THE HON’BLE SRI JUSTICE C.V. RAMULU Tuesday, 21st day of August,2007 W.P.No.8660 of 2005 Between:- Dr. (Mrs.) Girija Kumari … Petitioner and The Andhra Pradesh State Road Transport Corporation, RTC Cross Roads, Hyderabad, rep. by its Vice Chairman and Managing Director and another … Respondents THE HON’BLE SRI JUSTICE C.V. RAMULU W.P.No.8660 of 2005 ORDER: This Writ Petition is filed seeking a Mandamus declaring the action of the 1st respondent in rejecting or declining to consider the case of the petitioner for promotion to the post of Superintendent and Chief Medical Officer in the service of the A.P. State Road Transport Corporation by insisting her to possess Post Graduate Medical Degree qualification as arbitrary and illegal; in the alternative, to declare that portion of the qualifications specified in Annexure-A to the A.P.S.R.T.C. Employees’ Recruitment Regulations,1966 against the post of Superintendent and Chief Medical Officer included in Section- B, Class-I Special Scale Services, wherein a candidate was required to 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 direct the Corporation to regulate the promotions to the category of Superintendent and Chief Medical Officer based upon the overall length of service put in by the respective candidates reckoned from the post of Medical Officer (Civil Assistant Surgeon); consequently, to direct the respondents to forthwith consider the case and claims of the petitioner for promotion to the post of Superintendent and Chief Medical Officer against any of the vacancies that are liable to arise, duly taking into account that she is a member belonging to Scheduled Caste and without insisting upon her to possess Post-Graduate Medical Degree qualification. According to the petitioner, she has obtained MBBS Degree and recruited as a Medical Officer in the service of Andhra Pradesh State Road Transport Corporation with effect from 4-12-1975. The Corporation has established one Hospital at Tarnaka, Hyderabad and Dispensaries all over the State. The Hospital at Tarnaka is considered to be a referral Hospital for all the APSRTC Dispensaries in the State. Subsequently, she was promoted as a Senior Medical Officer (Civil Surgeon) with effect from 6-5-1996. In terms of APSRTC Employees’ Recruitment Regulations,1966 (for short ‘the Regulations’), which were approved by the Government of Andhra Pradesh under Section 45(1) of the Road Transport Corporations Act,1950, the post of Senior Medical Officer (Civil Surgeon) is to be filled up by promotion by selection from among Civil Assistant Surgeons, who possess MBBS Degree. Regulation 3 of the Regulations provide for appointment and qualifications required to be possessed by the candidates. Regulation 12 has provided for reservation in the matter of appointments by the method of direct recruitment. Regulation 35 enables the Corporation to issue such subsidiary instructions as may be considered necessary for giving effect to the Regulations. Various posts in the service of the Corporation have been classified as Super Scale Services, Special Scale Services, Senior Scale Services etc. In Super Scale Services, the posts of Executive Directors have been included. Each Department of the Corporation is headed by one Executive Director. Pursuant to a resolution passed by the Corporation bearing No.79/95, dated 8-12-1995, the post of Superintendent and Chief Medical Officer has been upgraded as Executive Director. After the Super Scale Services, all the posts of Heads of Departments and Regional Managers are included in the Special Scale Services. The post of Superintendent and Chief Medical Officer is included at Serial No.10 of Section B of the Annexures to the Recruitment Regulations. The method of recruitment provided for the post of Superintendent and Chief Medical Officer is by way of promotion by selection from among the Officers of the Corporation in the category of Civil Surgeon/Civil Surgeon (Specialist), if suitable and otherwise by deputation of an Additional Director of Medical and Health Services of the Government. The qualifications spelt out for recruitment to the said posts are – (a) must have completed a total service of 10 years, out of which 6 years in Class-I Senior Scale; (b) must possess MBBS Degree or an equivalent qualification; (c) must possess a Post Graduate Degree or its equivalent qualification. The Senior Scale Service posts are included in Section C of the Annexures to the Regulations. At serial No.12 thereof, the post of Senior Medical Officer (Specialist) (Civil Surgeon - Specialist) was included. The post of Senior Medical Officer (Specialist) is liable to be filled in by way of promotion by selection from among the Civil Assistant Surgeons. The qualifications prescribed for holding the posts are – (a) must have put in 6 years of service in the Corporation, of which 2 years must be after obtaining Post-Graduate Degree; (b) must possess MBBS Degree or an equivalent qualification; (c) Post Graduation in related clinical speciality; or (d) must possess Post-Graduate Diploma in related clinical speciality and put in a period of 12 years of service in the Corporation of which 2 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 (Civil Surgeon) is incorporated. These 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 a period of 15 years of service as Civil Assistant Surgeon in the Corporation. Petitioner is currently holding the said post of Senior Medical Officer (Civil Surgeon) since 6-5-1996. She has been working continuously since December,1975 and has completed more than 6 years of service in Class-I Senior Scale post of Senior Medical Officer (Civil Surgeon) 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. According to the petitioner, she is the seniormost Doctor working at the APSRTC Hospital, Tarnaka, Hyderabad and in the Corporation service as well. In view of her meritorious record of service and integrity, she was entrusted with the job of looking after the duties of Senior Medical Officer (Administration) of the Hospital. Ever since such an Office Order has been issued on 31-10-1998, she has been performing the duties akin to the Deputy Personnel Manager (Administration) in the Head Office of the Corporation. She was made responsible for all the correspondence relating to the establishment matters, musters, disciplinary actions, transfers and posting of the staff, examining the reimbursement claims of the employees, certification of the accounts pertaining to the Superintendent (F), Postal Stamp Account, sanction of leave to para-medical staff, certification of inpatient diet, Lenin and Dhobi account, verification of all inpatient diet books etc. Apart from that, she was also made to report to the Executive Director (Medical) and was entrusted with various duties, such as, (i) to provide treatment to patients attending to the Hospital; (ii) to supervise the treatment given by the Medical Officer/Asst.Medical Officer; (iii) to attend to the medical examination – Periodical Medical Examination of the candidates/employees referred to the Hospital; (iv) to scrutinize the bills raised by the Hospitals towards treatment provided to the patients referred by the Hospital authorities and other Hospitals and for reimbursement of the expenditure; (v) the SMO(A) is like Dy.CPM in the zones. The SMO(A) is responsible for the day to day administration of the hospital and has to attend all the routine correspondence pertaining to Medical Department including establishment matters, sick intimation, medical attendance and resultant legal matters etc., and (vi) any other work entrusted by the ED (Medical) from time to time. The petitioner has been performing all the duties entrusted to her with all sincerity and integrity and her services have been appreciated by the administration. It is also the case of the petitioner, there are 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. These two posts held by the Officers would be falling vacant by the end of May,2005, in view of attaining the age of superannuation by them. Insofar as the filling-up of the post of Chief Medical Officer-I by promoting Dr.Alekha in August,2004 injustice has been done to her. Dr. G.Alekha was appointed as Medical Officer (Specialist) with effect from 20-5-1976 -subsequent to the date of appointment of the petitioner as Medical Officer with effect from 4-12-1975. Instead of promoting the petitioner, Dr.Alekha was promoted. Therefore, the petitioner made a representation to the Corporation in the month of October,2004 seeking consideration of her claim and candidature for promotion as Superintendent and Chief Medical Officer. Unfortunately, without considering her representation properly, the Corporation has rejected her case on 1-4-2005. Therefore, she has constrained to file this Writ Petition questioning the validity and correctness of the order passed in refusing her case for promotion as Superintendent and Chief Medical Officer. A detailed counter affidavit has been filed by the 1st respondent denying the allegations made by the petitioner. It is stated that the petitioner was appointed as Medical Officer in the Corporation on 4-12-1975 and had worked upto 30-6-1985. She has availed leave from 1-7-1985 to 18-11-1990 and joined in service on 19-11-1990. She was promoted as Senior Medical Officer on 10-5- 1996 and presently working as such. Further, the Rule of Reservation in promotions is not applicable to the category of Superintendent and Chief Medical Officer, since the cadre strength is only two (2). From the Regulations, it is clear that 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 in possession of Post Graduate Degree or 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. Apart from the completion of 6 years of service, it is specifically prescribed in the Regulations that for the post of Superintendent and Chief Medical Officer, the Civil Surgeon/Civil Surgeon-Specialist must possess a Post Graduate Degree or equivalent qualification. Petitioner is not possessing Post Graduate degree and as such, is not eligible to be considered for promotion to the post of Superintendent and Chief Medical Officer. There were number of Doctors senior to the petitioner in the rank of Senior Scale Officer in Medical Department and as such, the contention of the petitioner that she is the senior most Doctor working at Tarnaka Hospital is not correct. In addition to the duty of attending patients, the doctors have been entrusted with various other duties relating to the functioning of the Hospital and in such course of action, petitioner was also entrusted with the duties enumerated by her, since she is a general MBBS Doctor whose services could be spared for the said purpose. Her length of service or seniority has nothing to do with the duties entrusted to her. Further, the performance of the petitioner is average and her claim that her services have been recognized as a meritorious employee of the Corporation is not correct. The contention of the petitioner that out of 2 posts of Superintendent and Chief Medical Officers, one post has to be filled by woman candidate is untenable, since the reservation in favour of women is applicable to direct recruitment only. The action of the Corporation in rejecting the claim of the petitioner for promotion to the post of Superintendent and Chief Medical Officer through the representations dated 25-10-1994 and 29-10-1994, was properly rejected through letter No.Ea/19(13)/2004, dated 1-4-2005. The distinction made that for promotion to the post of Senior Medical Officer-Specialist, P.G. Degree is required and for promotion to the post of Senior Medical Officer, P.G. Degree is not required, need not be maintained or carried forward in respect of the next higher promotion post also. The Corporation can prescribe and insist upon any higher qualification for promotion to a post of Head of the Department, if it considers necessary to do so although such higher qualification was not necessary to a lower post. The petitioner cannot claim that merely because no such qualification was necessary for promotion to a lower post, the same Regulation should be continued for a higher post also. Prescribing of a higher qualification to hold a higher post cannot be questioned merely because no such qualification was prescribed for a lower post. As such, the claim of the petitioner for promotion as Superintendent and Chief Medical Officer without possessing the qualification of P.G. degree and with mere MBBS qualification is not maintainable and no injustice has been done to her. Further, the rules relating to the posts of Superintendents of General/Teaching Hospitals and Principals of Medical Colleges are not applicable to the Corporation. The Medical Department of the Corporation is neither a Teaching Hospital nor a Medical College. The claim of the petitioner is not maintainable, since she is junior to two Senior Medical Officers-Specialists and does not have prescribed qualification of P.G.Degree for promotion to the post of Superintendent and Chief Medical Officer. Respondent No.2 filed a detailed counter affidavit denying the allegations made by the petitioner and claiming 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. Junior Scale Services are included in Section D of the Annexure to the Regulations. As per the Regulations, the qualification required for being recruited as Medical Officer is a pass in MBBS. By the time, the 2nd respondent was appointed as Medical Officer, he possessed Post Graduate Degree in Medicine i.e. M.S. (ENT) and also passed Diploma (DLO). The next promotion is to the category of Senior Scale Service posts, which are included in Section C of the Annexure to the Regulations. So far as Medical Department is concerned, there are two categories of senior scale posts. At serial No.12 of the Annexures to the Regulations, the posts of Senior Medical Officer (Specialist), Civil Surgeon (Specialist) are mentioned. Promotion to this category is by selection from among the Civil Assistant Surgeons working in the Corporation. For promotion to the said category, one must fulfil the criteria as per the Regulations. The other category of senior scale post is at Sl.No.13 in Section C i.e. 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. The qualification prescribed for this category is that one must possess MBBS degree or an equivalent qualification as entered in the Schedule to the Indian Medical Council Act,1956 as subsequently amended and must have put in a period of 15 years of service as Civil Assistant Surgeon in the Corporation. Respondent No.2 was promoted to the category of Senior Medical Officer (Specialist) (Civil Surgeon-specialist) with effect from 6-4-1990 in accordance with the Regulations. In the category of Senior Medical Officer (Specialist), he has put in more than 15 years of service and he is at Serial No.1 in the seniority list of Senior Medical Officers {Civil Surgeon Specialists/Senior Medical Officers (Civil Surgeons}. Insofar as the policy decision of the Government in G.O.Ms.No.5, Social Welfare (S.W.-ROR.1) Department, dated 14-2- 2003 providing for reservations in favour of Scheduled Castes and Scheduled Tribes employees in matters of promotion and the resolution passed by the Board of Directors of the Corporation in Resolution No.60 of 2003, dated 27-3-2003, in that line and the instructions issued by the Corporation in Circular No.PO-28/2003, dated 16-4-2003 providing for the guidelines for implementation of reservation in promotions in the Corporation in respect of SC and ST employees, there is no dispute. There is also no dispute that the Government has issued G.O.Ms.No.2, Social Welfare (SW.ROR.1) Department, dated 9-1-2004 and the Corporation issued instructions in Circular No.PD-26/2004, dated 28-6-2004. But, the essence of the Governmental Orders and Circular instructions of the Corporation is that the policy of rule of reservation in promotions is applicable only to those categories whose sanctioned cadre strength of the posts is more than 5. Therefore, the policy of rule of reservation in promotions in favour of Scheduled Caste and Scheduled Tribe employees can be made applicable only when the sanctioned strength is 6 or more. There are only 2 sanctioned posts of Superintendent and Chief Medical Officers. As such, the rule of reservation of promotions in favour of SC and ST Senior Medical Officers is not attracted. Respondent No.2 further asserted that he is a meritorious Medical Officer striving hard to the good of the hospital. Further, the contention of the petitioner that at least one post of Superintendent and Chief Medical Officer should be filled in by woman candidate is not correct. The reservation provided to the women candidates is applicable only in case of direct recruitment. The method of recruitment in the category of Superintendent and Chief Medical Officer is only by way of promotion from among the eligible Senior Medical Officers. The Regulations cannot be altered to the advantage of the petitioner as they have been in vogue since long time. The Regulations were never questioned earlier by anybody muchless the petitioner. Having obtained P.G. qualification in Medicine, the 2nd respondent joined the service of the Corporation with legitimate expectation that under the existing Rules and Regulations of the Corporation, he would have better chances of getting promotion in the Corporation. If the 2nd respondent is deprived of his legitimate expectation, 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. The Writ Petition is devoid of merits and is liable to be dismissed. Learned counsel for the petitioner strenuously contended that prescribing P.G. Degree or its equivalent qualification for promotion to the post of Superintendent and Chief Medical Officer is unwarranted, as there is no such qualification required for being promoted to the post of Senior Medical Officer (Civil Surgeon). What all it requires is one must have put in 15 years of total service as Civil Assistant Surgeon in the Corporation. Therefore, clause (c) in item-10 of Section-B of the Annexures to the Regulations i.e. ‘must possess a Post Graduate Degree or its equivalent qualification’ for promotion to the post of Superintendent and Chief Medical Officer has to be read down or declared as redundant in view of the fact that in the feeder post, no P.G. degree was made compulsory. Therefore, the same is arbitrary, illegal and contrary to the provisions of Articles 14 and 16 of the Constitution. Sri V.T.M. Prasad, learned standing counsel appearing for the 1st respondent, stated that as per the Recruitment Regulations, for promotion to the post of Superintendent and Chief Medical Officer, one must have a P.G. Degree or its equivalent qualification and drawn attention of the Court to Sl.No.10 of Annexure-B and stated that unless and until the Regulations are amended, the petitioner has no case whatsoever. Sri V. Hari Haran, learned counsel for the 2nd respondent, reiterated the same stand as was taken in the counter filed by the 2nd respondent. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the entire material made available on record. At the outset, it may be necessary to notice Serial No.10 of Section B (Special Scale Services) of the Annexure to the Regulations, which reads as under: S.No. C a te g o ry of post M e t h o d of Recruitment Qualifications 10. S u p d t . & Chief Medical Officer T o be filled in by promotion by selection from among the Officers of the Corporation in the category of Civil Surgeon/Civil Surgeon Specialist, if suitable and otherwise by deputation of an Additional Director of Medical and Health Services of the Government. F O R PROMOTION : The Civil Surgeon/Civil Surgeon (Specialist): ( a ) Must have completed a total service of 10 years, out of which 6 years in Class-I Senior Scale; ( b ) Must possess the MBBS Degree or an equivalent qualification as entered in the Schedule to the Indian Medical Council Act,1956 as subsequently amended; (c) Must possess a Post Graduate Degree or its equivalent qualification. Both the petitioner as well as the 2nd respondent are Civil Surgeon/Civil Surgeon (Specialist)s. They have completed total service of 10 years out of which 6 years in Class I senior scale. Serial Nos.12 and 13 of Section C of the Annexure to the Regulations, read as under: S.No. C a t e g o r y of post M e t h o d of Recruitment Qualifications 12. Senior Medical Officer (Specialist) (Civil Surgeon- Specialist) To be filled in by promotion by selection from among the Civil Assistant Surgeons, if suitable and otherwise by deputation of Medical Officers from the Medical and Health Services of the Government. F O R PROMOTION : The Civil Asst.Surgeon: (a) Must have put in 6 years service in the Corporation of which 2 years of service must be after obtaining PG Degree; ( b ) Must possess MBBS Degree or an equivalent qualification as entered in the Schedule to the Indian Medical Council Act,1956 as subsequently amended; and (c) Post Graduation in related Clinical Speciality; (or) (d) must possess P.G. Diploma in related clinical Speciality, and put in a period of 12 years of service in the Corporation of which 2 years of service must b e after obtaining P.G.Diploma 13 Senior Medical Officer (Civil Surgeon) To be filled in by promotion by selection from among the Civil Assistant Surgeons, if suitable, and otherwise by deputation of Medical Officers from the Medical & Health Services of the Government. For Promotion: the Civil Asst.Surgeon – M u s t possess MBBS Degree of an equivalent qualification as entered in the Schedule to the Indian Medical Council Act,1956 as subsequently amended and must have put in a period of 15 years of service as Civil Assistant Surgeon in t h e Corporation. Petitioner Of course, the qualifications prescribed for promotion to the post of Civil Surgeon (Specialist) contemplate obtaining a Post Graduate Degree and putting in 6 years of service in the Corporation with 2 years of service after obtaining P.G. Degree. Whereas, the post of Civil Surgeon requires that one must possess MBBS Degree or its equivalent qualification and must have put in 15 years of service as Civil Assistant Surgeon in the Corporation and these two categories are made as feeder posts for promotion to the post of Superintendent and Chief Medical Officer. According to the petitioner, though these posts are made as feeder posts, she is denied promotion to the post of Superintendent and Chief Medical Officer on the ground that she does not possess P.G. degree. 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 - whether she is a Post Graduate or not, she is entitled for promotion to the post of Superintendent and Chief Medical Officer; therefore, clause (c) of Sl.No.10 of Section B of 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 a as such, clause (c) is concerned, it requires to be read down or declared as redundant. The arguments of the