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Dr. S. Revwathy Vs. The Government of Tamil Nadu, Represented by its Principal Secretary, Health and Family Welfare Department, Fort St. George, Chennai and Others - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberW.A. (MD) No. 1304 of 2016 & C.M.P. (MD) No. 9047 of 2016
Judge
AppellantDr. S. Revwathy
RespondentThe Government of Tamil Nadu, Represented by its Principal Secretary, Health and Family Welfare Department, Fort St. George, Chennai and Others
Excerpt:
m. sathyanarayanan, j. 1. by consent, the writ appeal is taken up for final disposal. 2. the appellant is the writ petitioner in w.p(md)no.6790 of 2016 and she made a challenge as to the appointment of the third respondent as the director of medical education and it has ended in failure in the form of dismissal of the writ petition on 01.09.2016 and hence, this writ appeal. 3. the facts leading to the filing of this writ appeal relevant for the purpose of disposal of this writ appeal and briefly narrated, are as follows: 3.1. the appellant/writ petitioner would state that after successfully completing m.b.b.s., degree, she joined the tamil nadu government medical service in the year 1987 and rendered her services as medical officer in the government primary health centre till 1991 and she.....
Judgment:

M. Sathyanarayanan, J.

1. By consent, the writ appeal is taken up for final disposal.

2. The appellant is the writ petitioner in W.P(MD)No.6790 of 2016 and she made a challenge as to the appointment of the third respondent as the Director of Medical Education and it has ended in failure in the form of dismissal of the writ petition on 01.09.2016 and hence, this writ appeal.

3. The facts leading to the filing of this writ appeal relevant for the purpose of disposal of this writ appeal and briefly narrated, are as follows:

3.1. The appellant/writ petitioner would state that after successfully completing M.B.B.S., Degree, she joined the Tamil Nadu Government Medical Service in the year 1987 and rendered her services as Medical Officer in the Government Primary Health Centre till 1991 and she did her Doctor of Medicine (M.D., Degree) in Obstetrics and Gynecology, in the year 1988-1990 at Madurai Medical College and passed with University Rank in the year 1990 and thereafter, continued as Medical Officer at Poolathur Primary Health Centre, Kodaikkanal, Dindigul District and from June 1990 to December 1990, she worked under the Director of Medical and Rural Health Services Side at Ayakudi Government Hospital, Dindigul District and from December 1990 to April 2002, she worked in Periperal Hospital, Palarengapuram. According to the appellant/writ petitioner, she served in all ranks in the Department of Obstetrics and Gynecology at different Medical Colleges from 1992 to 2009 and as an Assistant Professor from 1992 to 2009 and got her promotion as Associate Professor and further as a Professor and worked in that capacity in Tirunelveli, Theni and Madurai Medical Colleges between 2009 and 2013. She had put in honest, sincere, dedicated and blemishless service. In the year 2013, she was promoted as Dean and as on that date, she was working as Dean/Special Officer, Karur Medical College.

3.2. The appellant/writ petitioner would further state that Dr.S.Geethalakshmi, Director of Medical Education, was appointed as Vice Chancellor of Dr. M.G.R. Medical University and joined the said post on 28.12.2015 and it has fallen vacant and if she would have continued as Director of Medical Education, she should retire on 31.01.2016. As the post of Director of Medical Education falls vacant, the third respondent was appointed as In-Charge of Director of Medical Education.

3.3. It is the specific claim of the appellant/writ petitioner that while Dr. S. Geethalakshmi was the Director of Medical Education, she had drawn the panel as per the existing Special Rules, which prescribes, among other things, that a candidate eligible to be considered for appointment to the post of Director of Medical Education, shall have a minimum of one year service left prior to the age of retirement and she has also sent the panel to the Secretary to the Government, Health and Family Welfare Department, containing the following names and they are extracted below:

1. Dr. R. Vimala - one year left over service not available. Officer on Special Duty (OSD) can be given.

2. Dr. S. Revathy - senior most Civil Medical List eligible.

3. Dr. AL. Meenakshi Sundaram - Eligible.

4. Dr. Edwin Joe - Eligible.

3.4. The appellant/writ petitioner had also submitted a representation to the first respondent that she fulfils the necessary criteria and therefore, prayed for her appointment as the Director of Medical Education and was expecting favourable response. However, to her shock and surprise, the first respondent has relaxed the qualification as to the minimum of one year left over service and relaxed the Rule 8(b)(iv) of the Special Rules for Tamil Nadu Medical Service without assigning any reason and appointed the third respondent as the Director of Medical Education vide G.O.(D)No. 446, Health and Family Welfare (A1) Department, dated 18.03.2016, ignoring her representation dated 04.03.2016.

3.5. The appellant/writ petitioner would contend that in the process, the mandatory guidelines given in G.O.(Ms)No.368, Personnel and Administrative Reforms Department, dated 18.10.1993, have been given a go-by and the third respondent being the In-Charge of the Director of Medical Education herself played a prominent role by recommending her own name to the first respondent in the letter in Ref.No.83241/E1(1)/2015, dated 30.12.2015. The appellant/writ petitioner also raised a ground that the third respondent has been shown undue favouritism and consideration and the relative merits and demerits of the candidates who have been short listed which included the appellant/writ petitioner, have not been appraised and considered and therefore, prayed for quashment of the impugned Government Order with a consequential direction, directing the first respondent to appoint her in the post of Director of Medical Education.

3.6. The writ petition was entertained and the respondents 1 and 2 have filed their counter contending, among other things, that as per the Rules in force, to fill up a single vacancy in respect of the Head of Department, the claims of first 5 qualified candidates in the seniority list should be considered and apart from the third respondent, Dr.A.Edwin Joe, the appellant/writ petitioner, Dr. AL. Meenakshi Sundaram and Dr. B. Santhakumar were also considered and on the crucial date of 15.03.2015, the third respondent had a clear period of more than one year of service and though her claim was considered in the previous panel for the year 2013-2014, it was not positively considered due to non-availability of vacancy in the said post and considering her length of service in the post of Dean and the merit and ability, the first respondent/Government took a policy decision to positively consider her name for appointment to the post of Director of Medical Education by relaxing Rule 8(b)(iv) of the Special Rules for Tamil Nadu Medical Service and such a power is also vested in the light of the General Rule 48 of the Tamil Nadu State and Subordinate Services.

3.7. The respondents 1 and 2 also took a stand that on account of the fact that Dr. S. Geethalakshmi who was the Director of Medical Education became the Vice Chancellor of Dr. M.G.R. Medical University on 28.12.2015, the third respondent being the senior most Medical Officer in the cadre of Dean was placed to hold Full Additional Charge of the post of Director of Medical Education with effect from 28.12.2015 A.N., and noted the impediment of shortage of minimum left over service of one year, a fair decision has been taken in accordance with law to relax the said Rule and accordingly, it was relaxed and the third respondent came to be appointed.

3.8. The respondents 1 and 2 also took a stand that the name of the appellant/writ petitioner was not included since there is another senior most Medical Officer, namely, Dr.A.Edwin Joe, he was placed above the appellant/writ petitioner and on that ground also, the appellant/writ petitioner is not eligible for the post of Director of Medical Education in the panel for the year 2015-2016 and therefore, prayed for the dismissal of the same.

3.9. The appellant/writ petitioner, in response to the counter affidavits of the respondents 1 and 2, filed her rejoinder reiterating the same and also pointed out that she is admittedly senior to Dr.A.Edwin Joe, for the reason that her Civil Medical List Number is 4018, whereas the Civil Medical List Number of Dr.A.Edwin Joe is 4821. She would further contend that for the post of Director of Medical Education, which is a selection post, relative merits and demerits of the candidates have to be considered and the said exercise has not been done and therefore, she prayed for allowing the writ petition.

3.10. The respondents 1 and 2 filed a reply affidavit to the rejoinder affidavit filed by the appellant/writ petitioner and reiterated their stand, especially, with regard to the seniority of Dr.A.Edwin Joe over and above the Civil Medical List of the appellant/writ petitioner.

3.11. The learned Judge after taking note of the rival submissions and also the materials placed before this Court and after going through the original records relevant to the appointment of the third respondent, found that on the date of crucial date, i.e. 15.03.2015, the third respondent is having one year and seven months of left over service and she is also senior most person in the Civil Medical List and further that since she was also considered in the panel for the previous year 2013-2014 for the post of Director of Medical Education, her claim was rightly considered and the relaxation of rule was also done in accordance with law and therefore, dismissed the writ petition, vide impugned order dated 01.09.2016. The appellant/writ petitioner aggrieved by the same, filed this writ appeal.

4. Mr. G.R. Swaminathan, learned Counsel for the appellant/writ petitioner has drawn the attention of this Court to G.O.(Ms) No. 368, Personnel and Administrative Reforms Department, dated 18.10.1993 and would submit that as per sub-clause (vii) to subpara 1 in para 2 of the said Government Order, to fill up a single vacancy in respect of Head of Department, the claims of the first 5 qualified candidates in the seniority list should be considered and the concerned officer should have not less than one year's service left before retirement and those who do not have such a minimum period of left over service, but are otherwise found to be fully qualified, and are fit for promotion as Head of Department and deserve recognition on the crucial date of preparation of panel, should be compensated by appointing them as officers on Special Duty with a specific assignment and with the same scale of pay as that of the Head of Department and admittedly, the third respondent did not have the minimum period of left over service and therefore, the appellant/writ petitioner should have been appointed as the Director of Medical Education and the third respondent should have been accommodated as the Head of Department by way of Officer on Special Duty, which has been done in the earlier occasion while appointing Dr. S. Geethalakshmi, as Director of Medical Education and for the reasons best known to the first respondent, the same has not been done.

5. It is the further submission of the learned Counsel for the appellant/writ petitioner that Dr. S. Geethalakshmi, while holding the post of the Director of Medical Education, in terms of para 2 of G.O. (Ms)No.368, Personnel and Administrative Reforms Department, dated 18.10.1993, sent a proposal containing the names of the third respondent, the appellant/writ petitioner, Dr. AL. Meenakshi Sundaram and Dr. A. Edwin Joe and also pointed out that since the third respondent has got less than one year of left over service, she can be accommodated as an Officer on Special Duty and the said proposal has been kept in a cold storage and thereafter, the third respondent assumed the office of In-charge of Director of Medical Education and she herself forwarded the proposal for filling up the vacant post of Director of Medical Education, vide her letter dated 30.12.2015 to the first respondent and the said act cannot be termed as a fair one as she herself be the judge of her own cause.

6. It is the further submission of the learned Counsel for the appellant/writ petitioner that the period of left over service should be counted only from the date of preparation of panel, i.e. the letter of third respondent, dated 30.12.2015 and not anterior to the said date, i.e. 15.03.2015 and even otherwise, the power of relaxation exercised by the first respondent in favour of the third respondent is against good conscience and also bristles with arbitrariness and right from the start, files are moved only in such a way to accommodate the third respondent.

7. Lastly, it is contended by the learned Counsel for the appellant/writ petitioner that relative merits and demerits of five candidates eligible to be considered for the post of Director of Medical Education, have not been done and on that ground also, the impugned order appointing the third respondent as the Director of Medical Education warrants interference.

8. It is also brought to the knowledge of this Court by the learned Counsel for the appellant/writ petitioner that the third respondent is retiring on 31.10.2016 and thereafter, the post of Director of Medical Education will once again fall vacant and for filling up the said post, the claim of the appellant/writ petitioner may be positively considered as she will be the senior most Medical Officer in the Civil Medical List and the first respondent need not be influenced by the act of the appellant/writ petitioner in filing the writ petition as well as this writ appeal as she has exercised her legal and constitutional right.

9. Per contra, Mr. B. Pugalendhi, learned Additional Advocate General assisted by Mr. A.K. Baskarapandian, learned Special Government Pleader appearing for the respondents, would vehemently contend that the comparative merit of all eligible candidates has been considered and analysed objectively and it was found that on the crucial date, i.e. on 15.03.2015, the third respondent had the left over service of one year, seven months and fifteen days and taking into consideration her past record, a fair and conscious decision has been taken to appoint her as the Director of Medical Education and since she had the left over service of less than one year, a decision has been to relax the Rule 8(b)(iv) of the Special Rules for Tamil Nadu Medical Service and accordingly, the impugned order came to be passed and in the light of the above facts and circumstances of the case, it cannot be faulted with and therefore, he prays for the dismissal of this writ appeal.

10. This Court paid it's anxious consideration and best attention to the rival submissions and also perused the materials placed before this Court.

11. The primordial question that arises for consideration is, whether the appointment of the third respondent as the Director of Medical Education by relaxing the Rule 8(b)(iv) of the Special Rules for Tamil Nadu Medical Service, is sustainable?

12. It is relevant to extract hereunder some of the relevant paragraphs in G.O.(Ms)No. 368, Personnel and Administrative Reforms Department, dated 18.10.1993:

"Para.2(1)(vii): Filling up of posts of Heads of Department - (1) To fill up a single vacancy in respect of Head of Department, the claims of the first 5 qualified candidates in the seniority list should be considered and a panel of at least two names should be got approved in order to meet any contingency. According to the orders issued in the Government Order fifth read above, to be eligible for promotion as Head of Department, an Officer should have not less than one year's service left before retirement. Those who do not have such a minimum period of left over service deserve recognition on the crucial date of preparation of panel, should be compensated by appointing them as officers on Special duty with a specific assignment and with the same scale of pay as that of the Head of Department."

"Para.2(2): Proposals to fill up the posts of Heads of Department (non-IAS) will have to be initiated by the Secretaries to Government themselves 3 months in advance of the prospective date of retirement of the existing incumbent, as all the relevant particulars would be available in the Secretariat. If the initiative to send proposals is left with the Heads of Department themselves there are found to be delays caused by subjective considerations. Such promotion proposals will have to be suitably monitored by the Secretaries to Government themselves so that orders are issued before the retirement of the existing incumbent and the cases of those who have a minimum service of one year from the date of retirement of the previous incumbent are not omitted because of administrative delay."

13. The first respondent, vide G.O.Ms.No.124, Health and Family Welfare (A1) Department, dated 10.06.2003, had brought forth amendments to the Special Rules for the Tamil Nadu Medical Services, in Section 21 in Volume II of the Tamil Nadu Service Manual, 1969 and also indicated that it shall be given effect from 15.03.2003. It is relevant to extract the same herein below:

"AMENDMENT

In the said Special Rules, in Part II, in 'Branch I Medical', in rule 8, for sub-rule (b), the following shall be substituted, namely:-

"(b) No person shall be eligible for appointment to the post of Director of Medical Education, unless:-

(i) he possess a Post Graduate degree in a Medical faculty or any other qualification approved by Medical Council of India to be treated on par with MD/MS awarded by Indian University.

(ii) he has served for a period of not less than ten years after completing the required Post Graduate Degree mentioned in clause (I) above, in one or more of the following posts, namely:-

Tutor/Assistant Professor/Professor/Reader in a Clinical or Non-clinical Department in a Government teaching medical institution, out of which four years of teaching experience as Reader/Professor.

(iii) he has administrative experience for a period of not less than two years in one or more of the following posts, namely, Director of Upgraded Institute or Director, Institute of Thoracic Medicine, Director of King Institute, Guindy/Dean/Principal/Superintendent of a Medical College/Medical College Hospital out of which one year must be as a Dean of a Medical College.

(iv) he has a minimum of one year left over service prior to date of retirement."

14. The first respondent, vide G.O.Ms.No.354, Health and Family Welfare (B2) Department, dated 23.10.2009, had taken into consideration the demand made by the Tamil Nadu Government Doctors Association and constituted a committee and based on the recommendation made, had issued the above said Government Order and it is relevant to extract hereunder the following paragraphs:

"II. Director of Medical Education side:-

(i) ***** *****

(ii) ***** *****

(iii) The Director of Medical Education unit's seniority list will be of two categories (1). General seniority - for all those doctors with MBBS and diploma degree. (2). Specialist seniority - Speciality wise seniority for those with master degree and or super speciality degree.

(iv) Both the general seniority and speciality seniority will be based on their seniority in Civil Medical List. After getting the seniority in their speciality, their future promotions would be based on the speciality-specific seniority and they would not have further lien on their seniority in Civil Medical List for the purpose of promotion. However seniority in Civil Medical List would be relevant only for the limited purpose of fixing inter-se seniority relative to those joining their speciality in the Director of Medical Education side. No equivalent promotion can be claimed by any specialist based on inter-se Civil Medical List seniority on account of doctors in some other speciality. Civil Medical List seniority would after that be relevant only to fix the seniority in the speciality specific seniority list, and after that, it is that seniority list which would operate as illustrated in the annexure to this order.

(v) For higher level posts and posts in common pool, the Civil Medical List seniority will be the basis for promotion.

(vi) ***** *****

(vii) Once a person joins any speciality under Director of Medical Education, his inter-se seniority in the speciality would depend on the person's seniority in the Civil Medical List. The Civil Medical List would continue to decide the speciality specific seniority, till the Associate Professor level. However, any person getting promoted under any speciality would not entitle other persons in other specialities to be promoted similarly, if they are senior in the Civil Medical List to such a person. Similarly, any person in any speciality would not be entitled to get a promotion, based on a junior in the same speciality having got such a promotion in the Director of Medical and Rural Health Services, Director of Medical and Rural Health Services, (ESI) and Director of Public Health and Preventive Medicine side."

(emphasis supplied.)

15. A vacancy arose for the post of Director of Medical Education for the year 2013-2014 and the Director of Medical Education had sent a proposal for preparation of a panel to the said post vide letter in Ref.No.83241/E1/1/2015, dated 19.12.2015 and the first respondent/Government, after examining the proposal, vide G.O.(D)No. 122, Health and Family Welfare (A1) Department, dated 31.01.2014, had approved the panel for the post of the Director of Medical Education for the year 2013-2014 consisting the names of Dr. R.G. Sukumar, Additional Director of Medical Education/Secretary, Selection Committee, Office of the Director of Medical Education, Chennai - 600 010; Dr. S. Geethalakshmi, Dean, Stanley Medical College, Chennai and Dr. R. Vimala, Dean, Coimbatore Medical College, Coimbatore the third respondent herein and thereafter, issued G.O.(D)No. 123, Health and Family Welfare (A1) Department, dated 31.01.2014, promoting and appointing Dr. S. Geethalakshmi as the Director of Medical Education and senior to her, namely, Dr. R.G. Sukumar, was appointed as Officer on Special Duty (OSD) in the cadre of Director of Medical Education as a special case.

16. The term of Dr. S. Geethalakshmi as the Director of Medical Education came to an end on 31.01.2016, the third respondent was appointed as In-charge of the Director of Medical Education and she mooted out the proposal vide Ref. No. 83241/E1/1/2015, dated 30.12.2015 and submitted the same to the first respondent and along with the said communication, she has forwarded the list of seniority of Medical Officers for the said post for consideration to draw up a panel and as per the Annexure to the said proposal, the seniority list of Medical Officers for the post of Director of Medical Education for the year 2015-2016 has been enclosed and as per the said list, the third respondent was in Sl.No.18; the appellant/writ petitioner was in Sl. No.21; Dr.A.Edwin Joe was in Sl. No. 38 and Dr. B. Santhakumar was in Sl. No. 39.

17. The appellant/writ petitioner has also submitted the representation, dated 04.03.2016, specifically pointing out that she is the senior most Medical Officer in the Director of Medical Education panel with more than one year left over service as she will retire on 28.02.2018 and therefore, prayed for consideration of her name.

18. The first respondent, after considering the proposals of the Director of Medical Education, dated 30.12.2015 and 05.01.2016 and having found that the third respondent is not having the required minimum left over service, relaxed the Rule 8(b)(iv) of the Special Rules for Tamil Nadu Medical Service vide first impugned order in G.O. (D) No. 446, Health and Family Welfare (A1) Department, dated 18.03.2016 and after relaxing the said Rule, appointed the third respondent as the Director of Medical Education vide second impugned order in G.O. (D) No. 447, Health and Family Welfare (A1) Department, dated 18.03.2016.

19. This Court has also summoned the Note File relating to the said selection process and perused the same.

20. The post of Director of Medical Education is an important post and considering the fact that said official has to play a crucial role to ensure the quality of medical education, it is a selection post and therefore, merit is a prime consideration.

21. Part II of Section 21 of the Tamil Nadu Medical Service deals with constitution and the post of Director of Medical Education is categorised as Special Class. Clause 4 deals with promotion and it says that as per sub-clause (a), promotion to the post of Director of Medical Education shall be made on the basis of merit and ability, seniority being considered only where merit and ability are approximately equal. Therefore, the incidental question that arises for consideration is, whether merit and ability of the short listed candidates which included the appellant/writ petitioner have been considered by the first respondent or not?

22. A perusal of the Note File for Circulation would clearly reveal that the comparison of merit and ability of the short listed candidates has not been done at all and right from the start, a positive proposal has been made in favour of the third respondent. The Principal Secretaries of the first respondent and the Personnel and Administrative Reforms Department, had accepted the said proposal and so also the Chief Secretary to the Government, the Honourable Minister for Health and Family Welfare Department and the Honourable Chief Minister of Tamil Nadu.

23. The learned Counsel for the appellant/writ petitioner, by placing reliance upon the decision of the Honourable Supreme Court in Raj reported in (2015, would submit that the relaxation of minimum qualifying experience arose for consideration and the Honourable Supreme Court has taken note of various decisions and on the facts of the case, found that no material has been placed to show that the State Government or Parishad resorted to exercise the power under Regulation 20 of U.P. Avas Evam Vikas Parishad (Appointment and Conditions of Service of Chief Engineer) Regulations, 1990, for some unauthorised or oblique purpose.

24. The learned Counsel for the appellant/writ petitioner has also drawn the attention of this Court to the decision in J.C. Yadav v. State of Haryana reported in (AIR 1990 SC 857 : (1990) 2 SCC 189 : LNIND 1990 SC 96, wherein it has been held in paragraph 6 that 'the relaxation of the rules may be to the extent the State Government may consider necessary for dealing with a particular situation in a just and equitable manner. The scope of rule is wide enough to confer power on the State Government to relax the requirement of rules in respect of an individual or class of individuals to the extent it may consider necessary for dealing with the case in a just and equitable manner. The power of relaxation is generally contained in the rules with a view to mitigate undue hardship or to meet a particular situation. Many a time strict application of service rules create a situation where a particular individual or a set of individuals may suffer undue hardship and further there may be a situation where requisite qualified persons may not be available for appointment to the service....' and would contend that the decision taken to relax Rule 8(b)(iv) of the Special Rules for Tamil Nadu Medical Service has not been done in accordance with a fair and equitable manner and right from the start, a decision has been taken to accommodate the third respondent and accordingly, she was appointed as the Director of Medical Education by relaxing the said Rule and though the appellant/writ petitioner is more meritorious candidate, her claim has been unjustly overlooked and prays for setting aside the impugned orders which are the subject matter of challenge in the writ petition and the order dismissing the writ petition.

25. The first respondent has also put up a Note to the Secretary to the Government, Health and Family Welfare Department, in C. No. 51354/A1/2015, for relaxation of the relevant Rules in favour of the third respondent as she does not have a minimum period of left over service before her retirement. The Secretary to the Government has noted/expressed his opinion, which reads as follows:

"Already Dr. Vimala is the senior most. More importantly, in view of merit, Dr. Vimala may be considered."

and as already pointed out, the impugned orders relaxing the Rule 8(b)(iv) of the Special Rules for Tamil Nadu Medical Service and appointing her as the Director of Medical Education came to be passed on 18.03.2016 by two separate Government Orders.

26. This Court after carefully scanning through the above records and on a careful analysis of the materials available on record, is of the considered opinion that while appointing the third respondent, the Sub-clause (a) to Clause 4 in Part II of Section 21 of the Tamil Nadu Medical Service has not been complied with. However, it is brought to the knowledge of this Court that the third respondent retired from service on 31.10.2016 and therefore, the subject matter of challenge no longer survives.

27. Since the post of the Director of Medical Education has fallen vacant, the first respondent is under a statutory obligation to draw a panel for the appointment to the post of the Director of Medical Education and consider the short listed candidates, strictly in accordance with the Sub-clause (a) to Clause 4 in Part II of Section 21 of the Tamil Nadu Medical Service. We hope and trust that such exercise is to be done in a fair and transparent manner and strictly in accordance with law.

28. In the result, this writ appeal is disposed of accordingly. No costs. Consequently, the connected civil miscellaneous petition is closed.

Appeal disposed of.


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