IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.07.2011 CORAM: THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN W.P.No.12254 of 2011 & M.P.No.1 of 2011 Dr.Meera Udayshanker ... Petitioner Vs. 1.Union of India, Rep. by Secretary to Government, Ministry of Shipping (Port Wing), Transport Bhawan, No.1, Parliament Street, New Delhi – 110 001. 2.Chennai Port Trust, Rep. by its Chairman, No.1, Rajaji Salai, (Opp. to Reserve Bank of India), Chennai – 600 001. ... Respondents Prayer: This Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, to direct the second respondent to implement the decision contained in the letter dated 05.04.2011 filed as Exhibit "A" more particularly the decision in paragraph 5 as approved by the first respondent and take immediate steps to enhance the age of retirement of Senior Deputy Medical Officer, a Specialist including the petitioner from 60 to 62 years of age and consequently direct the second respondent to pay all the benefits including the salary and other attendant/terminal benefits attached to the said post till the petitioner reaches the age of 62 years. For Petitioner : Mr.N.G.R.Prasad for M/s.Row and Reddy For Respondents: M/s.R.Meenakshi Central Government Standing Counsel (R1) Mr.Sathya Narayana Prasad (R2) O R D E R The petitioner is a Specialist Doctor working in the second respondent-Port Trust as Paediatrician as Senior Deputy Medical Officer. She was to retire on 30.04.2011. Therefore, she applied for extension of her service from 60 to 62 years as there was https://hcservices.ecourts.gov.in/hcservices/ shortage of Specialists in Paediatric Department in the second respondent-Port Trust. Her request was favourably considered by the Chairman / second respondent who recommended the extension through letter dated 05.04.2011 to the first respondent. The said recommendation was also accepted and the first respondent by an order dated 29.04.2011 agreed to extend the service of the petitioner for a period of six months only. However, the extension was not given effect by the second respondent. Therefore, the petitioner is before this Court seeking a Writ of Mandamus. 2.The second respondent filed a counter stating that the retirement age in the second respondent service is 60 and as the petitioner was to retire on 30.04.2011, though her request was considered initially, it was rejected based on the representation of the junior doctors and some organisations. Further, it is submitted that on 10.06.2011 the request for extension was rejected by the second respondent and therefore, the writ petition has become infructuous. 3.Mr.N.G.R.Prasad, learned counsel for the petitioner submits that the petitioner is a qualified Paediatrician and there is no other Paediatrician available in the second respondent-Port Trust and that the Chairman of the second respondent having recommended for the petitioner's extension, as approved by the first respondent, cannot reject the extension based on some third parties representation. Therefore, he seeks for allowing the writ petition. 4.Mr.Sathya Narayana Prasad, learned counsel appearing for the second respondent submits that already a Paediatrician is working in the Port Trust and therefore, it is incorrect to state that no Paediatrician is available in the second respondent-Port Trust and that the rejection order was passed on 10.06.2001. Therefore, the petitioner has to only file a Writ Petition challenging the said order dated 10.06.2011. In view of that the writ petition is not maintainable. 5.This Court heard the arguments and perused the records carefully. 6.It is an admitted position that the petitioner is a qualified Paediatrician, who was to retire on 30.04.2011 on attaining the age of super-annuation. The petitioner gave representations to the first and second respondents seeking her extension of service as there is shortage of Specialist of Paediatrician in the Port Trust and her request was considered by the second respondent and recommended for extension on 05.04.2011. A perusal of the recommendation letter dated 05.04.2011 to the first respondent would reveal that the second respondent-Port Trust is running with shortage of Specialists. It also gave the details that eleven Specialist Doctors already left the hospital in the past five years and two more Specialists would be retiring in 2011 on attaining the age of super-annuation. To avoid the aforesaid situation and considering the petitioner's qualification, the https://hcservices.ecourts.gov.in/hcservices/ second respondent recommended the extension and paragraphs 4 and 5 of the order read as follows:- "(4)Considering her higher qualification, capacity and experience, it is suggested that the services rendered by Dr.Meera Udayashankar may be considered and extended the service beyond her retirement dated on 30.04.2011 till the final decision is taken by the Ministry to enhance the superannuation age of Specialist Doctors from 60 to 62 years on par with other Central Government Health Services organisations. 5.In view of the above, Ministry may kindly accord sanction for the extension of the services of Dr.Meera Udayashankar MD, DCH, DNB, Sr.Deputy Chief Medical Officer (Paediatrician) for a period of six months from the date of her superannuation age i.e., 30.04.2011." The second respondent by a communication dated 29.04.2011 approved the recommendation of extension of the petitioner and the said letter reads as follows:- "I am directed to refer your letter No.A1/622/2011-GA dated 5th April, 2011 on the above subject and to say that the competent authority has ordered as under: 'Extension may be given only for a period of six months and further extension need not be given in the instant case.' 2.You are requested to take approval of Election Commission of India, if required in the matter." The aforesaid communication would reveal that the petitioner followed the procedure and the authorities, considering the necessity for extending the service of the petitioner, took a decision to extend the service of the petitioner only for a period of six months. It appears that the aforesaid decision had been taken in the interest and welfare of the workers and their families of the Chennai Port Trust and this Court comes to the conclusion that the decision of the first and second respondents for extending the petitioner's service is only in the interest of the second respondent and therefore, the said approval is valid. 7.Even thereafter, the petitioner's service was not extended as per the decision taken by the respondents. Therefore, the petitioner filed this writ petition on 09.05.2011. When the matter was pending before this Court, the second respondent passed an https://hcservices.ecourts.gov.in/hcservices/ order rejecting the request for grant of extension of service of the petitioner on the ground that Chennai Port Trust Medical Officers' Association gave a representation to discourage extension of service of individuals and it would affect the promotion to the juniors and the doctors belonging to Scheduled Caste Community. Though the learned counsel for the second respondent is justified in contending that by the order dated 10.06.2011 the second respondent has negatived the petitioner's extension, it is a new cause of action, however, this Court is not inclined to accept the said contention. 8.When the case is pending before this Court, in all fairness, the second respondent, should have waited for the outcome of this writ petition, being a Trust sponsored and controlled by the Central Government and an instrumentality of State under Article 12 of the Constitution of India. However, hurriedly, the order dated 10.06.2011 has been passed contrary to the recommendation made by the Chairman earlier on 05.04.2011 and approved by the first respondent on 29.04.2011.Therefore, this Court has got no hesitation to declare this said rejection order dated 10.06.2011 as invalid. Though the prayer is only for a Writ of Mandamus, as the order has been passed pending disposal of writ petition, any action taken subsequent to filing of the Writ Petition is subject to result of the Writ Petition. That apart, by moulding the prayer, this Court has got jurisdiction and power to grant relief to the petitioner even if it is not sought for. However, in this case, since the order has been passed pending disposal of the writ petition and contrary to the earlier order, the order dated 10.06.2011 is hereby quashed. 9.The learned counsel for the second respondent submitted that a Paediatrician viz., Dr.Anu Sujatha.A, is looking after Paediatric Department and produced a professional certificate of the said doctor issued by the Tamil Nadu Dr.M.G.R.Medical University, which states that the said Doctor has diploma in Child Health. However, it is admitted that the said Dr.Anu Sujatha.A, is looking after Ophthalmology Department. She merely possess a diploma in Child Health and she is not practising in Child Health and therefore by no such of imagination she could be termed as Specialist practising in Child Health. Mere possession of requisite qualification is not enough, and is not equal to Specialist practice. Practice is essential to render medical service to the patients especially children. The said doctor cannot look after both Ophthalmology Department as well as Paediatric Department. If it is done, it will certainly affect the patients taking treatment in both the Departments. Interest of Public is also against allowing the same Doctor to look after both the Departments. Therefore, a Specialist qualified in Child Health and practising in Child Health is required to be appointed as Paediatrician in the second respondent-Port Trust. 10.As admitted by the second respondent-Port Trust, apart from Dr.Anu Sujatha.A, no other person is qualified to be a Paediatrician and therefore in the interest and welfare of the https://hcservices.ecourts.gov.in/hcservices/ patients, the second respondent is required to retain the service of the petitioner as per the decision taken by the second respondent and approved by the first respondent through letter dated 29.04.2011. 11.A perusal of the order dated 10.06.2011, which rejected petitioner's extension shows that the petitioner's extension was declined on the basis of the representation of the Doctors of Port Trust Hospital, Chennai and the doctors belonging to the Scheduled Caste Community. There will be some justification in the representation of those associations provided if qualified Specialists are available in the Department and their services are not considered for appointment. It is admitted case that except the petitioner, no other person other than Dr.Anu Sujatha, who is found to possess only Diploma in Child Health and not practising in Child Health, no other Paediatrician is available in the Chennai Port Trust. Therefore, the objections by the association of doctors as well as doctors belonging to the Scheduled Caste are not sustainable and based on their representations, the petitioner's extension cannot be denied. Moreover, the extension is only for a period of six months only. As on date two months was already over and only about four months remain. 12.Though it is contended that the petitioner got superannuated on 30.04.2011, in view of the recommendation made by the Chairman and approved by the first respondent on 29.04.2011, there will not be a bar for continuation of the petitioner's service. Moreover, the rejection order was passed only on 10.06.2011, pending disposal of the writ petition. 13.One another aspect is that the second respondent has got no jurisdiction and power to recall, modify or cancel the earlier decision taken by him as it was approved by the first respondent. Therefore, the order of the rejection is also without jurisdiction and therefore is liable to be quashed. By the earlier discussions, interest got accrued to the petitioner and no notice was given to the petitioner before passing the order declining to grant extension. Therefore, for violation of principles of natural justice also, the order is set-aside. 14.Therefore, the second respondent is directed to implement the decision of the second respondent dated 05.04.2011 as approved by the first respondent on 29.04.2011 on or before "13.07.2011", otherwise the interest and welfare of the children of the workers of the second respondent-Port Trust would be adversely affected. This Court has to consider the issue in the interest of the society also. 15.Considering the shortage of Specialists in the Paediatric Department, in the meanwhile, the respondents are directed forthwith to recruit Paediatrician inviting applications from qualified doctors as per Rules and Regulations before *"30.10.2011" by which time the petitioner's extension would come to an end. This direction is necessary in the interest of children of the second https://hcservices.ecourts.gov.in/hcservices/ respondent's workers. 16.Accordingly, the writ petition is allowed as prayed with the above directions. Consequently, connected miscellaneous petition is closed. No costs. Sd/ Asst.Registrar 11.7.2011 * Amended as per order of Court dated 21.7.2011 Sd/- Asst.Registrar 08.08.2011 //True Copy// Sub.Asst.Registrar r n s To 1.The Secretary to Government, * Order already despatched Union of India, Ministry of on 12.7.2011 to be Shipping (Port Wing), Substituted Transport Bhawan, No.1, Parliament Street, New Delhi – 110 001. 2. The Chairman, Chennai Port Trust, No.1, Rajaji Salai, (Opp. to Reserve Bank of India), Chennai – 600 001. 1 cc to M/s.Row & Reddy , Advocate, Sr.No.40502 1 cc to Ms.R.Meenaksh , Advocate, Sr.No.40520 1 cc to Mr.Sathya Narayana Prasad , Advocate, Sr.No.40359 W.P.No.12254 of 2011 & M.P.No.1 of 2011 ck(co) pmk.11.7.2011 TP/9.8.2011. https://hcservices.ecourts.gov.in/hcservices/