No Contract Appointment For Approved Post.

G.
Udaya Kumar vs The Principal Secretary on 25 April, 2019
Madras High Court

G.Udaya Kumar vs The Principal Secretary on 25 April, 2019
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :25.04.2019
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.26410 of 2018
W.M.P.Nos.30678 & 30679 of 2018
G.Udaya Kumar ..Petitioner
vs
1. The Principal Secretary, Govt. of Tamil Nadu

Department of Health and Family Welfare
Fort St.George, Chennai-9.
2. The Member Secretary

Medical Services Recruitment Board(MRB)
Teynampet, Chennai-8.
3. S.Saleesha
4.G.Mahalakshmi
5.Seethalakshmi
6.R.Sowrirajaperumal
7.Private Studies Nurses Association,

Rep.by its President S.Senthilnathan
No.31, Mettu Street, Velli Medepettai,
Tindivanam,
Villupuram-604 207. .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of Indi
praying to issue a Writ of Certiorarified Mandamus to call for the
http://www.judis.nic.in
2
records pertaining to the notice of the 2 nd respond

12.09.2018 in Notification No.01/MRB/2015 and quash the same and
Indian Kanoon - http://indiankanoon.org/doc/61696267/ 1

consequently direct the respondents to conduct

examination afresh for the selection of nurses in the service of 1 st
respondent.
For Petitioner : Mr.P.Puhazh Gandhi
For Respondent : Mr.A.N.Thambi Durai

Special Government Pleader for
Mr.S.R.RajaGopal
Additional Advocate General assi
by Mr.A.Vivek for R2.
Mr.A.Prabhakaran for RR3 to 5.
Mr.K.Srinivasamurthy formula
M/s.Rao and Reddy for R6.
Mr.C.K.Chandrasekar for R7.
ORDER
The Recruitment Notification issued by the second respondent/ Medical Services Recruitment
Board (MRB) in Notification No.01/MRB/2015, dated 12.09.2018 is sought to be quashed and a
direction is sought for against the respondents to conduct the recruitment examination afresh for
the selection of Nurses in the service of 1st respondent/department and pass further orders.
2. The cause for filing of the present writ petition arose on account of the fact that the respondents
have appointed candidates over and above the notified vacancies in the recruitment conducted in
http://www.judis.nic.in the year 2015. The grievance of the writ petitioner is that they are not
selected and no opportunity to participate in the process of selection was provided, which is in
violation of the equality clause enunciated in the Constitution of India. Without even conducting the
process of selection by following the recruitment rules in force, the respondents are going on
appointing candidates, from and out of the unsuccessful candidates from the erstwhile list, with
reference to the selection conducted by the second respondent, pursuant to the Notification given in
the year 2015.
3. In other words, beyond the selected candidates, persons who have participated in the process of
selection pursuant to the Notification dated 19.04.2015 were appointed, knowing the fact that those
candidates were unsuccessful in the process of selection. According to the learned counsel for the
writ petitioner, it is not only an illegal act but also in violation of the equality clause under Articles
14 and 16 of the Constitution of India. The learned counsel for the writ petitioner urged this Court by
stating that if such appointments are allowed to continue, then the entire constitutional principles
are violated and the respondents may not be correct in appointing the unsuccessful candidates from
and out of selection list prepared http://www.judis.nic.in pursuant to the recruitment notification of
the year 2015.
4. It is contended that those unsuccessful candidates in the process of selection in the year 2015
were appointed by granting relaxation to Rule 7 of the Medical Services Recruitment Board Rules.
The Rule 7 of the MRB Rules speaks about the reserve list. The learned counsel for the writ

petitioner states that by relaxing Rule 7 of the MRB Rules they have appointed candidates beyond
the names listed out in the reserve list and the candidates who were appointed were unsuccessful in
the process of selection. Though the rules relating to the reserve list were relaxed, the persons who
were not even included in the reserve list were appointed. Thus the action in entirety is perverse and
unconstitutional. In fact, the rule restrictions imposed in the reserve list to include 10% of the
candidates were violated and excess number of candidates were appointed, over and above the
notified vacancies and beyond the permissible limit and the reserve list contemplated under the
MRB Rules.
5. At the outset, it is contended that the entire process of selection was made as a mockery and the
State, as a model employer, failed in its duty to honour the Constitutional Principles. The
http://www.judis.nic.in constitutional rights of the eligible candidates are infringed and they are
deprived of their opportunity to participate in the process of selection for the purpose of securing
public employment.
6. Narrating the entire events that excess appointments were made over and above the notified
vacancies, the learned counsel for the writ petitioner made a submission before this Court that such
en masse relaxation of rules is highly unwarranted and the said relaxation led to corrupt activities in
the process of selection. When there is no necessity to grant an en masse relaxation of the rules
relating to the reserve list, a factual inference could be drawn from and out of such facts and
circumstances to the effect that there is a possibility of corrupt activities, which cannot be ruled out.
7. The learned counsel for the writ petitioner urged this Court by stating that if such appointments
are allowed to continue, then the candidates who all are waiting and longing to participate in the
process of selection would not have got an opportunity even to participate in the process of
selection, which would be violative of Articles 14 and 16 of the Constitution of India.
8. The learned Additional Advocate General disputed the contentions raised on behalf of the writ
petitioner by stating that undoubtedly, a notification was issued in the year 2015, for recruitment to
the post of Nurses numbering 7,243. It is an admitted fact that 7102 candidates were selected and a
select list was drawn. Out of 7102 selected candidates, 7090 candidates were issued with the order of
appointment and from and out of the order of appointment, only 6254 candidates joined in post of
Nurses. 6254 candidates joined and thereafter 683 candidates joined, whose names were listed in
the reserve list. It is pertinent to note that 66 candidates joined and subsequently resigned the job
and 87 candidates remained absent unauthorizedly.
9. This being the basic details of recruitment process of selection conducted pursuant to the
recruitment Notification dated 19.04.2015, the learned Additional Advocate General made a
submission that certain factual circumstances that prevailed in the Department prompted the
authorities competent to proceed with further appointments, based on the selection list prepared
during the year 2015.

10. The learned Additional Advocate General relying on the counter affidavit, made a submission
that on account of certain factual circumstances prevailing in the Government hospitals and
Government Primary Health Centers and pursuant to the order of this Court in a Public Interest
Litigation, the department was under pressure to fill up the post of Nurses in the Medical
Department.
11. Under those circumstances, the respondents had taken a decision to relax Rule 7 of the MRB
Rules and accordingly, appointed the candidates who had participated in the process of selection
pursuant to the notification dated 19.04.2015. It is an admitted fact that candidates over and above
the notified vacancies were appointed as Nurses by relaxing Rule 7 of the MRB Rules. It is an
admitted fact that those Nurses who were appointed over and above the notified vacancies were
unsuccessful candidates in the process of selection. It is an admitted fact that the Rule 7 of MRB
Rules with reference to the maintenance of reserve list was relaxed by the Government by invoking
the power of relaxation. It is contended that the State is obligated to fill up the post of Nurses on
account of the acute shortage and there was no time to conduct the process of selection by the
second respondent/Medical Services Recruitment Board. Thus the http://www.judis.nic.in
candidates in excess were appointed only on contractual basis and those candidates were yet to be
regularized in the sanctioned posts in the regular time scale of pay. Thus, the contract appointments
were made for a consolidated pay and it is informed that the consolidated pay has now been
enhanced to Rs.14,000/-. However, these excess appointments over and above the notified
vacancies were made in order to mitigate the circumstances that arose in Government hospitals.
Even, the enhancement of the consolidated pay was made by the State on account of the
intervention by the Court and on account of the fact that these consolidated pay employees had
conducted strikes and Dharnas.
12. Be that as it may, the fact remains that these candidates who were unsuccessful in the process of
selection were appointed on contractual basis on consolidated pay. They are now continuing in
service for about three years. Their services are not regularized and they are not brought under the
regular establishment in the sanctioned posts in regular time scale of pay, as applicable to the
regular Government employees.
13. The issues involved in these writ petitions and the cause for http://www.judis.nic.in filing the
present writ petitions are of constitutional importance. The issues cannot be decided by the Court by
redressing the remedy or restricting the remedy to the writ petitioner alone. Larger questions raised
in the writ petition by stating that the State has violated Articles 14 and 16 and 21 of the Constitution
of India are also to be addressed.
14. When Fundamental Rights of the citizens are violated, the constitutional Courts are duty bound
to examine and arrive at a conclusion, whether there is any such violation established or not and if it
is established, then appropriate reliefs are to be granted, in order to protect the Fundamental Rights
of all the citizens. The Courts cannot go by the individualization of the justice. The concept of
individualization of justice is permissible in cases, where the disputes are confined between the

parties to the lis before the Court. However, such individualization of justice cannot be extended in
cases where violation of the Fundamental Rights are raised by the parties before the Constitutional
Courts. Thus, a distinction is to be drawn in respect of providing justice to the individual litigants
and the protection of the fundamental rights of the citizens as a whole. This is the reason why the
jurisdiction of the Courts are extended to pass orders in rem in certain cases and the High Courts
are bound to issue such order in the http://www.judis.nic.in interest of providing complete justice
to the citizens and to protect the constitutional principles as well as the equality clause enunciated in
the Constitution, under various Articles.
15. What is important in the present writ petition is the specific violation now brought to the notice
of this Court, that the State has appointed unsuccessful candidates in the process of selection to the
post of Nurses and thereby deprived equal opportunity of public employment to all the eligible
candidates, who all are aspiring to secure public employment by participating in the open
competitive process. Undoubtedly, it is the serious allegation made in the writ petition by the writ
petitioners.
16. State cannot discriminate the citizens. State is bound to provide equal opportunity to all the
citizens. State is obligated to follow the recruitment rules strictly and without any violation. Ways
and means cannot be adopted for the purpose of diluting the recruitment rules, and during such
process, undoubtedly, there is a scope for corrupt activities. Thus, the importance of following and
adhering the recruitment rules is a constitutional mandate in order to provide a transparent public
employment and also enabling the citizens to get http://www.judis.nic.in their Fundamental Right
of equal opportunity under the Constitution.
17. Admittedly, the present writ petition is filed challenging the notification dated 12.09.2018. The
writ petitioners have challenged the current notification of the year 2018, from and out of the fresh
recruitments caused on such irregular appointments which were made over and above the selected
candidates in the year 2015. The writ petitioners were waiting for an opportunity to participate in
the process of selection. However, the respondents were going on appointing unsuccessful
candidates from and out of the selection list prepared pursuant to the recruitment notification in the
year 2015. This resulted in filing of the present writ petition.
18. The writ petitioners filed the writ petition, undoubtedly, with a genuine cause to preserve
Fundamental Rights of equal opportunity in public employment. The writ petitioners are
undoubtedly fighting to avoid discrimination in the matter of providing public employment by the
State. The writ petition is filed in order to protect the constitutional rights as well as equal
opportunity in public employment. This being the very issue raised in the present writ petition, this
Court is of the considered opinion that the submissions made by the learned
http://www.judis.nic.in Additional Advocate General, based on the counter affidavit filed, that they
are not going to conduct any fresh selection pursuant to the notification need not be accepted. There
is no impediment for the State to proceed with the selection in accordance with the recruitment
rules. State should continue to periodically appoint candidates to the post of Nurses. The post of
Nurses is of paramount important in maintaining the Health Department intact. Medical facility is
now declared as mandate of Article 21 of the Constitution of India. Thus, there cannot be any

compromise in respect of maintaining the Government hospitals, appointment of Doctors and

Nurses and Paramedical staff, so as to extend free medical facility to the poor people, who all are
suffering from various ailments.
19. This being the constitutional right, this Court is of the opinion that the State is bound to fill up
the post of Doctors and Nurses and other Paramedical staff enabling the citizens to avail the medical
facility at free of cost, in Government hospitals.
20. However, in the process of making such appointments, the State Authorities must be cautious
enough in the matter of implementation of the recruitment rules and providing of equal
http://www.judis.nic.in opportunity to all the eligible candidates, who are all willing to secure the
public employment.
21. The Government issued two orders in G.O.(3D).No.80, Health and Family Welfare (AA1)
Department dated 08.07.2016 and G.O.(3D).No.49 Health and Family Welfare (AA1)Department
dated 16.10.2017. In the said two Government orders, the Government relaxed Rule 7 of the MRB
Rules to take necessary steps to fill up 1947 additional vacancies from the reserve list of candidates
available from the competitive examination held vide MRB Notification No.01/2015 dated
19.04.2015, by following the due procedures in relaxation of the Rule 7 prescribed in
G.O.(Ms).No.36, Health and Family Welfare Department dated 12.02.2014. In respect of
G.O.(3D).No.49, the Government order is to release the 1170 candidates available from the reserve
list in the competitive examination held during the year 2015 for the post of Nurses, by similarly
relaxing Rule 7 of the MRB Rules.
22. Let us now examine if such relaxations are in accordance with the principles of law settled by the
Courts. http://www.judis.nic.in
23. First of all, let us examine the manner in which the two Government orders are passed. The first
Government order issued in G.O.(3D).No.80, Health and Family Welfare (AA1) Department dated
08.07.2016 states that the Government examined the proposal of the Director of Medical and Rural
Health Services carefully and decided to permit Medical Services Recruitment Board to take
necessary steps to fill up 1947 additional vacancies from the reserve list of candidates available from
the competitive examination held vide MRB Notification No.01/2015 dated 19.04.2015 by following
the due procedures in relaxation of the Rule 7 prescribed in G.O.(Ms).No.36, Health and Family
Welfare Department dated 12.02.2014. However, by invoking which provisions of rule, the
relaxation which was granted has not been stated in the Government order at all, and under which
rule, the power was traced out, has also not been stated. Contrarily, the Government issued an order
merely relaxing Rule 7 of the MRB Rules and granted permission to the Director of Medical and
Rural Health Services to fill up 1947 additional vacancies from the reserve list. Thus, the
Government order itself is not in accordance with the service rules. Even in the second Government
order, issued in G.O.(3D).No.49, Health and Family Welfare (AA1)Department dated 16.10.2017, the
similar order was passed. In the said Government http://www.judis.nic.in order also, it is not clearly
mentioned under which provision of law, the Government relaxed the rule relating to the
recruitment more specifically, Rule 7 of the MRB rules.

24. At this juncture, the learned counsel for the writ petitioner solicited the attention of this Court in
respect of the second Government order issued in G.O.(3D).No.49 dated 16.10.2017, which was
newly created post and not in connection with the recruitment conducted during the year 2015. The
learned counsel for the writ petitioner states that the vacancies created or identified after the
completion of the process of selection in the year 2015 were filled up from and out of candidates who
were unsuccessful in the selection of the year 2015. Such an action is drastically unconstitutional
and in fact, the State failed to be a model employer and further failed in its duty to adhere the
Constitutional principles. If such actions of the State are permitted, undoubtedly, the Constitutional
Courts are also failing in their duty to protect the constitutional principles as well as the
Fundamental Rights of the citizens who are all longing to secure public employment under the
constitutional schemes and by following the recruitment rules in force. Thus, it is not as if the State
may be permitted to fill up these posts, which were newly created from and http://www.judis.nic.in
out of unsuccessful candidates, who participated in the process of selection of the year 2015. The
actions are absolutely unconstitutional and therefore this Court is of the considered opinion that
this is a classic case where constitutional Court has to protect the Fundamental Rights of all the
eligible citizens, who all are waiting to secure public employment through the open competitive
process.
25. The very constitution of the Medical Services Recruitment Board was constituted admittedly,
during the year 2012 as per the rules which was issued in G.O.(3D).No.36, Health and Family
Welfare (C2) Department dated 12.02.2014. The Medical Services Recruitment Board is duty bound
to conduct the selection every year.
26. Relevant Rules of Procedure of the Medical Services Recruitment Board is extracted hereunder:
(i) The Medical Services Recruitment Board shall call for the estimate of vacancies
from the Heads of Departments as on 1st January of every year. The estimate of
vacancy shall reach Medical Services Recruitment Board on or before 1st December
of every year, from the Directorate concerned and the estimation period in normal
course, shall be from 1st January to 31st December of every year. The Board shall call
http://www.judis.nic.in for the estimate of future vacancies from the Heads of
Departments.
(ii) The Board shall call for the list of suitable candidates for future vacancies from
the Employment Exchange or call for open advertisement, as the case may be. The
Medical Services Recruitment Board shall consolidate and recruit candidates as per
the seniority list furnished by the Directorate of Employment and Training, except in
cases where recruitment is permitted to be made through open advertisement and
written examination.
27. When the rules of procedure of the Medical Services Recruitment Board, which is a
constitutionally recognized body, provides that every year, recruitment has to be conducted to fill up
the posts, no action is taken in the manner prescribed in the Rules. Contrarily, the
respondent/Medical Board conducted selection during the year 2015 and thereafter, the State as

well as the Director of Medical and Rural Health Services, went on appointing unsuccessful
candidates who participated in the process of selection of the year 2015. Such actions can never be
accepted by Constitutional Courts as it infringes the Fundamental Rights of the eligible candidates,
who are all longing to secure public employment.
28. The power of relaxation extended to the Government shall http://www.judis.nic.in be exercised
only on exceptional circumstances, in order to redress the grievance where there is injustice caused
to the the employees. Rule of relaxation cannot be exercised in a routine manner and also the
relaxation cannot be granted on misplaced sympathy, wherever initial appointments were not made
in accordance with the recruitment rules in force.
29. The erstwhile Tamil Nadu Sub-ordinate Service Rules deals with the power of relaxation. After
the enactment namely Tamil Nadu Service and Conditions of Rules 2016 Section 58 provides power
of deal with certain cases and the same reads as under:
58.Power of Deal with Certain Cases.
Notwithstanding anything contained in this Act 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 or of any person who has or of any class of persons who have served a 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 provision of this Act or special rules is applicable to the case of any person
or class http://www.judis.nic.in of persons, the case shall not be dealt with in any manner less
favourable to him or them than that provided by that rule.
Interpretation This is a special provision to enable the Governor of the State to relax any provision
of this Act or any service rules in favour of an individual who deserves and it can be invoked to
prevent any hardship and injustice in respect of his appointment, promotion, etc. In deserving
cases, the provision of this Act or rule can be relaxed with retrospective effect. However, in such
cases generally monetary benefit with retrospective effect will not be given unless and until the
Court orders So. In the U.O Note No.23744/93-1 P & AR (per.S) Department dated 01.04.1993, the
following general instructions were issued to be followed for relaxation of the provision of this Act or
rules:
1.All service sections in Personnel and Administrative Reforms Department may be requested to
consider the following points while scrutinizing the proposals for relaxation of Special /Ad hoc rules
received from the Departments of Secretariat:
(i)Whether there is any dearth of qualified hands;
(ii)Whether considerable hardship will be caused to the administration, if relaxation is not given;

(iii)Whether the existing rule caused unintended hardship to the person concerned;
(iv)Details of other individuals similarly placed. A Consolidated proposal for relaxation in respect of
category concerned should be called for and examined, as individual cases may not bring home the
magnitude of the problem.
2.All personnel Sections may be requested to follow the above instructions scrupulously.
The following simple illustration will explain the situation well:
Illustration.
(i)''A'' is an Assistant working in the Revenue Department from 12.06.1988. As per the Special rules
Governing the post of Deputy Tahsildhar, an Assistant should have rendered service in that post for
5 years and should have undergone Revenue Inspector training for a period of three years for
promotion to the post of Deputy Tahsildhar. This rule was newly introduced with effect from
01.04.1991. A panel of Assistants fit for appointment to the post of Deputy tahssildhar as on
01.10.1993 is prepared. The eligible Assistants are to be considered for promotion. In this case ''A''
has the experience for a period of 2 years and 6 months only. There is a shortage of 6 months only.
There is a shortage of 6 months. Though he has Assistant from 12.06.1990, as the rule was
introduced from 01.04.1991 and he had the chance to undergo the R.I. Training from that date only,
he could not complete the http://www.judis.nic.in required training period of three years. He is the
senior most Assistant to be included in the panel. He is otherwise qualified. The rule creates the
hardship to ''A''. The Governor can invoke the power vested under this section and relax the relevant
special rule in favour of ''A'' for the purpose of his appointment as Deputy Tahsildhar.
(ii)Relaxation of test qualification.
As per the orders issued in G.O.Ms.No. 1120 P & AR (Per. M) dated 30.10.1984 for relaxation of
rules to exempt a Government Servant from passing special and depart mental tests for promotion,
he should fulfil the following conditions:
(a)The person should be not less than 53 years of age.
(b)He should have made at least 5 attempts to pass the tests and for this, there should be evidence in
the Service Register or he should produce the evidence for having appeared for the examination and
failed.
(c)He should have satisfactory service records to get the concessions.
30. Thus the very issuance of the two Government Orders were improper and not in consonance
with the power of relaxation provided under the erstwhile rules as well as under the new Act.

31. The object of the power of relaxing the rules is obviously to http://www.judis.nic.in neutralise an
injustice as a result of operation of any rule. It has been described to be the reserve power to deal
with the unforeseen situations or circumstances and it is to be exercised in the public interest with a
view to maintain integrity and efficiency in service. It is conferred upon the Government to meet any
emergent situations where injustice might have been caused to any individual employee or class of
employees or where the working of the rule might have become impossible. Where the power of
relaxation is conferred upon the Government (or the Governor), the Court cannot usurp the power
and directly or indirectly effect a relaxation.
32. In interpreting provisions for relaxation, it has been pointed out that the power of relaxation
even if generally included in the Service Rules could either be for the purpose of mitigating hardship
or to meet a special and deserving situation. Any arbitrary exercise of such power must be guarded
against and that the rule of relaxation must get pragmatic construction, so as to achieve effective
implementation of good policy.
33. The Hon'ble Supreme Court of India, in the case of Suraj Prakash Gupta and Others vs. State of
J&K and Others [(2000) http://www.judis.nic.in 7 SCC 561], reiterated the principles, in
paragraph-32, as under:-
32. On facts, the reasons given in the Cabinet note for granting relaxation are
hopelessly insufficient. In fact, the letter of the Commission dated 25-11-1997, shows
that the Commission was prepared to give its opinion in regard to regularisation of
each promotee but the Government backed out when the Commission called for the
records relevant for considering suitability for regular promotion. In our view, there
can be no hardship for a person seeking appointment or promotion to go by the
procedure prescribed therefor. The relevant Recruitment Rule for promotion cannot
itself be treated as one producing hardship. Narender Chadha case [(1986) 2 SCC 157
: 1986 SCC (L&S) 226] must be treated as an exception and not as a rule. In fact, if
such relaxation is permitted in favour of the promotees then the same yardstick may
have to be applied for direct recruits. In fact the J&K Government has already started
to do so and this has not been accepted by this Court in Narinder Mohan case [(1994)
2 SCC 630 :
1994 SCC (L&S) 723 : (1994) 27 ATC 56] and Dr Surinder Singh Jamwal case [(1996) 9 SCC 619 :
1996 SCC (L&S) 1296] referred to above. If it is to be held that direct recruitment can also be
permitted without consulting the Service Commission (in case it is required to be consulted there
will, in our opinion, be total chaos in the recruitment process and it will lead to backdoor
recruitment at the whims and fancies of the Government). Such a blanket power of relaxation of
Recruitment Rules cannot be implied http://www.judis.nic.in in favour of the Government.
34. The Hon'ble Supreme Court of India, in the case of Shri Amrik Singh and Others vs. Union of
India and Others [(1980) 3 SCC 393], discussed the principles regarding the rule of relaxation, His
Lordship Hon'ble Mr. Justice V.R.Krishna Iyer, speaking for the Bench, emphatically ruled the legal
principles as under:-

Government must be satisfied, not subjectively but objectively, that any rule or
regulation affecting the conditions of service of a member of the All India Services
causes undue hardship, then the iniquitous consequence thereof may be relieved
against by relaxation of the concerned Rule or Regulation. There must be undue
hardship and, further the relaxation must promote the dealing with the case in a just
and equitable manner. These are perfectly sensible guidelines. What is more, there is
implicit in the Rule, the compliance with natural justice so that nobody may be
adversely affected even by administrative action without a hearing. We are unable to
see anything unreasonable, capricious or deprivatory of the rights of anyone in this
residuary power vested in the Central Government. Indeed, the present case is an
excellent illustration of the proper exercise of the power.
We are, therefore, satisfied that the Central Government was right in invoking its power to relax and
regularize the spell of officiation, which was impugned as irregular or http://www.judis.nic.in
illegal. The consequence inevitably follows that the officer Ahluwalia was rightly assigned 1961 as
the year of allotment.
35. Thus, this Court is also of the opinion that the power to grant and exemption, cannot be
exercised in a manner to destroy the general provision from which the exemption is granted. For
example, where the number of exemptees is far in excess of vacancies and render the chances of
qualifiers illusory.
36. This Court is of the firm opinion that if a rule of relaxation is invoked in a routine manner it will
amount to neutralizing and degrading the recruitment rules in force. A striking balance in between
has to be adopted while exercising the powers of relaxation by the Competent Authorities. The
process of recruitment and appointment shall be made only by following the recruitment rules in
fore. In other words all appointments are to be made strictly by adhering the recruitment rules in
force. Thus, the rule of relaxation is an exception and such an exception is to be exercised cautiously
and sparingly in order to rectify the injustice caused to a particular case. Thus, the relaxation cannot
be claimed as a matter of right by the candidates.
37. Rule of relaxation is a discretion granted to the Government and such a discretionary power has
to be exercised judiciously and not in a routine manner. Relaxation being a discretionary power has
to be exercised by the competent authorities by applying the facts in a particular case and not in a
mechanical way to grant certain service benefits to the similarly placed persons. Granting relaxation
in one case by the Government cannot be cited as a precedent in other cases. In view of the fact that
the relaxation is an exception and cannot be followed in a routine affair. Thus, this Court is of the
firm view that all the appointments and regularizations are to be made only by following the
recruitment rules in force strictly and no relaxation can be granted by citing other cases and the
Government also to be cautious while exercising the powers of relaxation under Rule 48 in certain
cases.

38. As far as the facts and circumstances of the present case is concerned, the learned Additional
Advocate General made a submission that circumstances warranted to fill up the post of Nurses
urgently. Undoubtedly, the Court can appreciate the steps taken to fill up the posts. However, the
process of law must not be violated even http://www.judis.nic.in while filling up the public posts in
an urgent manner. For instance, if certain posts are to be filled up in an urgent manner, then the
Government should recruit persons on temporary basis or on a contractual basis for a specific
period, and in between, regular recruitment rules can be undertaken for the purpose of providing
equal opportunity to all the persons who all are eligible to secure public employment.
39. Thus, it is not as if the State cannot appoint persons on contract basis on a consolidated salary.
Such a concept would certainly affect the Fundamental Rights of all other eligible candidates who
are all fit to occupy the public posts. Thus, ways and means can be adopted by the State even to fill
up certain important posts in an urgent manner must be followed in such a way but not affecting the
Fundamental Rights of all other eligible citizens in consonance with the constitutional principles.
40. In the present case on hand, the learned Additional Advocate General informed this Court that
there was pressure on the State to fill up the post of the Nurses. Certain Public Interest Litigations
were also filed in the High Courts. The hospitals were not http://www.judis.nic.in functioning
properly in view of the fact that there was no adequate number of nurses in the hospitals. However
even under those circumstances, it is possible for the State to engage temporary nurses on contract
basis or daily wage rate basis or on a consolidated pay. During the interregnum period, it is the duty
on the part of the State to proceed with the regular recruitment process by strictly adhering the
recruitment rules in force. Contrarily, they cannot appoint the persons from the selection list of the
year 2015 amongst unsuccessful candidates and fill up the post on contract basis and thereafter,
regularize their services and deprive the rights of all other candidates who all are waiting to secure
public employment. Such a procedure adopted is undoubtedly a fraud on the constitution. If such
procedures are permitted, then it would look as if back door entries are encouraged by the Courts
also. The Hon'ble Supreme Court reiterated that back door entries can never be made by the State
and deprive the Constitutional rights of all other citizens. The Supreme Court has not extended the
services of the candidates who are all appointed by way of back door entry. The Courts are insisting
the Government to respect the Fundamental Rights guaranteed to the citizens.
41. Equal opportunity in public employment is the fundamental http://www.judis.nic.in right of a

citizen. If such a constitutional right is infringed, then the State has failed to be a model employer.
There is a great demand for public employment. Lakhs and Lakhs of young people are burning their
midnight lamps and putting hard work for participating in open competitive process and in the
event of allowing such back door appointments as well as illegality or irregularity in appointments
then the young minds, who are the backbone of our country, would lose their hope on merit and
ability. If the Government makes appointments through back door entry, the same would result in
denial of equal opportunity to all eligible candidates, which is guaranteed in Articles 14 and 16 of the
Constitution of India. Thus, it is the duty mandatory on the part of the Government to ensure that
all public posts are filled only by providing equal opportunity to all the eligible candidates who are
all aspiring to secure public employment by participating in the open competitive process.

42. This being the constitutional concept, philosophy and ethics, this court is of the considered
opinion that the State can never be allowed to continue such illegal or irregular appointment or back
door appointment and thereafter grant regularization or permanent absorption in violation of the
recruitment rules in force. http://www.judis.nic.in
43. Such appointments were made in large numbers in previous occasions by many states across the
country.
44. However, the Constitutional Bench of the Hon'ble Supreme Court of India laid down the legal
principles in the matter of regularisation and permanent absorption in the case of State of
Karnataka v. Umadevi [(2006) 4 SCC 1], laid down the legal principles in the matter of
regularisation, permanent absorption.
45.Thus, the principles laid down by the Constitutional Bench becomes the law of the land under
Article 141 of the Constitution of India. The States are bound to follow the principles settled by the
Constitutional Bench of the Hon'ble Supreme Court of India. The Supreme Court of India
unambiguously enumerated that all such back door entries are to be shut down and the State must
follow the recruitment rules scrupulously without any violation. At one point of time, the Courts are
duty bound to arrive at a conclusion that all such appointments are to be made transparent and by
providing equal opportunity to all other citizens.
46.This being the legal principles, this Court is of the considered opinion that the State in the
present case committed serious error, which resulted in unconstitutionality and thereby the
Fundamental Rights of many eligible persons are violated on account of the fact that the
appointments were made from and out of the unsuccessful candidates of the selection of the year
2015.
47.In view of these facts and circumstances, this Court is inclined to pass the following orders:-
(1) The respondents are at liberty to proceed with the process of selection by strictly
following the recruitment rules in force and by following the procedures
contemplated to fill up the posts of Nurses in the Service Rules.
(2) The unsuccessful candidates of the selection process conducted during the year 2015 and
appointed pursuant to G.O.(3D).No.80, Health and Family Welfare(AA1) Department dated
08.07.2016 and G.O.(3D).No.49, Health and Family Welfare(AA1) Department dated 16.10.2017 on
contract basis cannot be granted with the benefit of regularization and permanent absorption in the
sanctioned posts in regular time scale of pay. All these contract employees, who were appointed in
violation of the Recruitment Rules by grant of illegal relaxation, shall be permitted to participate in
the process http://www.judis.nic.in of selection in the ensuing Recruitment Notification to be issued
by the respondents.

(3) The respondents are directed, not to grant regularization and permanent absorption in violation
of the legal principles settled by the Constitution Bench of the Hon'ble Supreme Court of India in
the case of the State of Karnataka V. Umadevi[(2006)] 4 SCC 1] are becomes the law of the land
under Article 141 of the Constitution of India.
(4) The respondents are directed to allow the contract employees appointed in the cadre of Nurses
to continue in service till the sanctioned posts, are filled up by way of regular Recruitment process in
accordance with the rules in force. It is made clear that soon after the regular appointments are
made in accordance with the Recruitment Rules in force, the services of all those contract employees
are directed to be discharged.
(5) The respondents are directed to conduct the Recruitment for the Post of Doctors, Nurses, Para
Medical Staffs etc., periodically as per the MRB Rules in force to avoid such unnecessary
administrative exigencies in the matter of providing decent Medical facility to the citizen of this
great Nation.
48.With the above directions, the writ petition stands disposed of. However, there shall be no order
as to costs. Consequently, connected miscellaneous petitions are closed.
25.04.2019 ssb/kak Index:Yes Internet:Yes Speaking order To
1.The Principal Secretary, Govt.of Tamil Nadu, Department of Health and Family Welfare, Fort
St.George, Chennai 9.
2.The Member Secretary, Medical Services Recruitment Board(MRB) Teynampet, Chennai 8.
3.Private Studies Nurses Association Rep.by its President S.Senthilnathan No.31, Mettu Street, Velli
Medepettai, Tindivanam, Villupuram 604 207.
http://www.judis.nic.in S.M.SUBRAMANIAM, J.
ssb/kak W.P.No.26410 of 2018 25.04.2019 http://www.judis.nic.in

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G.

Udaya Kumar vs The Principal Secretary on 25 April, 2019

Madras High Court

IN THE HIGH COURT OF JUDICATURE AT MADRAS

THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM

G.Udaya Kumar ..Petitioner

1. The Principal Secretary, Govt. of Tamil Nadu

2. The Member Secretary

7.Private Studies Nurses Association,

records pertaining to the notice of the 2 nd respond

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consequently direct the respondents to conduct

For Petitioner : Mr.P.Puhazh Gandhi

For Respondent : Mr.A.N.Thambi Durai

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compromise in respect of maintaining the Government hospitals, appointment of Doctors and

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58.Power of Deal with Certain Cases.

(i)Whether there is any dearth of qualified hands;

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The following simple illustration will explain the situation well:

(ii)Relaxation of test qualification.

(a)The person should be not less than 53 years of age.

(c)He should have satisfactory service records to get the concessions.

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41. Equal opportunity in public employment is the fundamental http://www.judis.nic.in right of a

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25.04.2019 ssb/kak Index:Yes Internet:Yes Speaking order To

2.The Member Secretary, Medical Services Recruitment Board(MRB) Teynampet, Chennai 8.

ssb/kak W.P.No.26410 of 2018 25.04.2019 http://www.judis.nic.in

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