IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE SIXTEENTH DAY OF MARCH TWO THOUSAND AND NINE PRESENT THE HON'BLE MRS JUSTICE T.MEENA KUMARI AND THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT APPEAL NO : 921 of 2007 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 21/08/2007 in WP NO : 8660 OF 2005 on the file of the High Court.) Between: Dr. V. Ram Mohan Rao, S/o. Late Sambamurthy, APSRTC, Hospital, Tarnaka, Hyderabad. ..... APPELLANT AND 1 Dr. (Mrs.) Girija Kumari, W/o. Dr. K. Lingaiah, A.P.S.R.T.C., Hospital, Tarnaka, Hyderabad. 2 The Andhra Pradesh State Road Corporation, R.T.C., Cross Roads, Hyderabad Rep. by its Vice-Chairman and Managing Director. .....RESPONDENTS Counsel for the Appellant:MR.G.VIDYASAGAR Counsel for the Respondent No.: MR.ABHINAND KUMAR SHAVILI The Court made the following : JUDGMENT: (Per the Hon’ble Smt. Justice T.Meena Kumari ) The second respondent in W. P. No. 8660 of 2005, filed the present Writ Appeal feeling aggrieved by the order dated 21.08.2007 passed by a learned Single Judge of this court directing the second respondent herein to consider the case of the first respondent – writ petitioner along with the appellant and other eligible candidate for promotion to the post of Superintendent & Chief Medical Officer, without insisting upon Post Graduate Degree or its equivalent qualification for such promotion by constituting a Selection Committee, as per law, within a period of two months. The first respondent herein assailed rejection of her candidature for the promotion to the post of Superintendent and Chief Medical officer in the A.P. State Transport Corporation (for brevity the Corporation) for not possessing Post Graduate Medical Degree or in the alternative to declare that portion of the qualifications in Annexure–A to the A.P.S.R.T.C. Employees’ Recruitment Regulations, 1966, which prescribes that a candidate must possess a Post Graduate or its equivalent qualification for promotion to the post of Superintendent and Chief Medical Officer, as unconstitutional and bad in law and to regulate the promotions to the said post based upon overall length of service in the post of Civil Assistant Surgeon. The first respondent herein joined as Medical Officer in the service of the Corporation with effect from 4.12.1975 subsequently, she was promoted as Senior Medical Officer – Civil Surgeon with effect from 6.5.1996, in terms of Section 45(1) of the Road Transport Corporations Act, 1950. It is stated that pursuant to the Resolution dated 8.12.1995, the post of Superintendent and Chief Medical Officer is upgraded as Executive Director, which is a Special Scale Service, and is included at Sl.No.10 of Annexure – B. The method of recruitment for the post of Superintendent and Chief Medical Officer is by way of promotion by selection from among the Civil Surgeons or by deputation of an Additional Director of Medical and Health Services of the Government and the qualifications prescribed are – must have completed a total service of ten years out of which six years in Class-I Senior Scale, must possess MBBS Degree or its equivalent and must possess a Post Graduate Degree or its equivalent. The Senior Scale Service posts are included in Section C of the Annexures to the Regulations and at serial No.12 the post of Senior Medical Officer was included and it is liable to be filled in by way of promotion by selection from among the Civil Assistant Surgeons. The qualifications prescribed for holding the said post are - must have put in six years of service in the Corporation, of which two years must be after obtaining Post-Graduate Degree; must possess MBBS Degree or an equivalent qualification; Post Graduation in related clinical speciality; or must possess Post-Graduate Diploma in related clinical speciality and put in a period of 12 years of service in the Corporation of which two years of service must be after obtaining PG Diploma. At serial No.13 of Section C of the Annexure, the post of Senior Medical Officer is incorporated and posts are liable to be filled in by way of promotion by selection from among the Civil Assistant Surgeons, who are required to possess MBBS Degree or an equivalent qualification and must have put in fifteen years of service as Civil Assistant Surgeon in the Corporation. It is the case of first respondent that since she is currently holding the post of Senior Medical Officer from 6-5-1996 and has completed more than 6 years of service in Class-I Senior Scale post of Senior Medical Officer and possess MBBS Degree, she is fully eligible and qualified to be considered for promotion to the post of Superintendent and Chief Medical Officer, which post is included in Section B of the Annexure to the Regulations. It is further her case that the two sanctioned posts of Superintendent and Chief Medical Officer for the Corporation Hospital at Tarnaka i.e. Chief Medical Officer- 1 and Chief Medical Officer-2 would be falling vacant by the end of May, 2005. She contends that injustice has been done to her in promoting Dr.Alekha as Chief Medical Officer-I in August, 2004 inasmuch as she was appointed as Medical Officer (Specialist) with effect from 20.5.1976 subsequent to the date of her appointment as Medical Officer on 4.12.1975 and, as such, she made a representation to the Corporation in the month of October, 2004 seeking consideration of her candidature for promotion as Superintendent and Chief Medical Officer, which was rejected on 1-4-2005. Hence, she filed the above writ petition. The appointment of the first respondent as Medical Officer in the Corporation on 4-12-1975 and promotion as Senior Medical Officer on 10-5-1996, is not disputed by the Corporation. It is their case that the Rule of Reservation in promotions is not applicable to the category of Superintendent and Chief Medical Officer inasmuch as the cadre strength is only two. It is also their case that in terms of the Regulations, to become eligible to be considered for promotion to the post of Superintendent and Chief Medical Officer, the Civil Surgeon/Civil Surgeon-Specialist must be a Post Graduate Degree or posses its equivalent qualification. The claim of the petitioner that she is eligible and qualified to be considered for promotion to the post of Superintendent and Chief Medical Officer on the basis of completion of 6 years of service as Senior Medical Officer in Class I senior scale service and having MBBS Degree is not maintainable, inasmuch as apart from the completion of 6 years of service, it is specifically prescribed in the Regulations the Civil Surgeon/Civil Surgeon-Specialist must possess a Post Graduate Degree or equivalent qualification for promotion. It is further their case that there were number of Doctors senior to the petitioner in the rank of Senior Scale Officer in Medical Department. It is further asserted that the first respondent cannot claim that one post has to be filled by woman candidate inasmuch as since the reservation in favour of women is applicable to direct recruitment only. It is further their case that the first respondent cannot claim that merely because no Post Graduate qualification was necessary for promotion to a lower post, the same Regulation should be continued for a higher post also and, therefore, she cannot claim to be promoted as Superintendent and Chief Medical Officer without possessing the qualification of P.G. degree. It is the case of the appellant herein before the learned Single Judge that he was appointed as a Medical Officer/Assistant Civil Surgeon (Junior Scale Officer) in Class I Service in the respondent-Corporation with effect from 29.12.1982 by direct recruitment in accordance with the Regulations through a process of selection and at the time of selection as Medical Officer, he possessed Post Graduate Degree in Medicine i.e. M.S. (ENT) and also passed Diploma (DLO). It is further stated that promotion to the category of Senior Medical Officer is by selection from among the Civil Assistant Surgeons working in the Corporation. The other category of senior scale post is Senior Medical Officer (Civil Surgeon). This category provides an opportunity for promotion to senior scale post to those Civil Assistant Surgeons, who do not possess Post Graduation in Medicine or Post Graduate Diploma in related clinical speciality. He asserts that he was promoted to the category of Senior Medical Officer on 6-4- 1990 and has put in more than 15 years of service and he is at Serial No.1 in the seniority list of Senior Medical Officers. There is no dispute with regard to the guidelines for implementation of reservation policy for promotions in the Corporation in respect of SC and ST employees, but it comes into play only when the sanctioned strength is 6 or more. In the instant case, since there are only 2 sanctioned posts of Superintendent and Chief Medical Officers, that rule does not come into play. It is case of the appellant herein that the reservation in respect of women candidates is applicable only in case of direct recruitment. His case is that with a legitimate expectation that he would have better service prospects in the Corporation, having completed Post Graduate degree, joined the Corporation and, therefore, after putting in 24 years of service, the rights guaranteed to him under Articles 14 and 16 of the Constitution of India would be infringed, if he is denied the promotion. Thus it appears that before the learned Single Judge, the whole grievance of the petitioner is that having prescribed no P.G. degree for Civil Surgeon post and making Civil Surgeon and Civil Surgeon (Specialist) eligible for being promoted to the post of Superintendent and Chief Medical Officer, the Corporation could not have denied her promotion to the post of Superintendent and Chief Medical Officer - irrespective of the her possessing Post Graduate degree or not, she is entitled for promotion to the post of Superintendent and Chief Medical Officer; therefore, the Regulations prescribing P.G. degree as a must for promotion to the post of Superintendent and Chief Medical Officer is nothing but inconsistency in the making of the Regulations and, therefore, it requires to be read down or declared as redundant. The learned Single Judge, on extensive consideration of the respective contentions, found that there seems to be some inconsistency in making the very Regulations. The learned Single Judge further observed that when a Civil Assistant Surgeon, who is not a Post Graduate and put in 15 years of service can be promoted as Senior Medical Officer (Civil Surgeon) and Civil Assistant Surgeon with P.G. Degree and who had put in six years of service of which two years of service after obtaining P.G. Degree or a person with P.G. Diploma in related clinical speciality and put in a period of twelve years of service in the Corporation, of which two years of service must be after obtaining P.G. Diploma, were made eligible for being promoted to the post of Senior Medical Officer (Specialist) (Civil Surgeon-Specialist), by itself shows that a Civil Assistant Surgeon with MBBS Degree and had put in fifteen years of service, who becomes Senior Medical Officer (Civil Surgeon) can compete for the post of Superintendent and Chief Medical Officer. As such clause (c) of Section B of the Annexure to the Regulations is inconsistent with the scheme of the promotional policy evolved under the Regulations. It is further observed by the learned Single Judge that the Regulations are inconsistent in themselves while prescribing qualifications for promotion to the post of Superintendent & Chief Medical Officer while making the Senior Medical Officer (Specialist) and Senior Medical Officer (Civil Surgeon) eligible equally for being considered for promotion to the said post. Adverting to the W.P.M.P.No.21539 of 2007 filed by the first respondent herein seeking to direct the Corporation to finalize the proposed amendment to the Recruitment Regulations for the post of Superintendent- cum-Chief Medical Officer within a period of one month, the learned Single Judge has observed that the Corporation is proposing for amendment of the Regulations on par with the Rules existing in the State Government. This also shows that in view of the inconsistency, the Board of the Corporation is seeking to amend the Regulations in tune with the Rules of the State Government. Having held so and in view of the above findings, the learned Single Judge disposed of the Writ Petition directing the Corporation to consider the case of the first respondent along with the appellant herein and other eligible candidates, if any, for promotion to the post of Superintendent & Chief Medical Officer, without insisting upon Post Graduate Degree or its equivalent qualification for such promotion, by constituting a selection committee, as per law, within a period of two months. Heard learned counsel for the appellant and the learned counsel appearing for the first respondent and the learned Standing Counsel for the Corporation. This court, while admitting the Writ Appeal, by order dated 12.11.2007 has stayed the impugned order. The third respondent herein was impleaded by order dated 27.2.2009 in W.A.M.P. No.481 of 2009. When the Writ Appeal is taken up for hearing, Mr. G.Vidya Sagar, learned counsel appearing for the appellant submitted that the appellant who was second respondent in the above Writ Petition, had already been promoted to the post of Superintendent & Chief Medical Officer. In view of the fact that the Appellant had already been promoted, no cause of action survives and the Writ Appeal becomes infructuous. Consequently, the Writ Appeal is dismissed having become infructuous. It is needless to observe that, as the Corporation has not preferred any appeal against the order of the learned Single Judge, the impugned order gets finality and the same is binding on all the parties thereto. No order as to costs. As a sequal to the dismissal of the Writ Appeal, all the miscellaneous petitions shall stand dismissed. _____________________ Justice T. Meena Kumari _________________________ Justice C.V.Nagarjuna Reddy March 16, 2009 MAS