Madras High Court
The Secretary To Government vs M.R.Vinayagamurthi on 24 February, 2021
W.A.(MD)No.16 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)No.16 of 2021
and
C.M.P(MD).No.95 of 2021
1.The Secretary to Government,
Health and Family Welfare (AA1) Department,
Secretariat, Chennai 600 009.
2.The Director of Medical Education,
Kilpauk, Chennai 600 010. : Appellants
Vs.
M.R.Vinayagamurthi : Respondent
PRAYER: Writ Appeal filed under Clause 15 of the Letters Patent as against the
order dated 23.01.2020 made in W.P.(MD)No.25626 of 2019.
For Appellants : Mrs.J.Padmavathidevi
Special Government Pleader
For Respondent : Mr.S.Visvalingam
*****
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W.A.(MD)No.16 of 2021
JUDGMENT
(Judgment of the Court was delivered by M.M.SUNDRESH, J.)
This appeal has been preferred by the appellants challenging the order of the
learned Single Judge, who while setting aside the order impugned before him
incidentally issued a direction to treat the respondent as senior to those candidates
directly recruited on 29.08.2007.
2.The issue involved in this writ appeal is with respect to the fixation of
inter se seniority in the post of Associate Professor. The respondent missed the
bus for inclusion in the panel for the year 2003-2004. This was for the reason that
he has not completed the probation. At that relevant point of time, the requisite
educational qualification was only B.Pharm degree, thereafter, it was amended as
M.Pharm. The respondent/writ petitioner completed M.Pharm degree in the
month of March-2007.
3.The respondent made a representation stating that at least his seniority will
have to be fixed on par with the directly recruited candidates by treating him as a
senior. This was rejected on two grounds, namely, he was not qualified earlier and
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W.A.(MD)No.16 of 2021
he has completed M.Pharm only in the month of March-2007, whereas the process
of recruitment started in the month of February-2007.
4.The learned Special Government Pleader appearing for the appellants
submitted that the learned Single Judge has not gone into other issues and even on
the issue of qualification prescribed the finding of the learned Single Judge is not
correct. Reliance has been made on the Government Order issued in G.O.Ms.No.
274, Health and Family Welfare (AA1) Department, dated 07.09.2015, in support
of her contention.
5.The learned counsel appearing for the respondent submitted that the issue
is some what different. The respondent did not want his notional fixation of
seniority on par with those who bypassed him already based on the panel prepared
for the year 2003-2004. He wants his seniority to be reckoned by comparing him
with the directly recruited candidates. Admittedly, as per the Rules, the instant
candidates (in service candidates) will have to be considered prior to direct
recruitment. The Government Order relied upon does not have any application to
the case of the respondent. The said Government Order has come into being
subsequently. Therefore, the qualification prescribed at the relevant point of time
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W.A.(MD)No.16 of 2021
i.e., in the year 2007, is only B.Pharm. The respondent had both the qualifications,
namely, B.Pharm and completion of probation.
6.We do not find any merit in this appeal and there is no dispute on the fact
that the respondent/writ petitioner completed B.Pharm much prior to the
commencement of recruitment process for the direct recruitment and he has also
completed M.Pharm during March-2007. We are not concerned with the M.Pharm
completed by the respondent, but B.Pharm, which he admittedly, completed earlier
to the recruitment process. The reliance made on the Government Order in
G.O.Ms.No.274, dated 07.09.2015, cannot be countenanced. This being the
prospective in nature, the additional reliance sought to be made with respect to
another Government Order in G.O.Ms.No.94, Health and Family Welfare
Department, dated 11.09.2006, also will not hold good, as this was more rational
to the case on hand and the respondent was not considered for temporary
promotion. We are not concerned with the temporary promotion given to others,
since the aforesaid exercise had been done to suit the norms of AICTE and PCI.
7.If the earlier Government Order passed in G.O.Ms.No.94, dated
11.09.2006, is applicable to his subsequent post, there is no need for the
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W.A.(MD)No.16 of 2021
application of the subsequent Government Order passed in G.O.Ms.No.274, dated
07.09.2015. Thus, the said contention deserves to be rejected.
8.After all, the Government Order fixing qualification can never be
retrospective. Therefore, the said Government Order passed in 2015, by no stretch
of imagination, can be applied to the case of the respondent. Even on merits, we
do not find any reason to interfere with the same. Even if the recruitment process
has already been started in February-2007 and the respondent has completed
M.Pharm in March 2007, the appellants ought to have waited for it. What is
importance is, the completion of process of recruitment and not the date of
commencement of recruitment. If the respondent has completed M.Pharm in
March 2007, the recruitment made and appointment given thereafter, cannot be
taken as a precedent. Thus, even on the aforesaid ground, the respondent is
entitled to succeed.
9.We make it clear that while upholding of the order of the learned Single
Judge, we expect the appellants to put on notice not only to the respondent but
also the other direct recruitees, as admittedly they were not parties before the
learned Single Judge and the fixation of inter-se seniority is having civil
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W.A.(MD)No.16 of 2021
consequences and the persons, who have already placed above the respondent, are
also entitled to be heard .
10.Thus, looking from any perspective, we are of the view that the case of
the respondent cannot be denied.
11.For the above reasons, we are inclined to uphold of the order of the
learned Single Judge and the present Writ Appeal is dismissed. No costs.
Consequently, connected C.M.P(MD).No.95 of 2021 is also dismissed.
Index : Yes / No [M.M.S.,J.] [S.A.I.,J.]
Internet : Yes 24.02.2021
rmk
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W.A.(MD)No.16 of 2021
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W.A.(MD)No.16 of 2021
M.M.SUNDRESH, J.
AND
S.ANANTHI, J.
rmk
W.A.(MD)No.16 of 2021
24.02.2021
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