IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.6.2011 C O R A M : THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.No.23915 of 2010 and M.P.No.1 of 2010 Dr.M.K.Neethipathy, M.S., M.C.H., S/o. Sri K.Kuppasamy Professor and Head of Department, Department of Surgery, Government Mohankumarmangalam / Medical College and Hospital, Salem-30. .. Petitioner -vs- 1. The Principal Secretary Government of Tamilnadu, Department of Helth and Family Welfare, Secretariat, Chennai – 2. 2. The Director of Medical Education, Kilpauk, Chennai – 10. 3. The Dean, Government Mohankumarmangalam Medical College, Salem -30 4. Dr.M.Manoharan M.S.(G.S.) Professor of Surgery, Government Mohankumarmangalam Medical College, Salem -30. .. Respondents PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari to call for the entire records in pursuant to the order vide Ref.No.7091/E1/2010 dated 18.10.2010 on the file of the 3rd respondent and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mr.T.P.Prabakarn For respondents : Mr.A.Suresh, GA (Edn.)for R1 Mr.P.Narayanamoorthy for R4 O R D E R The petitioner, who is working as Professor and Head of Department in the Department of Surgery, Government Mohankumaramangalam Medical College and Hospital, Salem, has filed this writ petition seeking to challenge the order dated 18.10.2010 passed by the third respondent – Dean of the said hospital. 2. By the impugned order, the petitioner was directed to hand over charge to the fourth respondent and it was claimed that the fourth respondent has been appointed as the Head of the Department of General Surgery. 3. When the writ petition came up on 22.10.2010, this Court found that the petitioner has been designated as the Head of the Department of Surgery on 03.7.2008, i.e. before coming into force of the Government Order in G.O.Ms.No.354, Health and Family Welfare Department, dated 23.10.2009, which specifically states that it shall take effect from the date of issue of the said order, i.e. 23.10.2009. Therefore, while further observing that inasmuch as the said Government Order does not have any retrospective effect, there was no impediment for the petitioner to continue as the Head of the Department of Surgery, this Court granted interim stay, which stood extended from time to time. 4. On behalf of respondents 1 to 3, a counter affidavit, dated 29.10.2010 was filed by the second respondent - Director of Medical Education and on behalf of the fourth respondent, a counter affidavit, dated 10.10.2010 was filed. 5. Heard the arguments of Mr.T.P.Prabakaran, learned counsel for the petitioner; Mr.A.Suresh, learned Government Advocate (Education) for Respondents 1 to 3; and Mr. P.Narayanamurthy, learned counsel appearing for the fourth respondent. 6. It is seen from the records that the petitioner has got postgraduate degree in MS General Surgery and M.Ch in Plastic Surgery. He is due to retire from service on 30.1.2013. It is claimed that the petitioner has worked 7 years 5 months 18 days in General Service and he got qualified in M.Ch Plastic Surgery. He has been designated as Associate Professor of Plastic Surgery as per the proceedings of the second respondent, dated 04.9.2010. Since he has undergone M.Ch in Plastic Surgery as a Service Candidate at the cost https://hcservices.ecourts.gov.in/hcservices/ of the Government, he has to work in the Plastic Surgery Department and he cannot claim a teaching post in General Surgery Department. 7. To become a Professor, one has to have 8 years of teaching experience. It is also stated that by G.O.Ms.No.354, Health and family Department, dated 23.10.2009, one should have 9 years teaching experience in particular speciality and since the petitioner did not possess the minimum qualification, he cannot hold the post of Professorship as per the Medical Council of India norms. Since the fourth respondent was having the required minimum teaching experience of nine years, he had been made the Head of Department of General Surgery. 8. The fourth respondent in his counter affidavit had repeated the stand taken by respondents 1 to 3 and placed reliance upon G.O.Ms.No.354, Health and Family Welfare Department, dated 23.10.2009. Since reliance was placed upon this G.O.No.354, Health and Family Welfare Department, dated 23.10.2009, a reference may be made to the said G.O. Clause II, sub-clause (xvi) of the Government Order reads as follows:- ‘’xvi) All the promotions will be issued strictly on acquiring adequate minimum teaching experience as per Medical Council of India norms. In no case, Medical Council of India norms should be relaxed for giving promotions.” In the same order, in paragraph 7, it was stated that the order will come into force from the date of issue of orders. In the very same order, it is also stated that necessary proposals should be sent to the Government for amendment of the Special Rules for Tamil Nadu Medical Service, wherever necessary. 9. Since reference was made to the Medical Council of India norms, this Court directed the learned Government Advocate to produce the MCI norms. Accordingly, a copy of the Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998 has been produced. It is seen from the said Regulations that for promotion to the post of Professor, one should have served as Reader/ Associate Professor in General Surgery/ Surgery for four years in a recognised Medical College. This had been carried out in the Government Order bearing G.O.Ms.No.13, Health and Family Welfare Department, dated 11.1.2008, wherein the Government had prescribed the criterion as follows:- (iv) The Associate Professors who are promoted from the cadre of Assistant Professors shall be designated and appointed as Professor on completion of 4 years of teaching experience as Associate Professor by the Director of Medical Education in the scale of pay of Rs.12000-375- 16500.” It is only taking note of these guidelines, the petitioner was promoted as the Professor and Head of the Department, as he has got https://hcservices.ecourts.gov.in/hcservices/ educational qualification as well as experience. It is also reflected in the list of Professors submitted by the Directorate of Medical Education, Tamil Nadu Medical Service, wherein, the petitioner's date of promotion is shown as 18.11.2004, whereas the date of promotion of the fourth respondent has been indicated as 15.12.2004. Therefore, the submission that he was senior to the petitioner in the said post also cannot be accepted. Even the G.O. referred to above, viz., G.O.No.354, Health and Family Welfare Department, dated 23.10.2009 is only prospective in nature. 10. In the light of the above, the impugned order demoting the petitioner with a direction to hand over the charges to the fourth respondent cannot be countenanced by this Court and it is accordingly set aside. The writ petition stands allowed. There will be no order as to costs. Consequently, the connected miscellaneous petition is closed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar js To 1. The Principal Secretary Government of Tamilnadu, Department of Helth and Family Welfare, Secretariat, Chennai – 2. 2. The Director of Medical Education, Kilpauk, Chennai – 10. 3. The Dean, Government Mohankumarmangalam Medical College, Salem -30 + 1 cc to M/s. T.P. Prabakaran, SR.33113 W.P.No. 23915 of 2010 and M.P.No.1 of 2010 MG(CO) Eu 16.6.11 https://hcservices.ecourts.gov.in/hcservices/