S.Sivaguru Vs State of T.Nadu .

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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 4483-4485 OF 2013 [Arising out of SLP (C) NOS.24492-24494 OF 2010]

S. Sivaguru ...Appellant

VERSUS

State of Tamil Nadu & Ors. ...Respondents

WITH

CIVIL APPEAL NO. 4486 OF 2013 [Arising out of SLP (C) NO.25526 OF 2010]

R. Arulraj ...Appellant

VERSUS

K. Jagannathan & Ors. ...Respondents

WITH

CIVIL APPEAL NO. 4487 OF 2013 [Arising out of SLP (C) NO.25388 OF 2010]

S. Sivaguru ...Appellant

VERSUS

C. Selvaraj & Ors. ...Respondents

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Page 2

WITH

CIVIL APPEAL NO. 4488 OF 2013 [Arising out of SLP (C) NO.25417 OF 2010]

K. Krishnamurthy ...Appellant

VERSUS

Narasimhalu & Ors. ...Respondents

WITH

CIVIL APPEAL NO. 4489 OF 2013 [Arising out of SLP (C) NO.26159 OF 2010]

K.V. Srinivasan ...Appellant

VERSUS

S. Syed Ibrahim & Ors. ...Respondents

WITH

CIVIL APPEAL NO. 4490 OF 2013 [Arising out of SLP (C) NO.25442 OF 2010]

B. Kumar ...Appellant

VERSUS

Venkatramanan & Ors. ...Respondents

2

Page 3

WITH

CIVIL APPEAL NO. 4491 OF 2013 [Arising out of SLP (C) NO.566 OF 2011]

Govt. of Tamil Nadu & Anr. ...Appellants

VERSUS

Narasimhalu & Ors. ...Respondents

WITH

CIVIL APPEAL NO. 4492 OF 2013 [Arising out of SLP (C) NO.4572 OF 2011]

State of Tamil Nadu & Anr. ...Appellants

VERSUS

M. Padmanaban & Ors. ...Respondents

WITH

CIVIL APPEAL NO. 4493 OF 2013 [Arising out of SLP (C) NO.2179 OF 2011]

State of Tamil Nadu & Anr. ...Appellants

VERSUS

S. Sivaguru ...Respondent

3

Page 4

WITH

CIVIL APPEAL NO. 4494 OF 2013 [Arising out of SLP (C) NO.2188 OF 2011]

State of Tamil Nadu & Anr. ...Appellants

VERSUS

C. Selvaraj & Ors. ...Respondents

WITH

CIVIL APPEAL NO. 4495 OF 2013 [Arising out of SLP (C) NO.2183 OF 2011]

Secretary to Govt. Health & Family Welfare & Anr. ...Appellants

VERSUS

Venkatramanan & Ors. ...Respondents

WITH

CIVIL APPEAL NO. 4496 OF 2013 [Arising out of SLP (C) NO.2191 OF 2011]

State of Tamil Nadu & Anr. ...Appellants

VERSUS

O.M. Duraisamy & Ors. ...Respondents

4

Page 5

WITH

CIVIL APPEAL NO. 4497 OF 2013 [Arising out of SLP (C) NO.2196 OF 2011]

State of Tamil Nadu & Anr. ...Appellants

VERSUS

S. Sivaguru . ...Respondent

WITH

CIVIL APPEAL NO. 4498 OF 2013 [Arising out of SLP (C) NO.2194 OF 2011]

State of Tamil Nadu & Anr. ...Appellants

VERSUS

K.Jagannathan & Ors. ...Respondents

WITH

CIVIL APPEAL NO. 4499 OF 2013 [Arising out of SLP (C) NO.3485 OF 2011]

State of Tamil Nadu & Anr. ...Appellants

VERSUS

S.Syed Ibrahim ...Respondent

5

Page 6

WITH

CIVIL APPEAL NO. 4500 OF 2013 [Arising out of SLP (C) NO.15221 OF 2011]

J. Murthy ...Appellant

VERSUS

Government of Tamil Nadu & Ors. ...Respondents

WITH

CIVIL APPEAL NOS. 4501-4502 OF 2013 [Arising out of SLP (C) NOS.4710-4711 OF 2012]

K. Selvan & Ors. ...Appellants

VERSUS

State of Tamil Nadu & Ors. ...Respondents

WITH

CIVIL APPEAL NOS. 4503-4504 OF 2013 [Arising out of SLP (C) NOS.10939-10940 OF 2012]

T. Rajaraman ...Appellant

VERSUS

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Page 7

Venkatramanan & Ors. ...Respondents

WITH

CONTEMPT PETITION (C) NO. 133 OF 2012 IN

CIVIL APPEAL NO. 4498 OF 2013 [Arising out of SLP (C) NO.2194 OF 2011]

K.Jagannathan & Ors. ...Appellants

VERSUS

Mrs. Girija Vaidyanathan & Anr. ...Respondents

WITH

CONTEMPT PETITION (C) NO. 145 OF 2012 IN

CIVIL APPEAL NO.4492 OF 2013 [Arising out of SLP (C) NO.4572 OF 2011]

M. Padmanaban & Anr. ...Appellants

VERSUS

Mrs. Girija Vaidyanathan & Anr. ...Respondents

J U D G M E N T

SURINDER SINGH NIJJAR,J.

1. Leave granted in all the Special Leave Petitions.

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2. These appeals are directed against the common

judgment and final order dated 23rd July, 2010 passed by

the High Court of Judicature at Madras in Writ Petition

Nos. 23893 of 2006, 34401 of 2007, 8339, 12654, 14592,

17578, 25844 and 27982 of 2008 and Writ Appeal

No.312 of 2008 and connected misc. petitions. By this

order, the High Court dismissed the Writ Petition Nos.

23893 of 2006 and 34401 of 2007 and allowed the Writ

Petition No.17578 of 2008 filed by respondents 3 to 5

and also Writ Appeal No.312 of 2008.

3. Since the facts involved in the controversy in all the

appeals are common, we shall make a reference to the

facts as narrated by the High Court. This shall be

supplemented by any additions made by the appellants

in this Court.

4. The facts noticed by the High Court are that initially the

Health Department consisted of Multipurpose Health

Workers and Unipurpose Health Workers who were

engaged in various schemes for eradication of different

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diseases which were widespread throughout India. By an

order dated 29th September, 1982,

Unipurpose Workers were integrated as Multipurpose

Health Workers. On 4th November, 1988, there was a

subsequent integration of employees engaged in the

family welfare. Soon thereafter, statutory rules were

notified under the proviso to Article 309 by the G.O.Ms.

No.1507 dated 16th August, 1989 which were made

applicable to the Multipurpose Health Workers Scheme.

Under the rules, different Class I and Class II posts were

notified and their essential qualifications were

prescribed. The essential qualification for appointment to

the post of Multipurpose Health Assistant was SSLC and

long term Multipurpose Health Worker’s Training Course

Certificate or possession of Sanitary Inspector’s Course

Certificate and short term training course certificate from

multipurpose health workers training. It was further

provided that the candidates will have to acquire the long

time training course within five years from the date of

appointment. The essential qualifications were also

prescribed for all other posts. By an amendment dated

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19th November, 1990 (G.O.No.1984), the pay scales of

Multipurpose Health Assistant were re-fixed. On 13th

August, 1991, the Health and Family Welfare Department

by G.O. No.1123 prescribed the qualifications for

promotions of Multipurpose Health Supervisors as Block

Health Supervisors. Vide G.O.Ms. No.4 dated 4th January,

1993 some of the categories were added in the feeder

posts of Multipurpose Health Supervisor and Multipurpose

Health Workers. These rules were, however, applicable

only to those who joined the service under the Tamil

Nadu Public Health Services.

5. Again the Health and Family Welfare Department,

through G.O. No. 593 dated 11th September, 1995,

categorized Multipurpose Health Supervisors and

Multipurpose Health Assistants as Health Inspectors

Grade I and Grade II. The G.O. further provided that all

Multipurpose Health Assistants were to be promoted as

Multipurpose Health Supervisors provided they had

served on the post for 20 years and had crossed the age

of 50 years. This relaxation was given as a one time

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measure by upgradation of the post. It is pertinent to

mention here that the Multipurpose Health Assistants

promoted under this G.O. included the Unipurpose Health

Workers who had been absorbed pursuant to the

integration in 1982. The aforesaid G.O. No.593 was

challenged by certain aggrieved persons in Writ Petition

Nos. 17550 of 2006 and 25608 of 2006. Prior to this, the

rules were amended on 20th December, 1995 w.e.f. 6th

September, 1989 by G.O. No.782. It was, however, made

clear that the amendment shall not adversely affect

those who were holding the post prior to 16th August,

1989.

6. The inter se dispute between the parties in the present

appeals originated when the fact of successful

eradication of leprosy by the National Leprosy

Eradication Programme (NLEP) led to the integration of

the employees working in the said Scheme into the

Multipurpose Health Workers Scheme. The integration of

the Multipurpose Health Workers Scheme with the

Leprosy Eradication Scheme took place vide G.O. Ms.

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No.320, Health and Family Welfare (G-1) Department

dated 27th June, 1997. The G.O. sets out the rationale for

the integration as follows :-

“The National Leprosy Eradication Programme is in operation in Tamil Nadu from 1955. With the introduction of the Multi Drug Therapy (MDT) comprising these drugs. DAPSONE, RIFAMPCIN and CLOFAZIMINE, incidence of leprosy has been brought down considerably. Tamil Nadu has done a commendable work in the leprosy control Programme over the years. The prevalence of leprosy in Tamil Nadu was 118 per 10,000 in 1983 which has been reduced to 7 per 10,000. The reduction in prevalence rate for the last two years is not very significant. Recently, India hosted an International Meet on Eradication of leprosy and the Prime Minister has set a goal that the leprosy should be eradicated from India by 2000 A.D. The IWHO has also taken similar efforts globally. The eradication of leprosy means bringing down the prevalence rate to 1 per 10,000.”

7. Thus, the Government of India in 1990-91 had suggested

integration of leprosy services. It was felt that in order to

sustain leprosy services at the operational level, its

integration with the public health services will be

desirable. Integration would not result in abolition of

special services. On the contrary, specialized component

will continue to be available within the general health

services at the State and District level for planning and

evaluation, provision of training, technical supervision,

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advice, referral services and research. The purpose of

this integration would be to involve the Leprosy Field

Staff in Public Health Work and Health Inspectors in the

leprosy work, so that the leprosy inspector will cover a

population of 5,000 to 10,000 as against 25,000 which

was being covered at that time by the leprosy inspectors.

The Government of Tamil Nadu had also upon

considering, for quite some time, the question of

integrating the leprosy services with Multipurpose Health

Workers Scheme, under the Primary Health Care

Services, constituted a committee by the G.O.Ms. No.

1705 dated 18th December, 1996 to go into the various

aspects of integration and submit a report. The

recommendations submitted by the aforesaid Committee

were examined by the Government and accepted with

some modifications.

Thus, the G.O. (Ms.) No. 320 dated 27th June, 1997 was

issued integrating Leprosy Control Scheme with

Multipurpose Health Workers Scheme. The G.O. made

elaborate provisions with regard to: (i) the administrative

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control of the National Leprosy Eradication Programme,

which was to be vested with the Director of Public Health

and Preventive Medicine, who was to be responsible for the

implementation of the National Leprosy Eradication

Programme activities in the State. At the District level, the

Deputy Director of Medical Services (Leprosy) would be the

in-charge of the hospital based units and would be the

Programme Officer, assisted by Deputy Director (Health

Services), and (ii) the Salary and other components of the

programme staff. It was further provided that Salary and

other components of the programme staff under the control

of Deputy Director of Medical Services (Leprosy) will be met

from the existing allotment under Demand-18. Paragraph

4(vii) of the aforesaid G.O. was as under:-

“The posts of Health Educator, Non Medical Supervisor and Leprosy Inspectors re-designated as Health Inspector Grade IB are brought under the control of Director of Public Health and Preventive Medicine for programme implementation. However, separate seniority shall be maintained for these staff and the promotions of the respective categories will continue in the existing channals (sic).”

8. The other relevant clause would be 5(iv), which is as

under:-

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“Leprosy Inspectors: The Leprosy Inspectors will be redesignated as Health Inspector Grade IB and will be transferred to the Directorate of Public Health and Preventive Medicine. They will be posted to the Health Sub-Centres covering a population of about 10,000 one for 2 Health Sub-centres or at one for 5,000 population in problem areas. The scale of pay of this category of staff will continue to be in the existing scale of pay of Rs.1200-30-1560-40-2040. However, in order to protect their present emoluments they will be allowed special allowances of Rs. 50/- per month and the existing Health Inspector Grade I under the control of Director of Public Health and Preventive Medicine will be re- designated as Health Inspector Grade IA in the Scale of pay Rs.1350-30-1440-1800-50-2200. The Health Inspector Grade IB will attend to and undertake various Public Health activities as per the Job chart for Health Inspector Grade IA in Health Inspectors Grade IA and Grade II will also attend to Leprosy Control Work apart from their existing duties after necessary training. The Director of Public Health and Preventive Medicine will issue necessary further orders prescribing revised job chart for the Health Inspector Grade IA, Health Inspector Grade IB and Health Inspector Grade II.”

9. Similarly provision was made for absorption of Ministerial

staff in Clause 6 of the G.O. in the following terms:-

“Ministerial Staff: One of the two sections at the State Head quarters will be transferred to the Office of the Director of Public Health and Preventive Medicine to look after the service matters of the Leprosy staff other than those coming under Director of Medical and Rural Health Services. Further one Assistant will be transferred from the Office of the Deputy Director (Lep.) to the Deputy Director of Health Services in the Districts. The administrative control of the above staff will vest with the Director of Public Health and Preventive Medicine. The remaining ministerial staff sanctioned for Leprosy Control Programme will be transferred and posted to

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the institutions under the control of Director of Medical and Rural Health Services. The establishment matters of all the ministerial staff including the staff attached to the Director of Public Health and Preventive Medicine will, however, continue to be with the Director of Medical and Rural Health Services for the purpose of future promotions in the respective categories. The salary and allowances of the ministerial staff attached to the Director of Public Health and Preventive Medicine will be met from the existing budget allotment under Demand-10 Medical by Director of Public Health and Preventive Medicine. In respect of other ministerial staff salary and other allowances will be met by Director of Medical and Rural Health Services from the budget allotment under Demand-18 Medical.”

10. By Clause 8, even the transportation vehicles were

transferred as under:-

“The Government direct that the 102 vehicles along with drivers working in the Leprosy Control units shall be transferred to the Director of Public Health and Preventive Medicine.”

11. By Clause 10, all the Government buildings occupied

by the Government Leprosy Control Units were placed

under the control of the Director of Medical and Rural

Health Services along with the equipment and furniture

for expansion of Taluka hospitals, except in places where

the buildings were required for the office of the Deputy

Director of Health Services. Under Clause 11, the Director

of Public Health and Preventive Medicine was also

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directed to take immediate action to impart necessary

training to the leprosy staff in various public health

activities. Similarly, the Public Health staff was directed

to be trained in leprosy control activities. By Clause 13,

it was directed that the integration of the Leprosy Control

Programme with the Director of Public Health and

Preventive Medicine will take effect from 1st July, 1997. It

appears that upon issuance of the G.O., the merger was

completed by 1st August, 1997. It would be apparent

from Clause 5(iv) of the 1997 G.O. that the Leprosy

Inspectors were designated as Health Inspector Grade IB

and transferred to the Directorate of Public Health and

Preventive Medicine. They were to be paid according to

their existing scale of pay of Rs.1200-30-1560-40-2040.

In order to protect their present emoluments, they were

given special allowance of Rs.50/- per month. The

existing Health Inspectors Grade I under the control of

Director of Public Health and Preventive Medicine were

designated as Health Inspectors Grade IA. They were in

the pay-scale of Rs.1350-30-1440-1800-50-2200. It is

also apparent that the Health Inspectors Grade IB were to

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undertake various public health activities as per the job

chart for Health Inspector Grade IA. Furthermore, Health

Inspectors Grade IA and Grade II were to attend to

leprosy control work apart from their existing duties after

necessary training. Thereafter, the issue with regard to

the merger of the two categories of Health Inspectors

Grade IA and Grade IB into a single category was to be

examined at the time of the next Pay Commission. But it

appears that the issue was not examined in the official

Committee of 1998. From the above narration, it

becomes clear that there was complete integration of the

Leprosy Control Scheme with the Multipurpose Health

Scheme through the G.O.Ms. 320 dated 27th June, 1997.

Also, the fact that non-possession of Sanitary Inspector

Course by the Leprosy Inspectors was not viewed with

any serious concern is evident from the fact that the

1997 scheme was never challenged by the appellants.

12. Thereafter, the Director of Public Health and

Preventive Medicine in his letters dated 17th February,

2006 and 15th July, 2006 set proposals for

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redesignation of post of Health Inspectors Grade IB as

Health Inspector Grade I considering their length of

service in the department, without imparting any training

to them. He had suggested the aforesaid proposal for

administrative convenience. At the same time, the Public

Health Department Officials Association (Leprosy) had

been requesting the Government repeatedly for re-

designating them as Health Inspector Grade I. By letter

dated 24th January, 2006, the Government requested the

Director of Public Health and Preventive Medicine to send

the necessary detailed proposal for imparting in-service

training for a period of one week for all the Health

Inspectors Grade IB so as to re-designate them as Health

Inspectors Grade I. The proposal was also to include

detail of expenditure involved in the proposed training

and where the expenditure to be made out from the

leprosy funds.

13. At this stage, some employees filed a number of writ

petitions challenging the instructions issued in the

Government letter dated 24th January, 2006 in the High

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Court of Madras. In its order dated 20th January, 2007, in

M.P. Nos. 2 and 3 of 2006 in Writ Petition No. 23893 of

2006, the High Court directed that in redesignation made

by the respondents shall be subject to the writ petition.

At the same time, the High Court dismissed Writ Petition

No. 7892 and 7893 of 2006 on 22nd March, 2006 with the

observation that before any order is passed on the

proposal, the State shall consider the objections of the

petitioners therein. It appears that Writ Petition Nos.

6250 and 6251 of 2006 had also been filed at the

Madurai Bench of the Madras High Court in which a stay

order had been granted on 1st August, 2006. The stay

order was, however, vacated on 27th April, 2007. At the

same time, the Tamil Nadu Health Inspectors Association

had also given a representation raising their objection for

redesignation of the Health Inspector Grade IB as Health

Inspector Grade I.

14. Upon examination of the entire issue and taking into

account the necessity for the merger of the Leprosy

Control Scheme with Multipurpose Health Workers

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Scheme, the Government issued a further G.O. on 12th

October, 2007 accepting the proposals of the Director of

Public Health and Preventive Medicine to re-designate

the Health Inspector Grade IB as Health Inspector Grade I

for the purpose of administrative convenience and to

allow the scale of pay of Rs.4500-125-7000. The

aforesaid proposal was accepted through G.O.Ms. No.

382 dated 12th October, 2007. In this G.O., the rule

relating to the possession of the Sanitary Inspectors

Course (or) Multipurpose Health Worker (Male) Training

Course was relaxed in favour of these Health Inspectors

Grade IB to designate them as Health Inspector Grade I,

without affecting the rights of the existing Health

Inspector Grade I working in the Public Health

Department. The conditions of absorptions were

contained in Clause 6 of the aforesaid G.O. which is as

under:-

“The Government has therefore decided to accept the proposals of the Director of Public Health and Preventive Medicine to re-designate the Health Inspectors Grade-I(B) as Health Inspector Grade-I for the purpose of administrative convenience and to allow the scale of pay of Rs.4500-125-7000. The rule relating to possession of Sanitary Inspector Course (or) Multi Purpose Health Worker (Male) Training Course is relaxed in favour of these Health Inspectors

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Grade-I(B) to designate them as Health Inspector Grade I, without affecting the rights of the existing Health Inspector Grade-I working in Public Health Department. The Government accordingly issue the following orders:

i) The post of Health Inspector Grade-I (B) shall hereafter be designated as Health Inspector Grade-I and the scale of pay of Rs.4500-125-7000 be allowed to them from the date of issue of the order.

(ii) Fixation of pay in the revised scale of pay shall be allowed only from the date of issue of orders under FR 23 at the same stage if there is a stage or next stage if there is no such stage. They are eligible for monetary benefits only from the date of issue of the Government order.

(iii) The above re-designation is subject to the result of Writ Petition No.23893/06 pending in the High Court of Madras and Writ Petition Nos. 6250 & 6251/06 pending before the Madurai Bench of Madras High Court.

(iv) These re-designated Health Inspector Grade-I will be placed in the seniority list of Health Inspector Grade-I below the last person of the Health Inspector Grade-I already working in the Department. As the re-designation as Health Inspector Grade-I is given only from the date of issue of the order in relaxation of rule relating to possession of sanitary inspectors course, these re-designated Health Inspector Grade-I cannot claim seniority now or in future in the post of Health Inspector Grade-I from the date of their absorption in the Public Health Department as per G.O.Ms. No. 320 Health dated:27.6.1997.

(v) The re-designated Health Inspector Grade I cannot claim promotion to the post of Block Health Supervisor, and Technical Personal Assistant till the last person in the existing list of Health Inspector Grade I gets promotion as Block Health Supervisor, and Technical Personal Assistant. However, the existing promotion channel as Non-Medical Supervisor and Health Educator shall be allowed to them till their turn for promotion to the post of Block

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Health Supervisor, Technical Personal Assistant, comes as per their seniority.”

15. At this stage, the respondents, i.e., the employees of

the erstwhile Leprosy Control Scheme challenged the

Clauses No. 4 and 5 of Para 6 of the aforesaid G.O. in

Writ Petition Nos. 17578, 12654, 25844 and 27982 of

2008. Apart from the aforesaid challenge, the G.O.Ms.

No. 382 was also challenged by the present appellant in

Writ Petition No. 34401 of 2007.

16. It would be appropriate to notice here that the

Government of Tamil Nadu issued G.O.(Ms.) No. 73 dated

28 th February, 2008 , whereby the Director of Public

Health and Preventive Medicine was permitted to

implement the orders of the High Court dated 21st

November, 2007, wherein it was decided that only those

Health Inspectors Grade I who had the Sanitary Inspector

Course Certificate were entitled to be considered for

promotion to the next post of Block Health Supervisor.

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17. At the same time, the laboratory assistants, who were

promoted as Health Inspectors Grade I; and the directly

recruited Multipurpose Health Assistants, who were

promoted as Health Inspectors Grade I filed a batch of

writ petitions viz. Writ Petition Nos. 2249, 10807, 17550

and 25608 of 2006 and 8987, 8988 and 9185 of 2007

with a prayer to restrain the department from drawing

the panel for the post of Block Health Supervisor by

including the names of Health Inspectors Grade I, who

did not possess either Sanitary Inspector Course

Certificate or Multipurpose Health Course Certificate. It is

pertinent to note here that the Unipurpose Health

Workers who got absorbed into Multipurpose Health

Scheme in 1988 and were made Health Inspectors Grade

I in 1999 did not possess the aforesaid certificates and

this very fact was the grievance made against the said

Unipurpose Health Workers. The petitioners in the

aforesaid bunch of writ petitions were in possession of

the said certificates. It was their case that since

Unipurpose Health Workers were promoted as Health

Inspectors Grade I as a one time measure after

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completing 20 years of services, they were not entitled to

further promotion on the post of Block Health Supervisor.

Their promotion was, therefore, sought to be challenged

on the twin grounds that : (i) they did not possess the

necessary certificate and (ii) they were already recipients

of the benevolence of the Government in that they had

been given promotion as Health Inspectors Grade I as a

one time measure. A Single Judge of the High Court

allowed the aforesaid Writ Petition on 21st November,

2007 accepting both the grounds raised in the writ

petition. As noticed above, the Government accepted

and implemented the aforesaid order of the learned

Single Judge, through G.O.Ms. No. 73 dated 28th

February, 2008. The aforesaid G.O. now prompted the

Health Inspector Grade I (Erstwhile Unipurpose Health

Workers), who were not in possession of the required

certificate to challenge the same. They filed Writ Petition

No. 8339 and 1459 of 2008 with a prayer for quashing

the aforesaid G.O.Ms. No. 73. The same category also

filed Writ Appeal No. 312 of 2008 challenging the order

dated 21st November, 2007, passed by the Learned

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Single Judge, which had been implemented by the

Government by issuing G.O.Ms. No. 73 of 28th February,

2008. All these matters were taken up for consideration

by the Division Bench of the Madras High Court and

decided vide judgment dated 23rd July, 2010. The

aforesaid judgment has been challenged in the following

Civil Appeals:-

Civil Appeal No.4491of 2013 arising out of SLP (C) No.

566 of 2011, Civil Appeal No. 4492 of 2013 arising out

of SLP (C) No. 4572 of 2011, Civil Appeal No.4493 of

2013 arising out of SLP (C) No. 2179 of 2011, Civil

Appeal No.4495 of 2013 arising out of SLP (C) No.

2183 of 2011, Civil Appeal No.4494 of 2013 arising out

of SLP (C) No. 2188 of 2011, Civil Appeal No.4496 of

2013 arising out of SLP (C) No. 2191 of 2011, Civil

Appeal No.4498 of 2013 arising out of SLP (C) No.

2194 of 2011, Civil Appeal No.4497 of 2013 arising out

of SLP (C) No. 2196 of 2011, Civil Appeal No.4499 of

2013 arising out of SLP (C) No. 3485 of 2011, Civil

Appeal No.4483 of 2013 arising out of SLP (C) No.

24492 of 2010, Civil Appeal No.4484 of 2013 arising

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out of SLP (C) No. 24493 of 2010, Civil Appeal

No.4485 of 2013 arising out of SLP (C) No. 24494 of

2010, Civil Appeal No.4487 of 2013 arising out of SLP

(C) No. 25388 of 2010 and the connected appeals

being Civil Appeal No.4486 of 2013 arising out of SLP

(C) No. 25226 of 2010, Civil Appeal No.4488 of 2013

arising out of SLP (C) No. 25417 of 2010, Civil Appeal

No.4489 of 2013 arising out of SLP (C) No. 26159 of

2010, Civil Appeal No.4490 of 2013 arising out of SLP

(C) No. 25442 of 2010, Civil Appeal No.4500 of 2013

arising out of SLP (C) No. 15221 of 2011, Civil Appeal

No.4501-4502 of 2013 arising out of SLP (C) No. 4710-

4711 of 2012 and Civil Appeal No.4503-4504 of 2013

arising out of SLP (C) No. 10939-10940 of 2012.

18. By the impugned judgment, the Division Bench of the

High Court has held that even though Unipurpose Health

Workers had been given a concession of one time

promotion, it would not act as an embargo on their

subsequent promotion. Furthermore, the requirement of

possession of certificate was waived only for absorption

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of Unipurpose Health Workers as Multipurpose Health

Assistants. Thereafter, G.O.Ms. No. 4 dated 4th January,

1993 provided that the requirement of 5 years service as

Basic Health Workers, Vaccinators, Cholera Workers in

the Tamil Nadu Public Health Subordinate Service was

sufficient for promotion to the post of Health Inspector

Grade I. Similarly, 5 year’s service in the post of Health

Inspector Grade I was sufficient for promotion as Block

Health Supervisor. The High Court emphasised that Rule

nowhere contemplates that Health Inspector Grade I,

who did not possess the required certificate could not be

promoted as Block Health Supervisor. The only

requirement of the Rule was that for promotion as Block

Health Supervisor, the candidate shall have 5 year’s

service as Health Inspector Grade I. Consequently, the

judgment of the learned Single Judge was set aside and

G.O.Ms. No. 73 dated 28th February, 2008 was quashed.

It was made clear that those Health Inspector Grade I

who were not in possession of the Sanitary Inspector

Course Certificate or Multipurpose Health Workers

training Course Certificate are eligible for promotion to

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the post of Block Health Supervisor from the date on

which their juniors were promoted with all benefits.

19. The Division Bench thereafter turned its attention to

the main controversy between Health Inspector Grade I,

who had been re-designated as Health Inspector Grade IA

and Leprosy Inspectors, who had been re-designated as

Health Inspectors Grade IB. The High Court has accepted

the claim of the respondents that their absorption as

Health Inspector Grade I had to be given effect to w.e.f.

1st August, 1997. The aforesaid conclusion of the High

Court is based upon the rationale that upon integration,

the nature of duties and responsibilities performed by

Health Inspector Grade IA and Grade IB were one and the

same. The fact that Grade IA was enjoying a higher scale

of pay than the pay-scale of Inspector Grade IB was of no

relevance, for the purpose of equivalence of Posts.

Whilst allowing the claim of the respondents and

accepting that they have been absorbed as Health

Inspector Grade I w.e.f. 1st August, 1997, the High Court,

however, directed that they would be placed at the

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bottom of the seniority of serving Health Inspectors

Grade I as on 1 st August, 1997.

Consequently, the Writ Petitions Nos. 8339, 12654,

14592, 17578, 25844 and 27982 of 2008 and the writ

appeal in W.A.No.312 of 2008 were allowed. However,

Writ Petition Nos. 23893 of 2006 and 34401 of 2007 were

dismissed.

20. We have heard the counsel for the parties at great

length.

21. The first submission of Mr. P.P. Rao, the learned senior

counsel on behalf of the petitioner, is that the executive

instructions cannot supplant statutory rules and for the

redesignation of Health Inspectors Grade IB as Health

Inspectors Grade I an amendment in the relevant

statutory rules was necessary. He relies upon Sant Ram

Sharma Vs. State of Rajasthan & Ors. 1 in support of

this submission. This submission has been reiterated by

all the counsel for the appellants. Mr. S.

Gomathinayagam, relies upon the case of Prafulla 1 (1968) 1 SCR 111

3

Page 31

Kumar Das & Ors. Vs. State of Orissa & Ors. 2 ,

Pradip Chandra Parija & Ors. Vs. Pramod Chandra

Patnaik & Ors. 3 , Uday Pratap Singh & Ors. Vs. State

of Bihar & Ors. 4 and D.N. Sinha & Ors. Vs. State of

Bihar & Ors. [Civil Appeal No. 3671 of 1988].

22. The second contention of Mr. P.P. Rao is that the

academic qualifications prescribed for a post cannot be

relaxed and the length of experience cannot be a

substitute for educational qualifications prescribed

(Relies on: Syed Khalid Rizvi & Ors. Vs. Union of

India & Ors. 5 ; Suraj Prakash Gupta & Ors. Vs. State

of J & K & Ors. 6 ; R.S. Garg Vs. State of U.P. & Ors. 7 ;

Secretary, State of Karnataka & Ors. Vs. Umadevi

(3) & Ors. 8 and State of M.P. & Anr. Vs. Dharam

2 (2003) 11 SCC 614 3 (2002) 1 SCC 1 4 1994 Sup (3) SCC 451 5 (1993) Supp. 3 SCC 575 6 (2000) 7 SCC 561 7 (2006) 6 SCC 430 8 (2006) 4 SCC 1

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Bir 9 ). Thus, it has been pointed out that relaxation given

firstly vide G.O.Ms. No. 593 dated 11th September, 1995;

and then vide G.O. (Ms.) No. 382 dated 12 th October,

2007 with regard to the qualification of Sanitary

Inspector Course or Multipurpose Health Worker (Male) is

in violation of Articles 14 and 16 of the Constitution of

India. It is also pointed out that the relaxation amounts to

treating un-equals as equals. This submission was

reiterated by Mr. S. Gomathinayagam. The learned Addl.

Advocate General placed reliance upon Haryana State

Electricity Board & Anr. Vs. Gulshan Lal & Ors. 10

23. The learned counsel further pointed out that any such

relaxation, even if valid, can only be prospective in

application from the said order. However, the Division

Bench of the High Court has given retrospective effect to

G.O. No. 382 dated 12 th October, 2007. Thus,

the impugned judgment/order has in fact added to the

illegal benefit given to the respondents by the aforesaid

G.O. No.382. They have placed reliance upon the case of

9 (1998) 6 SCC 165 10 (2009) 12 SCC 231

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Nani Sha & Ors. Vs. State of Arunachal Pradesh &

Ors. 11 In addition, it is submitted that the Sanitary

Inspector Course is still available and that it is required

for promotion to the post of Block Heath Supervisor.

24.All the learned counsel have reiterated the submissions

of Mr. P.P. Rao that Court would not enforce negative

equality. In support of this submission they relied upon

Gurdeep Singh Vs. State of J & K & Ors. 12 ;

Secretary, Jaipur Development Authority, Jaipur Vs.

Daulat Mal Jain & Ors. 13 ; Gursharan Singh & Ors.

Vs. New Delhi Municipal Committee & Ors. 14 ; and

Shanti Sports Club & Anr. Vs. Union of India &

Ors. 15

25. Mr. Rao, Mr. Giri, Mr. Ganguly, learned senior counsel;

Mr. Poongkuntran, Ms. Mohanna and

Mr. S. Gomathinayagam, learned counsel, have 11 (2007) 15)SCC 406 12 1995 Supp. (1) SCC 188 13 (1997) 1 SCC 35 14 (1996) 2 SCC 459 15 (2009) 15 SCC 705

3

Page 34

submitted that no merger between the Health Inspector

Grade IB and Health Inspectors Grade I can be

considered to have had taken place. The fact that a clear

distinction was maintained with regard to the said posts

even after 1997 would show the lack of any merger.

Further, it cannot be overlooked that Leprosy Service was

not abolished. Also, the very fact that separate seniority

channel of promotion for the Leprosy Inspectors re-

designated as Health Inspectors Grade IB was

maintained, would show that there was no merger.

Mr. S. Gomathinayagam further points out that the High

Court’s order has resulted in giving double promotion to

the said Leprosy Inspectors on the basis of G.O.Ms. No.

382 dated 12.10.2007. Mr. Ganguly, learned senior

counsel, has relied upon Sanjay Kumar Manjul Vs.

Chairman, UPSC & Ors. 16 Besides, Mr. Giri, learned

senior counsel, has relied upon the case of R.K. Sethi &

Anr. Vs. Oil & Natural Gas Commission & Ors.17 in

support of the submission that there is no valid merger in

the present case.

16 (2006) 8 SCC 42 17 (1997) 10 SCC 616

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26. Premising her contentions on the aforesaid

submissions, Ms. Mohanna, learned counsel, pointed out

that the G.O.(Ms.) No. 320 dated 27 th June, 1997 which

culminated in effectuating the second integration was

never challenged by the Health Inspectors Grade IB,

though they claimed that the duties being performed by

them are similar to Health Inspectors Grade I. This,

according to her, cannot be the ground for equating the

post of Health Inspectors Grade IB with that of Health

Inspectors Grade I. Thus, the judgment of the High Court

is not correct insofar it has equated the aforesaid two

posts. It has also been argued by the learned Addl.

Advocate General that the latter G.O.Ms. No. 382 was a

consequential order based on earlier G.O. No. 320

and, therefore, writ petitioner(s) did not have any locus

standi to challenge the consequential order. Reliance has

been placed upon the case of Laxmi Rattan Cotton

Mills Limited. Vs. State of Uttar Pradesh & Ors. 18

18 (2009) 1 SCC 695

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27.Another submission is that the High Court wrongly

confused and intermingled the controversy relating to

promotions of employees involved in the first integration

with that of second integration. In this context, it was

pointed out that the resolution of the issue relating to

promotion under the G.O.Ms. No. 593 dated 11 th

September, 1995 of employees who initially joined after

1989 as the Multipurpose Health Assistants from various

Unipurpose Schemes have no relevance to the

controversy relating to the Leprosy Inspectors re-

designated as Health Inspector Grade IB, since both of

the said posts are borne on separate and distinct cadres.

It was also submitted that while allowing the Writ Appeal

No. 312 of 2008 which was filed by the employees who

were initially working as Unipurpose Inspectors, the High

Court did not go into the merits thereof. Furthermore, the

benefit given to the employees under the said writ

appeal was wrongly extended to the Leprosy Inspectors

re-designated as Health Inspectors Grade IB. Reliance

has been placed by Mr. S.

Gomathinayagam, in this context, upon the cases of T.

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Venkateswarulu Vs. Executive Officer, Tirumala

Tirupathi Devasthanams & Ors. 19 and Ghulam

Rasool Lone Vs. State of Jammu and Kashmir &

Anr. 20

28.Mr. Rao also submitted that the absorbed employees are

not entitled to count previous service in the earlier grade

for the purpose of seniority in the new cadre. Reliance

has been placed upon; K.C. Gupta & Ors. Vs. Lt.

Governor of Delhi & Ors.21; SK. Abdul Rashid &

Ors. Vs. State of Jammu & Kashmir & Ors. 22 ; and

Govind Prasad Vs. R.G. Parsad & Ors. 23

29. In reply, Mr. P.S. Patwalia, learned senior counsel for

the respondents, submits that the integration of Leprosy

Inspectors into the Department of Heath and Preventive

Medicine which took place vide G.O.(Ms.)No. 320

dated 27th June, 1997, was complete in all respects. 19 (2009) 1 SCC 546 20 (2009) 15 SCC 321 21 1994 Supp. (3) SCC 408 22 (2008) 1 SCC 722 23 (1994) 1 SCC 437

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According to him, this becomes clear from the detailed

instructions contained in the said G.O. The same

submissions have been reiterated by Mrs. Nalini

Chidambram, learned senior counsel. Both learned

senior counsel submitted that a policy decision to merge

two or more posts, cadres or services can be made

implemented/enforced through an executive

order/instructions as long as the executive order/or

instructions do not run counter to the Rules. [Reliance for

this submission was placed upon Indian Airlines

Officers’ Assn. Vs. Indian Airlines Ltd. & Ors. 24 and

Vinay Kumar Verma & Ors. Vs. State of Bihar &

Ors. 25 Mr. Jaideep Gupta, learned senior counsel, has

pointed out that the G.O. through which the integration

and merger has been ordered are in the nature of

executive instructions. These instructions have not

supplanted the statutory rules and are within the ratio of

Sant Ram Sharma (supra) and Dhananjay Malik &

Ors. Vs. State of Uttaranchal & Ors. 26

24 (2007) 10 SCC 684 25 (1990) 2 SCC 647 26 (2008) 4 SCC 171

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30. The next submission of Mr. Patwalia, which is

reiterated by the other learned senior counsel for the

respondents, is that since the second integration was

complete in all respects, the Leprosy Inspectors cannot

be discriminated against in consideration of their

eligibility for further promotion to the post of Block

Health Supervisor, on the ground of initial recruitment. In

other words, it has been argued that the “birthmark

disappears after integration into a single class or cadre.”

In this behalf, reliance has been placed upon: B.

Manmad Reddy & Ors. Vs. Chandra Prakash Reddy

& Ors. 27 ; S.L. Sachdev & Anr. Vs. Union of India &

Ors. 28 ; General Manager, South Central Railway,

Secunderabad & Anr. Vs. V.R. Siddhantti & Ors. 29 ;

and State of Mysore Vs. M.H. Krishna Murthy &

Ors. 30

27 (2010) 3 SCC 314 28 (1980) 4 SCC 562 29 (1974) 4 SCC 335 30 (1973) 3 SCC 559

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31. It has been also argued by Mr. Patwalia that it needs

to be appreciated that G.O. No. 382 dated 12th October,

2007 is in the nature of a clarification as it clarifies what

ought to have been done in G.O. No. 320 dated 27th June,

1997. He has emphasised that since the G.O. No.

320 did not re-designate the Leprosy Inspectors as

Health Inspectors Grade I in 1997, the 2007 order ‘sets

the mistake right’ of the State Government. He points out

that the 2007 G.O. itself speaks of the reasons for

rectifying the mistakes committed in the 1997 order.

Thus, the G.O. of 2007 merely reinforces the integration

of 1997. In this respect, Mr. Jaideep Gupta, learned senior

counsel, has gone even further and submitted that even

if it has to be assumed that the merger of the cadres

took place effectively only on the passing of G.O.Ms. No.

382 dated 12th October, 2007, the High Court was correct

in concluding that Leprosy Inspectors re-designated as

Health Inspectors Grade IB would be entitled to the

benefit of their service in the post of Health Inspector

Grade IB since 1997. Relying upon the law laid in K.

Madhavan & Anr. Vs. Union of India & Ors. 31 ; R.S. 31 (1987) 4 SCC 566

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Page 41

Makashi & Ors. Vs. I.M. Menon & Ors. 32 ; Wing

Commander J. Kumar Vs. Union of India & Ors. 33 and

Sub-Inspector Rooplal & Anr. Vs. Lt. Governor

Through Chief Secretary, Delhi & Ors. 34 ; it has been

contended that where persons from different sources are

merged into one service, their pre-existing total length of

service in the parent department has to be protected.

Their previous service cannot be obliterated upon

integration/merger.

32. Thus, it has been contented that the High Court has

rightly given the benefit to the Leprosy Inspectors

retrospectively from the date of second integration and

correctly placed them at the bottom of the seniority list

of the already existing Health Inspectors Grade I, with

effect from 27th June, 1997.

33. Mr. Patwalia has further submitted that the insistence

for qualification (Sanitary Inspector Course) for entry

32 (1982) 1 SCC 379 33 (1982) 2 SCC 116 34 (2000) 1 SCC 644

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Page 42

level/feeder post-Health Inspector Grade II for re-

designation of Leprosy Inspectors as Health Inspector

Grade I in 2007 is misplaced since the State Government

has passed a reasoned order to this effect, after

considering the report of the Special Committee

constituted for integration. He further submitted that

the argument of the appellants that since education

qualifications are different, nature of duties are different,

there cannot be any integration, has been specifically

rejected in the Indian Airlines Officers’ Assn. case

(supra). Similarly, the argument that the absorption

must be from the entry level in the new cadre was also

rejected in the aforesaid case. Further, since the Sanitary

Inspector Course has long been discontinued, it would be

an impossible condition to fulfill.

34. We may also notice here that the submission of

Mrs. Nalini Chidambram, learned senior counsel, that

since Rule 5 of Notification III under G.O.Ms. No. 1507

dated 16th August, 1989 does not mention the Sanitary

Inspector Course as a sine quo non for the post of Block

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Health Supervisor, the argument of the appellants that

possession of such a course is necessary is unfounded.

She has further submitted that the State Government is

estopped from raising such an objection in this Court

since before the High Court, it was admitted by the State

that Sanitary Inspector Course is not required to get

designated as Health Inspectors Grade I.

35.All the learned counsel for the respondents emphasised

that equity is in the favour of the respondents. It needs

to be appreciated, according to them, that Leprosy

Inspectors have lost the entire service from 1979-1989

till 1997. Also, that the State Government’s stand before

this Court is contradictory to that before the High Court,

which is not permissible in view of the law laid down in

Hari Bansh Lal Vs. Sahodar Prasad Mahto & Ors. 35

36. Besides, Mrs. Nalini Chidambram, learned senior

counsel, has submitted that the Health Inspectors Grade I

who were working as Health Inspectors Grade II before

the second integration never challenged the said 35 (2010) 9 SCC 655

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Page 44

integration and therefore, they are estopped from

contending that they should be ranked senior to Health

Inspectors Grade IB.

37. Mr. Jaideep Gupta further submitted that the question

of equation of posts does not depend merely on the fact

that both posts were in same or similar pay scales. There

are a number of other factors, namely, nature of duties,

responsibilities, minimum qualification, etc, which have

to be considered as a whole. In support of this

submission, he relied on Union of India & Anr. Vs. P.K.

Roy & Ors. 36

38. We have given considerable thought to the very

elaborate submissions made by the learned senior

counsel and the other counsel for all the parties. The

qualifications prescribed under the aforesaid rules for the

basic post of Health Inspector Grade II, were: (a) SSLC

Pass Certificate; (b) One year long term Multi Purpose

Health Worker (Male) Training Certificate; or (c) Sanitary

Course Certificate with Short Term Multi Purpose Health 36 (1968) 2 SCR 186

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Page 45

Worker (Male) Training Certificate. The aforesaid

provision contained in the Rules framed under Article 309

of the Constitution of India could not be amended by

executive instructions. We have no hesitation in

accepting the first submission of Mr. Rao that the

executive instructions can not supplant the statutory

rules, in view of the ratio of law laid down in the case of

Sant Ram Sharma (supra). The aforesaid ratio has

been reiterated by this Court on numerous occasions. It

is not necessary to make a reference to any of the

subsequent decisions as it would be a mere repetition of

the accepted ratio, noticed above. We are, however, of

the opinion that the ratio of law laid down in Sant Ram

Sharma’s case (supra) would not be applicable in the

facts and circumstances of this case. The qualification of

having passed the one year long term Multi Purpose

Health Worker (Male) Training Certificate or Sanitary

Course Certificate with short term Multi Purpose Health

Workers (Male) Training Certificate are the statutory

requirements for recruitment and appointment on the

post of Health Inspector Grade II. These qualifications

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Page 46

would, therefore, be possessed by some of the

incumbents on the promotional post of Health Inspector

Grade II being Multi Purpose Health Supervisor/ Health

Inspector Grade I as well. It is a matter of record that

even in the cadre of Health Inspector Grade II, there were

many incumbents who did not possess these

qualifications. There was a category of employees i.e.,

the direct recruit Health Inspectors Grade II who

possessed the aforesaid qualifications. There was the

other category i.e. Unipurpose Health Workers consisting

of Health Workers, Cholera Workers and Vaccinators, who

had entered the cadre of Health Inspector Grade II

without such qualifications. The requirement for having

the aforesaid qualifications on the post of Health

Inspector Grade II was waived by way of order G.O. Ms.

No. 1936 dated 29th September, 1982.

Thus, it is evident that the possession of the two

aforesaid qualifications was no longer considered a

requirement for appointment on the post of Health

Inspector Grade II. It is also a matter of record that the

possession of the aforesaid qualifications was not

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Page 47

prescribed for promotion to the post of Multi Purpose

Health Supervisor/Health Inspector Grade I. Notification

III issued under G.O.Ms. No. 1507 dated 16th August,

1989 provides for the following rules applicable to the

post of Multi Purpose Health Supervisor that :-

“ 2. Constitution The post shall constitute a distinct

category in Class –I of the said service.

3. Appointment:- Appointment to the post shall be made by promotion from the post of Multi Purpose Health Assistant under the Multi Purpose Health Workers Scheme.

4. Appointment Authority:-

The appointment authority for the post shall be the Deputy Director of Public Health and Preventive medicine

5. Qualification: Experience for a period of not less then five years in the category of Multi Purpose Health Assistant under the Multi Purpose Health Workers Scheme.

”

39. By virtue of the aforesaid provisions, many Health

Inspectors Grade II had been promoted as Health

Inspectors Grade I, without possessing the aforesaid

qualifications. It is also noteworthy, as admitted by the

State Government, that the Sanitary Inspector Course

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Page 48

was rescinded much prior to the issuance of the G.O. Ms.

No. 320 dated 27th June, 1997, thus there was no

opportunity for the Leprosy Inspectors to qualify for the

aforesaid Certificate. Yet the aforesaid G.O. provided

that since the Leprosy Inspectors do not possess the

aforesaid qualifications, they shall be designated as

Health Inspector Grade IB on integration with the post of

Multi Purpose Health Supervisor / Health Inspector Grade

I. In view of the aforesaid developments, Leprosy

Inspectors were fully eligible to be re-designated as Multi

Purpose Health Supervisor / Health Inspector Grade I. It

was wholly unnecessary, unjustified and unfair to re-

designate the Multi Purpose Health Supervisors as Health

Inspectors Grade IA and Health Inspectors Grade IB.

40. From the above, it becomes apparent that the G.O.Ms.

No. 320 dated 27th June, 1997 did not have the effect of

amending the rules. It is also clear that the aforesaid

G.O. did not supplant the statutory provisions. It is also

further clear that there was no relaxation of the

qualifications on the post of Multi Purpose Health

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Assistant (Health Inspector Grade II) or on the post of

Multi Purpose Health Supervisor (Health Inspector Grade

I). Therefore, in our opinion, upon integration of Leprosy

Inspectors into the cadre of Multi Purpose Health

Supervisors, the further categorization into Health

Inspector Grade IA and Health Inspector Grade IB was

wholly unjustified. It had no rational nexus with any

object sought to be achieved, and therefore, violated

Articles 14 and 16 of the Constitution of India.

41. We may notice here that under the G.O.Ms. No. 320

dated 27th June, 1997, Clause 7 had provided that the

post of Health Educator, Non-Medical Supervisor and

Leprosy Inspectors (re-designated as Health Inspector

Grade IB) were brought under the control of Director of

Public Health and Preventive Medicine. However,

separate seniority was to be maintained for the aforesaid

staff and the promotions of the respective categories will

continue in the existing channel. Therefore, till the

issuance of G.O.Ms. No. 382 dated 12 th

October, 2007, Leprosy Inspectors continued to be

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Page 50

promoted on the next higher post of Non-Medical

Supervisor and Health Educator. It is noteworthy that the

aforesaid G.O. Ms. No. 320 was not challenged and

Leprosy Inspectors were being promoted under separate

channels of promotion. Thus, it is evident that till the

issuance of the G.O. Ms. No. 382 of 2007, Health

Inspector Grade IA, who had been promoted from the

post /category of Health Inspector Grade I, had no

grievance with the integration through G.O.Ms. No.

320 dated 27th June, 1997.

42. In view of our above conclusions, we are unable to

accept the third submission of Mr. P.P. Rao and the other

learned counsel that there has been any relaxation with

regard to qualification of Sanitary Inspector Course or

Multi Purpose Health Workers (Male) Training Certificate

in violation of Articles 14 and 16 of the Constitution of

India. As noticed earlier by G.O. Ms. No. 593 dated 11th

September, 1995 did not, in any manner, concern the

Leprosy Inspectors. The aforesaid G.O. was only issued

for implementation of the G.O. Ms. No. 1936, Health and

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Family Welfare dated 29 th September, 1982,

with effect from 4th November, 1988 which was

implemented through G.O. Ms. No. 1507 dated 16th

August, 1989. The aforesaid relaxation was given to

remove stagnation to Multi Purpose Health Assistants,

who were not able to get any promotion even after

crossing the age of 50 years or having rendered 20 years

of service. It was specifically noticed in G.O. Ms. No. 593

dated 11th September, 1995 that possession of the Multi

Purpose Health Workers (Male) Training Certificate and

Sanitary Course Certificate with short term Multi Purpose

Health Workers (Male) Training Certificate was not a

precondition for absorption of Basic Health Workers,

Vaccinators, Cholera Workers as Multi Purpose Health

Assistants. Therefore, at the time when G.O. Ms. No. 320

was issued, the aforesaid qualifications were not

acquired. Even if required, the same had been duly

relaxed. Therefore, it would also not be possible to

accept the submission of Mr. Rao that the relaxation

given to the Leprosy Inspectors was either arbitrary or

discriminatory. The State was within its powers to relax

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the aforesaid qualification in exercise of its powers of the

Tamil Nadu State and Subordinate Services Rules, 1955.

Rule 48 of the aforesaid rules provides as under:-

“48. Notwithstanding anything contained in these rules or in the special rules, the Governor shall have power to deal with the case of any person or class of persons serving in a civil capacity under the Government of Tamil Nadu or of any person who has or of any class of persons who have served as aforesaid or any candidate or class of candidates for appointment to a service in such manner as may appear to him to be just and equitable:

Provided that, where any such rule is applicable to the case of any person or class of persons, the case shall not be dealt with in any manner less favourable to him or them than that provided by that rule.”

43. Therefore, the provision contained with regard to any

relaxation given to any of the categories under G.O. Ms.

No. 320 dated 27th June, 1997 and under G.O. Ms. No.

382 dated 12th October, 2007 being traceable to the

power under Rule 48 of the 1955 Rules can not be said to

be without any legal authority or jurisdiction. We,

therefore, reject the aforesaid submission of the counsel

for the petitioners also. We are of the opinion that in fact

injustice had been caused to the Leprosy Inspectors at

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Page 53

the time when G.O. Ms. No. 320 dated 27th June, 1997

was issued, which has been rectified by issuing G.O. Ms.

No. 382 dated 12th October, 2007. As noticed above,

the qualification of Multi Purpose Health Worker (Male)

Training Certificate, the qualification of Sanitary Course

Certificate with Short term Multi Purpose Health Worker

(Male) Training Certificate were not the required

qualification for appointment as Multi Purpose Health

Supervisors. These were also not the qualifications which

were required for being appointed as a Leprosy

Inspector. However, even though by the 1997

integration through G.O. Ms. No. 320 dated 27th June,

1997, the Leprosy Inspectors were equated with Multi

Purpose Health Supervisors, both categories were not

given the same designation. The Multi Purpose Health

Supervisors were designated as Health Inspector Grade

IA, while Leprosy Inspectors were designated as Health

Inspector Grade IB. The aforesaid categorization of

Leprosy Inspectors as Health Inspector Grade IB was

founded on a fallacy. It was wrongly assumed by the

State that Leprosy Inspectors could not be designated as

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Multi Purpose Health Supervisors as they did not possess

the necessary qualification for the basic post of Health

Assistants, i.e., Health Inspector Grade II. The mere fact

that Leprosy Inspectors were not placed in the feeder

cadre of Health Inspector Grade II makes it evident that

they were not required to possess the qualifications of

the basic posts. They were in fact from the very

inception being equated with the post of Multi Purpose

Health Supervisor (Health Inspector Grade I). It was not a

case of upgradation of the post of Leprosy Inspector to

the post of Multi Purpose Health Supervisor. The two

posts were equated. Leprosy Inspectors were transferred

and brought under the control of Director of Public Health

and Preventive Medicine for programme implementation.

On transfer, they were re-designated as Health Inspector

Grade IB. Inspite of the fact that the aforesaid two

qualifications of one year long term Multi Purpose Health

Workers (Male) Training Certificate and Sanitary Course

Certificate with short term Multi Purpose Health Worker

(Male) Training Certificate were not the essential

qualifications for appointment as Health Inspector Grade

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I, the post of Health Inspector Grade I was unnecessarily

split into Health Inspector Grade IA and Grade IB.

44. Learned counsel for the petitioner had also submitted

that relaxation even if valid can only be prospective in its

application. The aforesaid proposition of law also would

not be applicable in the facts and circumstances of this

case. We are of the opinion that injustice had been

done to the Leprosy Inspectors at the time of the 1997

merger/integration. In spite of a complete merger,

G.O.Ms. No.320 dated 27th June, 1997 still provided in

Paragraph 4 of Clause 7 of the G.O. that the incumbents

of the post of Health Inspector Grade IB, although

brought under the control of Director of Public Health and

Preventive Medicine for programme implementation shall

be placed in a separate seniority list, and the promotions

of the respective categories will continue in the existing

channels. Although Inspectors Grade IB were placed in a

lower pay scale, they were to attend various Public

Health activities as per the job chart for Health Inspector

Grade IA, in addition to Leprosy Control Programme.

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Similarly, Health Inspector Grade IA and Grade II were to

attend the Leprosy Control Work apart from their existing

duties after necessary training. It was made clear that

the Director of Public Health and Preventive Medicine will

issue necessary further orders prescribing revised job

chart for the Health Inspector Grade IA, Health Inspector

Grade IB and Health Inspector Grade II. Therefore, it

seems apparent that there was complete integration of

Leprosy Control Scheme with Multi Purpose Health

Workers Scheme with effect from 1st July, 1997 and the

process of integration was actually completed by 1st

August, 1997. As held in the case of P. K. Roy (supra),

an issue concerning the posts has to be considered from

a broader prospective, and it does not depend merely on

the salary of the employees. Broadly speaking, the

relevant factors could be: (i) the nature and duties of a

post, (ii) the responsibilities and powers exercised by the

officer holding a post; the extent of territorial or other

charge held or responsibilities discharged; (iii) the

minimum qualifications, if any, prescribed for recruitment

to the post; and (iv) the salary of the post. Further, it was

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also held in the aforesaid case that “if the earlier three

criteria mentioned above are fulfilled then the fact that

the salaries of the two posts are different, would not in

any way make the post 'not equivalent’.” Since the post

of Health Inspector Grade IB was for all practical

purposes equal to Health Inspector Grade IA, there was

no legal justification to continue the disparity in the pay

scales of Health Inspector Grade IA and Health Inspector

Grade IB. The High Court, therefore, rightly gave the

benefit of equation of post of Health Inspector Grade –IB

with that that of Health Inspector Grade IA from the date

of their integration, in 1997.

45. Having accepted the complete merger of the cadre of

Health Inspector Grade IB with Health Inspector Grade IA

and all being re-designated as Health Inspector Grade I,

G.O.(Ms.) No. 382 of 2007 failed to achieve the intended

result. It still discriminated against the erstwhile Health

Inspector Grade IB, by robbing them of service from 1997

to 2007. They were given the pay scale of Rs.4500-125-

7000 but from the date of the G.O.(Ms.) No. 382 of 2007

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i.e. 12th October, 2007. Further, they were placed en

bloc at the bottom of the seniority list of Health Inspector

Grade I. This denial of seniority was justified on the

ground that “as the redesignation of Health Inspector

Grade I is given only from the date of the issue of the

order in relaxation of rule relating to possession of

Sanitary Inspector Course, they can not claim0 the

benefit of service since integration on 27th June, 1997.”

The re-designated Health Inspector Grade I were also

denied promotion on the post of Block Health Supervisor

and Technical Personal Assistant till the last person in the

category of Health Inspector Grade I is promoted as Block

Health Supervisor. They were given the alternate route

of promotion as Non-Medical Supervisor and Health

Educator, till their turn comes for promotion, as per their

seniority.

46. Upon merger of the two posts, it was no longer

permissible to treat the re-designated Health Inspector

Grade IA differently from Health Inspector Grade IB.

Since 1997, all incumbents on the posts of Health

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Inspector Grade IA and Health Inspector Grade IB were

performing the same duties. There was intermixing of the

duties performed by the two categories of the Health

Inspector Grade IA and IB. Both the posts had lost their

original identity since 27th June, 1997, and formed one

homogenous cadre. Further, having relaxed the

qualifications on the basis of their length of service and

experience, they were at par with the Health Inspector

Grade IA. Thereafter, the State was not justified in

denying to the erstwhile Health Inspector Grade IB, the

same treatment as was given to Health Inspector Grade

IA. Therefore,0 the respondents could not have been

denied the benefit of service on the post of Health

Inspector Grade I from the date of the initial integration.

It would be appropriate to notice the ratio of law laid

down in the case of Sub-Inspector Rooplal (supra),

wherein it was inter-alia held that the previous service of

the transferred officials who are absorbed in an

equivalent cadre in the transferred post is permitted to

be counted for the purpose of determination of seniority.

It would be appropriate to notice here that Leprosy

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Inspectors re-designated as Health Inspector Grade IB

have not been granted the benefit of seniority in their

cadre from the date of their initial appointment. They

have been deprived of their service on the post of

Leprosy Inspector upto 27th June, 1997 when they were

integrated and re-designated as Health Inspector Grade

IB. However, upon merger w.e.f. 27th June, 1997, there

was no distinction in the services rendered by Health

Inspector Grade IA and Health Inspector Grade IB.

Therefore, in our opinion, the provision in G.O. (MS) No.

382 of 2007 not to grant the Health Inspectors Grade

IB/erstwhile Leprosy Inspectors the benefit of the service

from 1997 for determination of their seniority for

promotion to the post of Block Health Supervisor was

completely unjustified.

47. Thus, the High Court, in our opinion, was completely

justified in quashing Para 6(iv) and (v) of the G.O.(Ms.)

No. 382 of 2007. The High Court has correctly held that

the re-designated Health Inspector Grade I ought to have

been given the same scale of pay as Health Inspector

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Grade IA from the date of the merger. In fact, on that

date itself, the two posts should have been re-designated

as Health Inspector Grade I, enjoying the same scale of

pay, as all incumbents were performing the same duties

and shouldering the same responsibilities. It was not

permissible for the State to treat the re-designated

Health Inspector Grade I differently from the Health

Inspector Grade IA, on the basis of the initial source of

recruitment.

48. The birth mark was obliterated on the merger of the

post of Leprosy Inspector with Health Inspector Grade I.

There was no justification of putting Health Inspector

Grade IB in the pay scale of Rs.1200-2010, whilst Health

Inspector Grade IA was placed in the pay scale of

Rs.1350-2200. At the time of integration, both

categories had to be given the same pay scale i.e.

Rs.1350-2200. In this respect, the principle of law laid

down by this Court, time and again, is that a

classification based on the birth mark that stood

obliterated after integration of officers, coming from

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different sources into a common cadre/category, would

be wholly unjustified and discriminatory. This principle

was relied upon by this Court in the case of B. Manmad

Reddy (supra), wherein this court reiterated the

observations of this Court in Paragraph 5 of Roshan Lal

Tandon Vs. Union of India 37 :

"In our opinion, the constitutional objection taken by the petitioner to this part of the notification is well founded and must be accepted as correct. At the time when the petitioner and direct recruits were appointed to Grade D, there was one class in Grade D formed of direct recruits and the promotees from the grade of artisans. The recruits from both the sources to Grade D were integrated into one class and no discrimination could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to Grade C. To put it differently, once the direct recruits and promotees are absorbed into one cadre, they form one class and they cannot be discriminated for the purpose of further promotion to the higher Grade C."

49. Since G.O. Ms. No. 382 dated 12th October, 2007 was

issued to remove the injustice done to Leprosy Inspectors

at the time when G.O. Ms. No. 320 dated 27th June, 1997

was issued. We are unable to accept the submission of

37 (1968) 1 SCR 185

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Mr. Rao that any unjustified retrospective effect has been

given to the G.O. Ms. No. 382 dated 12th October, 2007.

Consequently, we also do not find any merit in the

submission of Mr. Rao that granting the benefit of service

to Health Inspectors Grade IB on the post of health

Inspector Grade I resulted in enforcement of a negative

equity. Therefore, the judgments relied upon by the

learned counsel would not be applicable in the facts and

circumstances of this case.

50. In view of the detailed reasons given above, we also

do not find any merit in the submission of the learned

counsel for the petitioners that there was not a complete

merger between the post of Leprosy Inspectors and Multi

Purpose Health Supervisor, by G.O. Ms. No. 320 dated

27th June, 1997.

51. We also do not find any substance in the submission of

the Additional Advocate General, that the erstwhile

Leprosy Inspectors have been given double benefit of

promotion as they still continue to enjoy original channel

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of promotion on the post of Non-Medical Supervisor and

Health Educator.

52. The promotion on the aforesaid posts were being

given to the Health Inspectors Grade IB only in view of

the wholly illegal prohibition contained in G.O. Ms. No.

320 of 1997.

53. These observations are fully applicable in the facts

and circumstances of this case.

54. We, therefore, find the submissions of the appellant to

be devoid of any merit. The High Court was justified in

quashing the Paras 6(iv) and (v) of the G.O.Ms. No.382.

The seniority of the respondent has to be fixed in the

cadre of Health Inspector Grade I by giving the benefit of

service from 27th June, 1997. Further, they are eligible to

be promoted on completion of 5 years service on the

post of Health Inspector Grade I, though, they can be

placed at the bottom of the seniority of serving Health

Inspector Grade I as on 1st August, 1997.

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55. We may also mention here about the extent of

interference of this court in matters relating to

integration or fusion of employees. This court held in the

Indian Airlines Officers Association’s case (supra)

that the matter of integration or the fusion of employees,

being one of policy, could not have been challenged by

the employees unless the said decision was arbitrary,

unreasonable or capricious. And as noticed earlier, that

none of the Government Orders vide which integration

was effectuated, suffers from any of the aforesaid

irregularities. The High Court has merely undone the

injustice done to the respondents. We are, therefore, not

inclined to interfere in the well reasoned order of the

Division Bench of the High Court.

56. We have given considerable thought to the law laid in

the judgments cited and relied upon by Mr. Rao, learned

senior counsel appearing on behalf of the petitioner.

57. However, none of the principles enunciated by this

Court in the judgments cited by the learned counsel for

the appellants have been infringed by any of the actions

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taken on the basis of G.O.Ms. No. 320 dated 27th June,

1997 and G.O. Ms. No. 382 dated 12 th October, 2007.

In our opinion, the High Court, in fact rightly quashed and

set aside the offending clauses of 6(iv) and 6(v) of G.O.

Ms. No. 382 dated 12th October, 2007.

58. At this stage, we may summarise the conclusions

recorded by us in the following manner:-

.i The integration of Leprosy Inspectors into the

Department of Health and Preventive Medicine by

G.O.Ms. No. 320 dated 27th June, 1997 was complete

in all respects.

.ii The aforesaid G.O. Ms. No. 320 dated 27th June, 1997

did not bring about an amendment in the Statutory

Services Rules contained in G.O. Ms. No. 1507 dated

16th August, 1989. The G.O.Ms. was supplementary

to the aforesaid Rules and did not supplant the same.

.iii There was no relaxation in the educational

qualification for the integration/re-designation of

Leprosy Inspectors as Multi Purpose Health

Supervisors as the post of Leprosy Inspector was

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equated with the post of Multi Purpose Health

Supervisor. The qualifications prescribed for

appointment on the post of Multi Purpose Health

Assistants re-designated as Health Inspector Grade II

were not applicable for the post of Multi Purpose

Health Supervisor.

.iv Since, there was a complete integration of the posts

of Leprosy Inspector and Multi Purpose Health

Supervisor by virtue of G.O.Ms. No. 320 dated 27th

June, 1997; both categories were entitled to the

same treatment. Therefore, Leprosy Inspectors re-

designated as Health Inspector Grade IB were

entitled to the pay-scale of Rs.1350-2000 w.e.f. 1st

August, 1997 and the pay-scale of Rs.4500-7000

w.e.f. the same were given to Health Inspector Grade

IA, with all consequential benefits.

.v Upon integration vide G.O.Ms. No. 320 dated

27th June, 1997, Multi Purpose Health Supervisors and

Leprosy Inspectors were to be re-designated as

Health Inspector Grade I. The birth mark of the

Leprosy Inspector got obliterated with the

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integration. There could be no further distinction in

the cadre of Health Inspector Grade I. There

could be no such division as Health Inspector Grade

IA and Health Inspector Grade IB.

.vi Since Paragraph 6(iv) and 6(v) of G.O.Ms. No. 382

dated 12th October, 2007 was in violation of Articles

14 and 16 of the Constitution of India, they have

been correctly struck down by the High Court.

.vii The denial of seniority to the re-designated Health

Inspectors Grade IB, i.e., erstwhile Leprosy Inspectors

on the post of Health Inspector Grade I w.e.f. 1st

August, 1997 to 12th October, 2007 violated Articles

14 and 16 of the Constitution of India. The Division

Bench of the High Court has correctly concluded that

the integrated Leprosy Inspectors, re-designated as

Health Inspector Grade IB are to be re-designated as

Health Inspector Grade I and to be given seniority as

well as consequential reliefs such as seniority and

further promotions.

.viii The provision contained in Clause 6(v) of G.O.Ms. No.

382 dated 12th October, 2007 denying promotion of

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the re-designated Health Inspector Grade I to the

post of Block Health Supervisor and Technical

Personal Assistant till the last person in the existing

list of Health Inspector Grade I gets promotion as

Block Health Supervisor and Technical Personal

Assistant, has been rightly held by the High Court to

be violative of Articles 14 and 16 of the Constitution

of India.

.ix The continuance of the existing promotion channels

as Non-Medical Supervisor and Health Educator to

the re-designated Health Inspector grade I (erstwhile

Leprosy Inspectors) did not amount to bestowing a

double benefit upon this category. Therefore, the

High Court did not enforce negative equality. The

High Court has correctly observed that upon

integration and merger into one cadre, the pre-

existing length of service of the Leprosy Inspectors

re-designated as Health Inspector Grade IB had to be

protected as it can not be obliterated. Therefore, the

Leprosy Inspectors have been correctly placed at the

bottom of the seniority list of the already existing

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Health Inspectors Grade I w.e.f. 27th June, 1997.

Therefore, it can not be said that benefit has been

given to the Leprosy Inspectors /Health Inspector

Grade IB /Health Inspector Grade I with retrospective

effect.

59. In view of the aforesaid conclusions, we find no merit

in any of the following Civil Appeals, i.e., Civil Appeal

No.4491 of 2013 arising out of SLP (C) No. 566 of 2011,

Civil Appeal No 4492 of 2013 arising out of SLP (C) No.

4572 of 2011, Civil Appeal No.4493 of 2013 arising out of

SLP (C) No. 2179 of 2011, Civil Appeal No 4495 of 2013

arising out of SLP (C) No. 2183 of 2011, Civil Appeal

No.4494 of 2013 arising out of SLP (C) No. 2188 of 2011,

Civil Appeal No.4496 of 2013 arising out of SLP (C) No.

2191 of 2011, Civil Appeal No.4498 of 2013 arising out of

SLP (C) No. 2194 of 2011, Civil Appeal No. 4497 of 2013

arising out of SLP (C) No. 2196 of 2011, Civil Appeal No.

4499 of 2013 arising out of SLP (C) No. 3485 of 2011,

Civil Appeal No.4483 of 2013 arising out of SLP (C) No.

24492 of 2010, Civil Appeal No.4484 of 2013 arising out

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of SLP (C) No. 24493 of 2010, Civil Appeal No.4485 of

2013 arising out of SLP (C) No. 24494 of 2010, Civil

Appeal No.4487 of 2013 arising out of SLP (C) No. 25388

of 2010 and the connected appeals being Civil Appeal

No.4486 of 2013 arising out of SLP (C) No. 25226 of

2010, Civil Appeal No.4488 of 2013 arising out of SLP (C)

No. 25417 of 2010, Civil Appeal No.4489 of 2013 arising

out of SLP (C) No. 26159 of 2010, Civil Appeal No.4490 of

2013 arising out of SLP (C) No. 25442 of 2010, Civil

Appeal No.4500 of 2013 arising out of SLP (C) No. 15221

of 2011, Civil Appeal No.4501-4502 of 2013 arising out

of SLP (C) No. 4710-4711 of 2012 and Civil Appeal

No.4503-4504 of 2013 arising out of SLP (C) No. 10939-

10940 of 2012. All of them are hereby dismissed.

60. Further, no need arises for passing a separate order in

the Contempt Petition No. 133 of 2012 in Civil Appeal

No.4498 of 2013 arising out of SLP (C) No. 2194 of 2011

and Contempt Petition No. 145 of 2012 in Civil Appeal

No.4492 of 2013 arising out of SLP (C) No. 4572 of 2011,

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as the said Contempt Petitions would be rendered

infructuous by this judgment.

……..….…………………J. [Surinder Singh

Nijjar]

………………………….J. [H.L. Gokhale] New Delhi; May 07, 2013.

7

S.SIVAGURU Vs STATE OF T.NADU .

S.SIVAGURU Vs STATE OF T.NADU .