Madras High Court
Dr. C. Guna Sundari vs Balaji on 17 May, 2024
Author: R. Mahadevan
Bench: R. Mahadevan, Mohammed Shaffiq
W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.05.2024
CORAM:
THE HON'BLE MR. JUSTICE R. MAHADEVAN
AND
THE HON'BLE MR. JUSTICE MOHAMMED SHAFFIQ
W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
C.M.P. Nos.13918, 13924, 14018, 14021 and 20689 of 2022 and 7934 of 2024
W.A. No.1897 of 2022:
1 Dr. C. Guna Sundari
2 Dr. C. Sathish Kumar
3 Dr. Prasannakumari Appellants
v
1 The Health Secretary
Health & Family Welfare Department
Secretariat
Nirman Bhavan
C Wing, New Delhi 110 001
2 The Secretary of NMC
Health & Family Welfare Department
Sector 8, Dwarika Phase I
New Delhi 110 077
3 The Health Secretary
Ministry of Health & Family Welfare
Chennai
4 The Directorate of Medical Education
Tamil Nadu Health & Family Welfare
Kilpauk, Chennai 600 010
https://www.mhc.tn.gov.in/judis
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
5 The Directorate of Medical Service
Medical and Rural Health Services
DMS Complex
361 Anna Salai
Chennai
6 The Directorate of Public Health
Medical and Rural Health Services
DMS Complex
361 Anna Salai
Chennai
7 Dr. Ramasundari, M.D.
8 Dr. S. Gurusamy, M.D.
9 Dr. M. Dhina Mary, M.D.
10 Dr. R. Nalini, M.D.
11 Dr. Selin Sofiah
12 Dr. D. Jeyalakshmi, M.D.
13 Dr. M. Vijayakumar, M.D.
14 Dr. Chithra Sivasankari, M.D.
15 Dr. A.D. Saravana Kumari, M.D.
16 Dr. J. Latha
17 Dr. S. Michael Rajam Geetha
18 Dr. A. Priya
19 Dr. E. Amudhan Arvind
20 Dr. G. Muthukavitha
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
21 Dr. M. Nandini Priya
22 Dr. A. Gomathi Respondents
(RR 16 to 22 impleaded vide order dated
18.03.2024 passed in C.M.P. Nos.1546,1550 and
1554 of 2024 in W.A. Nos.1906,2608 and 1897 of
2022)
W.A. No.1906 of 2022:
1 Dr. T. Sudha Nanthini
2 Dr. M.S. Gayathri Appellants
v
1 The Health Secretary
Health & Family Welfare Department
The Secretariat, Nirman Bhavan
C Wing, New Delhi 110 001
2 The Secretary of NMC
Health & Family Welfare Department
Sector 8, Dwarika Phase I
New Delhi 110 077
3 The Health Secretary
Ministry of Health & Family Welfare
Chennai
4 The Directorate of Medical Education
Tamil Nadu Health & Family Welfare
EVR High Road
Kilpauk, Chennai 600 010
https://www.mhc.tn.gov.in/judis
3/32
W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
5 The Directorate of Medical Service
Medical and Rural Health Services
DMS Complex
361 Anna Salai
Chennai
6 The Directorate of Public Health
(Director of Public Health & Preventive Medicine)
Medical and Rural Health Services
DMS Complex
361 Anna Salai
Chennai
7 Dr. U.N. Priyadharshini
8 Dr. D. Gayathri Priya
9 Dr. M. Subarathi
10 Dr. S. Arrchana
11 Dr. R. Senthamilzh Selvi
12 Dr. M. Prakash
13 Dr. T. Meenakshi
14 Dr. T. Siyamala Devi
15 Dr. S. Anusha
16 Dr. N. Preetha
17 Dr. K. Kokila
18 S. Sudharshini
19 Dr. Saravanan
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
20 Dr. Palaniappan
21 Dr. P.R. Thirumalai Kumar
22 Dr. G. Venkatesh
23 Dr. M. Bharatha Devi
24 Dr. J. Gayathri
25 Dr. Vinoth
26 Dr. V. Balaji
27 Dr. K. Chandrakala
28 Dr. J. Latha
29 Dr. S. Michael Rajam Geetha
30 Dr. A. Priya
31 Dr. E. Amudhan Arvind
32 Dr. G. Muthukavitha
33 Dr.M. Nandini Priya
34 Dr. A. Gomathi Respondents
(RR 28 to 34 impleaded vide order dated 18.03.2024
passed in C.M.P.Nos.1546,1550 and 1554 of 2024 in
W.A. Nos.1906,2608 and 1897 of 2022)
W.A. No.2608 of 2022:
1 Dr. D. Saravanan
2 Dr. G. Venkatesh
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
3 Dr. J. Gayathri
4 Dr. K. Vinoth
5 Dr. V. Balaji
6 Dr. T. Sudha Nanthini
7 Dr. K. Chandra Kala Appellants
v
1 Dr. Palaniappan
2 Dr. P.R. Thirumalai Kumar
3 Dr. M. Bharatha Devi
4 Dr. M.S. Gayathri
5 The Health Secretary
Health & Family Welfare Department
Secretariat
Nirman Bhavan
C Wing
New Delhi 110 001
6 The Secretary of NMC
Health & Family Welfare Department
Sector 8, Dwarka Phase I
New Delhi 110 077
7 The Secretary
Ministry of Health & Family Welfare
Chennai
8 The Directorate of Medical Education
Tamil Nadu Health & Family Welfare
E.V.R. High Road, Kilpauk
Chennai 600 010
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
9 The Directorate of Medical Service
Medical and Rural Health Services
DMS Complex
361 Anna Salai
Chennai
10 The Directorate of Public Health
(Director of Public Health & Preventive Medicine)
Medical and Rural Health Services
DMS Complex
361 Anna Salai
Chennai
11 Dr.U.N. Priyadharshini
12 Dr. D. Gayathri Priya
13 Dr. M. Subarathi
14 Dr. S. Archana
15 Dr. R. Senthamizhselvi
16 Dr. M. Prakash
17 Dr. T. Meenakshi
18 Dr. T. Siyamala Devi
19 Dr. S. Anusha
20 Dr. N. Preetha
21 Dr. K. Kokila
22 Dr. S. Sudharshini
23 Dr. J. Latha
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
24 Dr. S. Michael Rajam Geetha
25 Dr. A. Priya
26 Dr. E. Amudhan Arvind
27 Dr. G. Muthukavitha
28 Dr. M. Nandini Priya
29 Dr. A. Gomathi Respondents
(RR 23 to 29 impleaded vide order
dated 18.03.2024 passed in
C.M.P.Nos.1546, 1550 and 1554 of
2024 in W.A. Nos.1906, 2608 and
1897 of 2022)
W.A. No.1103 of 2024:
1 Dr. Ramasundari
2 Dr. S. Gurusamy, M.D.
3 Dr. M. Dina Mary, M.D.
4 Dr. Selin Sofiah, M.D.
5 Dr. D. Jeyalakshmi
6 Dr. M. Vijayakumar
7 Dr. Prasannakumari
8 Dr. A.D. Saravana Kumari Appellants
v
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
1 The Health Secretary
Health & Family Welfare Department
Secretariat
Nirman Bhavan
C Wing
New Delhi 110 001
2 The Secretary of NMC
Health & Family Welfare Department
Sector 8, Dwarka Phase I
New Delhi 110 077
3 The Secretary
Ministry of Health & Family Welfare
Chennai
4 The Directorate of Medical Education
Tamil Nadu Health & Family Welfare
E.V.R. High Road, Kilpauk
Chennai 600 010
5 The Directorate of Medical Service
Medical and Rural Health Services
DMS Complex, 361 Anna Salai
Chennai
6 The Directorate of Public Health & Preventive Medicine
Medical and Rural Health Services
DMS Complex
361 Anna Salai, Chennai
7 Dr. R. Nalini
8 Dr. C. Gunasundari, M.D.
9 Dr. C. Sathish Kumar
10 Dr. Chithra Sivasankari, M.D. Respondents
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
Writ Appeals filed under Clause 15 of the Letters Patent challenging the
common order dated 26.04.2022 passed in W.P. Nos.14616, 5105, 5105 and
14616 of 2021, respectively.
For appellants
in W.A. Nos.2608/2022 & Mr. M. Ravi
1103 of 2024
For appellants in
W.A. Nos.1897 &1906/2022 Mr. C. Kanagaraj
For State Mr. J. Ravindran
in all writ appeals Addl. Adv. General
assisted by Mrs. Sneha
Spl. Counsel for Health Dept.
For NMC in all W.As. Ms.Shubaranjani Anand
For impleaded respondents
in W.A. Nos.1897,1906 & Mrs. Kavitha Rameshwar
2608 of 2022
For R7 in Mr. G. Babu
W.A. No.2608 of 2022 Senior Panel Counsel
For RR 1,10 & 14 in
W.A. No.1897 of 2022 No appearance
For RR 3,7,9,10,12-18,
20,21 & 23 in No appearance
W.A. No.1906 of 2022
COMMON JUDGMENT
R. MAHADEVAN, J.
W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024 have been
preferred calling into question the legality and validity of the common order
dated 26.04.2022 passed in W.P.Nos.14616 of 2021 and 5105 of 2021.
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
2. While the petitioners 1,2,3,5,6,7,11 and 12 in W.P. No.14616 of
2021 have filed W.A.No.1103 of 2024, the petitioners 8,9 and 11 in the said
writ petition have filed W.A. No.1897 of 2022.
3. Likewise, while the petitioners 1,4,6,7,8,9 and 10 in W.P. No.5105
of 2021 have filed W.A. No.2608 of 2022, the petitioners 9 and 11 in the said
writ petition have filed W.A. No.1906 of 2022.
4. The facts that led to the institution of these writ appeals could
succinctly be stated thus:
4.1. The dispute in these cases is essentially between the in-service PG
doctors, on the one hand, and the non-service PG bond doctors, on the other.
The former are in Government service, and the appellants in these cases, while
the latter are candidates who work for a bond period of two years post PG and
have not entered Government service through the ordinary channel of
recruitment through Medical Services Recruitment Board.
4.2. The appellants, who are in-service doctors, are Assistant Surgeons
and Assistant Professors appointed between 2005 and 2011. According to them,
the non-service doctors who pursue post-graduation should execute a bond, as
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
per which, after completing their post-graduation, they should work in the Tamil
Nadu Government service for two years, after which, their service should be
terminated; the appointment of non-service doctors during the two year bond
period is temporary; if the non-service doctors want to enter into Government
service, they should be regularised in Government service only with effect from
the date on which they come out successful in the Medical Services Recruitment
Board (MSRB) examination and not from the date of their joining the bond
service; yet, the non-service doctors, who were working as Assistant Professors,
were promoted as Associate Professors by issuance of Government Orders; in
pursuance thereof, the Director of Medical Education, vide circular dated
19.02.2021, fixed the date of counselling for the post of Associate Professors.
4.3. The aforesaid circular was put to assail by the in-service doctors in
writ petitions being W.P. Nos.5105 of 2021 and 14616 of 2021. That apart,
somewhat similar communications dated 21.06.2021, 01.06.2021 and
21.10.2021 of the Directorate of Medical Education were also put to assail by
the in-service doctors, in W.P. Nos.14203, 14249, 14366, 14456 and 24257 of
2021.
4.4. All the aforesaid writ petitions were taken up for hearing together
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
and the main ground of attack of the in-service doctors before the learned Judge
were, inter alia, as under:
a) when, as per the proviso to Section 17(1) of the Tamil
Nadu Government Servants (Conditions of Service) Act, 2015,
persons not sponsored by the Tamil Nadu Public Service
Commission (TNPSC) shall not be directly recruited, and as per
Section 17(3), ibid., the temporary appointees have to be replaced
by regular service candidates as soon as possible, regularising the
non-service doctors reckoning their service from the date of their
entry into bond service and conducting counselling for promoting
them to the post of Associate Professors or Professors, as the case
may be, cannot be allowed to stand;
b) appointment of non-service doctors against sanctioned
posts and regularising their services by reckoning the bond period
as probationary period is against the provisions of the aforesaid
Act.
c) the appointment of non-service doctors is by way of back
door entry, inasmuch as, they had not taken up the examination
conducted by the TNPSC.
d) the promotion sought to be given to non-service doctors
blocks the promotional avenue of the in-service doctors.
4.5. Countering the stand of the in-service doctors, the stand of the
State before the learned Judge was under:
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
a) the in-service doctors have not completed 5 years of
teaching experience in their respective specialities and hence,
their names were not considered for promotion during the panel
year 2020-2021; after completing the required years of teaching
experience, the in-service doctors will be considered for
promotion.
b) the non-service doctors, after completing their post-
graduation, have completed Special Qualifying Examination
conducted by the TNPSC and hence, it cannot be contended that
their appointment is by back door entry and in fact, the bond
service candidates are fully qualified and eligible for promotion.
c) After entering into the Tamil Nadu Medical Service, there
is no discrimination between in-service doctors and non-service
doctors.
4.6. However, finding that the contentions/grievances/apprehensions of
the in-service doctors stood redressed by the counter affidavit dated 11.04.2022
filed by the Principal Secretary to Government, Health and Family Welfare
Department, the learned Judge recorded the said affidavit and disposed of the
writ petitions vide common order dated 26.04.2022.
4.7. Though the aforesaid common order was passed in seven writ
petitions, the order passed in W.P. Nos.5105 and 14616 of 2021 alone is
challenged in the present four writ appeals.
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
5. Mr. M. Ravi, learned counsel for the appellants in W.A.Nos.1103
of 2024 and 2608 of 2022, inter alia, contended that the writ petitions ought not
to have been disposed of by merely recording the affidavit of the Health
Secretary and that there should have been a specific finding that temporary
service prior to regular selection by MSRB shall never be counted for the
purpose of seniority, and since there has been no such finding, the private
respondents are not reverted yet and in fact, not stopping with that, the
authorities are empanelling and promoting subsequent batch of doctors also by
reckoning their temporary service. He also brought to the notice of this Court
that the appellants in W.A. No.2608 of 2022 have filed a contempt petition in
Cont. P. No.1220 of 2024 alleging that the authorities are proceeding even as
against their own affidavit dated 11.04.2022 filed before the learned Judge,
which is contumacious.
5.1. Detailed written submissions have also been filed on behalf of the
appellants stating the entire gamut of facts and issues raised in the present case.
Mr. Ravi, learned counsel, has reiterated in his written submissions that the
bond service period prior to qualifying in the MSRB/TNPSC examination and
securing CML rank, should not be taken into consideration for the purpose of
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
qualifying service in the post of Assistant Professor and that CML seniority
alone should be taken for empanelment as Associate Professor if merit and
ability are equal. He further stated that all non-service bond doctors who had
been empanelled should be removed from the promotion panels and all panels
should be drawn afresh.
6. Mr.C.Kanagaraj, learned counsel for the appellants in
W.A.Nos.1897 and 1906 of 2022 also contended that the writ petitions ought
not to have been disposed of merely on the basis of the affidavit filed by the
Health Secretary and that consequential directions ought to have been issued
and the failure in issuing such directions has resulted in the authorities violating
the affidavit dated 11.04.2022 filed by the Health Secretary. It is his further
contention that in contravention of the affidavit dated 11.04.2022 of the Health
Secretary, the Government conducted Special Qualifying Examination on
20.05.2022 and absorbed non-service doctors, as if they had the benefit of the
interim order, even after the disposal of the writ petitions. However, he fairly
stated that none of the appellants he represents have become eligible to be added
in the panel upto the year 2022-23 to the post of Associate Professor as per
NMC norms and that they will become eligible only in 2023-24 onwards. He
highlighted that the grievance of the appellants was that the non-service bond
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
doctors are being considered for promotion by taking into consideration their
bond service period as qualifying service.
7. Per contra, Mr. J. Ravindran, learned Additional Advocate
General, assisted by Mrs. Sneha, Spl. Counsel for the Health Department, inter
alia, submitted that an in-service doctor, to be promoted from the post of
Assistant Professor, should have completed 5 years of teaching experience in
his speciality and when the appellants had not fulfilled that eligibility criterion,
the impugned common order passed by the learned Judge warrants no
interference.
8. For her part, Mrs. N. Kavitha Rameshwar, learned counsel for the
impleaded respondents in W.A. Nos.1897, 1906 and 2608 of 2022, inter alia,
submitted that the interim order dated 17.11.2023 modifying the earlier order
dated 19.06.2023 needs to be vacated, as the promotion to the impleaded
respondents are stalled, despite they being eligible and their names being
included in the 2022-23 panel for promotion to the post of Associate Professors
while the appellants are not admittedly included in the panel. She further stated
that this fact could not be brought to the attention of the Court as the appellants
had not made these implead petitioners as parties while seeking interim orders
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
affecting them. More importantly, it is her case that the real contest is not
between the appellants and the implead petitioners as the implead petitioners are
all permanent/regular Government in-service doctors and do not belong to the
category of PG bond non-service candidates, against whom the appellants are
contesting. Infact, it is an undisputed fact that the appellants cannot stall the
promotion to be given to the impleaded petitioners as they are in no way part of
the lis between the appellants and the private respondents i.e. the non-service
bond doctors.
9. Mrs. Shubharanjani, learned counsel for the National Medical
Commission filed the applicable Regulations of the NMC setting out the
eligibility criteria for promotion to the post of Associate Professor. She also
stated that the panels as drawn for the year 2022-23 for the post of Associate
Professor was in accordance with the NMC norms.
10. Heard the learned counsel for the respective parties and perused the
materials available on record.
11. The writ petitioners are the appellants. The undisputed facts are
that the appellants herein have challenged the State Government’s proposal in
the case of Non-Service Post Graduate doctors for regularizing/taking into
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
consideration the two year bond period after completion of post-graduation for
the purpose of counting their service for promotion to higher post. The primary
contention of the appellants is that the Non-service PG bond doctors must
necessarily be terminated after completion of the two years bond period and that
if they want to enter into the Government service, they have to appear for the
Medical Services Recruitment Board examination and get appointed to
permanent posts through the proper channel, and that they cannot be regularized
from the date of their entry into service through the bond period. However,
being aggrieved by the proposal of the government considering the Non-Service
PG doctors for promotion by counting their service rendered during the bond
period also and regularizing their service from the date of joining the service
bond service, the appellants, who are regularly appointed government doctors
and having completed post-graduation as service candidates, had filed the writ
petitions.
12. The learned Judge, while recording the specific stand of the
government, vide its counter affidavit dated 23.03.2022 filed by the Assistant
Director of Medical Education, Kilpauk, Chennai and counter affidavit dated
11.04.2022 filed by the Principal Secretary to Government, Health and Family
Welfare Department, came to the following conclusion:
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
"12. It is the specific contention of the learned Senior Counsel for the
petitioners that Non-Service Post Graduate doctors, after completion of two
years bond period are being regularized in regular sanctioned post in the Tamil
Nadu Medical Service and they never been replaced with eligible regular
service candidates with same MD qualification passing out every year and the
place occupied by Bond and temporary candidates has never been shown as
vacant during the counselling conducted regularly in every year for regular
service candidates. The contentions / grievances / apprehensions raised by the
petitioners were duly answered in paras 9 to 11 of the affidavit filed by the first
respondent dated 11.04.2022, as extracted above and no further adjudication is
required in these writ petitions."
13. A perusal of the said affidavits would make it clear that the
grievances raised by the writ petitioner/appellants herein have been sufficiently
taken care of by the government and the same has also been recorded before this
Court by way of an affidavit. The relevant portions of the said affidavits dated
22.03.2022 and dated 11.04.2022 are as follows:
(i)Affidavit filed by Assistant Director of Medical Education, Kilpauk,
Chennai dated 22.03.2022:
“12. ………..It is also submitted that though the petitioners are seniors in total
service than that of the medical officers who were approved in the regular panel
for the year 2020-2021, they have not completed 5 years of teaching experience
in their specialties as per the norms of the Medical Council of India/ National
Medical Commission and as per the existing rules provision also for the panel
year 2020-2021 i.e., as on the crucial date of 15.03.2021. Hence, their names
were not considered for promotion to the post of Associate Professor during the
panel year 2020-2021. As and when the petitioner completes the teaching
experience, they will be considered for promotion as Associate professor subject
to available vacancies.
13. It is submitted that the panel for the post of Associate professor and
Professor in Government Medical Colleges have been prepared based on the
norms of the medical Council of India, National Medical Commission, New
Delhi and Special rules governed to the post of Associate Professor, and only
the eligible Medical Officers have been promoted and appointed as Associate
Professor. It is further submitted that in case of the non-service Medical Officers
who have joined in bond service after completing the PG, they have cleared
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
(Special Qualifying Examinations) SQE conducted by the Tamilnadu Public
Service Commission/Medical Services Recruitment Board duly following the
norms. After regularization of their services, they have also been appointed on
regular basis in the Tamilnadu Medical Services with effect from the date of
their joining duty in Tamilnadu Medical Services on par with the other Medical
officer appointed through the Tamilnadu Public Service Commission/Medical
Services Recruitment Board. Hence, they are fully qualified and eligible for
promotion to the post of Associate professor according to the qualification
prescribed in the Medical Council of India/National Medical
Commission/Special Rules for Tamilnadu Medical Service.
14. It is submitted that as per the orders issued in GO Ms. No.215, health and
Family Welfare Department dated 12.06.2007, the non-service Post Graduate
candidates were appointed as Assistant Professor in their respective specialties
in regular time scale of pay after completion of their PG degree. Further, while
working in the bond period of two years, the non-service PG Medical Officers
have appeared in the Special Qualifying Examination (SQE) conducted by the
recruiting agency viz., Tamilnadu Public Service Commission/ Medical Servies
Recruitment Board and regularly appointed as Assistant Professor from the date
of original appointment. The duties and responsibilities of the Service PG
candidates and Non service PG candidates are same. both are having regular
scale of pay and the service/leave rules are one and the same. after entering into
Tamilnadu Medical Service, there is no discrimination between service and non-
service PG candidates, and they are treated equally. Further, the CML seniority
will be assigned to the Nonservice PG candidates only after passing the SQE
test conducted by the recruiting agency i.e., Medical Services Recruitment
Board (MSRB) i.e., formerly TNPSC. As on 15.03.2020, the petitioner did not
have the experience prescribed by the medical Council of India, National
medical Commission and the Special Rules for the Tamilnadu Medical Service.
Hence, the request of the petitioner is not contenable. Further, after completion
of five years teaching experience in their specialties, the name of petitioners will
be considered for promotion to the post of Associate professor.”
(ii) Affidavit filed by the Principal Secretary to Government, Health
and Family Welfare Department dated 11.04.2022:
“6. It is submitted that Non service Post Graduates are private candidates who
pursue Post graduate/Super Speciality degree in Government Medical Colleges.
These Non-service Postgraduates execute a bond to serve in Government
Medical Institutions for a period of 2 years on completion of their Postgraduate/
Super Specialty Course. On completion of Postgraduate/Super Specialty course
in Government Medical Institutions, these Non-service Postgraduates are
temporarily appointed in Government Medical institutions in the existing
available vacancies, in time-scale of pay so as to enable to fulfill their
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
contractual obligation to cater to the need of specialists in Government Medical
Institutions to give quality health care to the public as they are provided
subsidized education. After completion of 2 year bond period, it is not
mandatory for government to provide them with permanent employment in
Tamil Nadu Medical Service. These candidates may appear for Medical Services
Recruitment Board exams for selection to the post of Assistant Surgeon in
regular capacity.
7. It is respectfully submitted that some of these Non-Service Postgraduates
choose to continue in Tamil Nadu Medical Service beyond the bond period. To
tide out the dearth of specialists and to cut out on the procedural delay in the
normal recruiting process, they are allowed to continue as temporary Medical
Officers if there are vacancies. Since their services were required in
Government Medical Institutions and they continued to render service beyond
their bond period, it was considered that they deserve a chance for regular
appointment and hence Special Qualification Examination (SQE) was
conducted. Non-Service Postgraduates who clear the SQE are placed below the
last batch of Medical officers recruited by the Medical Services Recruitment
Board (MSRB).
8. It is respectfully submitted that in its order dated 05.09.2019 in writ petition
(W.P.No. 14112 of 2019), the Hon'ble Court, among others has directed as
follows:-
"If a qualifying examination is held only for the doctors who have done
two years of service as stipulated in the bond, after completion of the PG
Course, this would amount to discrimination with other students from
other States, who would seek to join in the State of Tamilnadu. The State
Government is therefore, directed to frame an appropriate policy to
ensure that students passing out after completing the PG examinations are
not asked to man regular posts in the three directorates and that the
regular posts are filled up only through the normal recruitment process.
Posts of Doctors should not be kept vacant, as their services are required
by the people. Therefore, Government is also directed to fill up the vacant
posts in all the Directorates, as expeditiously as possible".
9. It is respectfully submitted that the Government have now issued a letter to
the Director of Medical and Rural Health Services, Director of Public Health
and Preventive Medicine and Director of Medical Education vide Government
Letter dated 31.01.2022 that
"The appointment of Non-Service Post Graduate as Assistant Surgeon in
Tamil Nadu Medical Service is temporary, towards fulfilling their bond
condition to serve in Government Medical Institutions. They are not
sponsored by the Tamil Nadu Public Service Commission / Medical
Recruitment Board as laid down in Section 17(1) Tamil Nadu Government
Servants (Conditions of Service) Act 2016 (the then 10(a)(i) of Tamil Nadu
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
State and Subordinate Service Rules). Hence, their temporary
appointments are made by agreement as per section 19(1) of Tamil Nadu
Government Servants (Conditions of Service) Act, 2016 (Tamil Nadu Act
14 of 2016).”
10. It is respectfully submitted that a person appointed under sub-section (1) of
section 19 of the Tamil Nadu Government Servants (Conditions of Service) Act,
2016 (Tamil Nadu Act 14 of 2016), he/she shall not be regarded as a member of
the service in which the post to which he is appointed is included and shall not
be entitled by reason only of such appointment to any preferential claim to any
other appointment in that service or any other service.
11. It is respectfully submitted that the appointment of Non-Service Post
Graduate students as Assistant Surgeon is under section 19(1) of the said Tamil
Nadu Government Servants (Conditions of Service) Act, 2016 (Tamil Nadu Act
14 of 2016) and hence after completion of 2 year bond period, it is not
mandatory for Government to provide them with permanent employment in
Tamil Nadu Medical Service. Medical officers may be immediately relieved if
they have completed requisite period of service as per the bond conditions. If
they want to join Tamil Nadu Medical Services as regular candidate, they have
to appear for open competitive Examination conducted by Medical Services
Recruitment Board (MSRB). Their regular service period will be counted after
selected by MSRB only.”
14. Thus, two things emerge from a reading of the above affidavits
filed by the authorities, viz:
(i) That the Government has made it very clear that the appellants/writ
petitioners will not lose their respective seniority while being considered for
promotion by the regularization of the services of the non-service PG doctors
after they clear the Special Qualifying Examination, and that the regular service
period of the latter category will be counted only after those who have directly
selected by the Medical Services Recruitment Board i.e., the category to which
the appellants belong.
(ii) That the appellants/writ petitioners were not eligible to be included
https://www.mhc.tn.gov.in/judis
W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
in the panel for the year 2020-21 as they had not completed for 5 years of
teaching experience in their specialty as per the norms of the National Medical
Council, on the crucial date of 15.03.2021 i.e., at the time of filing of the writ
petitions. It is therefore clear that irrespective of the correctness or otherwise of
the issue raised in the writ petitions, it is undisputed that as on the date of the
filing of the writ petitions, the writ petitioners/appellants herein were not
eligible for inclusion in the panel for promotion to Associate Professor and they
could as such claim no positive relief in their favour.
15. Further, after filing of the writ appeals, several interim orders came
to be passed, where at the instance of the writ appellants, this Court had directed
that 12 posts be kept vacant in the Departments to which the appellants belong.
The operative portion of the interim order dated 17.11.2023 is extracted
hereinbelow for easy reference:
“5.This court, taking note of the submissions so made by the learned counsel
appearing for all the parties and also considering the undertaking given by the
learned Additional Advocate General appearing for the authorities, finds it
appropriate to pass the following order:
(i) The authorities shall publish the results of the promotion/appointment to the
posts of Associate Professors and proceed further, in respect of filling up of all
other posts, except 12 posts, which shall be kept vacant in the Department
belonging to the writ appellants.
(ii) It is made clear that any order issued shall be subject to the outcome of
these writ appeals; and in the event of the appellants succeeding in these
appeals, the seniority of the promotees shall be fixed / rearranged / modified.
The said fact shall be indicated in the promotion order being issued to them.
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
(iii) Accordingly, the earlier order of this court dated 19.06.2023 shall stand
modified.”
16. Aggrieved by the said interim orders, the petitioners in CMP
Nos.1546, 1550 and 1554 of 2024 filed implead petitions alleging that their
names are found in the approved panel for the post of Associate Professor for
the year 2022-2023. A reading of the proceedings would indicate that their
names are found at Serial Nos.5, 6, 7 & 8 of the proceedings of the Director of
Medical Education and Research, Kilpauk, Chennai, dated 01.07.2023 and at
Serial Nos. 2, 3 & 5 of the proceedings of the Director of Medical Education
and Research, Kilpauk, Chennai, dated 08.07.2023. It was also brought to the
notice of the Court that the names of the appellants/writ petitioners are not
found in the approved panel 2022-2023 either in the Department of
Biochemistry and Pharmacology, to which the implead petitioners belong nor in
the approved panel for the Department of Anatomy in respect of which also the
interim order was operative at the instance of the appellants/writ petitioner. The
implead petitioners have annexed a tabular column as part of their affidavit
which shows that they completed five years of teaching experience as required
by the National Medical Commission and as such, have qualified themselves for
promotion panel 2022-2023. The same is extracted hereunder:
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
Date of Teaching Eligible
Implead
Name of Joining as experience for 2022-
Petitioner Department
Petitioners Assistant as on 2023
No.
Professor 15.03.2022 panel
5 years
Bio-
1. Dr.J.Latha 30.08.2016 6 months yes
Chemistry
15 days
5 years
Dr.S.Michael Bio-
2. 10.07.2016 8 months yes
Rajam Geetha Chemistry
5 days
5 years
Bio-
3. Dr.A.Priya 30.08.2016 6 months yes
Chemistry
15 days
5 years
Dr.E.Amudhan
4. 30.08.2016 6 months Pharmacology yes
Arvind
15 days
5 years
Dr.G.Muthu
5. 30.08.2016 6 months Pharmacology yes
kavitha
15 days
5 years
Dr.M.Nandini
6. 30.08.2016 6 months Pharmacology yes
Priya
15 days
5 years
7. Dr.A.Gomathi 10.07.2016 8 months Pharmacology yes
5 days
17. In the very same affidavit, the comparative details of the
appellants/writ petitioners have also been extracted which would make it rather
clear that the appellants at whose instance the 12 posts have been kept vacant
during the pendency of the writ appeals, lack eligibility to be included in the
panel for promotion for the year 2022-2023. The said table is also extracted for
ready reference:
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
Sl. Name of the Writ Department Date of Teaching When
No. Appellant Appeal Joining in experience become
No. teaching as on eligible /
15.03.2022 Remarks
4 years, 8
1906 / Bio-
1. Dr.M.S.Gayathri 30.06.2017 months, 16 2023-24 panel
2022 Chemistry
days
3 years, 9
Dr.Sathish 1897 / Bio-
2. 08.06.2018 months, 8 2024-25 panel
Kumar 2022 Chemistry
days
3 years, 9
Dr.C.Guna 1897 / Bio-
3. 31.05.2018 months, 16 2024-25 panel
Sundari 2022 Chemistry
days
3 years,
Dr.K.Chandra 2608 / Bio-
4. 19.06.2018 8 months, 2024-25 panel
kala 2022 Chemistry
26 days
4 years,
Dr.T.Sutha 1906 &
5. Pharmacology 30.06.2017 8 months 2023-24 panel
Nanthini 2608
16 days
3 years, 8
6. Dr.K.Vinoth 2608 Pharmacology 20.06.2018 months, 24 2024-25 panel
days
3 years,
Dr.Prasanna
7. 1897 Pharmacology 20.06.2018 8 months, 2024-25 panel
Kumari
24 days
Not included in
2022-23
approved panel
as per existing
5 years, 6 rules and based
8. Dr.V.Balaji 2608 Pharmacology 06.08.2016 months, 6 on approved
days vacancy and
CML junior to
implead
petitioners 4 to
18. The veracity of the facts stated in the above tables has been
verified by the parties, importantly by the government represented by the
Additional Advocate General Mr.J.Ravindran. The Teachers Eligibility
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
Qualifications in Medical Institutions Regulations 2022 issued by the National
Medical Commission vide notification dated 14.02.2022 would make it clear
that teaching experience of 5 years post PG is the minimum qualification
required for promotion to the post of Associate Professor. This 5 years period of
experience consists of 4 years as Assistant Professor and one year as Senior
Resident in the concerned subject in a recognized Medical College after
acquiring MD/MS Degree. It is therefore beyond the pale of doubt that as a
matter of fact, the appellants were not qualified for promotion to the post of
Associate Professor on the date of filing of the writ petitions, nor where they
qualified for the promotion to the post of Associate Professor for the panel year
2022-2023 and hence their names have not been included in the approved panel
for the year 2022-2023. However interim orders were passed at their instances
on their representations that they would be aggrieved if the promotion orders are
issued. It now appears that their names not being in the approved panel, such
interim orders had worked to the detriment of the implead petitioners whose
names were included in the panel for the year 2022-2023, and who had not been
made parties by the appellants. Be that as it may, as we have found that there is
no infirmity in the order of the learned judge which is under challenge, there is
now no impediment for giving effect to the approved panels for the year 2022-
2023 and consequential promotion orders to be issued to the implead petitioners
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
now arrayed as respondents 23 to 29 in the appeals.
19. The petitioners in CMP No. 1546 of 2024 in WA No.1906 of 2022
are now arrayed as respondents 28 to 34. The petitioners in CMP No. 1550 of
2024 in WA No.2608 of 2022 are now arrayed as respondents 23 to 29. The
petitioners in CMP No. 1554 of 2024 in WA No.1897 of 2022 are now arrayed
as respondents 16 to 22.
20. Therefore, the official respondents are directed to issue necessary
orders pursuant to the approved panel for the year 2022-2023 to the impleaded
parties on par with similarly placed persons for whom promotion orders have
already issued in December 2023. The approved panel for promotion to the post
of Associate Professor for the year 2022-23 may be given effect to. The State
Government has specifically stated that the approved panel list consists of the
candidates who are all eligible as per the NMC norms and Regulations.
21. The claim of the appellants shall be considered by the department
as and when they become eligible for promotion as Associate Professor in
accordance with the NMC regulations which requires five years of teaching
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
experience post PG for promotion to the post of Associate Professor in the
concerned field.
22. With the above directions and observations, the writ appeals stand
disposed of. No costs. Connected C.M.Ps. stand closed.
[R.M.D, J.] [M.S.Q, J.]
cad 17.05.2024
To
1 The Health Secretary
Health & Family Welfare Department
Secretariat
Nirman Bhavan
C Wing, New Delhi 110 001
2 The Secretary of NMC
Health & Family Welfare Department
Sector 8, Dwarka Phase I
New Delhi 110 077
3 The Health Secretary
Ministry of Health & Family Welfare Department
Chennai
4 The Directorate of Medical Education
Tamil Nadu Health & Family Welfare
Kilpauk, Chennai 600 010
5 The Directorate of Medical Service
Medical and Rural Health Services
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
DMS Complex, 361 Anna Salai, Chennai
6 The Directorate of Public Health
Medical and Rural Health Services
DMS Complex
361 Anna Salai, Chennai
R. MAHADEVAN, J.
and
MOHAMMED SHAFFIQ, J.
cad
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W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
Pre-delivery common judgment in
W.A. Nos.1897, 1906, 2608 of 2022 and 1103 of 2024
17.05.2024
https://www.mhc.tn.gov.in/judis
