Dr. S.Usha, v. State Of Tamil Nadu,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 20.07.2016

CORAM

THE HONOURABLE MR.JUSTICE B.RAJENDRAN Writ Petition No. 2151 of 2012 -- Dr. S. Usha Professor of Medicine Department of Medicine Coimbatore Medical College near Coimbatore Railway Station Coimbatore - 641 018 .. Petitioner

Versus

1. State of Tamil Nadu represented by its Principal Secretary to Government Health and Family Welfare Department Fort St. George Chennai - 600 009

2. Director of Medical Education Kilpauk, Chennai - 600 010

3. The Dean Office of the Dean Coimbatore Medical College Coimbatore - 14

4. Dr. Issac Christian Moses, M.D., G.M., Professor of Medicine Coimbatore Medical College Coimbatore - 14 .. Respondents Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorarified Mandamus calling for records of the third respondent dated 09.01.2012 made in OO.No.2/E1/2012 and quash the said order of the third respondent dated 09.01.2012 and consequently direct the respondents to appoint the petitioners as Professor and Head of the Department of Medicine at Coimbatore Medical College, Coimbatore.

For Petitioner :

Mr. R. Muthukumarasamy, Senior Advocate for Mr. A. Jenasenan For Respondents:

Mr. A. Kumar Special Government Pleader for RR1 to 3 Mr. S. Chandrasekar for R4

ORDER

The petitioner has come forward with this writ petition challenging the order dated 09.01.2012 of the third respondent by which the fourth respondent was appointed to the post of Professor and Head of the Department of Medicine at Coimbatore Medical College, Coimbatore.

2.

The petitioner was selected and appointed by the Tamil Nadu Public Service Commission and she was posted as Civil Assistant Surgeon on 05.06.1989. After completing M.D. in General Medicine, the petitioner joined as Assistant Professor of Medicine in Coimbatore Medical College during February 2002. During February 2004, the petitioner was appointed as Associate Professor of Medicine and during February 2008 she was promoted as Professor of Medicine as per the order of refittment passed on 14.09.2010 fixing her date of appointment to the post of Professor on 03.02.2008. According to the petitioner, she possess all the qualification and experience to hold the post of Head of the Department in Medicine. Even though as per the order of appointment the petitioner was appointed on and from 03.02.2008 to the post of Professor, since one Dr. S.

Veerakesari was holding the post of Head of the Department at the relevant point of time, she was not considered for such post. On 31.12.2011, the said Dr. Veerakesari retired from service and the petitioner anticipated that she would be considered for promotion to the post of Professor and Head of the Department. In this context, a Circular was issued by the second respondent on 19.05.2010 to all the heads of the unit to forward the names of the eligible person to hold the post of Head of Department in their unit. According to the petitioner, she was the only Professor available in the institution in Medical Department as on 31.12.2011 and therefore, she legitimately expected that she would be appointed to the said post. In fact, on and from 01.01.2012, she was also permitted to hold the post of Head of Department.

While so, the impugned order dated 09.01.2012 has been passed by the third respondent appointing the fourth respondent to hold the post of Professor and Head of the Department in Medicine.

3.

The learned Senior counsel appearing for the petitioner would contend that in the order dated 14.09.2010 appointing the petitioner in the cadre of Professor, it was clearly stated that such appointment is made retrospectively from 03.02.2008. Therefore, as on 31.12.2011 when the post of Head of Department fell vacant on the retirement of one Dr. Veerakesari, the petitioner was the only professor available in the Department of Medical Science and she ought to have been appointed to the post of Head of Department In fact, on the retirement of Dr.Veerakesari, the petitioner was permitted to act as Head of the Department in the department of Medicine. According to the learned Senior counsel, without considering the claim of the petitioner for promotion to the post of Head of Department, the fourth respondent was erroneously given such promotion without any valid reason. The learned Senior counsel for the petitioner has brought to the notice of this Court that

even though the fourth respondent was eligible for promotion to the post of Associate Professor during 2006, he relinquished his promotion. As per Rule 47 (2) of the Tamil Nadu State and Subordinate Service Rules, such relinquishment made by the fourth respondent will be operative for a period of three years meaning thereby the fourth respondent can make such claim for promotion only in the year 2009. On the other hand, the petitioner was promoted to such post of Assistant Professor by an order dated 14.09.2010 retrospectively from 03.02.2008. Thus, the petitioner has been appointed to the post of Associate Professor much earlier than the fourth respondent. While so, the appointment of the fourth respondent to the post of Head of the Department is illegal and it is liable to be set aside.

4.

On the contrary, the learned Special Government Pleader appearing for the respondents 1 to 3, relying on the counter affidavit of the respondents, would contend that the post of Head of Department is not a promotional post among the seniors. The senior most Medical Officer is designated as Head of the Department as per the order in GO (Ms) No.226, Health and Family Welfare Department dated 10.10.2013. As per the said Government Order, the senior most Medical Officer as per CML seniority in the concerned speciality of the Medical College shall be considered for holding the post of Head of Department. Even though the fourth respondent relinquished the post of Associate Professor, he was holding the post of Professor from 2011 and he is senior than the petitioner in the CML seniority list.

The relinquishment of the promotion to the post of Associate Professor by the fourth respondent operated between 2006 and 2009 and thereafter, the fourth respondent was holding the post of Professor from 04.05.2011. According to the learned Special Government Pleader, during the pendency of the writ petition, the fourth respondent was relieved from the post of Head of Department. Thereafter, Dr. N. Sundar held the post of Head of Department and after his tenure, Dr. Kumar Natarajan was appointed to the post of Head of Department. Therefore, the learned Special Government Pleader would contend that the impugned order no longer survives for consideration of this Court inasmuch as the fourth respondent, who was appointed by the impugned order, was relieved from the post of Head of Department.

5.

The learned counsel for the fourth respondent would contend that as per the CML seniority maintained by the department, the fourth respondent was the senior most Professor and therefore he was directed to hold the post of Head of Department. The post of Head of Department is not a promotional post and it is only a designated post without any monetary benefits.

The fourth respondent entered the Government service on 28.08.1986 whereas the petitioner joined the government service only on 05.06.1989. Therefore, the learned counsel for the fourth respondent would support the impugned order of the third respondent appointing the fourth respondent to hold the post of Head of Department and prayed for dismissal of the writ petition.

6.

I heard the counsel on both sides and perused the material records placed.

The only question arise for consideration in this writ petition is whether on the retirement of one Dr. Veerakesari on 31.12.2011, the petitioner became entitled to hold the post of Head of the Department from 01.01.2012 and consequently whether the impugned order is liable to be set aside or not.

7.

The post of Head of Department fell vacant on 01.01.2012 by reason of the retirement of Dr. Veerakesari who was holding the post till 31.12.2011. From 01.01.2012, the petitioner was acting as Head of Department. The petitioner claims that she was appointed to the post of Professor by an order dated 14.09.2010 retrospectively from 03.02.2008. Therefore, on and from 03.02.2008, the petitioner was holding the post of Professor and she is the senior most person available to be designated as Head of Department from 01.01.2012. On the contrary, admittedly, the fourth respondent, after his relinquishment of the post of Associate Professor between 2006 and 2009, was appointed to the post of Professor only subsequent to 2009.

While so, the argument of the learned Senior counsel for the petitioner that except the petitioner, there was no other person eligible for being appointed to the post of Head of Department as on 01.01.2012 is justifiable. In fact, considering the seniority of the petitioner, admittedly, she was asked to officiate the post of Head of Department and she has also taken charge as the Head of the Department. While so, by virtue of the impugned order, the fourth respondent was appointed to officiate the post of Head of Department by replacing the petitioner from the post of Head of Department. 8.

The learned Special Government Pleader for the respondents 1 to 3 would contend that since the fourth respondent was the senior most Professor available in the department as per CML seniority, the third respondent was justified in passing the impugned order. In this context, in the counter affidavit filed on behalf of the respondents, reference was made to the inter se seniority between the petitioner and the fourth respondent hereinand it can usefully be referred to as follows:- "8. It is submitted that to sort out the issue, the Government have issued guidelines to designate the Medical Officer as Head of Department/Unit in Chief in the Government Medical College vide G.O. (Ms) No. 226, Health and Family Welfare Department dated 10.10.2013.

In the said Government Order, the Government have ordered that the senior most Medical Officer as per CML seniority in the concerned speciality of the Medical College shall be considered for the Headship/Head of Department subject to the condition that he/ she should not have lost his seniority as a result of relinquishment of right for promotion or as a result of any punishment imposed on him or her.

9.

Even if the contents of para No.8 of the counter affidavit is taken into consideration, it is clearly stated therein that as per G.O. (Ms) No. 226, Health and Family Welfare Department dated 10.10.2013 the senior most Medical Officer as per CML seniority in the concerned speciality of the Medical College shall be considered for the Headship/Head of Department subject to the condition that he/ she should not have lost his seniority as a result of relinquishment of right. In the present case, admittedly, the fourth respondent relinquished his promotion to the post of Associate Professor during 2006 to 2009 and therefore also the fourth respondent ought not to have been designated to hold the post of Head of Department with effect from 01.01.2012 by replacing the petitioner from holding such post. In such view of the matter, I hold that as on 01.01.2012, the petitioner was the senior most professor available to be designated as Head of Department and consequently, the impugned order of the third respondent deserves to be set aside.

10. The learned Special Government Pleader would contend that during the pendency of the writ petition, the third respondent was relieved from his post and two other Heads of Department have succeeded the post of Head of Department. Such a submission made on behalf of the respondents 1 to 3 cannot be countenanced or it is not a ground for sustaining the impugned order. What is material for consideration in this case is whether as on 01.01.2012, the petitioner or the fourth respondent was eligible to be designated as Head of Department as per the seniority. As held above, the petitioner was the senior most Professor available for being designated as Head of Department as on 01.01.2012 and it has nothing to do with the relieving of the fourth respondent subsequently from the post of Head of Department.

11. For all the above reasons, the impugned order of the third respondent is set aside. The writ petition is allowed. No costs.

rsh Sd/- Asst.Registrar /true copy/ Sub Asst. Registrar To

1. The Principal Secretary to Government State of Tamil Nadu Health and Family Welfare Department Fort St. George Chennai - 600 009

2. The Director of Medical Education Kilpauk, Chennai - 600 010

3. The Dean Office of the Dean Coimbatore Medical College Coimbatore - 14 + 1 cc to Mr.A.Jenasenan, Advocate Sr 41479 + 1 cc to The Govt.Pleader, Sr 41268 KR/11/8/16 WP.No.2151 of 2012