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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
M. VENUGOPAL, ABDUL QUDDHOSE, JJ.
The State of Tamil Nadu, Represented by it Principal Secretary, Health and Family Welfare Department and Ors. - Appellant
Versus
Dr.S.Revwathy and Ors. - Respondent
W.A.(MD) Nos.1300, 1301 of 2017 and C.M.P.(MD)Nos.9020, 9021 of 2017
Decided on : 12-12-2017
Tamil Nadu Government Servant (Condition of Service) Act 2016 – Section 7 – Tamil Nadu Medical Service Special Rules – Rules 3, 8, 12 – Promotion – Appellants/Respondents have preferred the instant Intra-Court Writ Appeal before this Court, as against the order, in W.P.(MD) passed by the Learned Single Judge – Additional Advocate General for the Appellants submits that the Learned Single Judge should have taken note of Rule 12 of the Tamil Nadu Medical Service Special Rules that the promotion upto the level of Senior Civil Surgeon, Civil Medical List seniority will be taken into consideration – However, above the Senior Civil Surgeon, only panel seniority and the date of appointment will be taken into consideration. – Held, Just, Impartial, Unbiased, Dispassionate manner and that too with an open mind, and to pass necessary qualitative, quantitative and tangible reasons by evaluating the comparative merit, ability and seniority etc., of course, in accordance with Law/Rules and Regulations, within a period of six weeks from the date of receipt of a copy of this Judgment – Insofar as the observation of the Learned Single Judge in issuing positive direction in W.P.(MD) to the First Respondent (i.e. The Government of Tamil Nadu, Rep. by its Principal Secretary, Health and Family Welfare Department - The First Appellant in W.A.(MD)No.1300 of 2017) to grant promotion to the First Respondent/Writ Petitioner, as Director of Medical Education with all consequential benefits, as she is due to retire in February, 2018, are held to be incorrect, in the eye of Law and accordingly, they are set aside to prevent an aberration of Justice – Writ Appeals Disposed of
M. VENUGOPAL, J.
W.A.(MD)No.1300 of 2017:
The Appellants/Respondents have preferred the instant Intra-Court Writ Appeal before this Court, as against the order, dated 20.09.2017 in W.P.(MD)No.10257 of 2017, passed by the Learned Single Judge.
(2).W.A.(MD)No.1301 of 2017:
The Appellant has focussed the instant Writ Appeal, as against the order, dated 20.09.2017 in W.P.(MD)No.10257 of 2017, passed by the Learned
Single Judge.
W.A.(MD)No.1300 of 2017:
(3).The Appellants' Contentions:
3.1. The Learned Additional Advocate General for the Appellants submits that the Learned Single Judge should have taken note of Rule 12 of the Tamil Nadu Medical Service Special Rules that the promotion upto the level of Senior Civil Surgeon, Civil Medical List seniority will be taken into consideration. However, above the 'Senior Civil Surgeon', only panel seniority and the date of appointment will be taken into consideration.
3.2. The Learned Additional Advocate General for the Appellants contends that Dr.A.Edwin Joe (The Appellant in W.A.(MD)No.1301 of 2017) was considered as senior to the Respondent / Writ Petitioner and the same has been furnished in the Counter Affidavit filed by the First Respondent/Writ Petitioner and a statement that she is senior most to Dr.A.Edwin Joe (The Appellant in W.A.(MD)No.1301 of 2017) is not acceptable in the eye of law.
3.3. The Learned Additional Advocate General for the Appellants proceeds to take a plea that the Government had taken a decision to promote and appoint the Appellant in W.A.(MD)No.1301 of 2017 (Dr.A.Edwin Joe), as the Director of Medical Education by considering that he is the senior most Dean and senior of all promotional level and he was the first to complete more than 10 years of teaching experience.
3.4. It is represented on behalf of the Appellants that Dr.A.Edwin Joe (The Appellant in W.A.(MD)No.1301 of 2017) got promotion for the post of 'Dean' for the panel year 2009-10 and joined as Dean on 03.03.2010 and for more number of years served as Dean and therefore, the Government promoted him as 'Director of Medical Education' by following the existing Rules. Apart from that, it is the plea of the Appellants that the said Dr.A.Edwin Joe (The Appellant in W.A.(MD)No.1301 of 2017) had rendered service of 6 years in the feeder category post of Dean. But the First Respondent/Writ Petitioner had rendered only three years of service in the feeder category post as on the crucial date of consideration i.e.15.03.2016.
3.5. Expatiating his contention, the Learned Additional Advocate General for the Appellants proceeds to point out that the Learned Single Judge should have noted that the post of 'Director of Medical Education' comes under selection post under Special Rules for Tamil Nadu Medical Service.
3.6. The Learned Additional Advocate General for the Appellants projects an argument that as per the proviso of section 7(1) of the Tamil Nadu Government Servant (Condition of Service) Act 2016, while selecting the Head of the Department, the number of qualified candidates to be considered, shall be fixed as twice the number of vacancies plus three in the seniority list in the class, category or service. Moreover, the Appellants take a stand that in the present case, the number of vacancy was one and therefore, five candidates were considered and that Dr.A.Edwin Joe (The Appellant in W.A.(MD)No.1301 of 2017) is not only senior most person in the feeder category of the post of 'Dean', but also meritorious candidate to hold the post of 'Director of Medical Education.'
3.7.The Appellants, in the 'Memorandum of Grounds of Appeal' has taken a categorical stand that merit wise also Dr.A.Edwin Joe (The Appellant in W.A.(MD)No.1301 of 2017) is the most meritorious among the candidates in the panel and that the Government had considered the 'Seniority of Medical Officers' in the cadre of 'Dean'. The core contentio
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