Madras High Court
The Principal Secretary vs Dr.P.Sudha on 26 November, 2021
W.A(MD)No.1958 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
W.A(MD)No.1958 of 2021
and
C.M.P(MD)No.8826 of 2021
1.The Principal Secretary,
Department of Health and Family Welfare,
Government of Tamil Nadu,
4th Floor, Fort St. George,
Secretariat,
Chennai-600 009.
2.The Director of Medical Education,
No.156, Poonamallee High Road,
New Bupathy Nagar,
Chetpat, Chennai-31. ... Appellants/Respondents
Vs.
Dr.P.Sudha ... Respondent/Writ Petitioner
PRAYER: The Writ Appeal filed under Clause 15 of the Letters Patent Act,
against the order passed by this Court in W.P.(MD)No.10163 of 2020, dated
23.09.2020.
1/12
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W.A(MD)No.1958 of 2021
For Appellants : Mr.R.Baskaran
Additional Advocate General
For Respondent : Mr.R.Singaravelan
Senior Counsel
JUDGMENT
S.VAIDYANATHAN,J.
and
DR.G.JAYACHANDRAN,J.
The Writ Appeal has been filed by the State challenging the order
passed by this Court in W.P.(MD)No.10163 of 2020, dated 23.09.2020
allowing the writ petition seeking issuance of Writ of Certiorarified
Mandamus to quash the impugned order of the Director of Medical
Education, dated 20.03.2020 and direct the respondents to promote the
petitioner in the post of Professor of Pharmacology with effect from the
date of promotion given to her batchmates and juniors with all monetary
and service benefits within a time stipulated by this Court.
2. The appeal has been filed by the State on the ground that the
learned Single Judge has not considered the Government Order in
G.O(Ms)No.66, Health and Family Welfare Department, dated 19.02.2016
and the proposal of the Government to sanction the teaching posts in all
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W.A(MD)No.1958 of 2021
the Government Medical Colleges so as to give promotion to the Medical
Officers, who are fulfilled the norms of the Medical Council of India, and
subject to availability of the vacancies and the Government Order in
G.O(4D) 2, Health and Family Welfare Department, dated 15.02.2019
issued by the Government. It is also pleaded in the appeal that the
restructuring and sanctioning of the teaching posts in the Medical Colleges
as per the norms of Medical Council of India both College-wise and
Departmental-wise subject to certain conditions were not taken into
consideration by the learned Single Judge, while passing the impugned
order.
3. It is contended that the writ petitioner to claim the post of
Professorship ought to have published four publications in the index
journals. She has not published four publications in the index journals till
15.03.2019. Therefore, she is not entitled for any promotion as Professor
without making 4 publications, which is a mandate, as per the Medical
Council of India norms. It is also contended that as per G.O(Ms)No.354,
Health and Family Welfare Department, dated 23.10.2009 the
redesignation of Medical Officers, as Professor, will be applicable only to
those, who have completed 20 years of service in the Tamil Nadu Medical
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W.A(MD)No.1958 of 2021
Service. Whereas, the writ petitioner in this case joined in the service only
in the year 2003 and she will be eligible for the post of Professorship only
on completion of 20 years of service, whereas, the learned Single Judge
failed to note the spirit of G.O.(MD)No.354, Health and Family Welfare
Department, dated 23.10.2009 had allowed the writ petition seeking
promotion to the post of Professor as on 16.12.2013 with retrospective
effect with all monetory benefits.
4. The learned Additional Advocate General Mr.R.Baskaran appearing
for the appellants had produced the file and took all efforts to convince this
Court to substantiate the plea of the Government in the appeal that the
order of the learned Single Judge is erroneous and liable to be set aside.
5. This Court heard the learned Additional Advocate General
Mr.R.Baskaran appearing for the appellants and the learned Senior
Counsel Mr.R.Singaravelan appearing for the respondent. Perused the
original records furnished by the Additional Advocate General.
6. After hearing the counsel and perusing the record at length, this
Court finds no error in the order of the learned Single Judge except to add
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W.A(MD)No.1958 of 2021
our finding to reinforce the Single Judge order. The case of the writ
petitioner is that she was promoted temporarily as Associate Professor of
Pharmacology vide G.O(D)No.1138, Health and Family Welfare (A1)
Department, dated 20.10.2009 under Rule 39(a)(i) of the General Rules for
the Tamil Nadu State and Subordinate Services along with three other
Assistant Professors while one among them namely Dr.Thirukarthikeyan
later expired. The other two Assistant Professors, who have promoted
along with the writ petitioner, as Associate Professors on 20.10.2009, were
promoted as Professor of Pharmacology vide order of the Director of
Medical Education, dated 03.12.2013, whereas, the petitioner was
singularly discriminated from not extending the same benefit of
promotion.
7. Further, it is brought to the notice of this Court by the learned
Senior counsel for the respondent/writ petitioner that the second
respondent in the writ petition vide order dated 10.04.2015 in Ref.No.
14142/E1/1/14 referring G.O.Ms.No.354/Fin.(PC) Department dated
23.04.2009 has passed an order redesignating the writ
petitioner/respondent as Professor of Pharmacology, K.A.P.Viswanatham
Government Medical College, Trichy with effect from 16.02.2013 F.N.,
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W.A(MD)No.1958 of 2021
While so, having redesignated the writ petitioner as Professor of
Pharmacology with effect from 16.02.2013 through this writ appeal an
attempt is made to project as if the writ petitioner is not qualified to be
promoted as Professor, since she did not publish four publications in the
index journals, as per the Medical Council of India norms and not
completed 20 years of service as Medical Officer.
8. This Court, on perusing the records finds that both the reasons for
rejecting her request are inconsistent with each other and also contrary to
the Government Order. As per the rules and the Government Orders
prevailed on the date of her representation, the writ petitioner was
redesignated and promoted as Professor, that apart, the other Professors
namely, Dr.R.Sarojini and Dr.L.Madhan, who were promoted as Associate
Professor along with the writ petitioner, were further promoted as
Professors without any hesitation by the Government.
9. This Court wish to point out that when other two Medical Officers
have been promoted as Professors, there is no reasonable justification
given by the Government for not promoting the petitioner alone as
Professor by quoting the subsequent amendment of Medical Council of
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W.A(MD)No.1958 of 2021
India norms. The act of discrimination cited. Government Order not
directly relevant to the writ petitioner and the inconsistent Policy of the
Government, does not auger well to the understanding of this Court.
10. This Court wish to record that G.O(Ms)No.354, Health and Family
Welfare (B2) Department, dated 23.10.2009, which is heavily relied on by
the Additional Advocate General for depriving the promotion to the writ
petitioner on the ground she has not completed 20 years of service as
Assistant Professor in fact does not speak about the Associate Professors.
This Government Order is in respect of the Medical Officers, who are at the
level of Assistant Professor got stagnated for more than 20 years without
any promotion after entering into Tamil Nadu Medical Service. This
Government Order in G.O.Ms.No.354, Health and Family Welfare (B2)
Department, dated 23.10.2009, is intended to give one time promotion to
the Assistant Professor in the Tamil Nadu Medical Service, who have put in
20 years of continuous service without any promotion and stagnated in the
same post for more than 20 years. Thus, the Government Order, which is
meant for Assistant Professor, stagnated in the same post for more than 20
years, is not applicable to the writ petitioner, as she was already promoted
as Associate Professor on 20.10.2009, few days prior to the issuance of
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W.A(MD)No.1958 of 2021
G.O(Ms)No.354, Health and Family Welfare (B2) Department, dated
23.10.2009.
11. Looking at any angle, the writ petitioner herein, who possessed
PG degree and 5 years service of Assistant Professor and 4 years service of
Associate Professor, cannot be deprived of her next promotion as Professor
after redesignated her as Professor with effect from 16.02.2013. More
particularly, when equally placed persons have already been promoted as
Professors.
12. The learned Additional Advocate General assail the Single Judge
Order on the ground that G.O.Ms.No.77, Health and Family Welfare (A1)
Department, dated 23.02.2016 and G.O.(4D)No.2, dated 15.02.2019 was
overlooked. At the outset, it is to be pointed that these two proceedings
are much later to redesignating the writ petitioner as Professor and
promoting two of her panel-mates as Professors. The additional
qualifications prescribed to hold the post of professor in Government Order
in G.O(Ms)No.77, Health and Family Welfare (A1) Department, dated
23.02.2016, which was not available on the date, when the petitioner and
two other persons [mentioned supra] came eligible for considering them as
Professor. When the Government has granted relaxation to Dr.Sarojini and
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W.A(MD)No.1958 of 2021
Dr.L.Madhan, who were promoted as Associate Professor on 20.10.2009
along with the writ petitioner and subsequently, promoted as Professor and
the promotion order of Dr.Sarojini, dated 03.12.2013 alone has been
produced and that there is no dispute with regard to the proceedings
regarding the promotion of Dr.L.Madhan as Professor. A reading of the
proceedings would make it very clear that Sarojini was also not completed
20 years of service, but become eligible to be appointed as Professor. When
there is a relaxation to the same set of candidates baring the writ
petitioner would amount to clear discrimination and violation of Article 14
of the Constitution of India.
13. That apart, the Government will have to identify every year
vacancy and permit the promotions. It is no doubt, though the same
procedural difficulties and administrative reasons, which has been
extracted in G.O.Ms.No.387, Health and Family Welfare (A1) Department,
dated 03.09.2018, this difficulty was available when the benefits of
promotion have been extended to Dr.Sarojini and Dr.L.Madhan, the
Government cannot say that the difficulties will be relaxed only to two
persons and they will stick on to the conditions that no relaxation will be
granted with regard to the writ petitioner.
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W.A(MD)No.1958 of 2021
14. Insofar as G.O(4D)No.2, dated 15.02.2019 it is nothing but a
consolidated order to restructure the cadre strength in view of revised
Medical Council of India norms and to remove the discrepancies noticed in
the earlier Government Orders issued by the Government from time to
time. This Government Order speaks about the operational guidelines.
After issuing order redesignating the writ petitioner as Professor of
Pharmacology with effect from 16.02.2013, instead of honouring the same
in letter and spirit, it is unfortunate, the State retract and refuse promotion
to the writ petitioner, citing Government Orders which are not applicable
to her and the Government Orders, which were issued subsequent to
promoting her equals discriminatory and isolating her without any
reasonable classification.
15. We are of the view that the order passed by the learned Single
Judge is perfectly in order and the writ petitioner is entitled to the relief
sought for in the writ petition and we find no justifiable ground in the writ
appeal to interfere.
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W.A(MD)No.1958 of 2021
16. Accordingly, the writ appeal is dismissed and the order of the
learned Single Judge in W.P(MD)No.10163 of 2020, dated 23.09.2020 is
confirmed. No costs. Consequently, connected miscellaneous petition is
closed.
[S.V.N.,J.] [G.J.,J.]
26.11.2021
Index : Yes / No
Internet : Yes / No
am
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W.A(MD)No.1958 of 2021
S.VAIDYANATHAN, J.
and
DR.G.JAYACHANDRAN, J.
am
ORDER MADE IN
W.A(MD)No.1958 of 2021
26.11.2021
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