Madras High Court
Directorate Of Medical Education And ... vs M.K.Bharathi on 20 February, 2025
Author: S.Srimathy
Bench: J. Nisha Banu, S.Srimathy
W.A.(MD)No.1366 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20.02.2025
CORAM:
THE HONOURABLE MRS JUSTICE J. NISHA BANU
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.A(MD)No.1366 of 2024
and
C.M.P.(MD)No.10607 of 2024
1.Directorate of Medical Education and Research,
Chennai – 600 010.
2.Directorate of Medical and Rural Health Services,
Chennai.
3.The Joint Director,
Joint Director of Health Services,
Madurai.
4.The Chief Medical Officer,
Government of Hospital Vadipatti,
Madurai.
5.The Dean,
Government Medical College, The Nilgiris,
Nilgris.
6.The Dean,
Government Medical College,
Virudhunagar. ... Appellants
Vs.
M.K.Bharathi ... Respondent
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent against the orders
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1/9
W.A.(MD)No.1366 of 2024
of this Court in W.P.(MD)No.13792 of 2024, dated 27.06.2024.
For Appellants : Mr.J.Ashok
Additional Government Pleader
For Respondent : Mr.C.Deepak
***
JUDGMENT
(Judgment of the Court was delivered by S.SRIMATHY, J.)
The present writ appeal is filed by the respondents against the order
passed in W.P.(MD)No.13792 of 2024, dated 27.06.2024.
2. The writ petition was filed inter alia praying for issuance of Writ of
Mandamus, to direct the 1st respondent therein to revise the seniority list in
Pharmocology Department based on the date of transfer posting order before
conducting the re-counselling which arises due to the vacancy caused by transfer
counselling vide circular Transfer Counselling / By E-Mail / Ref.No.
000033/E3/1/2024, dated 14.06.2024.
3. The 1st respondent herein is the writ petitioner. The writ petitioner
was earlier transferred vide order dated 16.08.2023 to Virudhunagar Government
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College. At that point of time the writ petitioner was working in Nilgiris Medical
College and she was relieved only on 25.10.2023 and then she joined in the
transferred place of Virudhunagar on 26.10.2023. In the next transfer counselling,
which was released on 19.06.2024 the petitioner’s name has been included in
incorrect seniority by taking the date of joining instead of date of transfer order.
4. The contention of the writ petitioner is that the transfer order was
issued on 16.08.2023 but she was belatedly relieved on 25.10.2023 by the Nilgiris
Medical College and the very next day the writ petitioner joined the transferred
place without availing the joining leave. Hence the claim of the petitioner she
ought to have been kept in seniority list by taking the date of transfer order. But
when the 1st respondent issued the circular, dated 14.06.2024, fixing the date of
counselling for Pharmacology on 19.06.2024, a seniority list was released based
on the date of joining in the last working station. If the date of transfer dated
16.08.2023 is taken for consideration, then the writ petitioner is eligible to be
placed in the seniority list and would have obtained the transfer order. But the
respondents have taken 26.10.2023, the date of joining and have calculated the
seniority, thereby, deprived the writ petitioner from participating in the transfer
counselling based on circular, dated 14.06.2024. Hence, the writ petition was
filed.
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5. After considering the writ petitioner's plea, the Writ Court has
disposed of the writ petition and directed the 1st respondent therein to modify the
transfer counselling seniority by including the writ petitioner's name. Aggrieved
over the same the respondents in the writ petition had filed the present writ
appeal.
6. The contention of the appellants is that G.O.(2D).No.131, Health and
Family Welfare Department, dated 20.11.2007, has given guidelines for
conducting transfer counselling. In the said G.O., guidelines for determining the
seniority list were also prescribed. Under clause 10.6, it states that actual period of
duty in the present posting alone can be counted for preparing the seniority list.
When the writ petitioner had joined the duty on 26.10.2023, then the writ
petitioner is entitled to seniority from the date of joining the transferred post.
7. The clause 10.6 of the said G.O. is extracted hereunder:
“For counting station seniority, actual period of duty in the present
posting alone will be counted, excluding period spent on leave like
Earned Leave, Medical Leave, Extra ordinary leave, etc., and period of
unauthorised absence.”
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The said clause only speaks to exclude the leave period or unauthorised absence
period alone. In the present case, the writ petitioner was granted relieving order
which is a belated one. Even according to the appellants, the service of the writ
petitioner was necessary, hence the appellant had retained the writ petitioner in
Nilgiris and the said decision was taken in the interest of public. But such
decision cannot affect the writ petitioner's valuable right of seniority. Further, it is
not the mistake of the writ petitioner. Infact the writ petitioner was ready and
willing to serve in the transferred post at Virdhunagar. It is because of the
appellants belated reliving order the petitioner could not join the service.
Therefore, the said period from 16.08.2023 to 25.10.2023 ought to be calculated
for seniority. When it is not the mistake of the writ petitioner, the valuable right
accrued to the writ petitioner cannot be deprived.
8. It is pertinent to state that the appellants have noted such discrepancy
and has rectified the same through government order wherein it is stated that the
date of transfer order ought to be taken for fixing the seniority. The relevant
portion of the said G.O.(D).No.1355, Health and Family Welfare (A1)
Department, dated 30.12.2024 is extracted hereunder:
“2. In addition to the existing clause in paragraph 10.6 of
G.O. (2D) No.131. Health and Family Welfare (A1) Department, dated
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20.11.2007, the following clause shall be added.
Transfer Counselling:
Station seniority shall be calculated from the date of
transfer /promotion orders issued by the Government / Directorate of
Medical Education & Research. This calculation is applicable only for
the purpose of transfer.
Provided that the aforesaid method of calculating station
seniority shall not apply if there is willful delay on the part of Medical
Officer in relieving from the old station or joining the new station on
transfer/promotion.”
The Government has amended the original G.O. passed in G.O.(2D).No.131, by
incorporating the above said clause. The new G.O. states that seniority can be
granted from the date of transfer and not from the date of joining. The proviso
clarifies the aforesaid station seniority can be granted from the date of transfer
order only if there is no wilful delay on the part of the medical officer. Admittedly
in the present case it is not the delay on the part of the writ petitioner, in such
circumstances then the date of transfer order alone can be taken into account and
not the date of joining.
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9. The subsequent G.O., is in favour of the writ petitioner. But the
contention of the appellant is that the G.O. is applicable prospectively and not
retrospectively. This Court is of the considered opinion the G.O. may be
applicable prospectively. Even the earlier G.O. in G.O.(2D).No.131 is in favour of
the writ petitioner where it directs to exclude the period spent on leave like
Earned Leave, Medical Leave, Extra Ordinary Leave and period of unauthorised
absence. In the present case it is not the case of leave at al but it is the case of non-
issuance of reliving order by the appellants. In any angle the petitioner is entitled
to count the date from 16.08.2023 to 25.10.2023 for calculating seniority for the
purpose of transfer counselling.
10. Therefore, this Court is of the considered opinion that the appeal
deserves to be dismissed and the order passed in the writ petition is absolutely
correct and there is no infirmity. Accordingly, the writ appeal is dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
[J.N.B., J.] [S.S.Y., J.]
20.02.2025
Index : Yes / No
Tmg
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To
1.Directorate of Medical Education and Research,
Chennai – 600 010.
2.Directorate of Medical and Rural Health Services,
Chennai.
3.The Joint Director,
Joint Director of Health Services,
Madurai.
4.The Chief Medical Officer,
Government of Hospital Vadipatti,
Madurai.
5.The Dean,
Government Medical College, The Nilgiris,
Nilgris.
6.The Dean,
Government Medical College,
Virudhunagar.
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J.NISHA BANU, J.
and
S.SRIMATHY, J.
Tmg
20.02.2025
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