*HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR +W.P.NO.14979 OF 2009 % 21.1.2010 # The Government of Andhra Pradesh rep. by its Principal Secretary, Health, Medical and Family Welfare(l.1) Dept., A.P.Secretariat, Hyderabad and another .. Petitioners Vs. $ Dr.Mohammadi Fatima .. Respondent <GIST: >HEAD NOTE: ! Counsel for petitioners : Government Pleader for Services-I ^ Counsel for respondent No.1 : Sri P.Ravi Shankar ? CASES REFERRED : HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.NO.14979 OF 2009 Dt.21.1.2010 Between: The Government of Andhra Pradesh, Rep. by its Principal Secretary, Health, Medical and Family Welfare (I.1) Department, A.P. Secretariat, Hyderabad and another .. Petitioners And Dr.Mohammadi Fatima .. Respondent HON’BLE SRI JUSTICE V.ESWARAIAH AND HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR W.P.NO.14979 OF 2009 ORDER: (Per Sri Justice Vilas V. Afzulpurkar) This writ petition is filed by the State questioning the final orders of the Andhra Pradesh Administrative Tribunal allowing O.A.No.5944 of 2007 by order, dated 30.10.2008. Respondent herein was working as Professor, Government Nizamia Tibbi College, Charminar and her grievance in the O.A was that while she was working as Senior Medical Officer she was eligible to be considered and promoted as Chief Medical Officer for the panel year 1998-99 itself. However, she could not be empanelled for various reasons and only for the panel year 2001-02 the respondent claims that she could have been empanelled and promoted if the petitioners had taken into consideration the existing anticipated vacancies in conformity with Rule 6 of the Andhra Pradesh State and Subordinate Service Rules, 1996 (for short, ‘the Rules’). It is an admitted fact that in the said panel year 2001-02 only four vacancies were taken into consideration excluding the anticipated vacancies and four seniors of the respondent were promoted. However, out of the said four promotees - Dr.Najam Fathima retired on 31.12.2001, Dr.Syed Afzalunnisa retired on 31.5.2002 and Dr.Farooq Ahmed and Dr.Md.Jaghngi both retired on 31.8.2002. The respondent therefore contended that all the said four promotees, who were empanelled in the year 2001-02, retired immediately after being promoted in the currency of the panel year and if the petitioners had taken into consideration the anticipated vacancies arising out of their retirement, the respondent being next in seniority, she could have got the benefit of promotion as Chief Medical Officer during the panel year 2001- 02 itself. It was also contended before the Tribunal that no panels were drawn for the subsequent years i.e., 2002-03, 2003-04 and 2004-05 on account of the Government considering the modification and amendment of the Rules. Subsequently, in the panel year 2005-06 the respondent was considered and she was actually promoted on 31.1.2007. She therefore approached the Tribunal for the relief seeking that she may be declared to have been entitled to be notionally promoted as Professor/ Chief Medical Officer from the panel year 2001-02 itself with all consequential benefits. The said O.A. was resisted by the petitioners by contending that they have strictly followed Rule 6 of the Rules and that their being four vacancies in the posts of Chief Medical Officer during the said panel year 2001-02 cannot be disputed and to the extent of anticipated vacancies as claimed by the respondent, the petitioners’ contention was that the said anticipated vacancies would arise only on promotion of the empanelled officers in the promotional cadre and as such they cannot be taken into consideration. The Tribunal, however, disagreeing with the said contention of the petitioners, held that for no fault of the respondent she was not included in the panel year 2001-02 on account of the mistake committed by not taking into consideration the vacancies for the said panel year in accordance with Rule 6 referred to above. The Tribunal, therefore, allowed the O.A. and gave directions to give notional promotion with all consequential benefits to the respondent from the panel year 2001-02. Questioning the said order, the petitioners have approached this Court in this writ petition. This Court, while admitting the writ petition on 27.7.2009 issued notice and on 10.9.2009 had granted interim suspension. Now the learned counsel for the respondent has moved an application seeking vacation of the said interim order. We have heard both the learned counsel on either side and with their consent the main writ petition itself is being disposed of. Learned Government Pleader appearing for the petitioners in support of the writ petition contends that strict interpretation of Rule 6 of the Rules has not been appreciated by the Tribunal. For the sake of convenience, it is appropriate to extract relevant portion of Rule 6, which deals with method of preparation of panels. “Method of preparation of panels: ………… ………… (c) The panel of candidates for promotion or appointment by transfer to a service or class of a service, in any case where it is necessary to consult the Commission on the suitability of candidates for such appointment shall be prepared ordinarily in the month of September every year reckoning 1st September of the year as the qualifying date to determine the eligibility of a candidate for such appointment, which shall cease to be in force on the afternoon of the 31st of December of the succeeding year or till the next panel is prepared whichever is earlier. The period from 1st September of the year to 31st August of the succeeding year shall be reckoned for purpose of determining the number of vacancies during the panel. (d) The panel of candidates under sub-rule (b) or sub- rule (c) shall consist of such number of candidates as is equal to the number of vacancies which are estimated to arise on the following basis during the currency of that list: (i) the existing vacancies, including the vacancies which were not filled up in the previous years for any reason; (ii) (1) vacancies to arise owing the retirement (2) consequential vacancies due to promotion or appointment by transfer: Provided, that when the number of qualified and eligible candidates to be included in the panel of candidates is less than the number of vacancies estimated to arise during the currency of that list, such number of candidates eligible and found fit only shall be included in the panel irrespective of the number of vacancies.” Clause (c) stipulates that period from 1st September of the year to 31st August of the succeeding year shall be reckoned for the purpose of determining number of vacancies during the panel year. Clause (d) stipulates that the number of vacancies have to be assessed on the basis of: (i) existing vacancies; (ii) vacancies arising out of retirement which in other words is also described the anticipated vacancies and consequential vacancies due to promotion or appointment by transfer. Learned Government Pleader contends that under clause (d) (ii) (1) vacancies to arise owing the retirement clearly refers to the retirement in the promotional posts. So far as the present case is concerned, all the incumbents who were empanelled were holding post of Senior Medical Officers and not promotional post of Chief Medical Officer, the vacancies in the promotional posts on account of retirement therefore could not have been taken into consideration when all the four empanelled officers as well as the respondent herein were in the cadre of Senior Medical Officers only and not the promotional cadre of Chief Medical Officer. The learned Government Pleader therefore contends that the panel was rightly prepared showing four vacancies and four empanelled Senior Medical Officers were promoted as Chief Medical Officers. He therefore submits that the Tribunal committed an error in thinking that the vacancies arising out of retirement of such promoted officers also ought to have been taken into consideration. Learned counsel for the respondent, however, placed reliance upon the very same rules to contend that the purpose of the rules requiring the manner in which the panel is to be prepared and the manner in which the vacancies are to be assessed clearly show that apart from the existing vacancies, the vacancies which may arise on account of retirement of the persons holding the said posts as well as consequential vacancies due to retirement or appointment by transfer also have to be taken into consideration for assessing the vacancies to be filled. He also relies upon the recommendation of the Commissioner, Department of Ayush, dated 9.3.2005, which was sent over to the Government seeking clarification. In the said recommendation, the Commissioner himself has recorded that since all the four promotees from the said panel year 2001-02 were retired within the currency of the panel itself, the said vacancies ought to have been taken into consideration as anticipated vacancies for the purpose of panel year 2001-02. The said recommendation of the Commissioner, however, was not agreed to by the Government and the Government issued Memo.No.5482/I.1/2005-3, dated 20.11.2006 by observing that “in the instant case, as there were no clear vacancies during the panel year 2001-02, the review of the earlier panel does not arise.” The said issue was once again examined by the Government as per the interim orders of the Tribunal in the present O.A. and a further memo No.19952/I.1/2007, dated 19.2.2008, was also issued reiterating the stand taken in the earlier memo referred to above. The learned counsel, therefore, submits that the very action of the petitioners in not taking into consideration the anticipated vacancies being contrary to Rule 6 referred to above and the Tribunal has rightly set aside the said memo of the Government and directed to give notional promotion to the respondent with consequential benefits. We have considered the aforesaid contentions. The reading of Rule 6 clearly supports the contentions of the learned counsel for the respondent. The intent and purpose of preparation of the panel and assessment of the vacancies envisages that not only the existing vacancies, but anticipated vacancies arising out of retirement, promotion or appointment by transfer are required to be taken into consideration while assessing the number of vacancies for preparing the panel. Clauses (c) and (d) of Rule 6 of the Rules therefore have to be liberally construed so as to advance the intent and purpose of preparation of panels so that the promotional posts are filled up whenever vacancies arise and there is no undue delay in filling up those vacancies. Clause (c) of Rule 6 referred to above also stipulates that the currency of the panel from 1st September of the year to 31st August of the succeeding year are required to be reckoned for purpose of number of vacancies which include not only existing vacancies, but anticipated vacancies during the entire aforesaid block period. Rule 6(c) extracted above shows that for the purpose of assessment of vacancies the block period from 1st September of the year to 31st of the August of the succeeding year shall be reckoned. It is also provided that the panel was prepared shall be reckoned from 1st September of the year as the qualifying date to determine the eligibility of the candidate for such appointment and such panel shall cease to be in force on the afternoon of the 31st December of the succeeding year or till the next panel is prepared whichever is earlier. The petitioners in this case have therefore only taken into consideration the existing 4 vacancies in the promotional post of Chief Medical Officer and excluded the anticipated vacancies in the said cadre and thereby the consideration of the respondent for empanelment was ignored. It is not in controversy that the vacancies in the said promotional post of Chief Medical Officer occurred during the relevant period of 1st September to 31st August, which was necessary to be counted for assessment of vacancies, and though the life of the said panel was from 1st September to 31st December of the succeeding year. For not taking into consideration the anticipated vacancies after the retirement of the incumbent Chief Medical Officer during the relevant period, the promotion to the said category could not be made in their place as the respondent and other eligible officers were not empanelled in accordance with Rule 6. These vacancies therefore clearly amount to anticipated vacancies and ought to have taken into consideration while assessing the number of vacancies and panel for the year 2001-02. The recommendation of the Commissioner dated 9.3.2005 referred to above clearly shows that the respondent’s claim was not considered in the empanelment though she was fully eligible and qualified for promotion and was in the zone of consideration for the said promotion, but in view of the fact that the anticipated vacancies were not taken into consideration her name was not included in the panel. Even before the Tribunal, there is no controversy about the eligibility of the respondent and she was in fact promoted to the said category on 31.1.2007. We are therefore in agreement with the view of the Tribunal that the name of the respondent ought to have been taken into consideration in the said panel 2001-02 against the contingency of retirement of Dr.Najam Fathima on 31.12.2001. The order of the Tribunal therefore to that extent does not warrant any interference. However, the Tribunal had given a direction that the respondent be notionally promoted with consequential benefits. We find that the post being a selection post and is subject to consideration by the D.P.C., the Tribunal could have directed the petitioners to convene a review D.P.C. and consider the case of the respondent for the said promotion in view of the fact that she is fully eligible to hold the said post for the said panel year 2001-02 as she was in the zone of consideration. Accordingly, the direction of the Tribunal shall stand appropriately modified and instead there shall be a direction to the petitioners to forthwith convene a review D.P.C for the panel year 2001-02 and consider promotion of the respondent herein in the vacancy arising out of retirement of Dr.Najam Fatima on 31.12.2001 in the category of Chief Medical Officer/Professor/Reader, if found fit. However, the said promotion of the respondent shall be only notional in view of the fact that she is actually working in the said promotional post only after 31.1.2007. She will be entitled for the other consequential benefits arising out of the said notional promotion. It is represented that the respondent would be reaching superannuation by the end of June, 2010 and in view of the same it would be just and appropriate to direct the petitioners to convene the review D.P.C. and complete the exercise, as directed above, within a period of two months from the date of receipt of a copy of this order. The writ petition is accordingly disposed of with the above modification. No order as to costs. _______________ V.ESWARAIAH, J. _______________________ VILAS V. AFZULPURKAR, J. 21.1.2010 Note: Issue copy within one week L.R. copy to be marked B.O. kpr