Madras High Court
Dr.A.L.Meenakshi Sundaram vs The State Of Tamil Nadu on 17 July, 2023
W.A(MD)No.1101 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.07.2023
CORAM :
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
W.A(MD)No.1101 of 2023
and
C.M.P(MD)Nos.8474 and 8475 of 2023
Dr.A.L.Meenakshi Sundaram,
S/o. Alagappan,
Director of Medical Education (OSD),
Dean, Government Theni Medical College,
Theni & District. ... Appellant
-vs-
1. The State of Tamil Nadu,
Rep. by its Principal Secretary to Government,
Health and Family Welfare (A1) Department,
Secretariat, Fort St.George,
Chennai-600 009.
2. The Director of Medical Education,
Kilpauk,
Chennai-600 010.
3. Dr.R.Shanthimalar,
Director of Medical Education,
Kilpauk, Chennai-600 010. ... Respondents
Page 1 of 13
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W.A(MD)No.1101 of 2023
PRAYER : Appeal filed under Clause 15 of the Letters Patent,
against the order dated 12.06.2023 made in W.P(MD)No.7507 of
2023.
For Appellant : Mr.G.Sankaran, Senior Counsel for
Mr.S.Venkatesan
For R1 to R3 : Mr.D.Sadiq Raja
Additional Government Pleader
JUDGMENT
[Judgment of the Court was made by S.S.SUNDAR, J.]
The above appeal is preferred against the order dated
12.06.2023 dismissing the writ petition filed by the appellant in
W.P(MD)No.7507 of 2023.
2. Brief facts that are necessary for disposal of this appeal are
as follows:-
The appellant was originally appointed as Medical Officer in Tamil
Nadu Medical Service in the year 1989. He was promoted as
Associate Professor/Professor in Anesthesiology and later promoted as
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W.A(MD)No.1101 of 2023
Dean and transferred to Pudukkottai Government Medical College.
The appellant after serving different positions is now working as
Director of Medical Education (OSD) and Dean of Government Theni
Medical College, Theni District. It is the case of the appellant that he
is entitled to get promotion to the post of Director of Medical
Education which is the head of the department. According to the
appellant, he is fully qualified for promotion to that post as per the
service rules. It is admitted that the petitioner's age of
superannuation is 31.08.2023. However, vide G.O.Ms.No.268, Health
and Family Welfare Department, dated 13.03.2023, the 3rd respondent
was appointed as Director of Medical Education in the existing vacancy
arose with effect from 01.11.2022. Though the appellant was senior
to the 3rd respondent herein and his name was also in the panel, the
appellant was denied promotion only on the ground that he does not
satisfy rule 8(b)(iv) of the Special Rules pertaining to State Services
which states that the candidate must have a minimum of one year left
over service prior to the date of retirement. The learned Single Judge
after considering the admitted facts and the position that vacancy
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W.A(MD)No.1101 of 2023
arose only on 01.11.2022 and the appellant if appointed will not have
one year of left over service prior to retirement, dismissed the writ
petition on the ground that the appellant is not eligible to be
considered for promotion. Since the appellant was not qualified, the
learned Single Judge held that the appellant has no locus standi to
maintain the writ petition challenging the appointment of the 3rd
respondent as Director of Medical Education. Aggrieved by the same,
the above appeal is filed.
3. Before dealing with the facts, it is relevant to extract below
rule 8(b) of the Special Rules pertaining to State Services as amended
for convenience:-
''8.Special qualifications.- (a) No person shall be eligible
for appointment to the post of Director of Medical and Rural
Health Services, unless he has worked for a period of not less
than five years in a post in the cadre of Civil Surgeon under
the control of the Director of Medical and Rural Health
Services:
Provided that, other things being equal, preference shall
be given to those who possess post-graduate degree in one of
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W.A(MD)No.1101 of 2023
the medical subjects in the case of appointment by promotion
from among the Civil Surgeons in general line.
(b) No person shall be eligible for appointment to the
post of Director of Medical Education, unless
(i) he possesses 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 must be 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
Medical College.
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W.A(MD)No.1101 of 2023
(iv) he has a minimum of one year left over service
prior to date of retirement.
(c) No person shall be eligible for appointment to the
post specified in column (1) of the Annexure unless he
possesses the qualifications specified in the corresponding
entry in column (2) thereof:
Provided that, other things being equal, preference shall
be given to those who possess post-graduate degree in one of
the medical subjects in the case of appointment by promotion
from among the Civil Surgeons in general line.
(d) A person not possessing the diploma of the D.M.R.
(Chennai), who has been selected for appointment in the
category of Assistant Surgeons in the General Line in the
Radiological Department of Government Medical Institutions
in the State by direct recruitment shall not be appointed as a
probationer in the said category unless he undergoes training
in the Radiological Department for a period of not less than
nine months and obtains the diploma of D.M.R. (Chennai) at
one of the first two examinations held after he has completed
such training. There shall be paid to every such person while
undergoing such training a subsistence allowance fixed by the
Government from time to time and no such person shall be
required to pay either the tuition fee for the training or the
examination fee.
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W.A(MD)No.1101 of 2023
(e) The crucial date for possession of the prescribed
qualification for appointment to any post by recruitment by
transfer or promotion shall be the 15th March of the year in
which the selection for appointment is made.''
4. The learned counsel for the appellant submitted that as per
the Special Rules applicable to State services, the crucial date for
possession of the prescribed qualification for appointment to any post
by recruitment by transfer or promotion shall be the 15 th March of the
year in which the selection for appointment is made. Learned counsel
then submitted that as per rule 8(b) of the Special Rules, the
appellant had one year left over service as on 15 th March of 2022.
The interpretation of the counsel appearing for the appellant is too
artificial. From the rule, it is seen that the crucial date for possession
of the prescribed qualification for appointment to any post by
recruitment by transfer or promotion shall be the 15th March of the
year in which the selection for appointment is made. The
appointment in the present case is after the retirement of incumbent
on 31.10.2022. The appointment is made in 2023 after a process of
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W.A(MD)No.1101 of 2023
selection in 2023. As seen from G.O.No.268, Health and Family
Welfare Department, dated 13.03.2023, the Government have
approved the vacancy for the post of Director of Medical Education for
the year 2022-23 and the panel was prepared for promotion to the
post of Director of Medical Education on 13.03.2023.
5. Learned counsel then submitted that as per the mandate of
Section 7 of the Tamil Nadu Government Servants (Conditions of
Service) Act, 2016, the list of approved candidates for appointment by
promotion should be prepared by including the names of eligible
persons as on the crucial date and that as per G.O.Ms.No.368, dated
18.10.1993, the panel for the post of Head of the Department has to
be initiated by the Secretary to Government three months in advance
prior to the retirement of the incumbent. Referring to Section 7 of the
Tamil Nadu Government Servants (Conditions of Service) Act, 2016,
and G.O.Ms.No.368, the counsel for the appellant submitted that the
proposal to fill up the post of Director of Medical Education ought to
have been initiated three months prior to the retirement of the
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W.A(MD)No.1101 of 2023
existing incumbent and that the appellant's candidature ought to have
been considered as eligible by following the mandate of Section 7 read
with G.O.Ms.No.368 dated 18.10.1995.
6. Learned counsel for the appellant also submitted that the
appellant was not included in the panel prepared in the year 2020 only
because charges under Rule 17(b) of the Tamil Nadu Civil Services
(Discipline & Appeal) Rules, against the appellant were pending.
Referring to the fact that the disciplinary proceedings initiated against
the appellant were dropped vide G.O.No.490, dated 06.05.2022, the
learned counsel submitted that the appellant ought to have been
considered for promotion to the post of Director of Medical Education
in the vacancy arose in the year 2022. Stating that the appellant
should be treated as a special case having regard to the fact that he
was denied promotion for no fault of him, the learned counsel
contended that the learned Single Judge failed to consider the factual
aspects.
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W.A(MD)No.1101 of 2023
7. This Court is unable to countenance the arguments of the
learned counsel for the appellant. First of all, Rule 8(b) of the special
Rules pertaining to State Service stipulates that the candidate must
have a minimum of one year left over service prior to the date of
retirement. The post of Director of Medical Education fell vacant only
on 01.11.2022. Therefore, only then the appellant or any one could
have been considered for the said post. Even though the appointment
was little later, the appellant cannot be considered, as he does not
satisfy the requirement of having one year left over service prior to
the date of his retirement. The appellant who is going to be retired by
the end of next month is not eligible to be considered for promotion.
The contention of the learned counsel appearing for the appellant by
referring to Section 7 of the Tamil Nadu Government Servants
(Conditions of Service) Act 2016 read with G.O.Ms.No.368, dated
18.10.1993 does not hold water. Even assuming that the panel has to
be prepared three months prior to the date of vacancy, the
appointment cannot be prior to the retirement of the then incumbent.
The learned Single Judge has considered the object behind the
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W.A(MD)No.1101 of 2023
stipulation that a candidate should have a minimum of one year left
over service prior to the date of retirement. It is only to secure
administrative efficiency, the rule has been framed.
8. This Court is in agreement with the learned Single Judge
for the reasons stated in the impugned order while rejecting the
contention of the counsel appearing for the appellant. This Court,
therefore, finds no merit in the Writ Appeal and hence it is dismissed.
No costs. Connected miscellaneous petitions are closed.
[S.S.S.R, J.] [D.B.C., J.]
17.07.2023
Index : Yes / No
Neutral Citation : Yes / No
bala
To
1. The Principal Secretary to Government,
State of Tamil Nadu,
Health and Family Welfare (A1) Department,
Secretariat, Fort St.George,
Chennai-600 009.
https://www.mhc.tn.gov.in/judis
W.A(MD)No.1101 of 2023
2. The Director of Medical Education,
Kilpauk,
Chennai-600 010.
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W.A(MD)No.1101 of 2023
S.S.SUNDAR, J.
and
D.BHARATHA CHAKRAVARTHY, J.
bala
JUDGMENT MADE IN
W.A(MD)No.1101 of 2023
DATED : 17.07.2023
https://www.mhc.tn.gov.in/judis
