IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07-02-2008 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE K. CHANDRU WRIT PETITION No.44093 OF 2002 and W.P.M.P.NOs.64650 to 64652 OF 2002 Dr.N. Iyyanar .. Petitioner Vs. 1. The Secretary to Government Health and Family Welfare Department, Fort St. George, Chennai 600 009. 2. The Director of Public Health and Preventive Medicine, D.M.S. Complex, Teynampet, Chennai 600 006. 3. Dr.R. Malathy 4. Dr. Vasakumar 5. Dr. Amutha Devi 6. Dr. Vadivelan 7. The Registrar, Tamil Nadu Administrative Tribunal, Chennai. .. Respondents Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Certiorarified Mandamus calling for the records relating to the order dated 23.4.2002 made in O.A.No.1404 of 2001, on the file o the Tamil Nadu Administrative Tribunal, quash the same and consequently direct the respondents 1 and 2 to modify the existing panel of Health Officers for the year 2000-2001 vis a vis the promotion by rearranging the seniority of Health Officers based on the date of passing of basic qualification for the post prescribed in the Special Rules and for consequential retrospective promotion of the petitioner by reverting the ineligible persons as per Special Rules with all consequential service and monetary https://hcservices.ecourts.gov.in/hcservices/ benefits. For Petitioners : Mr.K. Rajkumar For Respondents 1&2 : Mr.M. Dhandapani Special Govt. Pleader ORDER (Order of the Court was made by P.K. MISRA, J) Heard the learned counsels appearing for the parties. 2. The petitioner along with another person had filed Original Application No.1404 of 2001 before the Tamil Nadu Administrative Tribunal for issuing a direction to the State Government to promote such applicants to the post of Deputy Director Health Services. It was stated in the Original Application that even though the respondents 3 to 6 in the O.A., (Respondents 3 to 6 in the present writ petition) were appointed as Health Officers during the year 1993 and the applicants were appointed as Health Officers in the year 1994, the respondents had not passed the diploma in Public Health Course within the stipulated period of four years and, therefore such persons could not have been considered for promotion by ignoring the case of the applicants. 3. In the notification issued by the Tamil Nadu Public Service Commission for filling up the post of Public Health Officer. It was indicated as follows: "4. Qualification: Candidates should possess the following or equivalent qualification on the date of this Notification viz. 9th August 1995. (1) & (2) omitted as not necessary (3) If fully qualified candidates are not available upto the number required applications, from candidates possessing the M.B.B.S. degree of any University of institution recognised by the University Grants Commission for the purpose of its grant or from candidates possessing the Diploma in Medicine and Surgery or the Diploma of L.M.P. granted by the Board of Examiners, Medical college, Madras will be considered for selection, subject to the following conditions :- (i) omitted as not necessary (ii) They should acquire the Public Health qualification within a period of four years from the date of their appointment. During the period they undergo the course for acquiring the Public Health qualification, the candidates will be allowed to draw Rs.475/- per mensem plus the appropriate dearness allowance during the period of the course. They will be exempted from all Tuition fees and https://hcservices.ecourts.gov.in/hcservices/ Examination fees due to the Government. (iii) and (iv) omitted as not necessary (v) They will not be deemed to have satisfactorily completed their probation and will not be entitled to appointment as full members until they acquire the public health qualification. If they fail to acquire the said qualification within the said period of four years, their probation will be terminated and they will be discharged from service." (Emphasis added) 4. From the materials on record it appears that the aforesaid respondents, who were appointed on 15.12.1993, acquired diploma in Public Health in April and October 1998, beyond the period of four years. 5. It was the contention of the petitioner before the Tribunal and reiterated before this Court that since the aforesaid respondents 3 to 6 did not acquire such qualification within the stipulated period of 4 years and they had acquired it only subsequently, they had no right to continue in service after the stipulated period of 4 years and at any rate since the petitioner had acquired such qualification within the stipulated period, before the respondents had acquired such qualification, he should have been treated as senior to respondents 3 to 6 and while considering the case of respondents 3 to 6, the case of the petitioner should not have been ignored. 6. The Tribunal rejected such contention by order dated 23.4.2002 by observing that the condition to the effect: "... If they fail to acquire the said qualification within the said period of four years, their probation will be terminated and they will be discharged from service" should be construed as directory and not mandatory. The Tribunal further observed that even assuming that if some person failed to acquired diploma within four years period, there is no automatic termination. It was further concluded that since those respondents had acquired such qualification subsequently and were continuing in service, they were seniors to the applicants and there was no illegality. Thereafter the present petitioner filed Review Application No.46 of 2002, which was rejected by the Tribunal by order dated 3.9.2002. In the present writ petition, the petitioner has prayed for quashing such orders of the Tribunal. 7. Learned counsel for the petitioner first contended that in view of the categorical instructions contained in the notification issued by TNPSC, on the failure of Respondents 3 to 6 to obtain the qualification within the period of 4 years, their services were liable to be terminated and at any rate such respondents having obtained such diploma in Public Health after the petitioner, it must be taken that they were juniors to the present petitioner. https://hcservices.ecourts.gov.in/hcservices/ 8. So far as the first submission is concerned, we are in agreement with the conclusion of the Tribunal that the condition relating to acquiring of "Public Health" qualification was only a directory provision and there is no automatic termination from services. If a person fails to acquire such qualification within the stipulated period, the employee had the option of terminating the services, but there is no deemed termination from services. 9. Learned counsel for the petitioner has placed reliance upon Rule 31 and 35(a) of the Tamil Nadu State and Subordinate Services Rules, which being relevant for the present case, are extracted hereunder:- "31. Appointment of full members. - (a) Subject to the provisions of rules 9 and 35(a) an approved probationer shall be appointed to be a full member of the service in the class or category for which he was selected, at the earliest possible opportunity in any substantive vacancy which may exist or arise in the permanent cadre of such class or category and if such vacancy existed from a date previous to the issue of the order of appointment, he may be so appointed with retrospective effect from the date or, as the case may be, from any subsequent date from which he was continuously on duty as a member of the service in such class or category or in a higher class or category: Provided that where more than one approved probationer is available for such appointment as full member, the seniormost approved probationer shall be appointed." "35.(a) The seniority of a person in a service, class or category or grade shall unless he has been reduced to lower rank as a punishment, be determined by the rank obtained by him in the list of approved candidates drawn up by the Tamil Nadu Public Service Commission or other appointing authority, as the case may be subject to the rule of reservation where it applies. The date of commencement of his probation shall be the date on which he joins duty irrespective of his seniority," 10. On a reading of Rule 31 it appears that unless probation is declared after passing of all required examination, a person may not be construed as part of the regular service. However, as indicated in Rule 31 itself such rule is subject to the provisions contained in Rule 35. Rule 35(a) is regarding fixation of seniority. Such provision leaves no room for doubt that seniority has to be fixed on the basis of placement in the selection list. It is axiomatic that if a person is appointed on a later date, he must be treated as junior to those who were appointed earlier in the absence of any specific rule to the contrary. https://hcservices.ecourts.gov.in/hcservices/ 11. In the present case, even though the respondents had not passed the examination within a period of four years, on their subsequent passing of the examination, they have been allowed to continue in service as such and subsequently promoted. It is not disputed that the Government has power to relax a condition relating to probation. In the facts and circumstances of the present case it must be taken that Respondents 3 to 6 became part of the regular service after passing of the examination. Since Rule 31 is the subject to Rule 35, which is the specific provision relating to fixation of seniority, in our considered opinion, the contention of the petitioner that he should be treated as senior to Respondents 3 to 6 cannot be accepted. The fact that Respondents 3 to 6 were appointed in December, 1993, whereas the petitioner was appointed only in December,1994 cannot be lost sight of. As soon as the employee passed the qualifying examination, it must be taken that they had become part of the service on regular basis and thereafter by virtue of Rule 35(a), their seniority is to be counted on the basis of the placement by Public Service Commission. 12. Learned counsel for the petitioner has placed reliance upon the decision of the Supreme Court in (1996) 11 SCC 173 (M.P. CHANDORIA v. STATE OF M.P. AND OTHERS). In the said case, the provisions contained in the M.P. Government Servants (Temporary and Quasi-Permanent Service) Rules were different from the provisions contained in the Tamil Nadu State and Subordinate Services Rules. In the present case, as already indicated, Rule 31 is subject to the provisions contained in Rule 35(a). Therefore, the ratio of the decision of the Supreme Court is not applicable to the facts of the present case. 13. Accordingly, we do not find any merit in this writ petition which is accordingly dismissed. No costs. Consequently, the connected miscellaneous petitions are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. dpk https://hcservices.ecourts.gov.in/hcservices/ To 1. The Secretary to Government Health and Family Welfare Department, Fort St. George, Chennai 600 009. 2. The Director of Public Health and Preventive Medicine, D.M.S. Complex, Teynampet, Chennai 600 006. + 1 CC to the Government Pleader SR NO 6246 WP.NO.44093/2002 bv[co] gp/25.2. https://hcservices.ecourts.gov.in/hcservices/