IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16-4-2008 CORAM THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.33600 of 2007 and M.P.No.2 of 2007 W.P.No.34296 of 2007 and M.P.No.2 of 2007 Dr.R.Selvaraj ... Petitioner in W.P.No.33600/2007 Dr.K.Raju ... Petitioner in W.P.No.34296/2007 Vs. 1. The State of Tamil Nadu, rep.by the Secretary to Government, Health & Family Welfare Department, Fort St.George, Chennai - 600 009. 2. The Director of Medical Education, Poonamallee High Road, Kilpauk, Chennai - 600 010. 3. Dr.R.Subbiah ... RR-1 to 3 in both writ petitions Prayer in both writ petitions: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorarified mandamus calling for the records relating to the third respondent, comprised in G.O.(D)No.1187 Health and Family Welfare (A1) Department, dated 18.9.2007 promoting the third respondent as Reader in Spine Surgery, Madras Medical College/Government General Hospital, Chennai, quash the same and consequently direct the first respondent to promote the petitioner as Reader in Spine Surgery, Madras Medical College/Government General Hospital, Chennai. For Petitioners : Mrs.Nalini Chidambaram, Senior Counsel for Mr.C.Ganapathy https://hcservices.ecourts.gov.in/hcservices/ For Respondents 1 & 2 : Mrs.Dakshayani Reddy, Government Advocate For 3rd respondent : Mr.R.Muthukumaraswamy, Senior Counsel for Mr.R.Karthikeyan COMMON ORDER By consent of both parties, the writ petitions are taken up for final disposal. 2. The common prayer in these writ petitions is to quash G.O.Ms.No.1187, Health and Family Welfare Department, dated 18.9.2007, promoting the third respondent as Reader in Spine Surgery, Madras Medical College/Government General Hospital, Chennai, and consequently direct the first respondent to promote the petitioners herein as Reader in Spine Surgery, Madras Medical College. 3. The case of the petitioner in W.P.No.33600 of 2007 is as follows: (a) The petitioner in W.P.No.33600 of 2007 is that he studied MS (Ortho) during the academic years 1994-1997 and passed from the Madras Medical College and he was appointed as a Tutor in Government General Hospital in Paraplegia on 16.7.1997. The said post is a unique post as the Doctor occupying the said post will be in charge of the entire spinal injury cases admitted in the Spinal Injury Care unit at the Government General Hospital, Chennai. (b) Petitioner was further appointed as Assistant Professor of Orthopaedics in the Government General Hospital/Madras Medical College Hospital, Chennai, from 1.8.1998 and was promoted as Senior Assistant Surgeon on 29.12.1998 and further promoted as Civil Surgeon on 15.5.2007 in the department of Orthopaedics. According to the petitioner, from among the senior Assistant Professors in the Madras Medical College, he is the only medical officer, who is having experience as Tutor in Paraplegia. (c) Petitioner is doing Spinal surgeries regularly since his appointment, which is also certified by the Head of the Department of Orthopaedic Surgery, Madras Medical College and totally he has performed more than 500 spinal surgeries, which could be verified from the department of Orthopaedics. Petitioner's meritorious service was recognised by awarding a certificate of appreciation by the Dean of Madras Medical College in the year 2002 and no other Assistant Professor was issued with such merit certificate. https://hcservices.ecourts.gov.in/hcservices/ Petitioner was also awarded with fellowship by the Tamil Nadu Orthopaedics Association in the year 1998 and national award of excellence in the year 2003. (d) Petitioner published various articles in the Indian Journal of Orthopaedics and Tamil Nadu Journal for Orthopaedics. He has presented a paper of Operative Management on Dorso Lumbar Spine Injuries. Petitioner attended the third International Course on Spinal Surgery and Workshop on Spinal fixation systems in Coimbatore. Petitioner is also appointed as an Honorary Tutor for basic surgical skills for drugs of the Royal college of Surgeon of Edinburgh and as such he is having more than ten years of unblemished record of service. (e) According to the petitioners, a proposal for upgrading the Spinal Injury Unit in the Government General Hospital into a Separate Spine Surgery Unit to improve the services to the poor patients with spinal disorders was forwarded by the Dean of the Madras Medical college with his recommendations, to the second respondent and the second respondent accepted the said recommendation and sanctioned for upgrading the existing Spinal Injury Unit into a separate Spine Surgery Unit with one post of Reader to be filled up by re-deployment, subject to condition that no sanction of post will be sought for, in lieu of redeployed post. (f) In the said newly created post of Reader, one Dr.Nalli R.Yuvaraj was promoted by G.O.(D) No.762, dated 25.6.2007, based on the adhoc rules framed for promotion as Reader. The third respondent was not promoted to the said post of Reader as he was not having the qualifications prescribed under the adhoc rules. Petitioner is the senior-most person having teaching experience as prescribed in the Medical Council of India norms. Petitioners Medical List number in Madras Medical College is 4952 whereas the third respondent's medical list number is 5066. Petitioner is having more number of years of teaching experience than the third respondent and the petitioner was a teacher to the third respondent during his post gradation between 2001 and 2003. Petitioner is also having additional qualification of Diplomate of National Board of Examinations, which is also equivalent to MS degree. Third respondent is not having the said additional qualification. The third respondent is not having five years of teaching experience after completing MS (Ortho) and he will be fulfilling the said experience only in 2009, which is a mandatory requirement under the MCI Norms for promotion to the post of Reader in a Medical College. 4. The service details of the petitioner in W.P.No.34296 of 2007 are that he joined in the Tamil Nadu Medical Service as Civil Assistant Surgeon on 9.4.1990 and his CMC (Civil Medical List) number is 4712. Petitioner underwent MS (Ortho) during the academic year 1991-1994 in the Madras Medical College and passed. https://hcservices.ecourts.gov.in/hcservices/ Petitioner joined as a Tutor in the Department of Orthopaedics in the Stanley Medical College on 21.7.1994. The Doctor in charge of the entire Orthopaedics department will be in charge of the Spinal Injury cases. He was promoted as Assistant Professor of Orthopaedics Department in the Stanley Medical College from 20.7.1995 and was further promoted as Senior Assistant Surgeon on 29.10.1998 and transferred and posted at Kilpauk Medical College on 30.4.2004. He was promoted as Civil Surgeon on 30.8.2007 and he is now serving in the Department of Orthopaedics in Kilpauk Medical College. According to him, he is the senior-most Assistant Professor in Orthopaedics in the Government Hospitals/Colleges in Chennai and he has performed more than 500 spinal surgeries and after passing MS, he is having 13 years of teaching experience and he satisfies the norms prescribed by the Medical Council of India for promotion to the post of Reader. 5. Mrs.Nalini Chidambaram, learned Senior Counsel for the petitioners submitted that the impugned order passed by the first respondent giving promotion to the third respondent as Reader in Spinal Surgery in Madras Medical College/Government General Hospital, Chennai, even though temporary under Rule 39 of the Tamil Nadu State and Subordinate Service Rules, the third respondent is not qualified for the post of Reader as per the adhoc rules as well as the Medical Council of India regulations. The learned Senior Counsel further submitted that when Dr.Nalli R.Yuvaraj was promoted as Reader by order dated 25.6.2007, the third respondent filed W.P.No.21767 of 2007 and challenged the order of promotion given to the said Dr.Nalli R.Yuvaraj under Rule 39. In the said writ petition, the second respondent filed counter affidavit on 11.7.2007 stating that the third respondent was having only 4 years of teaching experience in the Orthopaedics department after acquiring MS (Ortho) degree and the third respondent was denied promotion due to want of qualification viz, experience and the said Dr.Nalli R.Yuvaraj was given promotion after considering his merits and as per the adhoc rules. The said Dr.Nalli R.Yuvaraj was also having DNB degree awarded by the National Board of Examinations, which is a recognised degree and eligibility for promotion to the post of Reader is to be ascertained as per the adhoc rules and MCI regulations. The learned Senior Counsel pointing out the said counter affidavit, submitted that the third respondent having been found unqualified for promotion even under Rule 39, cannot be promoted as Reader in Spine Surgery Unit before his completion of five years of experience after acquiring MS Degree, particularly when there are several qualified candidates available and therefore the learned Senior Counsel sought to set aside the impugned order with a direction to the respondents 1 and 2 to promote a fully qualified person to the post of Reader either under Rule 39 or on permanent basis. https://hcservices.ecourts.gov.in/hcservices/ 6. Mr.R.Muthukumaraswamy, learned Senior Counsel appearing for the third respondent on the other hand submitted that the third respondent is given promotion under Rule 39 by invoking emergency provision and the petitioners have no vested right to claim temporary promotion and therefore they have no locus standi to challenge the impugned order. The learned Senior Counsel further submitted that the adhoc rule has not been notified till date and therefore no reliance could be made by the petitioners to challenge the impugned order. The learned Senior Counsel further submitted that the rules issued by the respondents viz., Rule 4 of the General Rules for the Tamil Nadu State and Subordinate Services for the year 2004-2005 requires only four years of experience after passing post graduate qualification in the speciality and as per the said rule, third respondent is fully qualified. 7. The learned Government Advocate appearing for respondents 1 and 2 submitted that the third respondent was found qualified as per the adhoc rules as well as the General rule and the petitioners cannot maintain these writ petitions, particularly when the promotion is made under Rule 39 of the Tamil Nadu State and Subordinate Service Rules. 8. I have considered the rival submissions made by the learned Senior counsel for the petitioners as well as respective respondents. 9. The point in issued is, while giving promotion under Rule 39 of the Tamil Nadu State and Subordinate Service Rules, whether a person can be given promotion contrary to the qualifications prescribed by the Medical Council of India, 1956, and the minimum qualifications for Teachers in Medical Institutions Regulations, 1998, published by the Government of India in its gazette on 5.12.1998. 10. Rule 39 of the Tamil Nadu State and Subordinate Service Rules deals with temporary promotion and the relevant portion of which reads as follows: "Rule 39(a)(i) Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a higher category in a service or class by promotion from lower category and there would be undue delay in making such promotion in accordance with the rules, the appointing authority may temporarily promote a person, who possesses the qualifications prescribed https://hcservices.ecourts.gov.in/hcservices/ for the post, otherwise than in accordance with the rules." 11. The Medical Council of India framed regulations and prescribed qualification for the post of Readers in Medical Colleges. In schedule I, it is stated as follows: "Every appointing authority before making an appointment to a teaching post in medical college or institution shall observe the following norms." In Clause (6) and (7) to Schedule I, it is stated as follows: "(6) The teachers in a medical college or institution having a total of eight years' teaching experience out of which at least five years teaching experience as Lecturer or Asst.Professor gained after obtaining postgraduate degree shall be recognised as postgraduate teachers in broad specialities. In the case of super-specialities only those teachers who possess eight years' teaching experience out of which at least five years' teaching experience as Lecturer/Asst.Prof. gained after obtaining the higher speciality degree shall be recognised as postgraduate teachers: Provided that the case of super-speciality courses which are being newly instituted, matter regarding relaxation of qualification and experience of postgraduate teachers may be taken up by the appointing authority with the Medical Council of India. (7) In cases where candidates with requisite experience are not available, a reference may be made by the appointing authority to the Medical Council of India for consideration on merits." For the post of Reader in the Department of Orthopaedics the following qualifications are prescribed, "(i) As Assistant Professor/Lecturer in Orthopaedics for five years in a recognised medical college. Desirable (ii) Minimum of four Research publications indexed in Index Medicus/national journals." https://hcservices.ecourts.gov.in/hcservices/ 12. For the post of Assistant Professor/Lecturer, the requisite qualification is PG degree in the subject and three years teaching experience in the subject in a recognised Medical College. Thus, it is manifestly clear that for the post of Lecturer/Assistant Professor, a person must have PG degree in the relevant subject with three years teaching experience and for the post of Reader/Associate Professor, a person must possess P.G.degree in the relevant subjects and five years experience in a recognised Medical College. As per the adhoc rules, a person must have PG degree, 5 years of experience and must have conducted not less than 500 Spine operations. 13. The learned Senior Counsel for the third respondent may be right in contending that the said adhoc rules are not notified till date. However, the qualifications prescribed by the Medical Council of India for the post of Reader in all Medical Institutions is bound to be followed by the respondents 1 and 2 while filling up the post of Reader in Spine surgery. Admittedly, the third respondent is not having five years of teaching experience after passing MS (Ortho). Even for giving temporary promotions under Rule 39, as extracted above, the candidate must have the necessary qualification prescribed for the post. Hence the respondents are not justified in contending that the promotion having been made under Rule 39, petitioners have no locus standi to challenge the said promotion given to the third respondent. For getting temporary promotion petitioners may not have any statutory right. But the fact remains, the third respondent, who is given temporary promotion is not qualified for getting even temporary promotion in the cadre of Reader in spine surgery in the Government Medical College, Chennai, as per MCI regulation. 14. The second respondent in the counter affidavit filed in W.P.No.21767 of 2007 also stated that the third respondent, who is the petitioner in the above writ petition is not qualified as per the adhoc rules as he was having only four years of teaching experience after passing MS degree. 15. Whether an unqualified person can be posted in the teaching post of Medical Institution, contrary to the Regulations, 1998 framed by the Medical Council of India was considered by me in (2006) 2 MLJ 775 (Dr.P.Sivanesan v. Secretary to Government). In the said case, an attempt was made to transfer a person as Assistant Professor of Community Medicine in Teaching post in Tirunelveli Medical College, who was not found qualified. The said order was set aside by me holding that the respondents 1 and 2 therein are bound to follow the minimum qualification for teachers in Medical Institutions Regulation, 1998, before posting any person in the teaching post in the Government Medical Colleges. It is also held therein that the Government cannot bye- https://hcservices.ecourts.gov.in/hcservices/ pass or violate the statutory regulations and the Government should be a model to other private Colleges while appointing teaching staff. 16. In the decision reported in (1999) 7 SCC 120 (Dr.Preeti Srivastava Vs. State of M.P) in paragraph 57 the Supreme Court held that the regulations framed by the Medical Council of India is having a statutory force and it has to be mandatorily followed. The regulations having been framed under the Indian Medical Council Act, 1956, the expert body to control the minimum standards of Medical Education to regulate their observance, the said regulation, 1998, is bound to be followed by the respondents 1 and 2 while filling up the post of Reader in Spine Surgery. 17. The learned senior Counsel for the third respondent contended that the Teaching experience as a whole should be taken note of. The said contention is not sustainable in view of the stand taken by the second respondent in its letter dated 19.9.2006, through which particulars were called for from Tutor/Assistant Professor, who have completed PG degree in Speciality, with five years Teaching Experience (After acquiring PG and PG degree certificate), who are eligible to be included in the panel. Hence the third respondent is not entitled to contend that the teaching experience even prior to passing of PG degree can be taken as experience. 18. since the third respondent is not qualified as per the said regulation, I am inclined to set aside the order granting promotion to the third respondent through the impugned order. It is open to the respondents 1 and 2 to fill up the post either under Rule 39 or permanently by strictly following the minimum qualifications for Teacher in Medical Institutions Regulations, 1998. The writ petitions are partly allowed with the above directions. No costs. Connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vr https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to Government, Health & Family Welfare Department, Fort St.George, Chennai - 600 009. 2. The Director of Medical Education, Poonamallee High Road, Kilpauk, Chennai - 600 010. +2ccs to Mr.C.Ganapathy, Advocate Sr 21402 +1cc to Govt. Pleader Sr 21614 +1cc to Mr.R.Kartikeyan,Advocate Sr 21594 JRG (CO) km/23.4. W.P.No.33600 & 34296/2007 https://hcservices.ecourts.gov.in/hcservices/