(Prayer in W.P.No.49556 of 2006: Petition under Article 226 of the Constitution of India praying for a Writ of Mandamus to direct the respondents to absorb the members of the petitioners union in any of the Health Department under the control of Director of Public Health and Preventive Medicine by granting age and educational qualification relaxation with retrospective effect from the date of closure of the voluntary organisations with all attendant benefits and continuation of service or in any one of the Government department.
Prayer in W.P.No.49556 of 2006: Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus to call for records relating to Letter No.7604/G/98-5 dated 31.7.2000 issued by the 1st respondent and quash the same and direct the 1st respondent to absorb the members of the petitioner Union in any of the Health Department under the control of Director of Public Health and Preventive Medicine by granting age and educational qualification relaxation with retrospective effect from the date of closure of the voluntary organisations with all attendant benefits and continuation of service or in any one of the Government department.)
1. The petitioner in both the Writ Petitions is the Trade Union functioning under the name and style of National Leprosy Medical Employees Union with Registration No.2706/Chennai represented by its Secretary. The Trade Union originally filed O.A.No.2484 of 2000 before the Tamil Nadu Administrative Tribunal seeking for a direction to the 1st respondent to absorb the members of the petitioner Union in any of the posts under the Health Department coming under the control of Director of Public Health and Preventive Medicine by granting age and educational qualification relaxation with retrospective effect.
2. The members of the petitioner Union were originally engaged by various NGOs. Some of them are funded by foreign countries. The NGO in which the members of the petitioner were working, were engaged in eradication of leprosy and rehabilitation of such leprosy patients. The members were holding different posts starting from Helper to Medical Practitioner.
3. The Original Application filed by the petitioner union was admitted by the Tribunal on 31.3.2000. Even while the said Original Application was pending, the same union filed the second Original Application No.3884 of 2001 challenging an order dated 31.7.2000 issued by the 1st respondent State. By the communication challenged in the Original Application, the State Government informed the petitioner union that they have carefully examined the request made by the union for absorption of workers in the Government service and considered that the said request was not feasible for compliance. In view of the same, they have constrained to file the second Original Application. The second Original Application was admitted on 22.6.2001. In view of the abolition of the Tribunal, the matter stood transferred to this Court and was re-numbered as W.P.Nos.49556 of 2006 and 5160 of 2007.
4. In the light of the second Writ Petition, the first Writ Petition No.49556 of 2006 had become infructuous and the same is dismissed as infructuous.
5. The contention raised by the petitioner was that in the process of implementing Leprosy Eradication Programme, the Government itself recognised various voluntary organisations, which are listed in para 5 of the Original Application. These organisations were doing service which ought to have been performed by the State. By G.O.Ms.No.320, Health and Family Welfare (G1) Department, dated 27.6.1997, the administrative control of the National Leprosy Eradication Programme vested with the Director of Public Health and Preventive Medicine also brought the voluntary organisations involved in the Programme under the control of the Directorate. These voluntary organisations due to very many reasons closed their units since the Leprosy Eradication Programmes were taken over by the Government of Tamil Nadu and the employees were working for considerable number of years ranging from 10 to 25 years and many of them reached their age and they cannot go for any outside employment.
6. The 3rd respondent Director of Medical and Rural Health Services by his letter dated 7.8.1991 held that if voluntary organisations are closed in future for want of funds or for any other reasons, the employees in those voluntary organisations will be absorbed in Government service. There are many employees working in voluntary agencies such as Beligan Leprosy Centre, Polampakkam, Scudder Memorial Hospital under Leprosy Relief and Control Scheme at Wallajah, Damien Foundation, Dharmapur, Christian Mission Hospital, Madharambakkam, Chengelpet and European Leprosy Eradication Project. They have all been absorbed on the closure of those agencies. In the light of the concession shown by G.O.Ms.No.320 Health Department dated 27.6.1997, the members of the petitioner union, who lost their employment on account of the closure of the voluntary organisations were eligible for absorption. They have made series of representations. By the impugned order, they have denied the request made by the union.
7. Despite notice being ordered, the respondents have not filed any counter affidavit. But, however, Mr.G.Ethirajulu, learned counsel for the petitioner has filed an additional affidavit dated 23.10.2010. In the affidavit, he has pointed out that pending these two Writ Petitions, the Government has issued G.O.Ms.No.268, Health and Family Welfare Department dated 20.9.2010. By the said G.O, the Government has absorbed 110 employees. A list of those employees who are employed were appended to the G.O. It is stated that out of 110 employees, 49 employees belonged to the petitioner union. The members of the petitioner union, who have been absorbed, have also been mentioned in the additional affidavit. Therefore, he states that when the Government itself volunteered to absorb, the other employees who are not yet absorbed in Government service, must also be taken into service. In that process, they have given the name of 106 candidates who are yet to be absorbed and also the names of 7 candidates who died during the course as well as the names of 45 candidates who have reached the age of superannuation for any Government employment. Therefore, he states that in respect of balance employees of 106, the same concession given by the Government Order should also be extended to them. He also drew the attention of this Court the statement found in the Government Order that the other employees were not furnished employment only because their whereabouts are not known. But, however, he contends that the names of these persons are available in the two Writ Petitions, which are pending for 10 years and the Government is also a party to the Writ Petitions. Therefore, it cannot be said that the Government is unaware of the whereabouts of the persons.
8. In this context, the learned counsel for the petitioner referred to the preamble portion of the Government Order in G.O.Ms.No.268, Health and Family Welfare Department dated 20.9.2010. Paragraphs 1 and 2 read as follows:
"In their representation dated 5.3.2007, the Association of Non-Governmental Leprosy Employees Union have requested the Government to reconsider their demand on humanitarian grounds and appoint the 110 employees who have worked in Non-Governmental Leprosy Organisations and lost their jobs consequent on the orders first read above, on integration of National Leprosy Eradication Programme with the Public Health Department.
2. The Director of Public Health and Preventive Medicine has informed that due to the integration of Leprosy Eradication Programme with the Directorate of Public Health and Preventive Medicine, the 461 employees of different categories who were working in 21 Non-Governmental Voluntary Organisations running with Government grant-in-aid lost their jobs. He has requested the Government for absorption of 145 employees after giving 6 months (six months) training at the cost of individuals and appointing them in the existing vacancies of Health Inspector Grade-II in the Public Health Department. He has further stated that out of the 4311 posts, 1432 posts of Health Inspector Grade-II are vacant now and only 820 persons are working and furnished the Service Certificates issued to 110 Leprosy Field Workers and that the whereabouts of the others are not known. The service period ranges from 4 to 28 years except 2 individuals who have put in only one year of service. The financial implication for absorbing the 110 individuals involves Rs.1,49,54,280/- (One Crore forty nine laksh fifty four thousand two hundred and eighter) per annum (recurring)
9. Hence, he states that if the impediment is non-knowing of the whereabouts, that can always be overcome by the petitioner union furnishing the address of those persons and hence, he seeks for a direction to the State Government to provide employment as was extended to 110 employees.
10. However, it is brought to the notice of this Court that one other voluntary agency, namely Hindu Mission Hospital, Madras filed O.A.No.4111 of 1999 before the Tribunal for similar relief. That Writ Petition on abolition of the Tribunal stood transferred to this Court and renumberred as W.P.No.40625 of 2006. In that case, this Court held that in the earlier occasion, the Government took over the NGO, whose programmes are closed because of the existence of the post and recruitment of new candidates as per the Rules to be time consumable and since all the employees were trained staff, they were absorbed. The employees of Hindu Mission Hospital are working in private hospital and they are not in any civil post. Thereafter, in paragraph 18, this court held as follows:
"18. It is evident that the Government have issued orders integrating Leprosy Programme with the Department of Public Health and Preventive Medicine. Since the Government had decided to integrate the said programme with the Department of Health and Family Welfare and Public Health and Preventive Medicine by the non-governmental organisations there was no necessity to continue with the programme and therefore, it resulted in closure of many institutions. The employees of the petitioner union have no legal or statutory right to seek for absorption on the sole ground that it was done on earlier occasions. As rightly contended by the respondents, it would only open to floodgates for everybody to seek for absorption from non-Governmental organisations."
11. In the light of the order passed by this Court, the case made by the petitioner cannot also be countenanced and therefore the original prayer is liable to be rejected. However, Mr.G.Ethirajulu, learned counsel for the petitioner stated that in the light of the new Government Order, the entire character of the case can be changed. When 110 employees have been absorbed by the Government and in respect of the others it is only for want of their whereabouts they are denied employment, they must be giv
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en an opportunity to represent their case in respect of those candidates. Atleast in that view, this Court may give direction to consider their representation. 12. Since this Court is not inclined to entertain the original prayer in the Writ Petition, as there is no legal or enforceable right on the part of the other Union in the collective capacity or their members in individual capacity and the present G.O. is entirely based upon a policy decision of the Government, the only direction that may be given is if and when the petitioner union makes a representation with reference to the grievance projected by them in the additional affidavit filed before this Court dated 23.10.2010, the State Government shall consider the said representation and pass appropriate orders. If any representation is made within two weeks from the date of receipt of a copy of this order, the 1st respondent is directed to consider the said representation in the light of the Government Order in G.O.Ms.No.268, Health and Family Welfare Department dated 20.09.2010 and also the circumstances pleaded by the petitioner. The said order, if any passed shall be communicated to the petitioner. With these directions, both the Writ Petitions are dismissed. No costs.