IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.09.2011 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.11962 of 2006 and 18308 of 2009 & WVMP No.13611 of 2006 in W.P.NO.11962 OF 2006 & M.P.Nos.1 to 3 of 2009 in W.P.NO.18308 OF 2009 1 D LEELAVATHY [ PETITIONER in both W.Ps. ] Vs 1 THE DIRECTOR OF MEDICAL EDUCATION KILPAUK, CHENAI - 600 010. 2 THE DIRECTOR MEDICAL AND RURAL HEALTH SERVCIES CHENNAI - 600 006. 3 THE DIRECTOR INSTITUTE OF MENTAL HEALTH KILPAUK. CHENNAI - 600 010. [ RESPONDENTS 1 TO 3 IN BOTH W.PS ] 4 R. SAROJA W/O.G.MANGALARAJ (4TH RESPONDENT IMPLEADED AS PER ORDER DATED 24.07.06 IN WPMP NO.16789/06 IN WP 11926/06) [ RESPONDENT No.4 in W.P.11962/2006 ] Prayer in W.P.No.11962/2006: Petition under Article 226 of the Constitution of India praying for a Writ of Mandamus directing the respondents to include the petitioner's name in the panel drawn by the Director of Medical and Rural Health Services, Chennai -6 in his proceedings Ref.No.92450/N2/1/05 dated 12.11.2005. https://hcservices.ecourts.gov.in/hcservices/ Prayer in W.P.No.18308/2009: Petition under Article 226 of the Constitution of India praying for a Writ of Mandamus directing the respondents to include the petitioner's name in the panel drawn by the Director of Medical and Rural Health Services Chenani -6 in his proceedings Ref.N. 92450/N2/05 dated 29.07.2006 or any other appropriate relief as this Honourable court. For Petitioner :: Mr.R.Karthikeyan For Respondents :: Mr.P.Karthikeyan, GA for R1 to R3 Mr.S.Saravana Kumar for R4 O R D E R The petitioner is the same person in both the Writ Petitions. In the first Writ Petition, the petitioner has challenged an order dated 12.11.2005 issued by the Director of Medical and Rural Health Services, namely the 2nd respondent. The impugned list challenged in the Writ Petition is a proposed panel of Staff Nurses for promotion and appointment to the post of Nursing Superintendent for the panel year 2006-2007 under the Tamil Nadu Medical Subordinate Services. In the order, in the penultimate paragraph, the Director requested the Subordinate Officers to circulate the Annexure to all the Staff Nurses working under their control and objection if any with regard to this seniority, alteration and inclusions received from them should be forwarded and the particulars furnished by the individuals will not confer any rights for inclusion in the panel and the panel will be restricted to the number of vacancies that will be made available. It was claimed that the number of vacancies for the year was identified as 285. 2. It is the case of the petitioner that she has sent a representation dated 20.3.2006 stating that her serial number in the seniority list and the details were not furnished to her and therefore she requested copies of the seniority list for the years 1977,1978 and 1996. Subsequently she sent a further representation dated 27.3.2006 stating that her name could not be included in the panel and she finds place the names of Veerasamy Seethalakshmi, Damadaran Parvathi, Nagarathinam Lakshmi, Perumal Nayakar Parvadavardini, Akbar Alikhaan Shamlari, Kinedilda Tekshira, who are all juniors to her, in the list. It is at this stage, she has moved this Court challenging the provisional list of Staff Nurses included in the panel subject to their eligibility. 3. That Writ Petition was admitted on 26.4.2006. Pending the Writ Petition, this Court directed the respondents to permit the petitioner to participate in the counselling, which was likely to be https://hcservices.ecourts.gov.in/hcservices/ held in the month of May 2006. One Saroja has herself filed an application to implead as 4th respondent in the Writ Petition and that application was ordered by this Court. Subsequently vacate stay application was filed by the official respondents as well the impleaded respondent in WVMP No.1385 of 2006 and WVMP No.1361 of 2006. In the petition for interim direction as well as the petition to vacate the interim direction, this Court by a common order dated 24.7.2006 modified the earlier interim direction and held that any result published will be subject to the outcome of the Writ Petition and the respondents were directed to proceed with the selection as per the guidelines and also to publish their results. 4.In the counter affidavit filed by the Directorate dated 3.7.2006, in support of the application to vacate the interim direction, it was stated that the promotion to the post of Nursing Superintendent Grade III is being made purely on seniority and that the seniority is not decided on the basis of date of joining but based upon the factors such as communal rotation, marks obtained in the Diploma in Nursing. The seniority numbers furnished in the list do not indicate the date of joining. It was also stated that no junior of the petitioner has been included in the proposed panel and the seniority of the last candidate, whose name was found in the list, is 3370. Admittedly, the petitioner's seniority number is 3393. It is also stated that the provisional panel is not final and it is only subject to further verification and the list will be finalised after receipt of the particulars in respect of each Staff Nurse from the Institution in which they were working and it will be examined in the light of the Government's guidelines in G.O.Ms.No.368. It was also stated that mere inclusion of names in the list do not assure any entry into the panel or for subsequent promotion to the post of Nursing Superintendent. It was also stated that the petitioner by filing such Writ Petition is blocking the promotion of 300 Staff Nurses, who are seniors to her by suppressing her real seniority in the list. 5. During the pendency of that Writ Petition, the same petitioner has filed the second Writ Petition, namely W.P.No.18308 of 2009. Initially, the prayer of the petitioner was for a direction to include her name in the panel drawn vide proceedings dated 29.7.2006. In fact, this order came to be issued after the interim direction was issued by this Court by an order dated 24.7.2006. It was also stated that it was subject to the outcome of the Writ Petition in W.P.No.11962 of 2006 filed by the petitioner. When that is the position, there is no necessity to file the second Writ Petition. But, notwithstanding the same, the petitioner has challenged the panel for the post of Nursing Superintendent Grade III issued for the year 2006-2007. https://hcservices.ecourts.gov.in/hcservices/ 6. When that Writ Petition came up for admission on 9.9.2009, this Court directed the petitioner to send a private notice to the official respondents. Similarly the Writ Petition was admitted on 21.10.2009. The petitioner also filed M.P.No.2 of 2009 seeking to amend the prayer in the main Writ Petition and as per the present prayer, she seeks for inclusion of her name in the panel drawn by the Director dated 5.4.2009 and for appropriate relief. In the panel dated 5.4.2009, there are 179 names included. 7. On notice from this Court, the 2nd respondent Director has filed a counter affidavit dated 3.11.2010. In the counter affidavit, it was stated that initially the list of 179 candidates for Nursing Superintendent Grade II was drawn for consideration and preparation of the panel. In the panel, the seniority list upto 3390 were included for consideration and the list was prepared as per the directions issued by the State Government and on the basis of the estimate vacancies for the panel year. The panel was approved and the eligible senior candidates were included according to the actual vacancies existed. It is also stated that no eligible candidates were left out for having included in the panel. Likewise, no juniors of the panel were included in the panel. As regards the contention of the petitioner that several juniors' names were found in the place, it was stated that the seniority of Staff Nurses was not assigned on the basis of date of entry, but as per the communal rotation and also their ranking in the Diploma in Nursing. As shown in page 7 of the counter affidavit, the seniority is not based on the date of entry into service. Therefore, the date of joining has no co-relation to the serial number in the list of panel approved. It is also stated that the petitioner's name will be called for consideration for promotion along with other eligible candidates for promotion, as per the due seniority. But in the present case, the panel was prepared subject to communal rotation and the mark obtained in the Diploma in Nursing. 8. In the light of the stand taken by the respondents, the contentions raised by the petitioner cannot be countenanced by this Court. The Writ Petitions are liable to rejected for more than one reasons. As rightly contended by the respondents that the panel is based upon the estimated vacancies available in a particular year and if the petitioner wants to challenge the panel, he should have impleaded a person either in individual capacity or in a representative capacity, without which the Writ Petition cannot be adjudicated as held by the Supreme Court in Prabodh Verma & Others vs. State of U.P. & others reported in (1984) 4 SCC 251. https://hcservices.ecourts.gov.in/hcservices/ 9. Even otherwise, this Court is satisfied with the explanation offered by the respondents. In the absence of any controverting version, the statement made by the respondents has to be taken note as factually correct and since no junior of the petitioner has been included in the panel and the petitioner's seniority is far below the seniority of the persons included in the panel, there is no case made out. Hence, both the Writ Petitions stand dismissed. No costs. The connected Miscellaneous Petitions are closed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar ajr To 1 THE DIRECTOR OF MEDICAL EDUCATION KILPAUK, CHENAI - 600 010. 2 THE DIRECTOR MEDICAL AND RURAL HEALTH SERVCIES CHENNAI - 600 006. 3 THE DIRECTOR INSTITUTE OF MENTAL HEALTH KILPAUK. CHENNAI - 600 010. +1cc to Mr.S.Saravanakumar Advocate Sr.61000 +1cc to Mr.R.Karthikeyan Advocate Sr.61201 +1cc to Government Pleader Sr.61299 W.P.Nos.11962 of 2006 and 18308 of 2009 SJ(CO) rvr 19/10/2011 https://hcservices.ecourts.gov.in/hcservices/