The petitioner was appointed as Lab Technician Grade-II by order dated 21.08.95 by the 2nd respondent/the Joint Director of Health Services, Sivagangai. In view of his order of appointment posting the petitioner in Government Maruthupandiar Hospital, Thiruppathur in one of the existing vacancies, the petitioner joined duty on 25.08.95. Thereafter, on 18.09.97, she was also transferred to Government Hospital, Singampunair in the same Sivagangai District. After the petitioner was allowed to continue for about 5 years with continuity of service, she also received incentive increment.
2. The learned counsel appearing for the petitioner claims that the petitioner was deemed to have been regularised on the basis of her continuous service of 5 years. But, all of a sudden, the 1st respondent/the Director of Medical and Rural Health Services, Chennai, without giving any prior notice, terminated the service of the petitioner, by order dated 02.05.2000. In view of the termination order, the 3rd respondent also relieved the petitioner from her duties. Therefore, it was contended by the learned counsel for the petitioner that the impugned order passed by the 1st respondent is liable to quashed on the basis of the violation of principles of natural justice. Further, it was contended that no charges were framed against the petitioner and she was not given any opportunity before terminating from the service of the respondent. Therefore, the impugned order is offending
Article 311 of the Constitution of India and on that basis, prayed for setting aside the impugned order.
3. Per contra, learned counsel appearing for the respondents submits that after the appointment of the petitioner as Lab-technician Grade-II by the 2nd respondent, the petitioner joined duty on 25.08.95 and thereafter, when the proposal for regularisation of the services of the petitioner was received in November'99, it was noticed that the 2nd respondent had temporarily appointed the petitioner as Lab-technician Grade-II at Government Hospital, Tirupatthur, which is grossly violating the existing ban orders imposed by the Government for making entry level appointment. It was further noticed that there were some irregularities in the process of selection of the petitioner and after examining the whole issue, the services of the petitioner came to be terminated from her temporary services through the impugned order. Therefore, it was further contended that since the appointment of the petitioner was made during the currency of ban order dated 12.06.95 by G.O.Ms.No.179, the termination of the petitioner on the basis of the ban order cannot be questioned by the writ petitioner in the present writ petition and on that basis, prayed for dismissal of the writ petition.
4. Heard the learned counsel appearing on either side and perused the materials available on record.
5. The petitioner was sponsored by the District Employment Exchange, Sivaganga, in letter Ref.No.X2/116/95, dated 11.08.95. Subsequently, she was also attended the interview held by the respondents and thereupon, she got selected in the interview. Finally, the petitioner was appointed as Lab-technician Grade-II, by the 2nd respondent/the Joint Director of Health services, Sivgangai, in his proceedings Ref.No.7767/E2/95, dated 21.08.95, posting in an existing vacancy at Government Maruthupandiar Hospital, Thiruppathur, which indicates that the petitioner through sponsorship from the Employment Exchange, Sivaganga, came to be appointed through proper interview and selection held by the respondents. Thereafter, the petitioner joined duty on 25.08.95 in Government Maruthupandiar Hospital, Thirupathur. After serving for about two years, the respondent also transferred the petitioner on 18.07.97 to another Government Hospital at Singampunair in Sivgangai District. On completion of her 5 years continuous services, she was also given incentive increment, which is normally given to the regular employees. Whileso, all of a sudden, the 1st respondent, without giving any prior notice and without giving any opportunity to explain as to why her services to be terminated, by violating the principles of natural justice, issued the impugned order terminating the services of the petitioner, by his proceedings Ref.No.123401/E5/4/99, dated 02.05.2000. The reasons stated for terminating the services of the petitioner is that the appointment of the petitioner was made against the ban order issued by the Government in G.O.Ms.No.179, Personnel and Administrative Reforms Department, dated 12.06.95, banning the entry level of appointments. The said GO was communicated to all the Joint Director of Health services in the State, duly instructing them not to resort to any fresh appointment, whatsoever except on compassionate ground. In spite of the instructions, the 2nd respondent/the Joint Director of Health Services, Sivagangai, had temporarily appointed the petitioner as Lab-technician Grade-II. As it is violating the Government ban order, the appointment of the petitioner was sought to be terminated, cannot be easily accepted for a moment. The reason being that the petitioner was recruited through the Employment Exchange from the District Employment Exchange at Sivagangai.
6. Had the 2nd respondent not requested the District Employment Exchange at Sivagangai for sponsoring qualified candidates for the post of Lab-technician, Grade-II, the petitioner would not have been sponsored and her seniority would have been continued in the live register of the District Employment Office and by this time, she could have been employed in any other office. Secondly, the termination order also has not been given with prior notice calling upon the petitioner to explain as to why her services should not be terminated.
Thirdly, the petitioner, after her sponsorship from the Employment Exchange, had completed 5 years of continuous services and therefore, it is the duty cast upon the respondent to recruit the qualified person in accordance with the rules, by taking into account whether there was any ban order in existence at the time of appointment like the petitioner. As the respondents have appointed the petitioner through Employment Exchange and allowed her to function for about 5 years, the impugned termination order passed without any prior notice, is violative of principles of natural justice and also offending
Article 311 of the Constitution of India.
7. Further, the Tribunal, while entertaining the Original Application in the year 2000, has granted the interim order of stay of the impugned termination order. By virtue of the said order, the petitioner was allowed to continue for about 10 years i.e., till 2010, put together, the petitioner has been working for about 15 years without any discontinuity in service.
8. In this context, it is useful to refer a judgment of the Hon'ble Supreme Court reported in (2003) 9 Supreme Court Cases 129 (UNION OF INDIA AND OTHERS V. K.P.TIWARI), wherein it is held that in as much as the respondent having been appointed and continuing in service for more than five years, it would not be appropriate to disturb that state of affairs by making any other order resulting in uprooting the respondent from his livelihood. Following the above said decision of the Supreme Court, this Court in W.P.No.19687 of 2006 by order dated 16.11.2006 has held that if any one appointed on compassionate ground is allowed to work for five years, after completion of five years, the said appointment cannot be cancelled, as it would otherwise affect the right of the person appointed and also his family, on that basis, by setting aside the impugned dismissal order, issued further direction to regularise the service of compassionate appointment. As this order was passed following a judgment of Supreme Court, I have also followed the above said order in another similar writ petition No.42681 of 2006 dated 22.06.2010.
9. In the light of above discussion and on the basis of the judgment of the Supreme Court mentioned supra, the impugned order, which is under challenge, is unsustainable. The petitioner has admittedly worked for the last 15 years and therefore, in view of the dictum of the Supreme Court, which is squarely applicable to the facts of this case, the impugned order is liable to be set aside. Accordingly the same is set aside and the writ petition is allowed. No costs.