Madras High Court
Dr.V.Harishnath vs The State Of Tamil Nadu on 28 June, 2022
W.P.No.25302 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.06.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
W.P.No.25302 of 2015
and
M.P.No.1 of 2015
and
W.M.P.Nos.29030 of 2016 & 27075 of 2019
Dr.V.Harishnath ... Petitioner
Vs.
1.The State of Tamil Nadu,
Rep by its Principal Secretary to Government,
Health and Family Welfare Department,
Secretariat, Fort St.George,
Chennai – 600 009.
2.The Director of Medical Education,
Kilpauk,
Chennai – 600 010.
3.Dr.J.Gandhimathi
4.Dr.K.Subalakshmi
5.Dr.T.Jeyanthikumari
6.Dr.K.Usha
7.Dr.S.Vinayakam ... Respondents
[R3 to R7 are impleaded vide order dated 18.06.2019, made in
WMP.Nos.10684 & 13653 of 2019 in WP.No.25302 of 2015]
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Page 1 of 18
W.P.No.25302 of 2015
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Mandamus, directing the Respondents to draw
the panel for promotion to the post of Reader/Associate Professor in Dental
Surgery based on year wise panel from the year 2012-2013 onwards and
to effect promotion with eligible persons included in the year wise panel
and consequently include the name of the Petitioner in the panel for the
year 2012-2013 and to promote him to the post of Reader/Associate
Professor in Dental Surgery retrospectively from the date of relevant
vacancy, based on his eligibility and seniority with all consequential and
other attendant benefits including arrears of salary by considering the
representation submitted by the Petitioner dated 16.12.2014.
For Petitioner : Mr.G.Sankaran
For R1 and R2 : Mr.L.S.M.Hasan Fizal
Additional Government Pleader
For R3 to R7 : Mr.R.Ramachandran
ORDER
The relief sought for in the present writ petition is to direct the
respondents to draw the panel for promotion to the post of Reader /
Associate professor in Dental Surgery based on the year wise panel from
the year 2012-2013 onwards and to effect promotion with eligible persons
included in the year wise panel and consequently, include the name of the
petitioner in the panel for the year 2012-2013 and to promote him to the
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W.P.No.25302 of 2015
post of Reader / Associate Professor in Dental Surgery retrospectively from
the date of relevant vacancy, based on his eligibility and seniority with all
consequential and other attendant, benefits including arrears of salary by
considering the representation submitted by the petitioner dated
16.12.2014.
2. The petitioner states that he was appointed as Assistant Surgeon
(Dental) through Tamil Nadu Public Service commission (TNPSC) in
Tamil Nadu Medical Services on 28.08.2000. His probation was declared
and the services were regularized. The petitioner completed his MDS
course on March 2007. Thereafter, continued his service as Tutor from
12.04.2007 and the post was re-designated as Assistant Professor Dental
Surgery in the Department of Prosthodontics with effect from 12.04.2008.
The petitioner was promoted to the post of Senior Assistant Professor in
the year 2011, on completion of three years of service with Post
Graduation qualification. The next avenue for promotion is to the post of
Reader / Associate Professor in Dental Surgery. As per this Special Rules
the qualification prescribed is Post Graduation Degree and teaching
experience for a period of not less than four years in Dental Surgery in a
Dental Institution. The petitioner states that he is fully qualified for
promotion to the post of Reader / Associate Professor in Dental Surgery
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W.P.No.25302 of 2015
from the year 2012 onwards and as on the crucial date i.e., 15.03.2012 the
petitioner was qualified for promotion to the post of Reader / Associate
Professor in Dental Surgery.
3. The 2nd respondent prepared the panel for promotion to the post
of Reader / Associate Professor in Dental Surgery for the year 2012-2013,
in proceedings dated 09.05.2012. However, the panel was not acted upon
and the petitioner was not promoted. Subsequently, the Government issued
G.O.Ms.No.307 Health and Family Welfare Department dated
31.10.2012, by which 27 Dental teaching posts of various categories were
created. The 2nd respondent again prepared a panel for the year 2012-2013
and in the said panel the name of the petitioner was included in S.No.5.
However, the panel was not acted upon promotions were not granted.
4. Instead of preparing the regular panel for promotion the
Government issued G.O(D).No.1289 Health and Family Welfare
Department dated 25.11.2013, by which 25 posts of Associate Professors
in the Government Dental Colleges and Hospitals filled up through
temporary Doctors under Rule 39 (a) (i).
5. The learned counsel for the petitioner made a submission that
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W.P.No.25302 of 2015
when the regular panel was prepared for promotion to the post of Reader /
Associate Professor in Dental Surgery and thereafter, by creating 25 posts
of Associate Professors, the respondents have promoted certain unqualified
persons under Rule 39 (a) (1). Such temporary promotions are granted in
order to accommodate the unqualified persons by depriving the
promotional opportunity of the qualified persons including the petitioner.
Therefore, the petitioner is constrained to move the present writ petition.
6. The learned counsel for the petitioner contended that the
petitioner was fully qualified for promotion to the post of Reader /
Associate Professor in Dental Surgery and his name was included in the
panel for the year 2012-2013 and the panel was not acted upon. While so,
what prompted the official respondents to promote the persons temporarily
under Rule 39 (a) (i) has not been established and therefore, the petitioner
was entitled for retrospective promotion based on the panel for the year
2012-2013 for promotion to the post of Reader / Associate Professor in
Dental Surgery.
7. The learned counsel for the petitioner relied on the panel of the
year 2012-2013, wherein, the details of the eligible persons for promotion
to the post of Associate Professor has been called for. The name of the
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W.P.No.25302 of 2015
petitioner was included in the S.No.5 for the year 2012-2013 dated
24.01.2013. However, a decision was taken to promote 25 Assistant
Professors to the post of Reader / Associate Professor in Dental Surgery
under Rule 39 (a) (i) of the Tamil Nadu State and Subordinates Service
Rules and accordingly, the temporary promotions were granted to those
persons. The learned counsel for the petitioner states that the juniors to the
petitioner were also granted such temporary promotions. Again the panel
for the year 2014-2015 was prepared in proceedings dated 21.08.2014, in
which the name of the writ petitioner was included in S.No15 and the said
panel, was also not acted upon. Thus, the petitioner has filed the present
writ petition.
8. The petitioner filed an application under Right to Information Act,
seeking information and the reply sent by the Government dated
17.03.2017, states that the persons promoted under Rule 39 (a) (i) on
temporary posts are eligible and qualified.
9. The learned Additional Government Pleader appearing on behalf
of the respondents 1 and 2 opposed the contentions raised by the petitioner
by stating that the panel was prepared however, not acted upon. Mere
preparation of a panel including the name of the writ petitioner would not
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W.P.No.25302 of 2015
be a ground to seek a direction to promote him to the post of Reader /
Associate Professor in Dental Surgery. The petitioner has not reached the
zone of consideration for promotion to the post of Reader / Associate
Professor in Dental Surgery. His name was not considered on account of
the fact that he has not reached the seniority and therefore, not in the zone
of consideration for promotion. Even the temporary promotions under Rule
39 (a) (i) of the General Rules were accorded only to the senior persons,
and all those persons promoted are seniors to the petitioner and the said
factum can be verified from the proceedings itself.
10. No doubt, as per G.O.Ms.No.307 dated 31.10.2012, speciality
posts were created. Due to the urgency and fulfil the norms of Dental
Counsel of India, ten Medical Officers were qualified as per the Special
Rules for Tamil Nadu Medical Services for the post of Reader in Dental
Surgery have been temporarily promoted as Associate Professor in their
specialties on availability of vacancies based on their CDL (Civil Dental
List) seniority, under rule 39 (a)(i) of the General Rules for Tamil Nadu
State and Subordinate Services vide G.O(4D).No.5, Health and Family
Welfare (B1) Department, dated 08.02.2013. Though the particulars have
been called for by the second respondent including the name of the
petitioner and he was eligible for promotion as Reader in Dental Surgery
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W.P.No.25302 of 2015
during the year 2012-2013, seniority No.(193/2005) was not turned up for
promotion due to non-availability of vacancies in the speciality of
Prosthodontics and his seniors Dr.J.Bharani Krishnan, Government
Coimbatore Medical College, Coimbatore (CDL No.154/2005), and
Dr.K.Ramkumar, Tamil Nadu Dental College and Hospital, Chennai (CDL
No.155/2005) have been temporarily promoted as Associate Professor of
Dental Surgery in the Speciality of Prosthodontics.
11. The respondents 1 and 2 state that the Medical Officers, who
were promoted and appointed as Associate Professor of Dental Surgery at
Tamil Nadu Government Dental College and Hospital, in G.O.(4D).No.5,
Health and Family Welfare (B1) Department, dated 08.02.2013 have not
fulfilled the norms of Dental Counsel of India. Hence, the Government
have partially modified the orders issued in the above said Government
order, as the promotion orders issued to the 10 Assistant Professors as
Associate Professor of Dental Surgery was cancelled due to administrative
reasons and the Medical Officers were restored to their original position
(i.e.) Assistant Professor vide G.O(4D).No.7, Health and Family Welfare
(B1) Department, dated 13.02.2013. Due to the said reasons, neither the
promotion counselling conducted for the post of Associate Professor of
Dental Surgery nor the said post has been filled up during the year 2012-
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W.P.No.25302 of 2015
2013 was given effect to.
12. During the year 2013-2014, the 2nd respondent herein has sent
the proposal for filling up of the vacant posts of Associate Professor of
Dental Surgery in various specialties in the Government Medical Colleges.
Pending framing of rules for the specialties in the post of Associate
Professor of Dental Surgery, the Government have temporarily promoted
25 Assistant Professors as Associate Professor, who were qualified as per
DCI norms as on the date of consideration. Under Rule 39(a) (i) of the
General Rules for Tamil Nadu State and Subordinate Services vide
GO.(D).No.1289, Health and Family Welfare (A1) Department, dated
25.11.2013. As per the temporary promotion list, the vacancies in the
particular specialties have been filled up through promotion counselling.
13. Though the particulars have been called for from the petitioner
herein for promotion to the post of Associate Professor of Dental Surgery,
two (2) vacancies only exist during the year 2013-14 and his name did not
come under the zone of consideration. During the year 2014-15, the
vacancy for the post of Associate Professor of Dental Surgery in the
speciality of Prosthodontics was 'Nil'. Hence, the name of the petitioner
herein has not been considered for promotion to the post of Associate
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W.P.No.25302 of 2015
Professor of Dental Surgery during the year 2014-2015.
14. Though, there are nine (9) specialties exist in Dental Surgery
side, that specialties have not been incorporated in the Special Rules for
Tamil Nadu Medical Service so far. Hence, the Government have decided
to fill up the vacant posts in the post of Associate Professor of Dental
Surgery on temporary basis, for providing best health care to the public.
Accordingly, 25 Assistant Professors, who were qualified as per DCI
norms as on the date of consideration, were promoted as Associate
Professor of Dental Surgery under Rule 39(a)(i) of the General Rules for
Tamil Nadu State and Subordinate Services vide G.O.(D) No.1289, Health
and Family Welfare (A1) Department, dated 25.11.2013. Hence, the
contention of the petitioner herein is unacceptable.
15. The principles on promotion are settled by the Constitutional
Courts across the Country. Promotion per se can never be claimed as
absolute right. All promotions are to be granted strictly in accordance with
the rules in force and by considering the seniority. However, consideration
of the name for promotion is the fundamental right of an employee. Thus,
in the event of taking an administrative decision to fill up the promotional
course, the competent authority is bound to consider the names of all the
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W.P.No.25302 of 2015
eligible employees, who are all aspiring to secure promotion based on their
eligibility. Mere inclusion of the name of a person in the panel would not
confer any right for promotion. Consideration or inclusion of the names in
the panel is a part of preparation for promotion and such preparations need
not confer any right, unless the promotions are granted. Thus, based on the
inclusion of the name in the panel an employee cannot seek direction to
promote him to the higher post.
16. The rights in respect of promotion have been considered by the
Honourable Supreme Court in the recent decision in Union of India (UOI)
and Others Vs. Manpreet Singh Poonam and Others, reported in
MANU/SC/0280/2022, wherein the Apex Court of India in unequivocal
terms held that as there is no vested or accrued right over a
promotional post, in the absence of any vacancies actually in existence
for the year 2009, the migration of the other officers of the Indian
Administrative Service (IAS) cadre took place only in the year 2011.
The Apex Court again reiterated that consideration for promotion is a
fundamental right as per the decision of the Apex Court in the case of Ajit
Singh Vs. State of Punjab, reported in (1999) 7 SCC 209. Thus, the rights
of the employee are restricted only if an administrative decision is taken by
the Authorities Competent to prepare a panel while considering the eligible
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W.P.No.25302 of 2015
candidates for promotion.
17. The learned counsel for the petitioner relied on the judgment of
the Hon'ble Supreme Court of India in the case of Union of India and
Others Vs. N.R.Banerjee and Others reported in (1997) 9 Supreme
Court Cases 287, wherein the Hon'ble Supreme Court of India made an
observation that the filling up of the posts are for clear or anticipated
vacancies arising in the year. It is settled law that mere inclusion of one's
name in the list does not confer any right on him/her to appointment. It is
not incumbent that all posts may be filled up. But the authority must act
reasonably, fairly and in public interest and omission thereof should not be
arbitrary.
18. The above general principles would not provide any assistance
for the case of the writ petitioner. Even in the case cited by the petitioner,
the Hon'ble Supreme Court of India reiterated that mere inclusion of one's
name in the list does not confer any right to appointment. Therefore, the
preparation of panel, including the name of a person would not confer any
right to seek promotion.
19. Let us consider the relief sought for by the petitioner. The
petitioner seeks the relief to direct the respondents to draw the panel for
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W.P.No.25302 of 2015
promotion to the post of Reader / Associate Professor in Dental Surgery
based on the year wise panel from the year 2012-2013 onwards and
consequently include the name of the petitioner in the panel for the year
2012-2013 and promote him to the post of Reader / Associate Professor in
Dental Surgery.
20. The name of the writ petitioner was considered and his name
was included in the panel of the year 2012-2013, and in the panel of the
year 2014-2015. It is an admitted fact that the CDL seniority of the writ
petitioner is (193-2005). Due to non-availability of vacancies in the
Speciality of Prosthodontics, the case of the writ petitioner was not
considered for promotion during the relevant point of time. Furthermore,
the panel of the year 2012-2013 was not at all acted upon and it was
dropped. Therefore, the persons included in the panel for the year 2012-
2013 including the petitioner have no right to seek any promotion, in view
of the principles enumerated in the above mentioned paragraphs. The
petitioner was not considered for non-availability of vacancy in the
Speciality of Prosthodontics. However, the seniors to the writ petitioner
Dr.J.Bharani Krishnan, (CDL No.154/2005) and Dr.K.Ram Kumar (CDL
No.155/2005) had been promoted temporarily as Associate Professor of
Dental Surgery in the Speciality of Prosthodontics.
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W.P.No.25302 of 2015
21. With reference to the allegations of the writ petitioner that the
unqualified Doctors were promoted to the post of Associate Professor of
Dental Surgery. The respondents 1 and 2 have categorically stated in
paragraph 8 of their counter that the Government partially modified the
orders issued G.O.(4D).No.5 dated 08.02.2013, and the promotion orders
issued to the 10 Assistant Professors as Associate Professors of Dental
Surgery was cancelled due to administrative reasons and the said Medical
Officers were restored to their original position i.e., Assistant Professor
vide G.O.(4D).No7, Health and Family Welfare (B1) Department, dated
13.02.2013. Due to the above reasons neither the promotion was granted
to the Associate Professor of Dental Surgery nor was the said posts filled
up during the year 2012-2013. The writ petitioner has not referred the
above G.O.(4D).No.7 dated 13.02.2013. Therefore, no unqualified Doctors
were promoted during the relevant point of time, even on temporary basis.
All the persons promoted on temporary basis were qualified and especially
in the Speciality of Prosthodontics, two seniors to the writ petitioner were
promoted. Thus, the seniority of the petitioner was not over looked. The
petitioner was not within the Zone of consideration and therefore, his name
was not considered for promotion.
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W.P.No.25302 of 2015
22. The above fact has been categorically stated in paragraph 10 of
the counter that for promotion to the post of Associate Professor of Dental
Surgery, two vacancies existed during the year 2013-2014 and the name of
the writ petitioner did not come under the zone of considering. During the
year 2014-2015 the vacancy for the post of Associate Professors of Dental
Surgery in the Speciality of Prosthodontics was ‘Nil’. Thus, the name of
the petitioner was not considered for promotion to the post of Associate
Professor of Dental Surgery during the year 2014-2015.
23. The respondents have narrated the facts and circumstances,
which establish that the case of the writ petitioner was considered even in
the subsequent panel and the petitioner was not within the zone of
consideration and his seniors as per CDL list alone were promoted. Thus,
this Court do not find any infirmity or perversity with reference to the
procedures followed by the respondents 1 and 2 for considering the names
of the eligible persons for inclusion of their name in the panel, and for
grant of temporary promotions during the relevant point of time under Rule
39 (a) (i) of the General Rules for Tamil Nadu State and Subordinate
Services Rules.
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W.P.No.25302 of 2015
24. That apart, the very relief sought for in the present writ petition
is to direct the respondents to include the name of the writ petitioner in the
panel of the year 2012-2013 and to promote him in fact the name of the
writ petitioner was included in the panel of the year 2012-2013 and
thereafter, in the year 2014-2015 and he was not promoted, since he was
not falling within the zone consideration especially to the post of Associate
Professor of Dental Surgery in the Speciality of Prosthodontics. Thus, the
relief as such sought for deserves no merit consideration as the petitioner
has failed to establish any acceptable ground.
25. Thus, the Writ Petition is devoid of merits and stands dismissed.
No costs. Consequently, connected Miscellaneous Petitions are closed.
28.06.2022
Jeni
Index : Yes
Speaking order : Yes
To
1.The Principal Secretary to Government,
The State of Tamil Nadu,
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W.P.No.25302 of 2015
Health and Family Welfare Department,
Secretariat, Fort St.George,
Chennai – 600 009.
2.The Director of Medical Education,
Kilpauk,
Chennai – 600 010.
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W.P.No.25302 of 2015
S.M. SUBRAMANIAM, J.
Jeni
W.P.No.25302 of 2015
28.06.2022
https://www.mhc.tn.gov.in/judis
