Dr. J. Krishnamoorthy Vs. the State of Tamil Nadu, Rep. by the Secretary to Government, Rural Development Department, - Court Judgment

Excerpt:
- labour & services part time employee: [tarun chatterjee & h.s. bedi, jj] employee employed on part-time basis but under control and supervision of employer is a workman. he would be entitled to benefit of continuous service under section 25 and protection of section 25-f of i.d. act, 1947. orderr. sudhakar, j.1. the present batch of writ petitions have been filed by the rural medical officers working in the various dispensaries run by the panchayat unions in the of tamil nadu. such medical officers are appointed from persons who have the following qualification:(i)'a' special: bim, medical practitioners who have undergone special training for 4-1/2 years in a government recognised medical institution -registered after 1972.(ii)'a' class: lim. medical practitioners who have undergone training for 4 years in government recognised medical institutions and passed in the examination conducted by government approved board of examination. the registration has been abolished for lim from 1946 and icim from 1960.(iii)'b2' class: b-ii medical practitioners are those who have undergone special training for four years in government approved medical institutions / gurukulam and obtained diploma / certificate having 10 years of continuous practice and passed in the written and oral tests as per the government approved syllabus (siddha. ayurvedha, unani), this was followed from 1972 to 1982.(iv)'b1' class : b1 class practitioners are those who have undergone continuous training in ayurvedic system for four years in a government approved medical institutions and obtained certificate / diploma. they are not eligible to be appointed in the dispensaries of siddha or unani system.(v)'b' class : b class medical practitioners are those who have obtained certificate from tahsildar for practising for 10 years as hereditary medical practitioner.(vi)'c' class : c-class medical practitioners are those who have undergone 6 months training as village vaidyas in a district hospital. this has been abolished since 1954.in cases where 'a' glass registered practitioners are not available, b1, b2 and c glass registered hereditary siddha and homoeopathy medical practitioners are appointed. apart from the regular dispensaries, the panchayat unions, the town panehayats and townships also run rural dispensaries. in the rural dispensaries, the medical officers are appointed from b1, b2 and c class registered hereditary medical practitioners. by g.o. no. 2446, education and public health department (public health). 24.9.1937, the government granted permission to medical practitioners in-charge of rural dispensaries subject to approval by the presidents of local boards concerned to adopt 7 am to 10 am and 3 pm to 5 pm as working hours of rural dispensaries on week days instead of 7 am to 12 noon fixed by the earlier government order of the year 1935. by g.o.ms. no. 1300, rural development and local administration department, dated 22.5.1974. based on the representation from the panchayat union employees, the government allowed the pensionary and gratuity benefits applicable to government servants be also made applicable to the panchayat unions. town panehayats and panchayat township employees excluding the panchayat union teachers, with effect from 1.4.1974. by g.o.ms. no. 94. indian medicine and homoeopathy department, dated 31.10.1984, the government fixed the time-frame for working in the rural dispensaries as follows:the government may direct that the working hours of all the rural and regular dispensaries of indian (medicne run by the local bodies and by the government be fixed from 7.30 am to 10.30 am and from 3.00 pm to 5.00 pm and in respect of all the dispensaries functioning in hill stations from 8.30 am to 11:30 arn and from 3:30 pm to 5.30 pm.2 one dr. krishnamurthy, a registered medical practitioner in class b-ii in the register of medical practitioners, who was working as a medical practitioner in rural dispensary, appointed in 1876, approached the high court by filing w.p no 863 of 1989 praying for payment of salary in the time scale of pay with effect from the date of his appointment, the writ petition was allowed and the high court ordered payment of salary in time scale of pay with effect from 11.7.1985. the government as well as the individual rural medical officer filed writ appeals challenging the order of the single judge. the first bench of this court modified the order of the single judge by holding that arrears of pay according to pay scale fixed by the single judge shall be disbursed to the appellant-rural medical officer and similarly placed persons with effect from 1.10.1984. the high court held that b2 class registered medical practitioners are eligible for time scale of pay with effect from 1.10.1984. following the judgment, the government also issued orders in g.o.ms. no. 16, rural development department, dated 29.1.1996 allowing payment of salary in the time scale of pay with effect from 1.10.1984 to all the medical practitioners working in the rural dispensaries. after payment of salary as above. b1, b2 and c class registered medical practitioners were working in rural dispensaries as stated above. since the same has been categorised as a superior service, the authority, by letter dated 10.8.1988, clarified that as per f.r. 56(1)(a), the age of retirement of medical practitioners working in the rural dispensaries who are allowed time scale of pay as stated above, is on attaining the age of 58 years instead of 60 years which was in vogue prior to the time scale of pay granted to rural medical practitioners.3. it was contended by the respondents-department before this court on the earlier round of litigation that the petitioner was appointed on part time basis/contract basis. white deciding this issue, a learned single judge of this court came to the conclusion that the appointment of the petitioner was on full time basis and in view of the continuous service for several years, the learned single judge came to the conclusion that the petitioner was appointed in the permanent post and entitled to monetary benefit with effect from 11.7.1985 in terms of the order in w.p. no. 863 of 1989, dated 8.3.1995, which was modified in w.a. no. 922 of 1995 as effective from 1.10.1984.4. after the disposal of the said writ appeal, the petitioner in w.p. no. 863 of 1969 and the petitioner in w.p. no. 20316 of 2002 - dr. j. krishnamoorthy made a representation on 14.2.1997 requesting the authorities to pay all the attendant benefits such as compensatory and special allowances, special pay, surrender leave, interim relief, house rent allowance, medical allowance and general provident fund, pursuant to the fixation of time scale of pay. some of his claims were granted by the commissioner of thirumurugal panchayat union on various dates. in effect, the petitioner was granted special pay, special compensatory allowance, medical allowance, medical leave, earned leave, payment on surrender of earned leave, selection grade scale of pay, as applicable to the government servants.5. in the meanwhile, on 31.10.1998, the petitioner attained the age of super-annuation and in such event, the attendant benefits pursuant to the fixation of time scale .of pay and the terminal benefits were not settled. hence, the petitioner in the above writ petition made a representation to the commissioner, mannargudl panchayat union, for the above relief. several legal notices were issued and all this endeavour ended in vain. however, by proceedings in na.ka. no. 3939/99/a4 dated 16.3.2002, placing reliance on g.o.ms. no. 250 rural development department, dated 14.9.2000. the commissioner of mannargudi panchayat union stated that the services of rural medical officers are on part time basis, that they are not entitled to pension and other terminal benefits and therefore the claim of the petitioner was declined. the present writ petition w.p. no. 20136 of 2002 has been filed in view of such rejection of the claim of the petitioner.6. after passing of g.o.ms. no. 250. rural development department dated 14.9.2000, several batch of original applications were filed before the tamilnadu administrative tribunal by siddha medical practitioners working in rural dispensaries in various panchayat unions in the state of tamilnadu. the siddha medical practitioners are appointed from b1, b2 and c class registered hereditary medical practitioners.7 it is the contention of the petitioners in the original applications that based on the order of the learned single judge in w.p. no. 863 of 1989 as confirmed by a division bench of this court in w.a. no. 922 of 1995, the government issued g.o.ms. no. 16, rural development department, dated 29.1.1998 allowing payment of salary in the time scale of pay with effect from 1.10.1984 to all the medical practitioners working in rural dispensaries. while the rural medical practitioners were working in the time scale of pay and discharging their duties as regular employees of the panchayat unions, to their shock and surprise. g.o.ms. no. 250, rural development department, dated 14.9.2000 was issued, which reads as follows :rural development department - panchayat union rural medical officers time seals of pay granted - assessment of functioning of rural dispensaries, filling up of vacancies and the eligibility of rural medical officers for other benefits - orders issued.rural development departmentg.o.(m.s.) no. 250 date: 14.09.2000 ref:1) g.o.(m.s.) no. 16, rural development department, dated 29.01.1998.2) the director of local fund audit letter na.ka. no. 30740/99/01 dated 30.05.1999.3) the director of local fund audit letterna.ka. no. 18503/e3/97 dated 29.07.1999,4) government letter no. 29161 /e5/98-12,rural development department, dated 27.09.1999.5) the director of rural development.letter na.ka. no. 106744/98/e3 dated 29.01.2000.

Judgment:
ORDER

R. Sudhakar, J.

1. The present batch of writ petitions have been filed by the Rural Medical Officers working in the various dispensaries run by the Panchayat Unions in the of Tamil Nadu. Such Medical Officers are appointed from persons who have the following qualification:

(i)'A' Special: BIM, Medical Practitioners who have undergone Special Training for 4-1/2 years in a Government Recognised Medical Institution -Registered after 1972.

(ii)'A' Class: LIM. Medical Practitioners who have undergone Training for 4 years in Government Recognised Medical Institutions and passed in the examination conducted by Government approved Board of Examination. The registration has been abolished for LIM from 1946 and ICIM from 1960.

(iii)'B2' Class: B-II Medical Practitioners are those who have undergone special training for four years in Government approved Medical institutions / Gurukulam and obtained Diploma / Certificate having 10 years of continuous practice and passed in the written and oral tests as per the Government approved syllabus (Siddha. Ayurvedha, Unani), This was followed from 1972 to 1982.

(iv)'B1' Class : B1 Class practitioners are those who have undergone continuous training in Ayurvedic system for four years in a Government approved Medical Institutions and obtained Certificate / Diploma. They are not eligible to be appointed in the dispensaries of Siddha or Unani System.

(v)'B' Class : B Class Medical Practitioners are those who have obtained Certificate from Tahsildar for Practising for 10 years as hereditary Medical Practitioner.

(vi)'C' Class : C-Class Medical Practitioners are those who have undergone 6 months training as Village Vaidyas in a District Hospital. This has been abolished since 1954.

In cases where 'A' Glass registered practitioners are not available, B1, B2 and C Glass registered hereditary Siddha and Homoeopathy Medical Practitioners are appointed. Apart from the regular dispensaries, the Panchayat Unions, the Town Panehayats and Townships also run rural dispensaries. In the rural dispensaries, the Medical Officers are appointed from B1, B2 and C Class registered hereditary medical practitioners. By G.O. No. 2446, Education and Public Health Department (Public Health). 24.9.1937, the Government granted permission to medical practitioners in-charge of rural dispensaries subject to approval by the Presidents of Local Boards concerned to adopt 7 am to 10 am and 3 pm to 5 pm as working hours of rural dispensaries on week days instead of 7 am to 12 noon fixed by the earlier Government Order of the year 1935. By G.O.Ms. No. 1300, Rural Development and Local Administration Department, dated 22.5.1974. based on the representation from the Panchayat Union Employees, the Government allowed the pensionary and gratuity benefits applicable to Government servants be also made applicable to the Panchayat Unions. Town Panehayats and Panchayat Township employees excluding the Panchayat Union Teachers, with effect from 1.4.1974. By G.O.Ms. No. 94. Indian Medicine and Homoeopathy Department, dated 31.10.1984, the Government fixed the time-frame for working in the rural dispensaries as follows:

The Government may direct that the working hours of all the rural and regular dispensaries of Indian (Medicne run by the local bodies and by the Government be fixed from 7.30 am to 10.30 am and from 3.00 pm to 5.00 pm and in respect of all the dispensaries functioning in hill stations from 8.30 am to 11:30 arn and from 3:30 pm to 5.30 pm.

2 One Dr. Krishnamurthy, a registered medical practitioner in Class B-II in the Register of Medical Practitioners, who was working as a medical practitioner in rural dispensary, appointed in 1876, approached the High Court by filing W.P No 863 of 1989 praying for payment of salary in the time scale of pay with effect from the date of his appointment, The Writ Petition was allowed and the High Court ordered payment of salary in time scale of pay with effect from 11.7.1985. The Government as well as the individual rural medical officer filed Writ Appeals challenging the order of the single Judge. The First Bench of this Court modified the order of the single Judge by holding that arrears of pay according to pay scale fixed by the single Judge shall be disbursed to the appellant-rural medical officer and similarly placed persons with effect from 1.10.1984. The High Court held that B2 Class registered medical practitioners are eligible for time scale of pay with effect from 1.10.1984. Following the judgment, the Government also issued orders in G.O.Ms. No. 16, Rural Development Department, dated 29.1.1996 allowing payment of salary in the time scale of pay with effect from 1.10.1984 to all the medical practitioners working in the rural dispensaries. After payment of salary as above. B1, B2 and C Class registered medical practitioners were working in rural dispensaries as stated above. Since the same has been categorised as a superior service, the authority, by letter dated 10.8.1988, clarified that as per F.R. 56(1)(a), the age of retirement of medical practitioners working in the rural dispensaries who are allowed time scale of pay as stated above, is on attaining the age of 58 years instead of 60 years which was in vogue prior to the time scale of pay granted to rural medical practitioners.

3. it was contended by the respondents-Department before this Court on the earlier round of litigation that the petitioner was appointed on part time basis/contract basis. White deciding this issue, a learned Single Judge of this Court came to the conclusion that the appointment of the petitioner was on full time basis and in view of the continuous service for several years, the learned Single Judge came to the conclusion that the petitioner was appointed in the permanent post and entitled to monetary benefit with effect from 11.7.1985 in terms of the order in W.P. No. 863 of 1989, dated 8.3.1995, which was modified in W.A. No. 922 of 1995 as effective from 1.10.1984.

4. After the disposal of the said Writ Appeal, the petitioner in W.P. No. 863 of 1969 and the petitioner in W.P. No. 20316 of 2002 - Dr. J. Krishnamoorthy made a representation on 14.2.1997 requesting the authorities to pay all the attendant benefits such as compensatory and special allowances, special pay, surrender leave, interim relief, house rent allowance, medical allowance and general provident fund, pursuant to the fixation of time scale of pay. Some of his claims were granted by the Commissioner of Thirumurugal Panchayat Union on various dates. In effect, the petitioner was granted special pay, special compensatory allowance, medical allowance, medical leave, earned leave, payment on surrender of earned leave, selection grade scale of pay, as applicable to the Government servants.

5. In the meanwhile, on 31.10.1998, the petitioner attained the age of super-annuation and in such event, the attendant benefits pursuant to the fixation of time scale .of pay and the terminal benefits were not settled. Hence, the petitioner in the above writ petition made a representation to the Commissioner, Mannargudl Panchayat Union, for the above relief. Several legal notices were issued and all this endeavour ended in vain. However, by proceedings in Na.Ka. No. 3939/99/A4 dated 16.3.2002, placing reliance on G.O.Ms. No. 250 Rural Development Department, dated 14.9.2000. the Commissioner of Mannargudi Panchayat Union stated that the services of Rural Medical Officers are on part time basis, that they are not entitled to pension and other terminal benefits and therefore the claim of the petitioner was declined. The present Writ Petition W.P. No. 20136 of 2002 has been filed in view of such rejection of the claim of the petitioner.

6. After passing of G.O.Ms. No. 250. Rural Development Department dated 14.9.2000, several batch of Original Applications were filed before the Tamilnadu Administrative Tribunal by Siddha Medical Practitioners working in rural dispensaries in various Panchayat unions in the State of Tamilnadu. The Siddha Medical Practitioners are appointed from B1, B2 and C Class registered hereditary Medical Practitioners.

7 It is the contention of the petitioners in the Original Applications that based on the order of the learned Single Judge in W.P. No. 863 of 1989 as confirmed by a Division Bench of this Court in W.A. No. 922 of 1995, the Government issued G.O.Ms. No. 16, Rural Development Department, dated 29.1.1998 allowing payment of salary in the time scale of pay with effect from 1.10.1984 to all the Medical Practitioners working in rural dispensaries. While the Rural Medical Practitioners were working in the time scale of pay and discharging their duties as regular employees of the Panchayat Unions, to their shock and surprise. G.O.Ms. No. 250, Rural Development Department, dated 14.9.2000 was issued, which reads as follows :

Rural Development Department - Panchayat Union Rural Medical Officers Time Seals of pay granted - Assessment of functioning of Rural dispensaries, filling up of vacancies and the eligibility of Rural medical officers for other benefits - orders issued.

Rural Development Department

G.O.(M.S.) No. 250 Date: 14.09.2000 Ref:1) G.O.(M.S.) No. 16, Rural Development Department, dated 29.01.1998.

2) The Director of Local Fund Audit letter Na.Ka. No. 30740/99/01 dated 30.05.1999.

3) The Director of Local Fund Audit letter

Na.Ka. No. 18503/E3/97 dated 29.07.1999,

4) Government letter No. 29161 /E5/98-12,

Rural Development Department, dated 27.09.1999.

5) The Director of Rural Development.

letter Na.Ka. No. 106744/98/E3 dated 29.01.2000.