consider the case of the petitioners for employment and allow them to discharge their regular duties as Hospital workers (Outsourcing Staff).
4.For better appreciation, the relevant paragraphs of the order dated 23.10.2009, are hereby extracted below:
"3. Mr.Ajay Ghosh, learned counsel for the petitioner brought to the notice of this Court in respect of other identically placed writ petitions disposed of granting certain directions. The learned counsel for the petitioner relied upon the judgment of this Court in (P.Sithan and others Vs. State of Tamil Nadu and others made in W.P.No.28761 in batch cases dated 04.12.2008), in disposing of those cases, this Court followed the earlier order obtained by similarly placed workman. In Para-4 of the order, this Court observed as follows:
"In view of the earlier orders there will be similar order in these cases also.
These writ petitions are disposed of giving direction to the fourth respondent to give preference to the petitioners based on their earlier engagement either as Contract Drivers / Sanitary Workers / Hospital Workers/Lab Assistants while appointing any fresh candidate. The fourth respondent is directed to consider the claim of the petitioners and if they are found qualified, they should be given priority taking note of their experience. The learned counsel for the petitioners submitted that there are vacancies now available. Hence, petitioners are directed to submit their application before the fourth respondent along with the experience certificate issued by the concerned medical officers to the fourth respondent, within a period of two weeks from the date of receipt of a copy of this order. The fourth respondent is directed to consider their claims even if their names are not sponsored by the employment exchange. It is made clear that since the petitioners are already engaged through outsourcing and performed the duties either as Drivers/Sanitary Workers/Hospital Workers/Lab Assistants, further sponsorship through employment exchange is not required to be made in so far as the petitioners are concerned. Writ Petitions are disposed of on the above terms."
2. In the light of the above, a similar direction is issued in the Writ petition also. Accordingly, the Writ Petition is disposed of on the above terms. No costs."
5. The learned Special Government Pleader appearing for the respondents submitted that the counter affidavit filed in the connected writ petition in W.P.(MD).No.126 of 2015 may be treated as counter to this case also. In the counter affidavit, it is stated that there is no agreement between the petitioner and the Government, that there is no employer and employee relationship with the third respondent and the petitioner, that the service certificate was issued to the petitioner only for the purpose of registering in Employment Exchange, as directed by the Government, and that the agreements between the Heads of Departments and the outsourcing agencies were not renewed after 2005.
6. The learned Special Government Pleader appearing for the respondents also submitted that the recruitment is being conducted only by the Medical Recruitment Board and that, at present, there are no vacancies.
7. In reply, the learned counsel for the petitioner submitted that the case of the petitioner may be considered in the light of both the guidelines and the earlier order of this Court (extracted supra) by giving a go-by to the sponsorship by Employment Exchange and the Relaxation of Rules if need be, with regard to age may also be considered.
8.At this stage, the learned Special Government Pleader appearing for the respondents also fairly submitted that as per the letter, of the 4th respondent dated 05.08.2014, the post of Driver is filled up only through the Medical Recruitment Board and as and when vacancy arises in the department, the persons like the petitioner would be given preference.
9.Per contra, the petitioner produced a copy of the communication dated 18.01.2016, obtained under the Right to Information Act, 2005, wherein, also it has been stated that the respondents are the competent authorities for the purpose of recruiting Drivers, Lab Attendants etc.,
10.In view of the contra submissions made herein above, it is not clear as to who is mainly responsible to recruit the persons like the petitioner. However, this Court do not want to go into this question at present.
11.A perusal of the impugned order of termination would reveal that it does not come in the way of the petitioner in considering his appointment against future vacancies. Therefore, a direction is issued to the respondents to consider the case of the petitioner for recruitment to the appropriate post on merits by relaxing the age, sponsorship through Employment Exchange. It is needless to state that the petitioner must be given preference, if he is found eligible, he may be given appointment order to the post of Driver.
12.With the above observation and direction, this writ petition is disposed of. There is no order as to costs. Consequently, connected M.P.(MD).No.2 of 2015 is closed.
To 1 THE PRINCIPAL SECRETARY TO GOVERNMENT STATE OF TAMILNADU HEALTH AND FAMILY WELFARE DEPARTMENT FORT ST. GEORGE, CHENNAI 600 009.
2 THE DIRECTOR OF PUBLIC HEALTH AND PREVENTIE MEDICINE D.M.S. COMPOUND TEYNAMPET CHENNAI 600 006.
3 THE DIRECTOR OF FAMILY WELFARE NO.2359 ANNASALAI , DMS COMPOUND TEYNAMPET CHENNAI 600 006.