Madras High Court

The State Of Tamil Nadu vs Dr.S.Revwathy on 12 December, 2017

Bench:
M.Venugopal
,
Abdul Quddhose

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 12.12.2017

Judgment Reserved On : 15.11.2017

Judgment Pronounced On: 12.12.2017

CORAM

THE HON'BLE MR.JUSTICE M.VENUGOPAL
and
THE HON'BLE MR.JUSTICE ABDUL QUDDHOSE

W.A.(MD) Nos.1300 of 2017 and 1301 of 2017
and
C.M.P.(MD)Nos.9020 and 9021 of 2017

W.A.(MD)No.1300 of 2017:

1.The State of Tamil Nadu,
Represented by it Principal Secretary, Health and Family
Welfare Department,
Fort St. George, Chennai ? 600 009.

2.The Director of Medical Education,
Kilpauk,
Chennai ? 600 010. .. Appellants / Respondents
vs.

1.Dr.S.Revwathy ... Respondent/Petitioner

2.Dr.A.L.Meenakshi Sundaram
S/o. Alagappan,
Dean,
Government Tiruvarur Medical College and Hospital,
Tiruvarur. ... Respondent/3rd Party
(3rd Party impleaded as 2nd Respondent
vide Court order dated 24.10.2017, made in C.M.P.(MD)No.9134 of 2017 in
W.A.(MD)No.1300of 2017 by MVJ&AQJ)

Prayer: Writ Appeal filed under Clause 15 of the letters patent against the
order dated 20.09.2017 made in W.P.(MD)No.10257 of 2017.

!For Appellants : Mr.B.Pugalendhi
Additional Advocate General

^For R1 : Mr.S.Alagarsamy

For R2 : Mr.G.Sankaran

W.A.(MD)No.1301 of 2017:

Dr.A.Edwin Joe ... Appellant / 3rd Respondent
vs.

1.Dr.S.Revwathy ... 1st Respondent/Writ Petitioner

2.The Government of Tamil Nadu,
Represented by its Principal Secretary,
Health and Family Welfare Department,
Fort St.George, Chennai ? 600 009.

3.The Director of Medical Education,
Kilpauk,
Chennai ? 600 010. ... Respondents / Respondents

Prayer: Writ Appeal filed under Clause 15 of the letters patent against the
order dated 20.09.2017 made in W.P.(MD)No.10257 of 2017.
For Appellant : Mr.Silambanan
Senior Counsel
for
Mr.R.Murali
For R1 : Mr.S.Alagarsamy
For R2 & R3 :B.Pugalendhi
Additional Advocate General

:COMMON JUDGMENT

[Judgment of the Court was delivered by M.VENUGOPAL, J.]
W.A.(MD)No.1300 of 2017:

The Appellants/Respondents have preferred the instant Intra-Court Writ
Appeal before this Court, as against the order, dated 20.09.2017 in
W.P.(MD)No.10257 of 2017, passed by the Learned Single Judge.

(2).W.A.(MD)No.1301 of 2017:

The Appellant has focussed the instant Writ Appeal, as against the
order, dated 20.09.2017 in W.P.(MD)No.10257 of 2017, passed by the Learned
Single Judge.

W.A.(MD)No.1300 of 2017:

(3).The Appellants' Contentions:

3.1.The Learned Additional Advocate General for the Appellants submits
that the Learned Single Judge should have taken note of Rule 12 of the Tamil
Nadu Medical Service Special Rules that the promotion upto the level of
Senior Civil Surgeon, Civil Medical List seniority will be taken into
consideration. However, above the 'Senior Civil Surgeon', only panel
seniority and the date of appointment will be taken into consideration.

3.2.The Learned Additional Advocate General for the Appellants contends
that Dr.A.Edwin Joe (The Appellant in W.A.(MD)No.1301 of 2017) was considered
as senior to the Respondent / Writ Petitioner and the same has been furnished
in the Counter Affidavit filed by the First Respondent/Writ Petitioner and a
statement that she is senior most to Dr.A.Edwin Joe (The Appellant in
W.A.(MD)No.1301 of 2017) is not acceptable in the eye of law.

3.3.The Learned Additional Advocate General for the Appellants proceeds
to take a plea that the Government had taken a decision to promote and
appoint the Appellant in W.A.(MD)No.1301 of 2017 (Dr.A.Edwin Joe), as the
Director of Medical Education by considering that he is the senior most Dean
and senior of all promotional level and he was the first to complete more
than 10 years of teaching experience.

3.4.It is represented on behalf of the Appellants that Dr.A.Edwin Joe
(The Appellant in W.A.(MD)No.1301 of 2017) got promotion for the post of
'Dean' for the panel year 2009-10 and joined as Dean on 03.03.2010 and for
more number of years served as Dean and therefore, the Government promoted
him as 'Director of Medical Education' by following the existing Rules. Apart
from that, it is the plea of the Appellants that the said Dr.A.Edwin Joe (The
Appellant in W.A.(MD)No.1301 of 2017) had rendered service of 6 years in the
feeder category post of Dean. But the First Respondent/Writ Petitioner had
rendered only three years of service in the feeder category post as on the
crucial date of consideration i.e.15.03.2016.

3.5.Expatiating his contention, the Learned Additional Advocate General
for the Appellants proceeds to point out that the Learned Single Judge should
have noted that the post of 'Director of Medical Education' comes under
selection post under Special Rules for Tamil Nadu Medical Service.

3.6.The Learned Additional Advocate General for the Appellants projects
an argument that as per the proviso of section 7(1) of the Tamil Nadu
Government Servant (Condition of Service) Act 2016, while selecting the Head
of the Department, the number of qualified candidates to be considered, shall
be fixed as twice the number of vacancies plus three in the seniority list in
the class, category or service. Moreover, the Appellants take a stand that in
the present case, the number of vacancy was one and therefore, five
candidates were considered and that Dr.A.Edwin Joe (The Appellant in
W.A.(MD)No.1301 of 2017) is not only senior most person in the feeder
category of the post of 'Dean', but also meritorious candidate to hold the
post of 'Director of Medical Education.'

3.7.The Appellants, in the 'Memorandum of Grounds of Appeal' has taken
a categorical stand that merit wise also Dr.A.Edwin Joe (The Appellant in
W.A.(MD)No.1301 of 2017) is the most meritorious among the candidates in the
panel and that the Government had considered the 'Seniority of Medical
Officers' in the cadre of 'Dean'. The core contention advanced on behalf of
the Appellants is that the Learned Single Judge should have taken note of
that it is not mandatory to select the Medical Officers for the post of Head
of the Department, as per the seniority (Civil Medical List). Moreover, the
Learned Additional Advocate General for the Appellants submits that the
Government have the powers to appoint a Medical Officer based on the 'Merit
and Ability', who had fulfilled the qualifications prescribed as per the Rule
provisions for the Head Of Department post.

3.8.The Learned Additional Advocate General for the Appellants brings
it to the notice of this Court that the Government had filed a detailed
counter in W.P.(MD)No.6790 of 2016 that Dr.A.Edwin Joe (The Appellant in
W.A.(MD)No.1301 of 2017) is the senior most person than Dr.S.Revwathy (Writ
Petitioner), which was also accepted by this Court. The Learned Additional
Advocate General for the Appellants points out that the Government issued
orders in G.O.(Ms).No.354, Health and Family Welfare (B2) Department, dated
23.10.2009 only for the Government Doctors for providing Dynamic Assured
Career Progression (DACP) due to lack of adequate promotional opportunities
and stagnation at various levels in the system and the said executive order
is not overcoming the existing special Rules. The Appellants' case is that
the Learned Single Judge should have taken note of the fact that while
preparing panel for the post of 'Director of Medical Education' for the year
2015-16, the name of the First Respondent / Writ Petitioner was in the third
place i.e. below the name of Dr.A.Edwin Joe (The Appellant in W.A.(MD)No.1301
of 2017).

3.9.The Learned Additional Advocate General for the Appellants contends
that the post of 'Director of Medical Services' is governed by Rule 21 of the
Tamil Nadu Medical Services Special Rules (Annexure I) and Rule 3(3) speaks
of 'Director of Medical Education - Promotion from among the Officers holding
the posts of Deans of Medical Colleges, Director, King Institute, Guindy and
Directors of Upgraded Institutes. Further, Rule 4 enjoins 'Promotion to the
posts shall be made on the grounds of merit and ability and seniority being
considered only where merit and ability are approximately equal'.

3.10.The Learned Additional Advocate General for the Appellants
emphatically proceeds to state that the post of Director of Medical Education
is an important post, where the Director should have experience not only in
the medical education, but should have an experience in the administration
and reference to the Special Rule for Medical Rule 8(b), specifies that no
person shall be eligible for appointment for the post of Director of Medical
Education, unless (1) He possesses a post graduate degree in a Medical
faculty or any other qualification approved by the Medical Council of India
to be treated on par with MD/MS awarded by Indian University; (2) He has
served for a period of not less than ten years after completing the required
post graduate degree mentioned in clause (I) above, in one or more of the
following posts, namely, Tutor/Assistant Professor/Professor/Reader in a
Clinical or Non clinical department in a Government teaching medical
institution, out of which four years must be of teaching experience as
Reader/Professor; (3) He has administrative experience for a period of not
less than two years in one or more of the following posts, namely Director of
Upgraded Institute or Director Institute of Thoracic Medicine, Director of
King Institute, Guindy/Dean/Principal/Superintendent of a Medical
College/Medical College Hospital out of which one year must be as a Dean of
Medical College and (4) He has one year left over service prior to date of
retirement.

3.11.The Learned Additional Advocate General for the Appellants
contends that in terms of Rule 3(a)(3) of the Tamil Nadu Medical Service
Special Rules, Section 21 Part I, the third Respondent is more experienced in
the field of administration and considered as meritorious and immensely
suitable for being promoted as the Director of Medical Education.

3.12.The Learned Additional Advocate General for the Appellants takes a
plea that an administrative experience in the post of Dean also an important
criteria and as per Rule 8(e) of the Special Rule, the required qualification
must be available with reference to 15th March of the year, in which, the
appointment is made and that the appointment to the post of Director of
Medical Education was made by the Government on 25.04.2017.

3.13.The Learned Additional Advocate General for the Appellants
contends that the 'Dean' is the feeder category to the post of Director of
Medical Education and that the third Respondent (The Appellant in
W.A.(MD)No.1301 of 2017) working as Dean for more number of years than the
third Respondent, has more merit and ability to hold the post of the Director
of Medical Education.

3.14.The Learned Additional Advocate General for the Appellants
submits that the ingredients of G.O.(D)No.948, Health and Family Welfare (A1)
Department, dated 25.04.2017 were not considered by the Learned Single Judge
in proper perspective and that the consequential positive direction issued by
the Learned Single Judge in the writ petition is beyond the ambit of
discretionary power conferred under
Article 226
of the Constitution of India.

Apart from that, it is projected on the side of the Appellants that in
earlier round of litigation challenging the appointment of Dr.Vimala, the
similar consequential prayer for Mandamus was not considered by this Court.

3.15.The Learned Additional Advocate General for the Appellants points
out that the Learned Single Judge had interfered in the appointment based on
'Note File References' and that the note file references and insertions are
routine administrative exercise in the 'Government Administrative Hierarchy'
and that cannot be taken into consideration to decide the issue.

3.16.The Learned Additional Advocate General for the Appellants
contends that the impleaded party viz., the Second Respondent in
W.A.(MD)No.1300 of 2017 is not eligible to be considered for the post of
Director of Medical Education, since he is facing Rule 17(b) charges and
therefore, as per Tamil Nadu Government Servant (Condition of Service) Act
2016, he is not eligible to be considered for the post of Director of Medical
Education.

3.17.The Learned Additional Advocate General for the Appellants
submits that the First Respondent/Writ Petitioner is challenging the
appointment of the appointed person only on the ground that she is senior as
per Civil Medical List (CML) number and in fact, she has not disputed the
qualification of the appointed person. In this connection, the Learned
Additional Advocate General for the Appellants refers to the observation made
by this Court in W.P.(MD)No.2775 of 2008, dated 09.06.2010, wherein at
paragraph No.12, it is mentioned as under:-

"12.On a perusal of the letter dated 21.05.2008 sent by the Health &
Family Welfare Department, produced by the Learned Counsel for the
petitioner, under the
Right to Information Act
, I find that the Special Rules
of Tamil Nadu Medical Service could be applied only upto the cadre of Civil
Surgeon and the criteria for future promotion to the next higher category is
as per panel seniority or date of promotion and not based on the Civil
Medical List seniority. The relevant particulars in the said letter reads
thus:

?(i) As per Rule 12 of the Special Rules for Tamil Nadu Medical
Service, the seniority upto the cadre of Civil Surgeons shall be determined
with reference to their CML Number.

(ii) Panel seniority or date of promotion is the criteria for future
promotion to the next higher cadre and not the CML seniority?.

(4).Submissions of First Respondent/Writ Petitioner:-

4.1.The Learned Counsel for the First Respondent/Writ Petitioner
contends that a vacancy arose to the post of Director of Medical Education
consequent to the retirement of Dr.R.Vimala on 31.10.2016 and that the
promotion to the post of Director of Medical Education is governed by Rule
124 of the Tamil Nadu Medical Service Special Rules. Moreover, it is
represented on behalf of the First Respondent that Rule 124 of the Tamil Nadu
Medical Service Special Rules, does not anywhere mentioned that the post of
Director of Medical Education is a selection post.

4.2.Advancing his arguments, the Learned Counsel for the First
Respondent submits that even if it is considered as selection post, where the
promotion is based on merit and ability, the G.O.Ms.No.368, Personnel and
Administrative Reforms Department, dated 18.10.1993 clearly defines 'Merit'
and 'Ability' and if the merit and ability are considered as equal without
any charges or punishment in previous five years, the Civil Medical List
Seniority alone is considered as basis for promotion.

4.3.The Learned Counsel for the First Respondent adds to point out
that the crucial date for the post of promotion to the 'Director of Medical
Education' is not mentioned as 15th March of that year and it is the date on
which previous incumbent retires as it is a single post and Head of
Department post of Non-IAS cadre, as clarified in G.O.Ms.No.368, Personnel
and Administrative Reforms Department, dated 18.10.1993.

4.4.The Learned Counsel for the First Respondent contends that as per
instructions prescribed in G.O.Ms.No.368, Personnel and Administrative
Reforms Department, dated 18.10.1993, a panel is to be prepared three months
in advance and this is to ensure that the cases of those persons, who have a
minimum service of one year from the date of retirement of previous incumbent
are not omitted because of an administrative delay.

4.5.The Learned Counsel for the First Respondent brings it to the
notice of this Court that G.O.Ms.No.368, Personnel and Administrative Reforms
Department, dated 18.10.1993 and G.O.Ms.No.440, Personnel and Administrative
Reforms Department, dated 26.10.1990 had clearly mentioned about the
preparation of panel eligibility and the Special Rules pertaining to the
posts. Apart from that, the G.O.Ms.No.124, Health and Family Welfare
Department, dated 10.06.2003, speaks of amendment to the Tamil Nadu Medical
Service Special Rules in regard to the post of Director of Medical Education.

4.6.The Learned Counsel for the First Respondent points out that
'Civil Medical List Seniority' holds good for all promotions in Medical
Service and all panels are drawn, as per Civil Medical List Seniority. In
fact, G.O.(D)No.948, Health and Family Welfare (A1) Department, dated
25.04.2017 is the only panel for appointment of Director of Medical
Education, where no 'Civil Medical List' is mentioned and this is to hide the
First Respondent/Writ Petitioner's Seniority.

4.7.The Learned Counsel for the First Respondent submits that the
Seniority as per Civil Medical List is as under:-

Name
CML-2005
CML-2010
Retirement
Dr.S.Revwathy
Feb - 2018
Dr.Shanthimalar
June - 2021
Dr.AL.Meenakshi Sundaram
Aug - 2021
Dr.Narayanababu
Oct - 2020
Dr.A.Edwin Joe
July - 2019

4.8.The Learned Counsel for the First Respondent takes a plea that
G.O.Ms.No.354, Health and Family Welfare (B2) Department, dated 23.10.2009
clearly says that ?For all higher posts and posts in common pool, Civil
Medical List Seniority is the basis for promotion?. Also that, it is
projected on the side of the First Respondent that even for the post of Head
of the Department in any Medical College, G.O.Ms.No.226, Health and Family
Welfare (A1) Department, dated 10.10.2013 clearly mentions that 'senior most
Medical Officer as per Civil Medical List seniority in the concerned
speciality of the Medical College shall be considered for the Headship/Head
of the Department subject to the condition that he/she should not have lost
his/her seniority as a result of relinquishment of right for promotion or as
a result of any punishment imposed on him/her.

4.9.The Learned Counsel for the First Respondent projects an argument
that an entry into Medical service in the State of Tamil Nadu was ?Single
Window? - ?Tamil Nadu Public Service Commission? and further that the 'Civil
Medical List' has 'Legal Sanction'. Besides these, it is represented on
behalf of the First Respondent that the post of graduation may be done at any
time and clinical specialties in 1980 - 90s have to do Diploma Course and
then only Degree Course, whereas the non-clinical specialties do not have
Diploma.

4.10.The Learned Counsel for the First Respondent refers to the Chart
in respect of the First Respondent and the Appellant in W.A.(MD)No.1301 of
2017, which runs as under:-

Respondent
Appellant in W.A.(MD)No.1301 of 2017
Joined M.B.B.S.
Completed M.B.B.S.
Diploma DGO
1984-1986

- - -

M.D.
1988-2000
1986-1989
Selection in TNPSC
1984-Batch
1987-Batch
Joined Tamil Nadu Medical Service
Civil Medical List Number
1888/2010
2665/2010
Dean Promotion (by willingness)
2012 panel
2010 panel
Retirement
Feb - 2018
July - 2019

4.11.The Learned Counsel for the First Respondent/Petitioner submits
that the First Respondent/Petitioner became eligible and had submitted her
willingness for 'Dean' promotion in the year 2010. However, as per
G.O.Ms.No.39, Health and Family Welfare Department (A1) Department, dated
16.02.2010, the creation of 15 posts of Medical Superintendent was made to
the 15 medical college hospitals in Pay Band - IV with Grade Pay of
Rs.8,700/- by redesignation and redevelopment of one post of Professor of
Anatomy of the respective Medical Institution in the same scale of pay.

Further, it was mentioned in the said Government Order that duties and
responsibilities so far exercised by the Dean of Government Medical College
and Hospital will be shared by the Medical Superintendent of the Medical
College Hospital and the Dean of the Medical College, as defined in Annexure
II to this order. Therefore, it is submitted on behalf of the First
Respondent that all the non-clinical professors became Dean in the year 2010-
2011 and that is reason why, her junior viz., the Appellant in
W.A.(MD)No.1301 of 2017 (Dr.A.Edwin Joe) became Dean in the year 2010. Apart
from that, once again these posts were merged due to hardship in
administration and as a result, in the year 2011, all the Medical
Superintendents became Deans. Moreover, from the year 2012 panel, all senior
clinical side Teachers became Deans and this is evident from G.O.(D)No.1305,
Health and Family Welfare (A1) Department, dated 28.11.2013, which relates to
the panel for the post of Dean of Medical College for the year 2013-2014.

4.12.The Learned Counsel for the First Respondent comes out with a plea
that the First Respondent/Writ Petitioner joined in Primary Health Centre in
the year 1987 and rendered rural service till the year 1990 and after
completion of post graduation, also served rural public in Aayakudi.
Thereafter, she entered the teaching side and from the year 1991 till 2013
served in the O & G Department.

4.13.The Learned Counsel for the First Respondent points out that the
Appellant in W.A(MD)No.1301 of 2017 after Post Graduation joined in the
Forensic Medical Department and served only in the College and had not served
any rural service and not connected with direct patient care. Apart from
that, the Learned Counsel for the First Respondent contends that the First
Respondent was given the best academician award by the students and by the
Tamil Nadu Medical Council during the year 2013.

4.14.The core stand taken on behalf of the First Respondent/petitioner
is that she is senior to the Appellant in W.A.(MD)No.1301 of 2017 and this is
established from seniority list of Medical Officers for the post of Director
of Medical Education for the panel year 2015-2016 sent by Dr.R.Vimala dated
20.10.2015 wherein the First Respondent was mentioned as 'eligible for
Director of Medical Education' in Serial No.21 and the Appellant in
W.A.(MD)No.1301 of 2017 mentioned as 'eligible' in Serial No.38. In this
connection, it is represented on behalf of the First Respondent/petitioner
that the seniority is arrived at as per 'Civil Medical List' only, as per
G.O.Ms.No.353, dated 23.10.2009.

4.15.The Learned Counsel for the First Respondent draws the attention
of this Court to G.O.Ms.No.368, Personnel and Administrative Reforms
Department, dated 18.10.1993, which clearly states that the estimated vacancy
is to be proposed atleast three months in advance and panel must be prepared
by the Head of the Department, failing which, by the Secretary himself three
months in advance, the panel must be intimated to all in the panel by the
registered post for any objection to be raised within two months and the
third month must be utilised for finalisation, so that, the next person will
take over from the previous incumbent.

4.16.The Learned Counsel for the First Respondent contends that one
Dr.Geethalakshmi retired on 31.01.2016 and that Dr.R.Vimala had a left over
service of nine months (31.10.2016) and the First Respondent/petitioner who
was the next senior in Civil Medical List to Dr.R.Vimala had two years, one
month left over service as on 31.01.2016. To accommodate Dr.R.Vimala,
G.O.Ms.Nos.446 and 447, Health and Family Welfare (A1) Department, dated
18.03.2016 were passed without a panel relaxing the Rules, which was
highlighted in the Judgment of this Court, dated 09.11.2016 in
W.A.(MD)No.1304 of 2016.

4.17.The Learned Counsel for the First Respondent submits that
Dr.R.Vimala retired on 31.10.2016 and that the First Respondent/Petitioner is
the senior most with left over service on 1 year and four months, as she is
to retire on 28.02.2018. The Learned Counsel for the First Respondent points
out that the Junior viz., Dr.Narayanababu was given Director of Medical
Education incharge from 01.11.2016 and that no panel was prepared and he was
placed in full additional charge as Director of Medical Education and worked
as Dean, Kilpauk Medical College till 25.04.2017.

4.18.The Learned Counsel for the First Respondent proceeds to point
that willingness for Director of Medical Education post from eligible
candidates was called for on 19.12.2015 in Ref.No.83241/E1/1/2015 and again
in Ref.No.52744/E1/1/2016, dated 08.07.2016 and that the eligible candidates
with willingness as per seniority should have been sent by the Director of
Medical Education on 29.07.2016 in the same reference number, but this list
is not produced by the Appellants in W.A.(MD)No.1300 of 2017 with a mala fide
intention to hide the First Respondent's seniority. Further, it is
represented on behalf of the First Respondent that the list would be the
same, as the one already sent by the same Director of Medical Education viz.,
Dr.R.Vimala on 31.12.2015 and 29.07.2016, as there is no senior person in
Dean cadre with full eligibility for Director of Medical Education to
intervene between (1)Dr.R.Vimala, in Serial No.18; (2)Dr.S.Revwathy, in
Serial No.21; (3)Dr.AL.Meenaskhi Sundaram, in Serial No.27; and Dr.A.Edwin
Joe, in Serial No.38.

4.19.The Learned Counsel for the First Respondent submits that
G.O.(D)No.1210, dated 07.09.2016 which estimated the vacancy for the post of
'Director of Medical Education' arising on 31.10.2016, as shows in
G.O.(D)No.948, Health and Family Welfare (A1) Department, dated 25.04.2017
itself, no panel was prepared from 31.10.2016 to 25.04.2017 and on the date
of estimated vacancy also, the First Respondent has a left over service of
more than one year.

4.20.The Learned Counsel for the First Respondent refers to the
Judgment of this Court in W.A.(MD)No.1304 of 2016, dated 09.11.2016, wherein
at paragraph No.27, it was observed as under:-

"Since the post of the Director of Medical Education has fallen vacant,
the First Respondent is under a statutory obligation to draw a panel for the
appointment to the post of the Director of Medical Education and consider the
short listed candidates, strictly in accordance with the sub-clause (a) to
Clause 4 in Part II of
Section 21
of the Tamil Nadu Medical Service. We hope
and trust such exercise is to be done in a fair and transparent manner and
strictly in accordance with law."

and submits that the said observation has not been followed by the Appellants
in W.A.(MD)No.1300 of 2017.

4.21.The Learned Counsel for the First Respondent strenuously contends
that the First Respondent/Writ Petitioner's representations together with the
Judgements of this Court in W.A.(MD)No.1304 of 2016, dated 09.11.2016, from
14.11.2016 onwards addressed to the Principal Secretary, Health and Family
Welfare Department and even to the Chief Secretary, Government of Tamil Nadu
on 14.11.2016, 25.12.2016, 13.02.2017 and 20.02.2017 had not met with any
response and hence, the First Respondent filed W.P.(MD)No.3523 of 2017 in the
light of the Judgment in W.A.(MD)No.1304 of 2016 praying for passing of an
order by this Court to direct the Appellants in W.A.(MD)No.1300 of 2017 to
appoint her as the Director of Medical Education forthwith.

4.22.The Learned Counsel for the First Respondent submits that the
Appellants in W.A.(MD)No.1300 of 2017 have completely violated the
G.O.Ms.No.368, Personnel and Administrative Reforms Department, dated
18.10.1993 and G.O.Ms.No.354, Health and Family Welfare (B2) Department,
dated 23.10.2009. The Learned Counsel for the First Respondent contends that
the First Respondent had a left over service of one year and four months on
the date of retirement of previous incumbent Dr.R.Vimala and because of the
deliberate administrative delay, six months was evaded to prepare a wrong
panel which is in pure violation of G.O.Ms.No.368, Personnel and
Administrative Reforms Department, dated 18.10.1993 and G.O.Ms.No.354, Health
and Family Welfare (B2) Department, dated 23.10.2009 and as against the
Judgment passed in W.A.(MD)No.1304 of 2016.

4.23.The Learned Counsel for the First Respondent submits that with a
view to elongate the promotion and appointment of the First Respondent as
'Director of Medical Education' and without complying with the Judgment of
this Court in W.A.(MD)No.1304 of 2016, dated 09.11.2016, as well as the
impugned order of the Learned Single Judge passed in the writ petition, the
Appellants have preferred the present writ appeals before this Court.

(5).The Second Respondent's Pleas:-

5.1.The Learned Counsel for the Second Respondent submits that the
Second Respondent (Impleaded petitioner) was appointed as Medical Officer in
Tamil Nadu Medical Service in the year 1986, with a qualification of Post
Graduate Degree M.D., (Anaesthesiology) in the year 1994 and was promoted as
Professor in Anaesthesiology in the year 2004. It is represented on behalf of
the Second Respondent that the Second Respondent based on his seniority and
eligibility, was promoted to the post of Dean on 18.03.2013.

5.2.The Learned Counsel for the Second Respondent takes a stand that
the Second Respondent is one of the eligible persons included in the panel
for promotion to the post of Director of Medical Education prepared as on the
vacancy arose on 28.12.2015 consequent to the orders passed by this Court in
W.A.(MD)No.1304 of 2016, dated 09.11.2016.

5.3.The Learned Counsel for the Second Respondent proceeds to point
that that the Second Respondent is the most meritorious candidate with
reference to merit and ability for selection to the post of Director of
Medical Education, since he had received appreciation award from the Chief
Secretary to Government of Tamil Nadu for his participation in resuscitation
of building collapse victims at Moulivakam, Chennai during 2004 while working
as 'Dean of Stanley Medical College'. Also that the Second Respondent had
received a 'Certificate of Merit' from the District Collector, Thiruvarur
during Independence Day Celebrations, 2015 for securing five years
recognition for the Government Thiruvarur Medical College and for
establishing Corneal Transplantation Surgeries and also for improving the
facilities in Intensive Care Unit and Obstetrics and Gynaecology Department.
Besides these, it is the plea of the Second Respondent that he had received
'Certificate of Merit' during Republic Day Celebrations in the year 2006 for
establishing an Emergency Help line and maintaining an Emergency Help line
(which is first of its kind) in the State of Tamil Nadu and also for
arranging Medical Camp for the entire judicial employees of Thiruvarur
District.

5.4.The Learned Counsel for the Second Respondent submits that the
Second Respondent had received the 'Best Teacher Award' from the Tamil Nadu
DR.M.G.R. Medical University. Moreover, the Second Respondent was nominated
for the 'Best Practices Award 2015', as per proceedings of the First
Respondent, dated 27.07.2016. As such, it is the contention of the Learned
Counsel for the Second Respondent that the Second Respondent's services were
appreciated by the Department and the State Government through out his
career.

5.5.The Learned Counsel for the Second Respondent vehemently projects
an argument that in W.P.(MD)No.10257 of 2017 filed by the First Respondent,
this Court, found that the draft order in G.O.(D)No.948, dated 25.04.2017 was
manipulated by deleting the words 'Merit and Ability of the Medical Officers
are equal' and by inserting the words 'Merit wise Dr.A.Edwin Joe is the most
meritorious among the candidate in the panel (The Appellant in
W.A.(MD)No.1301 of 2017)'.

5.6.The Learned Counsel for the Second Respondent contends that the
Second Respondent is very much aggrieved against the finding in the common
order dated 20.09.2017, in W.P.(MD)No.3523 of 2017 and W.P.(MD)No.10257 of
2017, wherein at paragraph Nos.12.2 and 12.3, an assertion was made that 'CML
Seniority' is the basis for and appointment of Director of Medical Education.

5.7.The Learned Counsel for the Second Respondent submits that the post
of Director of Medical Education comes under Special clause, sub clause (3)
of the Tamil Nadu Medical Service Special Rules and as per Rule 3, the post
of Director of Medical Education to be filled up by promotion from among the
Officer holding the post of Dean of Medical College and other equivalent
posts. Moreover, as per Rule 4(a), promotion to the post of Director of
Medical Education shall be made on the ground of merit and ability, seniority
being considered only when merit and ability are approximately equal.

5.8.The Learned Counsel for the Second Respondent contends that Rule
8(b) of the Tamil Nadu Medical Service Special Rules, prescribes
qualification for the post of Director of Medical Education, which prescribes
educational qualification and service qualification, which include
administrative experience for a period of not less than 2 years in one or
more of the post set out therein, out of which one year must be as a 'Dean of
Medical College'.

5.9.The Learned Counsel for the Second Respondent comes out with an
argument that Rule 12 of the Tamil Nadu Medical Service Special Rules
prescribes seniority and appointment as full member in the category of Civil
Surgeons wherein it is directed that appointment as a full member of the
service in the post stated therein including the post of Dean of Medical
Colleges, borne on the cadre of Civil Surgeons, shall be made with reference
to the date of regular appointment or promotion to the particular category.

5.10.The Learned Counsel for the Second Respondent submits that as per
Rule 12 of the Tamil Nadu Medical Service Special Rules, a person becomes a
full member of service in the post of the Dean of Medical College only from
the date of first regular appointment or promotion to the post and thereby
the seniority can be counted only by reckoning the date of appointment
/promotion to the post of the Medical College and not otherwise.

5.11.The Learned Counsel for the Second Respondent brings it to the
notice of this Court that as per Rule 3 of the Tamil Nadu Medical Service
Special Rules, the post of Clinical Associate Professor and non-clinical
Associate Professor can be filled up either by promotion or by direct
recruitment, if no qualified member is available and therefore, once the post
of Associate Professor to be filled up with either by promotion or by direct
recruitment, the question of reckoning the seniority based on CML seniority
beyond the post of Associate Professor does not arise, as it will offend the
right of directly recruited Associate Professors, who are not assigned with
CML number in the post of Assistant Surgeon (entry level post). Therefore, it
is the stand of the Second Respondent that after the post of Associate
Professor, any further promotion to be made must be based on 'Panel
Seniority'.

5.12.The Learned Counsel for the Second Respondent refers to Rule 4(c)
of Tamil Nadu Medical Service Special Rules (including first explanation and
proviso to the Rules) and contends that 'CML Seniority' is not the basis for
promotion to the higher post and the Service Rules framed under
Article 309

of Constitution of India clearly prescribes that the panel seniority is the
basis for promotion to the post of Director of Medical Education.

5.13.The Learned Counsel for the Second Respondent submits that
G.O.Ms.No.354, Health and Family Welfare Department, dated 23.10.2009 relied
on in the impugned common order dated 20.09.2017 of the W.P.(MD)No.3523 of
2017 and W.P.(MD)No.10257 of 2017, to follow 'CML Seniority' was subsequently
reviewed and clarificatory amendment order in G.O.Ms.No.245, dated 30.10.2013
was issued, as per which in clause (9) of the Government Order, the CML
seniority will be taken into account as and when preparing the panel for the
post of Senior Assistant Surgeon/Civil Surgeon/Senior Civil Surgeon/Chief
Civil Surgeon, the Director of Medical and Rural Health Side and Associate
Professor/Professor in the Director of Medical Education Side. Accordingly,
upto the Associate Professor/Professor in DME side alone, the CML seniority
will be followed and in short, G.O.Ms.No.354, dated 23.10.2009 cannot be
relied upon, when the same was subsequently amended as per G.O.Ms.No.245,
dated 30.10.2013.

5.14.The Learned Counsel for the Second Respondent contends that the
Second Respondent was appointed as Dean on 18.03.2013, but the First
Respondent/Writ Petitioner was appointed as Dean on 21.03.2013. Therefore, it
is contended on behalf of the Second Respondent is the senior to the First
Respondent in the 'Panel Seniority' in the post of Dean to be considered for
promotion to the post of District Medical Officer following panel seniority.

5.15.Furthermore, it is the stand of the Second Respondent that even as
per performance in medical service, he is the most meritorious candidate that
can be borne out of records. That apart, it is the contention of the Second
Respondent that the Learned Single Judge in the impugned common order of the
W.P.(MD)No.3523 of 2017 and W.P.(MD)No.10257 of 2017, dated 20.09.2017, gave
a positive direction to appoint the First Respondent/Writ Petitioner, which
affects the right of the Second Respondent, who is senior to the First
Respondent, as per seniority in the post of Dean.

5.16.The Learned Counsel for the Second Respondent contends that the
Learned Single Judge had arrived at subjective satisfaction of the records
with reference to serious discrepancy committed in the process of selection
and rendered a finding that the Appellant in W.A.(MD)No.1301 of 2017
(Dr.A.Edwin Joe) was positively recommended for promotion to the post of
Director of Medical Education, though merit and ability of the First
Respondent/Writ Petitioner and other Medical Officers are stated to be equal.

5.17.The Learned Counsel for the Second Respondent submits that when
once the selection is vitiated due to manipulation/discrepancy committed in
the process of selection, the Appellants should have been directed by the
Learned Single Judge to conduct the selection to the post of Director of
Medical Education afresh in accordance with Rules. Added further, it is the
plea of the Second Respondent that there cannot be any positive direction
being issued to appoint the First Respondent/Writ Petitioner as Director of
Medical Education, when the selection is based on 5 panellists, which include
the Second Respondent without assessment of comparative merit and ability,
particularly, when the Second Respondent being senior to the First
Respondent/Writ Petitioner in the panel seniority.

5.18.The Learned Counsel for the Second Respondent contends that once
it is made clear that the selection is not in accordance with Rule 4(a) of
Tamil Nadu Medical Service Special Rules, the matter is to be remanded back
to the Respondents to redo the selection in accordance with Service Rules
based on comparative merit and ability of the panellists in accordance with
law.

5.19.The Learned Counsel for the Second Respondent points out that
when this Court in W.A(MD)No.1304 of 2016, on 09.11.2016, had directed the
Respondent therein to draw a panel for appointment to the post of Director of
Medical Education and considering the short listed candidates strictly in
accordance with Rule 4(a) of Tamil Nadu Medical Service Special Rules, this
Court, while passing the orders in W.P(MD)No.10257 of 2017, should have
directed the Respondents therein (The Appellants in W.A.(MD)No.1300 of 2017)
to comply the legal requirement, as per Rule 4(a) of Tamil Nadu Medical
Service Special Rules by conducting selection afresh, instead of issuing
positive direction to appoint the First Respondent/Writ Petitioner, usurping
the powers of the Appointing Authority.

5.20.The Learned Counsel for the Second Respondent also strenuously
takes a stand that the Learned Single Judge in the common order dated
20.09.2017 in W.P.(MD)No.3523 of 2017 and W.P.(MD)No.10257 of 2017, at
paragraph No.20, had clearly observed that the First Respondent (The First
Appellant in W.A.(MD)No.1300 of 2017) had failed to record the reasons much
less plausible reason objectively as to the comparative merit and ability of
the Medical Officers and also as to the seniority of the Medical Officer when
their merit and ability approximately equal, then it is for the Hon'ble Court
to remand the matter back to the Appellants in W.A.(MD)No.1300 of 2017 to re-
do the selection in accordance with law by fulfilling all the requisite legal
requirements with reference to the assessment of comparative merit and
seniority etc.

(6).The Second Respondent's Citations:-

6.1.The Learned Counsel for the Second Respondent relies the decision
of the Hon'ble Supreme Court in
K.KUPPUSAMY AND ANOTHER v. STATE OF TAMIL
NADU AND OTHERS
reported in (1998) 8 SCC, 469, wherein at paragraph No.3, it
is observed and held as follows:-

?The short point on which these appeals must succeed is that the
Tribunal fell into an error in taking the view that since the Government had
indicated its intention to amend the relevant rules, its action in proceeding
on the assumption of such amendment could not be said to be irrational or
arbitrary and, therefore, the consequential orders passed have to be upheld.
We are afraid this line of approach cannot be countenanced. The relevant
rules, it is admitted, were framed under the proviso to
Article 309
of the
Constitution. They are statutory rules. Statutory rules cannot be overridden
by executive orders or executive practice. Merely because the Government had
taken a decision to amend the rules does not mean that the rule stood
obliterated. Till the rule is amended, the rule applies. Even today the
amendment has not been effected. As and when it is effected ordinarily it
would be prospective in nature unless expressly or by necessary implication
found to be retrospective. The Tribunal was, therefore, wrong in ignoring the
rule.?

6.2.The Learned Counsel for the Second Respondent cites the decision
of the Hon'ble Supreme Court in
STATE OF ORISSA AND OTHERS v. PRASANA KUMAR
SAHOO
reported in (2007) 15 SCC 129, wherein it is observed as follows:-

"The State is bound by the constitutional scheme to treat all persons
equally in the matter of grant of public employment as envisaged under

Articles 14
and
of the Constitution. Policy decision taken by the State in
exercise of its jurisdiction under
Article 162
would be subservient to the
recruitment rules framed by the State either in terms of a legislative Act or
the proviso to
Article 309.
A purported policy decision issued by way of an
executive instruction cannot override the statute or statutory rules far less
the constitutional provisions."

6.3.The Learned Counsel for the Second Respondent seeks in aid of the
decision of the Hon'ble Supreme Court in
STATE BANK OF INDIA v. MOHD.
MYNUDDIN
reported in AIR 1987 SC 1889 and 1890, wherein it is laid down as
under:-

"Whenever promotion to a higher post is to be made on the basis of
merit no officer can claim promotion to the higher post as a matter of right
by virtue of seniority alone with effect from the date on which his juniors
are promoted. It is not sufficient that in his confidential reports it
is recorded that his services are 'satisfactory'. An officer may be
capable of discharging the duties of the post held by him satisfactorily but
he may not be fit for the higher post. Before any such promotion can be
effected it is the duty of the management to consider the case of the
officer concerned on the basis of the relevant materials. If promotion has
been denied arbitrarily or without any reason ordinarily the Court can
issue a direction to the management to consider the case of the officer
concerned for promotion but it cannot issue a direction to promote the
officer concerned to the higher post without giving an opportunity to
the management to consider the question of promotion. This Court is not
by its very nature competent to appreciate the abilities, qualities or
attributes necessary for the task, office or duty of every kind of post
in the modern world and it would be hazardous for it to undertake the
responsibility of assessing whether a person is fit for being promoted to a
higher post which is to be filled up by selection. The duties of such
posts may need skills of different kinds - scientific. technical,
financial, industrial, commercial, administrative, educational etc. The
method of evaluation of abilities or the competence of persons to be selected
for such posts have also become now-a-days very much refined and
sophisticated and such evaluation should, therefore, in the public interest
ordinarily be left to be done by the individual or a committee consisting of
persons who have the knowledge of the requirement of a given post to be
nominated by the employer. Of course, the process of selection adopted by
them should always he honest and fair. It is only when the process of
selection is vitiated on the ground of bias, mala fides or any other
similar vitiating circumstances other considerations will arise. Writ
Appeal No.1027 of 1986, D/- 25.09.1986 (Andh Pra), Reversed. AIR 1968 SC
1113, Foll."

6.4.The Learned Counsel for the Second Respondent draws the attention
of this Court to the decision of the Hon'ble Supreme Court in AJAYKUMAR DAS
v. STATE OF ORISSA AND OTHERS reported in 2011 (11) SCC 136, at special page
139, wherein at paragraph No.14, it is observed as under:-

"Neither the Circular dated 18.06.1982 nor the subsequent Circular
dated 19.03.1983 modifying the earlier Circular dated 18.06.1982 can override
the statutory provision contained in Rule 74(b) of the Code if it results in
reduction of pay of the employee on promotion. That Orissa Service Code has
been framed under
Article 309
of the Constitution of India is not in dispute.
It is well settled that Statutory Rules framed under
Article 309
of the
Constitution can be amended only by a Rule or Notification duly made
under
Article 309
and not otherwise. Whatever be the efficacy of the
Executive Orders or Circulars or Instructions, Statutory Rules cannot be
altered or amended by such Executive Orders or Circulars or Instructions nor
can they replace the Statutory Rules. The Rules made under
Article 309
of the
Constitution cannot be tinkered by the administrative Instructions or
Circulars."

W.A.(MD)No.1301 of 2017:

(7).The Appellant's Submissions:-

7.1.The Learned Senior Counsel for the Appellant contends that the
Learned Single Judge should have dismissed the writ petition on the basis
that the First Respondent/Writ Petitioner is not having one year left over
service, which is a mandatory condition, as per Rule 8(b) (iv) of Tamil Nadu
Medical Service Special Rules. Further, it is the stand of the Appellant that
in the earlier round of litigation, the Division Bench of this Court made a
specific observation that there should not be any appointment by violating
the Tamil Nadu Medical Service Special Rules, especially, Rule 8(b)(iv) and
Rule 4.

7.2.The Learned Senior Counsel for the Appellant takes a plea that the
Learned Single Judge should have dismissed the W.P.(MD)No.10257 of 2017 on
the ground that the Second Respondent/Government by properly following the
Tamil Nadu Medical Service Special Rules and upon considering the merit and
ability, had appointed the Appellant as 'Director of Medical Education'. As
such, there is no illegality in the impugned order assailed in the Writ
petition.

7.3.The Learned Senior Counsel for the Appellant points out that the
Learned Single Judge should have considered that the claim made by the First
Respondent/Writ Petitioner seeking positive direction to appoint her in the
post of Director of Medical Education in the earlier round of litigation
viz., in W.P.(MD)No.6790 of 2016, was rejected by the Learned Single Judge as
well as by the Hon'ble Division Bench, in W.A.(MD)No.1304 of 2016. Therefore,
the positive direction given by the Learned Single Judge is not proper one
and liable to be interfered with by this Court.

7.4.According to the Learned Senior Counsel for the Appellant, the
First Respondent/Writ Petitioner claiming the 'Civil Medical List Seniority',
is not having any statutory force for an appointment to the post of Director
of Medical Education and therefore, the order of the Learned Single Judge
requires interference.

7.5.The Learned Senior Counsel for the Appellant takes a stand that
the Learned Single Judge should have considered that as per Rule 3 of the
Tamil Nadu Medical Service Special Rules, the post of Dean is one of the
Feeder Category to the post of Director of Medical Education and further, as
per Rule 8(b), the administrative experience in the post of Dean is also
prescribed as requirement. Therefore, it is represented on behalf of the
Appellant that having more experience 'in the Cadre of Dean' was rightly
considered by the Government towards the merit and ability of the Appellant
and consequently appointed the Appellant as 'Director of Medical Education',
which is the proper one. The Learned Senior Counsel for the Appellant
submits that as per Service Rules, 15th March of the year, is the cut off
date for preparing the panel and in fact, the First Respondent/Writ
Petitioner is not possessing one year left over service with reference to the
cut off date and thereby not eligible to be considered for the post of
Director of Medical Education.

7.6.It is represented on behalf of the Appellant that this Court in
W.A(MD)No.1304 of 2016, dated 09.11.2016 had categorically held that there
should not be any violation of Rules while appointing a person to the post of
Director of Medical Education and thereby made it clear that the one year
left over service is one of the main criteria, which cannot be diluted to and
in favour of the First Respondent/Writ Petitioner. Moreover, it is the plea
of the Appellant that the Learned Single Judge in paragraph No.13 of the
Judgment in the common order dated 20.09.2017 of the W.P.(MD)No.3523 of 2017
and W.P.(MD)No.10257 had rightly found that the Appellant is having
experience ahead of the First Respondent/Writ Petitioner and therefore, the
allowing of the writ petition is not a proper one.

7.7.The Learned Senior Counsel for the Appellant contends that since
merit and ability alone are the deciding factor and not the seniority based
on the date of original appointment, in this regard, the conclusion arrived
at by the Learned Single Judge to the effect that the First Respondent/Writ
Petitioner is the senior most person based on the panel prepared by
Dr.S.Geethalakshmi and further that the appointment of Appellant as Director
of Medical Education is not proper, requires interference, in the hands of
this Court. The Learned Senior Counsel for the Appellant submits that there
are no materials placed before the Learned Single Judge to arrive at a
conclusion that the First Respondent/Writ Petitioner is having more merit and
ability over and above the Appellant and in the absence of the same, the
Learned Single Judge should not have allowed the writ petition filed by the
First Respondent.

7.8.The Learned Senior Counsel for the Appellant contends that 'note
files' have no scope over the final decision and the Learned Single Judge
ought not to decide the issue in question based on the observations made in
the note file. Also that, it is the plea of the Appellant that before
arriving at a conclusion, the Learned Single Judge had not heard any one of
the parties.

(8).The Appellant's Decisions:-

8.1.The Learned Senior Counsel for the Appellant cites the decision of
the Hon'ble Supreme Court in
STATE OF MYSORE AND ANOTHER v. SYED MAHMOOD AND
OTHERS
reported in AIR 1968 SC 1113 at special page 1114, wherein at
paragraph No.2, it is observed as under:-

?2.Promotion to the posts of senior statistical assistants is made from
the cadre of junior statistical assistants and progress assistants. Rules
4(3)(b) of the Mysore State Civil Services General Recruitment Rules, 1957
requires such promotions to be made by selection on the basis of seniority-
cum-merit, that is seniority subject to the fitness of the candidate to
discharge the duties of the post from among persons eligible for promotion.
In 1959 the seniority of junior statistical assistants was governed by the
seniority list published on January 16, 1958. Syed Mahmood and Bhao Rao were
junior statistical assistants. While making selections for promotion to the
posts of senior statistical assistants from the cadre of junior statistical
assistants in 1959, the State Government was under a duty to consider whether
having regard to their seniority and fitness they should be promoted. But
without considering their case at all, the State Government promoted junior
statistical assistants ranking below them in point of seniority. The
promotions were irregularly made and they were, therefore, entitled to ask
the State Government to reconsider their case. In the circumstances, the High
Court could issue a writ to the State Government compelling it to perform its
duty and to consider whether having regard to their seniority and fitness
they should have been promoted on the relevant dates when officers junior to
them were promoted. Instead of issuing such a writ, the High Court wrongly
issued writs directing the State Government to promote them with
retrospective effect. The High Court ought not to have issued such writs
without giving the State Government an opportunity in the first instance to
consider their fitness for promotion in 1959.?

8.2.The Learned Senior Counsel for the Appellant relies on the decision
of the Hon'ble Supreme Court in
STATE OF BIHAR v. KRIPALU SHANKAR
reported
in AIR 1987 SC 1554, at special page 1555, wherein it is observed as under:-

?It would be dangerous to find an action for contempt, for the views
expressed in the notes file, on the discovery of unpleasant or unsavoury
notes, on a perusal of the notes file by the Court, after getting them
summoned. This would impair the independent functioning of the civil service
essential to democracy. This would cause impediments in the fearless
expression of opinion by the officers of the Government. The notings on files
differ from officer to officer. It may well be that the notes made by a
particular officer, in some cases, technically speaking is in disobedience in
an order of the Court or may be in violation of such order but a more
experienced officer sitting above him can always correct him. To rely upon
the notings in a file for the purpose of initiating contempt, in our view,
therefore, would be to put the functioning of the Government out of gear. We
must guard against being over sensitive, when we come across, objectionable
notings made by officers, sometimes out of inexperience, sometimes out of
over zealousness and sometimes out of ignorance of the nuances of the
question of law involved.?

8.3.The Learned Senior Counsel for the Appellant refers to the Judgment
of the Hon'ble Supreme Court in
STATE BANK OF INDIA AND OTHERS v. MOHD
.

MYNUDDIN reported in AIR 1987 SC 1889 and 1890, whereby and where under, it
is observed as follows:-

"Whenever promotion to a higher post is to be made on the basis of
merit no officer can claim promotion to the higher post as a matter of right
by virtue of seniority alone with effect from the date on which his juniors
are promoted. It is not sufficient that in his confidential reports it
is recorded that his services are 'satisfactory'. An officer may be
capable of discharging the duties of the post held by him satisfactorily but
he may not be fit for the higher post. Before any such promotion can be
effected it is the duty of the management to consider the case of the
officer concerned on the basis of the relevant materials. If promotion has
been denied arbitrarily or without any reason ordinarily the Court can
issue a direction to the management to consider the case of the officer
concerned for promotion but it cannot issue a direction to promote the
officer concerned to the higher post without giving an opportunity to
the management to consider the question of promotion. This Court is not
by its very nature competent to appreciate the abilities, qualities or
attributes necessary for the task, office or duty of every kind of post
in the modern world and it would be hazardous for it to undertake the
responsibility of assessing whether a person is fit for being promoted to a
higher post which is to be filled up by selection. The duties of such
posts may need skills of different kinds - scientific. technical,
financial, industrial, commercial, administrative, educational etc. The
method of evaluation of abilities or the competence of persons to be selected
for such posts have also become now-a-days very much refined and
sophisticated and such evaluation should, therefore, in the public interest
ordinarily be left to be done by the individual or a committee consisting of
persons who have the knowledge of the requirement of a given post to be
nominated by the employer. Of course, the process of selection adopted by
them should always he honest and fair. It is only when the process of
selection is vitiated on the ground of bias, mala fides or any other
similar vitiating circumstances other considerations will arise. Writ
Appeal No.1027 of 1986, D/- 25.09.1986 (Andh Pra), Reversed. AIR 1968 SC
1113, Foll."

8.4.The Learned Senior Counsel for the Appellant seeks in aid of the
decision of the Hon'ble Supreme Court in
M.V.THIMMAIAH AND OTHERS v. UNION
PUBLIC SERVICE COMMISSION AND OTHERS
reported in 2008 (2) SCC 119, at special
page 124, wherein it is held as under:-

?Provisions have been made for special reports and in administrative
jurisprudence special reports can be sought for in respect of any officer
whenever his case comes for consideration and if the Selection Committee
wants to have an up-to-date report of that incumbent. It is an established
practice to call for such kind of special reports. The idea is that for not
reporting the annual confidential reports of the incumbent, why the incumbent
should be made to suffer. Therefore, the Selection Committee or the authority
concerned can always ask for annual confidential reports which were not
written for a particular year by the reporting authority or by the reviewing
authority or in some cases it can also seek a special report. Such practice
cannot be said to be unusual practice in administrative jurisprudence. In the
present case, it appears that a special report in respect of officer KRN was
obtained and that was considered by the Selection Committee. Therefore, this
procedure adopted by the Selection Committee cannot be found to be arbitrary
or in any way discriminatory.?

8.5.The Learned Senior Counsel for the Appellant invites the attention
of this Court to the decision of the Hon'ble Supreme Court in
SHANTI SPORTS
CLUB AND ANOTHER v. UNION OF INDIA AND OTHERS
reported in (2009) 15 SCC 705,
at special page 708, wherein it is laid down as follows:-

?The concept of equality enshrined in
Article 14
is a positive concept.

Article 14
said article cannot be invoked for perpetuating irregularities or
illegalities. The Court can command the State to give equal treatment to
similarly situated persons, but cannot issue a mandate that the State should
commit illegality or pass wrong order because in another case such an
illegality has been committed or wrong order has been passed. If any
illegality or irregularity has been committed in favour of an individual or a
group of individuals, others cannot invoke the jurisdiction of the High Court
or of the Supreme Court and seek a direction that the same irregularity or
illegality be committed in their favour by the State or its
agencies/instrumentalities.?

8.6.The Learned Senior Counsel for the Appellant cites the decision of
the Hon'ble Supreme Court in
JASBIR SINGH CHHABRA AND OTHERS v. STATE OF
PUNJAB AND OTHERS
reported in (2010) 4 SCC 192, at special pages 193 and 194,
wherein it is observed as under:-

?It is trite to say that while exercising power of judicial review, the
superior courts should not readily accept the charge of malus animus laid
against the State and its functionaries. The burden to prove the charge of
mala fides is always on the person who moves the Court for invalidation of
the action of the State and/or its agencies and instrumentalities on the
ground that the same is vitiated due to mala fides and the courts should
resist the temptation of drawing dubious inferences of mala fides or bad
faith on the basis of vague and bald allegations or inchoate pleadings. In
such cases, wisdom would demand that the Court should insist upon furnishing
of some tangible evidence by the petitioner in support of his/her
allegations.

In a democratic polity like ours, the functions of the Government are
carried out by different individuals at different levels. The issues and
policy matters which are required to be decided by the Government are dealt
with by several functionaries some of whom may record notings on the files
favouring a particular person or group of persons. Someone may suggest a
particular line of action, which may not be conducive to public interest and
others may suggest adoption of a different mode in larger public interest.
However, the final decision is required to be taken by the designated
authority keeping in view the larger public interest. The notings recorded in
the files cannot be made basis for recording a finding that the ultimate
decision taken by the Government is tainted by mala fides or is influenced by
extraneous considerations. The Court is duty bound to carefully take note of
the same.?

8.7.The Learned Senior Counsel for the Appellant relies on the decision
of the Division Bench of this Court in D.JAGANNATHAN, IAS DISTRICT COLLECTOR
NAMAKKAL DISTRICT v. S.SATTNATHAN AND FIVE OTHERS reported in 2013 (6) CTC
129 and 130, wherein it is held as follows:-

?A combined reading of the above said provisions would show that the
powers of the Central Administrative Tribunal are governed and controlled by
the enactment. It cannot be a substitute to the powers of the High Court in
its exercise under
Article 226
of the Constitution of India. That is the
reason why this writ petition is filed before us seeking to invoke the said
power under the Constitution. Therefore, the Tribunal constituted under the
Act has to exercise its statutory functions and powers accordingly. In other
words, such a power, which is circumscribed by the enactment, cannot be
allowed to be exercised beyond it.?

8.8.The Learned Senior Counsel for the Appellant points out the
decision of the Hon'ble Supreme Court in
UNION OF INDIA AND ANOTHER v. ASHOK
KUMAR AGGARWAL
reported in 2013 (15) JT 200, wherein at paragraph Nos.16 to
18, it is observed as under:-

?16. The instant case is required to be considered in light of the
aforesaid settled legal propositions, statutory provisions, circulars etc.
The Tribunal inter alia had placed reliance on notings of the file. The issue
as to whether the notings on the file can be relied upon is no more res
integra.

In
Shanti Sports Club v. Union of India MANU/SC/1505/2009
: (2009) 15
SCC 705, this Court considered the provisions of
Articles 77(2)
, 77(3)
and

166(2)
of the Constitution and held that unless an order is expressed in the
name of the President or the Governor and is authenticated in the manner
prescribed by the rules, the same cannot be treated as an order on behalf of
the Government. The
Court further held
:

?43.A noting recorded in the file is merely a noting simpliciter and
nothing more. It merely represents expression of opinion by the particular
individual. By no stretch of imagination, such noting can he treated as a
decision of the Government. Even if the competent authority records its
opinion in the file on the merits of the matter under consideration, the same
cannot be termed as a decision of the Government unless it is sanctified and
acted upon by issuing an order in accordance with
Articles 77(1)
and
(2)
or

Articles 166(1)
and
(2).
The noting in the file or even a decision gets
culminated into an order affecting right of the parties only when it is
expressed in the name of the President or the Governor, as the case may be,
and authenticated in the manner provided in
Article 77(2)
or
Article 166(2).

A noting or even a decision recorded in the file can always be
reviewed/reversed/overruled or overturned and the court cannot take
cognizance of the earlier noting or decision for exercise of the power of
judicial review.?

Similarly, while dealing with the issue, this Court in
Sethi Auto
Service Station v. DDA MANU/SC/8127/2008
: AIR 2009 SC 904 held:

?14. It is trite to state that notings in a departmental file do not
have the sanction of law to be an effective order. A noting by an officer is
an expression of his viewpoint on the subject. It is no more than an opinion
by an officer for internal use and consideration of the other officials of
the department and for the benefit of the final decision-making authority.
Needless to add that internal notings are not meant for outside exposure.
Notings in the file culminate into an executable order, affecting the rights
of the parties, only when it reaches the final decision-making authority in
the department, gets his approval and the final order is communicated to the
person concerned.?

17. In Jasbir Singh Chhabra v. State of Punjab MANU/SC/0152/2010 :

(2010) 4 SCC 192, this Court held:

?35...... However, the final decision is required to be taken by the
designated authority keeping in view the larger public interest. The notings
recorded in the files cannot be made basis for recording a finding that the
ultimate decision taken by the Government is tainted by mala fides or is
influenced by extraneous considerations....?

18. Thus, in view of the above, it is evident that the notings in the
files could not be relied upon by the Tribunal and Court. However, the issue
of paramount importance remains as what could be the effect of judgment and
order of the Tribunal dated 16.12.2011 wherein the Tribunal had directed the
Appellants to reconsider the whole case taking into account various issues
inter-alia as what would be the effect of quashing of the charge sheet by the
Tribunal against the Respondent; the report/recommendation of the Law
Ministry to revoke the sanction; the effect of affidavit filed by the then
Finance Minister after remand of the sanction matter by the High Court to the
effect that though the competent authority had accorded sanction, the entire
relevant matter had not been placed before him; the directions passed by the
High Court against the officers of the CBI in the cases of Shri Vijay
Aggarwal and Shri S.R. Saini; and the duration of pendency of criminal trial
against the Respondent and, particularly, taking note of the stage/status of
the criminal proceedings, in view of the fact that the Respondent is on bail
since 2000 and since the investigation is completed, whether there is any
possibility of tampering with the evidence.?

(9).The First Respondent/Writ Petitioner's Contentions:-

9.1.The Learned Counsel for the First Respondent/Writ Petitioner
submits that one Dr.Narayana Babu, a junior in service from 01.11.2016, was
posted as Director of Medical Education in-charge with full additional
charge. Further, it is represented on behalf of the First Respondent that on
01.11.2016, the First Respondent had the more than one year of left over
service and this administrative delay cannot reduce her claim of having left
over service of more than one year.

9.2.The Learned Counsel for the First Respondent/Writ Petitioner
projects an argument that the impugned order was shown to be prepared on
27.09.2016, as per Letter No.52744/E1/1/2016 for the post of Director of
Medical Education and on that date viz., 27.09.2016 also, the First
Respondent had more than one year of left over service and this is mentioned
in the Judgment of this Court in W.P.(MD).No.10257 of 2017 in Paragraph 12 ?
12(1) and 12(2).

9.3.The Learned Counsel for the First Respondent/Writ Petitioner
forcibly contends that the words ''merits and ability of the Medical Officers
are equal'' are deleted and the words ''Dr.A.Edwin Joe is more meritorious''
are inserted, which proves the mala fide intention to avoid the First
Respondent, who is the senior and more meritorious and to accommodate
Dr.A.Edwin Joe (The Appellant in W.A.(MD)No.1301 of 2017).

9.4.The Learned Counsel for the First Respondent/Writ Petitioner
brings it to the notice of this Court in earlier W.P.(MD)No.6790 of 2016, the
First Respondent's claim was not rejected, but the writ petition was
dismissed with an opinion 'as Dr.R.Vimala is sernior, there is no harm in
relaxing the Rule.' Furthermore, it is the stand of the First Respondent that
Dr.R.Vimala was senior in Civil Medical List only with Civil Medical List
No.3948, but her Civil Medical List number is 4018. Besides these, it is the
submission of the Learned Counsel for the First Respondent that Dr.R.Vimala
retired on 31.10.2016, and this Court had hoped and trusted that the next
panel will be prepared, as per Law and in a transparent manner. In short, it
is the plea of the First Respondent that in W.A.(MD).No.1304 of 2016, the
First Respondent's claim was not dismissed at all.

9.5.The Learned Counsel for the First Respondent/Writ Petitioner comes
out with an argument that G.O.Ms.No.354, dated 26.10.2009 is meant for a
dynamic assured career progression and to mitigate the stagnation in
promotion and the said Governance Orders states that 'In the Director of
Medical Education side 5(b) for higher level posts and posts in common pool,
the Civil Medical List seniority will be the basis for promotion' and this is
mentioned in the orders passed by this Court in W.A.(MD).No.1304 of 2016 and
orders in W.P.(MD).No.10257 of 2017.

9.6.The Learned Counsel for the First Respondent/Writ Petitioner
submits that 'Dean' is one of the 'Feeder Category'and Dean for two years and
directors with Dean for one year is the required fulfillment to be eligible
for the post of Director of Medical Education, as per the G.O.Ms.No.124,
dated 10.06.2003. Also that, it is the contention of the First
Respondent/Writ Petitioner that a longer period cannot be considered as merit
and minimum two years as 'Dean' is only a prerequisite to become
eligible for the post of Director of Medical Education.

9.7.The grievance of the First Respondent/Writ Petitioner is that she
had more than one year left over service on 31.10.2016 i.e. the date of
retirement of Dr.R.Vimala and originally she should have been promoted and
appointed as Director of Medical Education on 01.02.2015 itself when
Dr.S.Geethalakshmi retired. In fact, on 01.02.2015, the First Respondent/Writ
Petitioner had two years of left over service. The Learned Counsel for the
First Respondent/Writ Petitioner contends that the Tamil Nadu Public Service
Commission being the single entry for Tamil Nadu Medical Service, the First
Respondent/Writ Petitioner was selected in the year 1984 batch, whereas the
Appellant belongs to 1986 batch and in reality, the Appellant is junior to
her in two batches. The Learned Counsel for the First Respondent/Writ
Petitioner strenuously submits that the First Respondent/Writ Petitioner is
not only senior, but also more meritorious than the Appellant and therefore,
as per Government Order in G.O.Ms.No.368, Personnel and Administrative
Reforms Department, dated 18.10.1993 and G.O.Ms.No.124, dated 10.06.2003 and
G.O.Ms.No.354, dated 23.10.2009, the First Respondent is entitled for
promotion and rightly eligible to be appointed to the post of Director of
Medical Education from the date of retirement of Dr.Geethalakshmi i.e. on
31.01.2015.

(10).Weighing the Pros and Cons:-

10.1.At the out set, this Court, points out that G.O.(Ms)No.368,
Personnel and Administrative Reforms Department, dated 18.10.1993, speaks of
'Public Service Preparation of Panel for appointment by promotion/by
recruitment by transfer' and in this regard, the Government had issued
detailed instructions. Furthermore, paragraph No.2 (viii) (1) of the
aforesaid G.O.(Ms)No.368, Personnel and Administrative Reforms Department,
dated 18.10.1993, under the head 'Filling up of posts of Heads of
Department', reads as under:-

"To fill up a single vacancy in respect of Head of Department, the
claims of the first 5 qualified candidates in the seniority list should be
considered and a panel of atleast two names should be got approved in order
to meet any contingency. According to the orders issued in the Government
Order fifth read above, to be eligible for promotion as Head of Department,
an Officer should have not less than one year's service left before
retirement. Those who do not have such a minimum period of left over service
but are otherwise found to be fully qualified, and are fit for promotion as
Head of Department and deserve recognition on the crucial date of preparation
of panel, should be compensated by appointing them as officers on Special
duty with a specific assignment and with the same scale of pay as that of the
Head of Department."

10.2.Besides the above, the afore stated G.O.(Ms)No.368, Personnel and
Administrative Reforms Department, dated 18.10.1993, at paragraph
No.2(vii)(2) specifies as follows:-

"Proposals to fill up the posts of Heads of Department (non-IAS) will
have to be initiated by the Secretaries to Government themselves 3 months in
advance of the prospective date of retirement of the existing incumbent, as
all the relevant particulars would be available in the Secretariat. If the
initiative to send proposals is left with the Heads of Department themselves
there are found to be delays caused by subjective considerations. Such
promotion proposals will have to be suitably monitored by the Secretaries to
Government themselves so that orders are issued before the retirement of the
existing incumbent and the cases of those who have a minimum service of one
year from the date of retirement of the previous incumbent are not omitted
because of administrative delay."

10.3.The Appellants in W.A.(MD)No.1300 of 2017/Respondent Nos.2 and 3
in W.A.(MD)No.1301 of 2017 have taken a stand before this Court that a 'Civil
Medical List' number in regard to the appointment of 'Director of Medical
Education', has no relevance to the post of 'Director of Medical Education',
as per the Service Rules. It is also the case of the Appellants (
W.A.(MD)No.1300 of 2017/Respondent Nos.2 and 3 in W.A.(MD)No.1301 of 2017)
that the 'Civil Medical List' number has no role for the promotions beyond
Associate Professor, as per the ingredients of paragraph No.2(vii) of the
aforesaid Government Order and in fact, G.O.(Ms).No.245, Health and Family
Welfare (A2) Department, dated 30.10.2013, at paragraph No.4, under the
caption 'Director of Medical Education side', and paragraph Nos.5 to 9,
enjoins as under:-

"4)DIRECTOR OF MEDICAL EDUCATION SIDE:

i. In Director of Medical Education side, posts sanctioned in
G.O.Ms.No.684, Health and Family Welfare Department, dated 18.12.1998 and
thereafter from time to time will continue to exist for future promotions as
per the norms of Medical Council of India.

ii. The posts of Professors will be created in Pay Band-IV (Rs.37400 ?
67000/- + Grade Pay Rs.8700) in all departments and colleges as per the norms
of Medical Council of India.

iii. The eligibility for promotion will be as per the norms of Medical
Council of India. However, the promotion will be subject to availability of
vacancies based on the sanctioned posts. Since some of them might be eligible
for promotion as per the norms of Medical Council of India, which may be
earlier than the State Government?s proposed time bound promotion, their
earlier promotion, will be subject to availability of vacancies, fulfilling
the qualifications as per the norms of Medical Council of India / rules
governing the post and empanelment for such posts. However, it is made very
clear that automatic promotions will not be given to Medical Officers, based
on the norms of Medical Council of India. For those who have got into Pay
Band-IV much earlier than the promotion, their promotion will be protected
subject to availability of sanctioned posts.

5)Designation and scales in Director of Medical Education side will be
same as in Director of Medical and Rural Health Services side. Additional
designation as Assistant Professor / Senior Assistant Professor / Associate
Professor / Professor would be depending on Medical Council of India norms.

6)Promotion will not be given during pending disciplinary proceedings
or during currency of punishment as per the existing Disciplinary Proceedings
rule. The Medical Officer will be considered from the next day after
completion of the currency of punishment.

7)The relinquishment of right for promotion will postpone this, till
the Medical Officer completes 3 years and will get his due benefit from the
next day.

8)After getting the promotion, the right to relinquish is still be
available, but it will be restricted to administrative post only.

9) The CML seniority will be taken into account as and when preparing
the panel for the post of Senior Assistant Surgeon / Civil Surgeon / Senior
Civil Surgeon / Chief Civil Surgeon in the Director of Medical and Rural
Health Services side and Associate Professor / Professor in the Director of
Medical Education side.?

10.4.The Appellants (W.A.(MD)No.1300 of 2017/Respondent Nos.2 and 3 in
W.A.(MD)No.1301 of 2017) refers to Rule 3-Recruitment-(a)-Appointment to the
various classes shall be made as follows, which specific reference to Rule
3(a)(3) of the Tamil Nadu Medical Service Special Rules
Section 21
Part I,
which runs as under:-

"(1). ...

(2). ...

(3).Director of Medical Education,
Promotion from among the officers holding the posts of Deans of
Medical Colleges, Director, King Institute, Guindy and Directors of Upgraded
Institutes:

Provided that if no qualified and suitable officer is available for
promotion from among the above categories, by promotion from among Civil
Surgeons holding the posts of clinical Professors/ Associate Professors and
Non-Clinical Professors / Associate Professors."

10.5.The Appellants (W.A.(MD)No.1300 of 2017/Respondent Nos.2 and 3 in
W.A.(MD)No.1301 of 2017) points out that as on the crucial date for
consideration, i.e. on 15th March of the year, in terms of Rule 8 under the
caption 'Special Qualifications' (e) of the Tamil Nadu Medical Service
Special Rules, the First Respondent/Writ Petitioner is not eligible for
promotion to the post of Director of Medical Education, due to less than one
year left over service. Also, the Appellants (W.A.(MD)No.1300 of
2017/Respondent Nos.2 and 3 in W.A.(MD)No.1301 of 2017) case is that the
Appellant in W.A.(MD)No.1301 of 2017 was appointed as Dean in the year 2010
itself, but the First Respondent/Writ Petitioner was appointed as Dean only
in the year 2013.

10.6.It is seen from the communication of the then Director of Medical
Education (R.Vimala), Chennai-10, in the Reference No.83241/E1(1)2015, dated
30.12.2015, addressed to the Secretary to Government, Health and Family
Welfare Department, Chennai-9, wherein the service particulars and proforma 1
and 2 particulars were enclosed showing the list of Medical Officers for
drawing a panel from among the Deans for the post of 'Director of Medical
Education' in respect of the panel year, 2015-2016. In the said 'Seniority
List' of Medical Officers, at Serial No.18, the present designation of
Dr.Vimala.R was mentioned as Dean and the Institution was described as
'Madras Medical College, Chennai'. In fact, at Serial No.21, the name of the
First Respondent/Writ Petitioner (Dr.Revwathy) was shown and her designation
was described as Dean-cum-Special Officer. In the Seniority List of Medical
Officers, at Serial No.38, the name of the Appellant in W.A.(MD)No.1301 of
2017 (Dr.Edwin Joe.A) was found and his present designation was mentioned as
Dean and the Institution's name was mentioned as Coimbatore Medical College,
Coimbatore.

10.7.In this regard, it is to be pointed out by this Court that it is
the stand of the First Respondent/Writ Petitioner that the Seniority list of
Medical Officers' is arrived at as per 'Civil Medical List' only as per
G.O.Ms.No.354, Health and Family Welfare (B2) Department, dated 23.10.2009.
In this connection, this Court, significantly points out that in the
G.O.Ms.No.354, Health and Family Welfare (B2) Department, dated 23.10.2009,
under the caption 'II.Director of Medical Education Side', it is mentioned as
under:-

?II. Director of Medical Education side:-

(i) The Medical Officers working in the Medical College Hospitals,
Institutions and dispensaries under the control of Directorate of Medical
Education shall come under the Director of Medical Education unit.

(ii) The Director of Medical Education will maintain the seniority list
of the doctors in this unit and will effect the promotions.

(iii) The Director of Medical Education unit?s seniority list will be
of two categories (1).General seniority- for all those doctors with MBBS and
diploma degree. (2).Specialist seniority- Speciality wise seniority for those
with master degree and or super speciality degree.

(iv) Both the general seniority and speciality seniority will be based
on their seniority in Civil Medical List. After getting the seniority in
their speciality, their future promotions would be based on the speciality
specific seniority and they would not have further lien on their seniority in
Civil Medical List for the purpose of promotion. However seniority in Civil
Medical List would be relevant only for the limited purpose of fixing inter?

se seniority relative to those joining their speciality in the Director of
Medical Education side. No equivalent promotion can be claimed by any
specialist based on inter?se Civil Medical List seniority on account of
doctors in some other speciality. Civil Medical List seniority would after
that be relevant only to fix the seniority in the speciality specific
seniority list, and after that, it is that seniority list which would operate
as illustrated in the annexure to this order.

(v) For higher level posts and posts in common pool, the Civil Medical
List seniority will be the basis for promotion.

(vi) Entry into Director of Medical Education side against particular
vacancy in any speciality should strictly be on the basis of Civil Medical
List seniority, provided the person is eligible otherwise.

(vii) Once a person joins any speciality under Director of Medical
Education, his inter-se seniority in the speciality would depend on the
person?s seniority in the Civil Medical List . The Civil Medical List would
continue to decide the speciality specific seniority, till the Associate
Professor level. However, any person getting promoted under any speciality
would not entitle other persons in other specialities to be promoted
similarly, if they are senior in the Civil Medical List to such a person.
Similarly, any person in any speciality would not be entitled to get a
promotion, based on a junior in the same speciality having got such a
promotion in the Director of Medical and Rural Health Services, Director of
Medical and Rural Health Services, (ESI) and Director of Public Health and
Preventive Medicine side.

(viii) A new grade viz., ?Senior Assistant Professor? equivalent to
Civil Surgeon (CS) shall be created and a Medical Officer should have spent
at least three years as Assistant Professor to become a Senior Assistant
Professor.

(ix) The combined grade of Associate Professor / Professor is split
into two, namely, Associate Professor and Professor corresponding to Senior
Civil Surgeon and Chief Civil Surgeon on Director of Medical and Rural Health
Services, Director of Public Health and Preventive Medicine side,
respectively. Thus, Assistant Professor, Senior Assistant Professor,
Associate Professor and Professor would be in the Pay band and Grade Pays
laid down in the G.O.(Ms). No. 234 Finance (Pay Cell) Department. Dated
1.06.2009, corresponding to the pre-revised scales of Rs. 9100/-, Rs.10000/-,
Rs. 12000/- and Rs.14300/- respectively.?

10.8.It comes to be known that when Dr.Geethalakshmi retired on
31.10.2016, Dr.R.Vimala, the then Director of Medical Education, had a left
over service of nine months (31.10.2016) and the First Respondent/Writ
Petitioner, who was the next senior in Civil Medical List to Dr.R.Vimala, had
two years one month left over service as on 31.01.2016. Indeed, as per
G.O.(MD)No.446, Health and Family Welfare (A1) Department, dated 18.03.2016,
the Government based on the estimate of vacancies, approved by it in
G.O.(D)No.1605, Health and Family Welfare (A1) Department, dated 14.12.2015,
had approved a regular panel consisting the name of Dr.R.Vimala (Medical
Officer), by relaxing Rule 8(b)(iv) of the Special Rules for Tamil Nadu
Medical Services in favour of an individual. It is to be borne in mind that
when Dr.R.Vimala, retried on 31.10.2016, the First Respondent/Writ Petitioner
had one year and four months left over service and she is to retire on
28.02.2018.

10.9.According to the First Respondent/Writ Petitioner, the
G.O.(D)No.1210, dated 07.09.2016, which estimated the vacancy for the post of
'Director of Medical Education' assigning on 31.10.2016, as one mentioned in
G.O.(D)No.948, Health and Family Welfare (A1) Department, dated 25.04.2017,
the fact of the matter is that notwithstanding the fact that vacancy was
estimated, no panel was prepared from 31.10.2016 to 25.04.2017 and even on
the date of estimated vacancy, the First Respondent/Writ Petitioner had a
left over service of more than one year.

10.10. At this juncture, this Court, worth recalls and recollects the
Division Bench Judgement of this Court, dated 09.11.2016, in W.A.(MD)No.1304
of 2016 filed by the First Respondent/Writ Petitioner (As an Appellant),
wherein at paragraph Nos.25 to 27, it is observed as under:-

?25.The First Respondent has also put up a Note to the Secretary to
the Government, Health and Family Welfare Department, in C.No.51354/A1/2015,
for relaxation of the relevant Rules in favour of the third Respondent as
she does not have a minimum period of left over service before her
retirement. The Secretary to the Government has noted/expressed his opinion,
which reads as follows:

"Already Dr.Vimala is the senior most. More importantly, in view of
merit, Dr.Vimala may be considered."

and as already pointed out, the impugned orders relaxing the Rule 8(b)(iv) of
the Special Rules for Tamil Nadu Medical Service and appointing her as the
Director of Medical Education came to be passed on 18.03.2016 by two separate
Government Orders.

26. This Court after carefully scanning through the above records and
on a careful analysis of the materials available on record, is of the
considered opinion that while appointing the third Respondent, the Sub-clause

(a) to Clause 4 in Part II of
Section 21
of the Tamil Nadu Medical Service
has not been complied with. However, it is brought to the knowledge of this
Court that the third Respondent retired from service on 31.10.2016 and
therefore, the subject matter of challenge no longer survives.

27. Since the post of the Director of Medical Education has fallen
vacant, the First Respondent is under a statutory obligation to draw a panel
for the appointment to the post of the Director of Medical Education and
consider the short listed candidates, strictly in accordance with the Sub-
clause (a) to Clause 4 in Part II of
Section 21
of the Tamil Nadu Medical
Service. We hope and trust that such exercise is to be done in a fair and
transparent manner and strictly in accordance with law.?

10.11. In the instant case, it transpires that the First
Respondent/Writ Petitioner had addressed a communication dated 14.11.2016, to
the Principal Secretary-Health and Family Welfare, Chennai, (Through the
Director of Medical Education, Chennai), wherein, she had stated that she is
the senior most Dean having all the required qualifications to fill up the
post of Director of Medical Education, which is vacant now etc. In fact, she
had mentioned in the said representation that she must be posted as
'Director of Medical Education' and also she mentioned that 'she had 29 years
of unblemished service'. Also, she had mentioned that she joined in the Tamil
Nadu Medical Service in the year 1987 (1984 TNPSC selection) and her Civil
Medical List number is 4018 (2005).

10.12. The First Respondent/Writ Petitioner submitted another
representation, dated 25.12.2016, addressed to the Chief Secretary,
Government of Tamil Nadu, Chennai (Through proper channel), wherein she had
referred to the earlier representation, dated 14.11.2016, addressed to the
Health Secretary to the Tamil Nadu Government. In reality, the First
Respondent/Writ Petitioner had averred in her afore stated second
representation, dated 25.12.2016, to the effect that she was promoted as Dean
in March 2013 and worked in 'Kanyakumari, Coimbatore and Madurai Medical
Colleges as 'Dean' and now working as Dean, Karur Medical College, Karur'.

10.13. The First Respondent/Writ Petitioner gave a third
representation, dated 25.12.2016 addressed to the Principal Secretary-Health
and Family Welfare, Chennai (Through the Director of Medical Education,
Chenani), wherein she had made a request that 'she must be posted as Director
of Medical Education'. The First Respondent/Writ Petitioner had addressed a
communication, dated 13.02.2017, addressed to the Chief Secretary, Government
of Tamil Nadu, Chennai, wherein she had mentioned about her earlier
representations, dated 14.11.2016, 25.12.2016, and 07.02.2017 and also stated
that she is the eligible senior most and meritorious candidate and requested
to consider her representation, apart from seeking personal interview,
wherein she may be allowed to present the facts.

10.14. The First Respondent/Writ Petitioner had addressed a letter in
reference No.499/E/17, dated 20.02.2017 (Through the Director of Medical
Education, Chennai) addressed to the Principal Secretary, Health and Family
Welfare, Government of Tamil Nadu, Chennai, whereby and where under, she had
categorically mentioned that she had made four representations i.e. on
14.11.2016, 25.12.2016, 07.02.2017 and 13.02.2017 and also stated that as
there was no positive response, she was subjected to much physical and mental
agony.

10.15. It is not out of place for this Court to make a pertinent
mention that Rule 4(a) to (c) of Part II of
Section 21
of Tamil Nadu Medical
Service Special Rules, speaks of 'promotion' and the same runs as under:-

"4.Promotion ? (a) Promotion to the following posts shall be made on
grounds of merit and ability, seniority being considered only where merit and
ability are approximately equal:

Director of Medical and Rural Health Services.

Director of Family Welfare.

Director of Medical Education.

Civil Surgeons in hospitals or in Stations; Personal Assistant to the
Director of Medical and Rural Health services, Medical Officer to the Chennai
City Police, Director of King Institute, Guindy and Deputy Directors, King
Institute, Guindy.

Principal, School of Indigenous Medicine.

Clinical and Non-Clinical Associate Professors.
Woman State Family Planning Officer.

State leprosy Officer.

Assistant State Drugs Controller.

Senior Drugs Inspector.

State Tuberculosis Officer.

Deputy Assistant Director, King Institute, Guindy.
Civil Surgeon Specialists.

Joint Directors of Medical and Rural Health Services and Joint Director of
Services.

Superintendent, Government Tuberculosis Hospital, Nagercoil.
Additional Director of Medical and Rural Health Services (Family Welfare).

(b) Members of the service holding posts, substantively or in an
officiating capacity, in the category of Non-Clinical Lecturers, Tutor/
Assistant Professors (including officiating Non-clinical Professors) or
Clinical Lecturers, Senior Residents / Assistant Professors (including
officiating clinical Professors) or Assistant Surgeons in the King Institute,
Guindy or Assistant Surgeons holding posts in Specialist Departments in which
it is considered necessary to retain them in the interests of continuity and
of the public may be promoted a supernumerary Civil Surgeons and for that
purpose the posts which they hold in the said categories shall be raised to
the status of supernumerary Civil Surgeons in Category 1 of Class 1 either
permanently or temporarily. The Government may decide, from time to time,
the period or periods for which the posts should be raised to the status of
supernumerary Civil Surgeons. So long as, such members hold the said
supernumerary posts of Civil Surgeons, the cadre of Category 1 of Class 1
shall be deemed to have been increased and the cadre of the category of Non-

Clinical Lecturers, Tutors / Assistant Professors, Clinical Lecturers or
Clinical Tutors or Assistants or Assistant Surgeons in the King Institute,
Guindy or Assistant Surgeons in the General Line shall be deemed to have been
reduced by the number of posts of supernumerary Civil Surgeons so held.

(c) Notwithstanding anything contained in rule 12, if a Medical
Officer, who is senior to another Medical Officer in the cadre of Assistant
Surgeons possesses the post-graduate qualification prescribed for the post
of Associate Professor (either Clinical or Non-Clinical) in a particular
speciality, but does not possess the teaching experience for the period
prescribed in that speciality anywhere, the Junior Medical Officer possesses
both the Post-Graduate qualification and the prescribed teaching experience
in the speciality, the Junior may be appointed temporarily in any future of
existing vacancy inthat speciality, and continued till the senior acquires
the prescribed teaching experience. On acquiring such teaching experience,
the senior Medical Officer shall, subject to sub-rule (a), be appointed as
Reader in the place of the junior or in any other existing vacancy and for
purposes of seniority in the cadre of Associate Professor, the Senior Medical
Officer shall be the senior.

Explanation ? For the removal of doubts, it is hereby declared that the
rule shall apply to all Medical Officers who may be on deputation for
training or higher service in India or abroad or who have been posted in
corporate institutions:

Provided that a Junior Medical Officer in the cadre of Assistant
Surgeons shall be the senior in the category of Reader in the particular
speciality as against the senior Medical Officer, if at the time of
promotions of the junior Medical Officer as Reader, the senior Medical
Officer does not possess the post-graduate qualification.

Explanation ? A Person shall be deemed to have acquired the post-
graduate qualification in a speciality on the next date of last examination
(which may include oral, written or practical examination"

10.16. It is to be noted that the Second Respondent (In W.A.(MD)No.1300
of 2017) was appointed as Dean on 18.03.2013, but the First Respondent/Writ
Petitioner was appointed as Dean on 21.03.2013. Therefore, the Second
Respondent claims that he is senior to the First Respondent/Writ Petitioner
in the panel seniority, in the post of Dean to be considered for promotion to
the post of Director of Medical Education following the panel seniority.

10.17. There is no two opinion of a prime fact that the post of
'Director of Medical Education' comes under Rule 3(a) (3) of
Section 21
Part
I of Tamil Nadu Medical Service Special Rules. As per Rule 3(a)(3) of Part I

Section 21
of the Tamil Nadu Medical Service Special Rules, the post of
Director of Medical Education is to be filled up by promotion from among the
officers holding the post of Deans of Medical Colleges, Director, King
Institute, Guindy and Directors of Upgraded Institutes etc.

10.18. In terms of Rule 4 of
Section 21
Part I of Special Rules for
Tamil Nadu Medical Service under the head 'Promotion', the promotion to the
post of Director of Medical Education shall be made on the basis of merit and
ability, seniority being considered only when merit and ability are
approximately equal. Rule 8-'Special Qualifications' of
Section 21
Part I of
Tamil Nadu Medical Service Special Rules, specifies qualifications for the
post of Director of Medical Education, which enjoins educational
qualifications and service qualifications, which includes administrative
experience for not less than two years period in one or more of the posts
mentioned therein, out of which, one year must be as a Dean of Medical
College.

10.19. Rule 12 (a) to (d) of
Section 21
Part I of Tamil Nadu Medical
Service Special Rules, deals with 'Seniority and Appointment as full member
in the cadre of Civil Surgeon' and the same runs as follows:-

"12.Seniority and appointment as full member in the cadre of Civil
Surgeons ? (A) Notwithstanding anything contained in General rule 35, the
seniority of Civil Surgeons shall be determined with reference to their rank
in the cadre of Assistant Surgeons. However, appointment as a full member of
the service in the following posts borne on the cadre of Civil Surgeons shall
be made with reference to the date of first regular appointment or promotion
to the particular category.

Director, Tuberculosis Institute and Tuberculosis Clinics and Professor of
Tuberculosis, Medical College, Chennai.

Director, King Institute, Guindy.

Deputy Director, King Institute, Guindy.

Non-Clinical Associate Professors.

Clinical Associate Professors.

The Deans of the Medical Colleges.

The Directors of Upgraded Institutes.

State Leprosy Officer.

State Tuberculosis Officer
Joint Director of Medical and Rural Health Services and Joint Director
of Health Services.

Additional Director of Medical and Rural Health Services (Family
Welfare).

(b) In case a member of the service referred to in sub-rule (b) of rule
4 is promoted as a Supernumerary Civil Surgeon in an officiating Capacity, he
shall, on the expiry of the period for which he was so promoted, revert to
the category from which he was promoted.

(c) No person shall be eligible for appointment as a full member of the
service in any of the posts of Supernumerary Civil Surgeons referred to in
sub-rule (b) of rule 4 unless his turn for such appointment arises in
accordance with his rank in the cadre of Assistant Surgeons.

(d) In case any Director of the Upgraded Institute, who does not attain
the age of 55 years before expiry of his existing term, he shall be confirmed
only when he is granted extension of service in the post of Director up to
the age of 55 years, or beyond. Such confirmation shall be with
retrospective effect."

10.20. In regard to the aspect of 'Civil Medical List Seniority' is
concerned, a clarificatory Government Order in G.O.Ms.No.245, Health and
Family Welfare (A2) Department, dated 30.10.2013, was issued by the State
Government in respect of Tamil Nadu Medical Service and Rule 4 (a) of the
said clarificatoy Government Order, in a crystalline fashion, points out that
the Civil Medical List Seniority will be taken into account, as and when
preparing the panel for the post of Senior Assistant Surgeon/Civil
Surgeon/Senior Civil Surgeon/Chief Civil Surgeon, in the Director of Medical
and Rural Health Services side and Associate Professor/Professor in the
Director of Medical Education side and as such, one cannot press into service
the ingredients of G.O.Ms.No.354, Health and Family Welfare (B2) Department,
dated 23.10.2009, in the considered opinion of this Court. Moreover, even as
per Clause 7 of G.O.Ms.No.354, Health and Family Welfare (B2) Department,
dated 23.10.2009, the Civil Medical List number has no sanctity beyond the
post of 'Associate Professor Level'.

10.21. It is to be pointed out that the term 'Seniority' in simple
English means a longer life than of another thing or person taken for
comparison. Insofar as the Government servant is concerned, it means 'the
length of service', if the service of an individual is longer than that of
another person, the first named is called 'Senior to the other'. An employee
must belong to the same stream before he can claim seniority vis-a-vis.

10.22. It is to be remembered that 'Seniority' is a comparative concept
between 'Employees', who are equally circumstanced. The question of
'Seniority' is to be determined with reference to the Rules in force on the
date of appointment to the service, as per decision of the Hon'ble Supreme
Court in
UNION OF INDIA v. S.S.UPPAL
reported in 1996 (2) SCC 168.

10.23. At this stage, this Court, cites the decision of the Hon'ble
Supreme Court in H.V.PARDASANI v. U*NION OF INDIA, reported in AIR 1995 SC
781, wherein it is observed that there is no dispute that in the absence of
any special provisions, regulating the determination of seniority, length of
continuous service in any particular grade would be the basis for determining
seniority in that grade etc.

10.24. In determining 'Inter se' seniority, of employees, the length of
actual service rendered in the same cadre or grade would be generally
accepted criterion. Furthermore, 'Seniority' can be a determinative factor in
consideration for promotion and it becomes an integral part of
Art.16(1)
of
the Constitution of India.

10.25. It cannot be forgotten that in the decision of Hon'ble Supreme
Court in
RAJBIR SINGH v. STATE OF HARYANA
reported in 'JUDGMENT TODAY' 1996
(1) SC 222, wherein it is observed that 'Persons who might be affected must
be made a party'.

Continuing further, it is to be pointed out that 'Gradation
List' has to be prepared in accordance with the 'Principles of Seniority'
laid down either statutory or by instructions or Rules and normally, the
validity of such a list is required to be judged with reference to such
'Principles of Seniority' as per decision of Hon'ble Supreme Court in
UNION
OF INDIA v. H.R.PATANKAR
reported in AIR 1984 SC 1587.

10.26. Apart from the above, it is to be pointed out that prior to the
publication of 'Gradation List', certain formalities are required to be
adhered. In this regard, 'Draft Gradation List' is to be prepared and then
circulated to the concerned employees, so as to invite
representations/objections from them. Thereafter, the concerned authority is
to consider the objections raised by the aggrieved individuals, ultimately,
the approved 'Gradation List' is to be published. Ordinarily, no reliance can
be placed on a 'Gradation List', unless it is circulated for the purpose of
inviting objections from the affected persons and this springs from the
'Principles of Natural Justice'.

10.27.
In fact, 'Redrawing of a Seniority' or 'Gradation List', without
any reason was held to be an ordinary one, as per decision of the Hon'ble
Supreme Court in
SUSHMA MUTREJA v. UNION OF INDIA
reported in AIR 2001 SC
2452.

10.28. One cannot brush aside a pivotal fact that 'Assigning of
Seniority' arises only in relation to employees, who are similarly placed
i.e. where they are functioning in the same rank, grade or cadre, beyond
doubt, 'Seniority' is a comparative or a relevant concept, in the earnest
opinion of this Court. Even in case of 'Selection Post', the 'Seniority' in
the 'Feeder Grade', from which, the selection is to be made, can be an
important factor, because employees of a given seniority are treated in the
zone of consideration while granting promotion to the selection posts, as per
decision of Hon'ble Supreme Court in
D.D.SHARMA (COL) v. UNION OF INDIA

reported in 1993 (1) SLR 584 (Delhi).

10.29. No wonder, the purpose of assigning seniority is to enable the
filling up of promotional posts. Although, under many statutory Rules or
administrative instructions, 'Seniority' is not a prime factor, in granting
promotion, e.g. when the Rules speak of Seniority-cum-Merit or Merit-cum-
Seniority, yet it is hard to find rules or instructions, which completely
ignore seniority in relation to 'Promotion'.

10.30.It is to be pointed out that an 'Executive Order' is to be passed
in conformity with the 'Rules'. In fact, the State Government's power to
issue Executive instructions is limited to filling up of the gaps or reaching
the area, which otherwise is not covered by the existing Rules. The Executive
power of the State, if it does not violate the Provision(s) of the
Constitution of India or any Law, it cannot be circumscribed.

10.31. As a matter of fact, 'Duty to act Judicially' will arise from
the very nature of function intended to be performed. If there is power to
decide and determine to the prejudice of an individual, 'Duty to act
Judicially' is very much implicit in exercise of such power. Furthermore, the
'Power of Judicial Review' is exercised to ensure that a person receives a
fair treatment and not to ensure that the conclusion with the authority
reaches is necessarily correct, in the eye of the Court.

10.32. It may be out of place for this Court to make a significant
mention that as per G.O.(Ms)No.99, Personnel and Administrative Reforms (A)
Department, dated 21.09.2015, the grievance petition should be redressed
within a maximum period of one month of its receipt and it should be with a
'Speaking Order' in the event of a redressal or rejection, if found
necessary. Besides this, in the afore stated Government Order, there is a
reference to W.P.No.20527 of 2014, dated 01.08.2014, wherein a direction was
issued to issue the Government Order directing all the concerned authorities
to redress the grievance petition within a maximum period of 30 days from the
receipt of grievance petition with a 'Speaking Order', in case for some
reason, additional time is required, the person who has made the
representation would be informed in writing for the extended period of time.

10.33. It is to be pointed out that a power of relaxation cannot be
utilised to give general exemption for compliance with regulations regardless
of Justice and Equity to make unqualified persons eligible for promotion, as
per decision in
LAKSHMAN v. ANDHRA PRADESH STATE ELECTRICITY BOARD
reported
in 1998 LAB IC 927 (AP).

The power of relaxation to be exercised in public
interest in a given case and there cannot be any whole sale relaxation, as
per decision of Hon'ble Supreme Court in
P.SADAGOPAN v. FOOD CORPORATION OF
INDIA
reported in AIR 1997 SC 2700.

10.34.
In fact, in the decision of Hon'ble Supreme Court in
JANKI
PRASAD PARIMOO v. STATE OF JAMMU AND KASHMIR
reported in AIR 1973 SC 930, the
Constitutional Bench of the Hon'ble Supreme Court observes that 'Selection
means that the man selected for promotion must be of merit. Where promotion
is by seniority, merit takes the second place, but when it is a selection,
merit takes first place and it is implicit in such a selection that the man
must not be just average'.

10.35. It is well known that promotion to a 'Selection Post' is not a
matter of right, which can be claimed merely by seniority, ordinarily in
considering the question of a public servant's claim for promotion to a
Selection Post, his seniority and merit will have to be considered. Where
the criterion is 'Merit-cum-Suitability' and after consideration and
evaluation merit and suitability of a junior are found to be superior, it was
held that 'Seniority' has no role to play, as per decision of the Hon'ble
Supreme Court in
Sarat Kumar Dash & Ors v. Biswajit Patnaik & Ors
reported
in 1995 SCC, Supl. (1) 434.

10.36.
In the decision of Hon'ble Supreme Court in
NIRANJAN PRASAD
SINHA v. UNION OF INDIA
, reported in AIR 2001 SC 2269, it is held that
'Seniority among persons holding similar posts in the same cadre has to be
determined on the basis of length of service, and not other fortuitous
circumstance'.

10.37. At this stage, this Court, pertinently points out that 'if there
is any omission to adhere to the procedure for making promotion, then the
promotion granted is liable to be cancelled, as per decision in
KAMESHWAR
PRASAD v. STATE OF BIHAR
, reported in 1995 (6) SCC 44.

10.38. A mere glance of the impugned common order of the Learned Single
Judge dated 20.09.2017, in W.P.(MD)No.3523 of 2017 and W.P.(MD)No.10257 of
2017, wherein at paragraph No.17, it is observed as under:-

"This Court, prima facie, is of the view that the directions issued by
the Honourable Division Bench in the aforesaid judgment have not at all been
adhered to by the First Respondent strictly in accordance with law, as the
First Respondent has given a go-by to the same while considering the third
Respondent for the promotion to the post of the Director of Medical
Education."

10.39. Also, in the aforesaid impugned common order in W.P.(MD)Nos.3523
and 10257 of 2017, dated 20.09.2017, at paragraph No.20, it is mentioned as
follows:-

"Further, this Court holds that the First Respondent while considering
the name of the third Respondent for the promotion to the post of the
Director of Medical Education, failed to record reasons much less plausible
reasons objectively as to the comparative merit and ability of the Medical
Officers and also as to the seniority of the Medical Officers, when their
merit and ability are approximately equal, based on which, the third
Respondent has been appointed to the said post. Moreover, as on the crucial
date, the petitioner was having the left over service of more than one year
and the administrative delay in preparing the panel cannot deprive the
petitioner of her promotion to the post of the Director of Medical Education.
Therefore, the impugned Government Orders require to be interfered with by
this Court in exercise of the powers under
Article 226
of the Constitution of
India."

10.40. In fact, in the common order dated 20.09.2017, in
W.P.(MD)Nos.3523 and 10257 of 2017 at paragraph No.12.5 and 14, it is
observed as follows:-

"12.5. However, on perusal of the draft order in G.O.(D)No.948, Health
and Family Welfare (A1) Department, dated 25.04.2017, this Court finds that
the words 'the merit and ability of the Medical Officers are equal', are
deleted and the words 'Dr.A.Edwin Joe is the senior most Dean and senior of
all promotional level. Further, he was the first to complete more than 10
years of teaching experience. Merit wise also he is the most meritorious
among the candidates in the panel.' are inserted.

14. However, this Court finds that the above grounds on which, the
third Respondent has been positively considered for the promotion to the post
of the Director of Medical Education, are not in accordance with Sub-Clause

(a) to Clause 4 in Part II of
Section 21
of the Tamil Nadu Medical Service.

Upon consideration of the relevant materials placed on record, this Court
holds that the date on which a candidate was appointed as a Dean, has no
relevance at all, while considering his/her name for the promotion to the
post of the Director of Medical Education."

10.41. Insofar as the observation made in G.O.(D)No.948, Health and
Family Welfare (A1) Department, dated 25.04.2017, to the effect that 'among
five Medical Officers, disciplinary action has been initiated against
Dr.A.L.Meenakshi Sundaram under Rule 17(b) of the Tamil Nadu Civil Services
(Discipline and Appeal) Rules', however, against charge memo, the above
Medical Officer has filed W.P.No.42367 of 2016 before the High Court of
Madras. In its interim order, dated 02.12.2017, the Hon'ble High Court of
Madras had directed the Respondents to consider the name of Dr.A.L.Meenakshi
Sundaram for promotion to the post of Director of Medical Education based on
inclusion of the name in the panel, which has reference to the impugned
charge memo, the Appellants' stand in W.A.(MD)No.1300 of 2017, is that the
Government had considered the eligibility of the Second Respondent
(Dr.A.L.Meenakshi Sundaram) without reference to the disciplinary action
initiated against him and ultimately, the Appellant in W.A.(MD)No.1301 of
2017 (Dr.A.Edwon Joe), was found meritorious among the candidates in the
panel and as per seniority in the cadre of Dean as well as meritorious, he
was appointed and posted as Director of Medical Education, as per
G.O.(D)No.950, Health and Family Welfare (A1) Department, dated 25.04.2017.

10.42. In the instant case, the First Respondent/Writ Petitioner has
taken a stand that the period of service as Dean by the Medical Officers was
not taken as an eligible criteria and the seniority in the Civil Medical List
is to be considered for promotion to the post of Director of Medical
Education and Dr.S.Geethalakshmi, Senior in the Civil Medical List was
appointed as Director of Medical Education, as per G.O.(D)No.123, Health and
Family Welfare (A) Department, dated 31.01.2010 and not based on her joining
date as Dean.

10.43. But the Second Respondent (In W.A.(MD)No.1300 of 2017), claims
that he is senior to the First Respondent/Writ Petitioner in the panel
seniority in the post of Dean to be considered for promotion to the post of
Director of Medical Education following the panel seniority, besides he being
a meritorious candidate even as per performance in Medical service. But the
Appellant in W.A.(MD)No.1301 of 2017 (Dr.A.Edwon Joe), takes a plea that as
per Sub Rule 8(b) of
Section 21
of the Tamil Nadu Medical Service Special
Rules, Part I, under the caption 'Special Qualifications' to the post of
Director of Medical Education, the administrative experience in the post of
Dean is very much relevant and apart from that, eligibility of one year left
over service prior to the date of retirement is must for the selection to the
said post. Furthermore, it is the contention of the Appellant (In
W.A.(MD)No.1301 of 2017) that the date of retirement of the First
Respondent/Writ Petitioner is 28.02.2018 and thereby she is not having one
year left over service as on the date of selection and appointment viz., on
25.04.2017.

10.44. In regard to the stand taken on behalf of the First
Respondent/Writ Petitioner that a panel of atleast two names should be got
approved as per G.O.(Ms.).No.368, Personnel and Administrative Reforms
Department, dated 18.10.1993, it is the plea of the Appellant in
W.A.(MD)No.1301 of 2017 (Dr.A.Edwin Joe), that 'two candidates' to be
selected is only to meet the 'Contingency' and just because one candidate was
selected, it is not an illegal one.

10.45. At this stage, this Court, relevantly points out that in terms
of Sub clause (a) to clause 4 in Part II of
Section 21
of the Tamil Nadu
Medical Service Special Rules, promotion to the post of Director of Medical
Education, shall be made on the grounds of merit and ability, seniority being
considered only where merit and ability are approximately equal. However, the
First Appellant/First Respondent (The Government of Tamil Nadu) in
W.A.(MD)No.1300 of 2017, took into consideration the date of promotion as
Dean for considering the seniority among the eligible officers. Obviously,
the First Appellant (The Government of Tamil Nadu) in W.A.(MD)NO.1300 of
2017, had not taken into consideration of a very primordial fact that the
then Director of Medical Education (Dr.S.Geethalakshmi) sent a panel for
promotion to the post of Director of Medical Education to the Secretary to
Government, Health and Family Welfare Department, mentioning the names of (1)
Dr.R.Vimala - one year left over service not available. Officer on Special
Duty (OSD) can be given; (2) Dr.S.Revathy - senior most Civil Medical List
eligible; (3) Dr.AL.Meenakshi Sundaram - Eligible; and (4) Dr.Edwin Joe -
Eligible. In fact, the then Director of Medical Education had clearly
mentioned that the First Respondent/Writ Petitioner is the senior most in the
Civil Medical List etc.

10.46. Admittedly, before the Learned Single Judge, in W.P.(MD)No.3523
of 2017 (filed by Dr.S.Revwathy as Writ Petitioner-First Respondent in
W.A.(MD)No.1300 of 2017), the Second Respondent in W.A.(MD)No.1300 of 2017
(Dr.A.L.Meenakshi Sundaram) was not a party to the proceedings. Likewise, the
said Dr.A.L.Meenakshi Sundaram was not arrayed as party to the proceedings in
W.P.(MD)No.10257 of 2017.

10.47. In fact, the then Director of Medical Education, Kilpauk,
Chennai in the communication addressed to the Principal Secretary to
Government, Health and Family Welfare Department, Secretariat, Chennai, dated
27.09.2016, had mentioned in Serial No.1, the name of Dr.A.Edwin Joe,
Coimbatore Medical College, Coimbatore (The Appellant in W.A.(MD)No.1301 of
2017), as Civil Medical List No.2005, as 4821 and stated that he was promoted
as Dean in the panel year 2009-2010. As a matter of fact, the First
Respondent/Writ Petitioner (Dr.S.Revwathay, Dean cum Special Officer-Karur
Medidcal College, Karur) was shown as serial No.2005, as '4018' and mentioned
the panel year, in which she was promoted as Dean as 20.12.2013. Indeed, the
Second Respondent in W.A.(MD)No.1300 of 2017 (Dr.A.L.Meenakshi Sundaram,
Dean, Thiruvarur Medical College, Thiruvarur) was mentioned as Civil Medical
List-2005 '4220' and the panel year, in which, he was promoted was mentioned
as 20.12.2013. In the annexure-I of the said communication, the date of
joining as Dean in respect of the Appellant in W.A.(MD)No.1301 of 2017
(Dr.A.Edwin Joe) was mentioned as 03.03.2010 and the First Respondent/Writ
Petitioner (Dr.S.Revwathy) was mentioned as 21.03.2013 and the Second
Respondent in W.A.(MD)No.1300 of 2017 viz., Dr.A.L.Meenakshi Sundaram was
mentioned as 18.03.2013.

10.48. A perusal of the draft Order-1, in respect of G.O.(D)No.948,
Health and Family Welfare (A1) Department, dated 25.04.2017, this Court, at
page 579 of the file, shows that after the words, 'the Government have again
examined merit and ability of the above five Medical Officers and found that
the words 'merit and ability of the Medical Officers are equal', had been
scored out and on the left hand side of C.No.29643/A1/16, it is written in
black ink as under:-

"Dr.A.Edwin Joe is the senior most Dean and senior of all promotional
level. Further, he was first to complete more
10 years
than / teaching experience. Merit wise also, he is the meritorious among the
candidates in the panel."

10.49. Further, at page No.579, in C.No.29643/A1/16, this Court, on
perusal, finds that after the words 'according to the seniority in the cadre
of Dean, the words 'and as well as meritorious' (written in black ink), it is
mentioned as Dr.A.Edwin Joe (The Appellant in W.A.(MD)No.1301 of 2017) is the
senior most medical officer among the five Medical Officers. Even though, the
aforesaid scoring out of the words 'merit and ability of the Medical Officers
are equal', do find a place in the draft order in G.O.(D)No.948, Health and
Family Welfare (A1) Department, dated 25.04.2017, at page 579 of the file in
C.No.29643/A1/16 and notwithstanding the fact that on the left hand side
margin of the said file, the words beginning from Dr.A.Edwin Joe is the
senior most Dean etc., as afore stated, were written in black ink, they are
clearly an interpolation and significantly, even in the draft G.O.(D)No.948,
Health and Family Welfare (A1) Department, dated 25.04.2017, no signature of
the official who made that scoring of or writing of the words as afore
stated, is seen and the absence of even the short initial or signature of the
concerned person/official, who had made correction, as described above,
clearly creates a simmering doubt in the mind of this Court and to put it
succinctly, the scoring out of the words beginning from 'the merit and
ability of the Medical Officers are equal' and the inserted writings made on
the left hand side margin of the page No.579 in C.No.29643/A1/16, to say the
least, does not inspire the confidence of this Court. Therefore, this Court,
comes to an irresistible and inescapable conclusion that the words
'Dr.A.Edwin Joe is the senior most Dean and senior of all promotional level
etc.' are clearly interpolated and the same cannot be brushed aside in a
lighter fashion.

10.50. In view of the forgoing discussions and reasons, this Court,
opines that the name of Dr.A.Edwin Joe (The Appellant in W.A.(MD)No.1301 of
2017) was positively recommended for promotion to the post of Director of
Medical Education and the same is not legally tenable, in the considered
opinion of this Court.

10.51. On the crucial date, the First Respondent/Writ Petitioner was
having a left over service of more than one year and the administrative delay
in preparing the panel cannot act as a detriment in denying the chances of
her promotion to the post of Director of Medical Education. Apart from that,
an authority must pass a reasoned order and definitely, there must be an out
line of process of reasoning, which will have an appearance of justice. An
unreasoned order may be a just, but may not appear to be so, to an
'Aggrieved Person'.

10.52. Insofar as the present case is concerned, Rule 4(a) of Part II
of
Section 21
of the Tamil Nadu Medical Service Special Rules, viz., 'the
promotion to the post of Director of Medical Education shall be made on the
ground of merit and ability, seniority being considered only where merit and
ability are approximately equal' were not considered in proper real
perspective by the First Appellant in W.A.(MD)No.1300 of 2017/First
Respondent and in fact, the First Appellant/First Respondent had considered
the Appellant in W.A.(MD)No.1301 of 2017 (Dr.A.Edwin Joe) positively for
promotion to the post of Director of Medical Education, which is not in
accordance with the afore stated Rule 4(a) in Part II of
Section 21
of the
Tamil Nadu Medical Service Special Rules.

10.53. Furthermore, the impugned G.O.(D)No.948, Health and Family
Welfare (A1) Department, dated 25.04.2017, does not spell out tangible
reasons in a qualitative, quantitative and an objective fashion, in regard to
the consideration of comparative merit and ability of the Medical Officers
and also as to the seniority of Medical Officers, when their merit and
ability are approximately equal. As a matter of fact, the impugned
G.O.(D)No.948, Health and Family Welfare (A1) Department, dated 25.04.2017,
does not speak about the aspect of the First Respondent/Writ Petitioner
having left over service of more than one year on the crucial date, viz.,
15th March of the year, in which, the selection for appointment is made, as
per Sub Rule 8(e) of
Section 21
of the Tamil Nadu Medical Service Special
Rules. Moreover, in regard to the filling up of post of Head of Department,
to fill up a single vacancy in respect of Head of Department, the claims of
the first five qualified candidates in the seniority list should be
considered and a panel of atleast two names should be got approved in order
to meet any contingency, as per G.O.Ms.No.368, Personnel and Administrative
Reforms Department, dated 18.10.1993.

10.54. In the present case, the spirit and tenor of approving the panel
of atleast two names in order to meet any contingency, as per requirement of
G.O.Ms.No.368, Personnel and Administrative Reforms Department, dated
18.10.1993, was not addressed to and merely the Appellant in W.A.(MD)No.1301
of 2017 (Dr.A.Edwin Joe) was selected, which is nothing but a procedural
irregularity, which vitiates the selection.

10.55. When the selection is not in accordance with Rule 4(a) of

Section 21
of the Tamil Nadu Medical Service Special Rules, then, this Court
is of the considered view that the entire subject matter in issue is to be
remitted back to the Appellants in W.A.(MD)No.1300 of 2017, for carrying out
the selection de novo in accordance with service rules based on comparative
merit and ability of the panelists in accordance with law, as opined by this
Court.

10.56. Turning now to the plea that a Court of Law cannot issue any
positive direction of promotion being given to the concerned person, at this
stage, this Court, relevantly points out the decision of the Hon'ble Supreme
Court in STATE OF MYSORE VS C. R. SESHADRI & ORS reported in AIR 1974 SC 460,
wherein it is observed that 'In our constitutional scheme, a broad three-fold
division exists. The power to promote an officer belongs to the Executive and
the judicial power may control or review government action, but cannot extend
to acting, as if, it were the Executive. The Court may issue directions, but
leave it to the Executive to carry it out. The judiciary cannot promote or
demote officials, but may demolish a bad order of Government or order
reconsideration on correct principles.'

10.57. It is to be pointed out that the proper course for a Court of
Law to adopt is to direct the authorities concerned that the case of an
individual be considered afresh by the selection committee based on Rules and
Regulations and in accordance with law. In short, in exercising its power of
judicial review, the High Court cannot give direction to the authorities, in
regard to the method for selection or promotion. To put it differently, if a
promotion is denied wrongfully, then a Court of Law will not only direct re-
consideration of the case, but may issue necessary directions.

10.58. It is not out of place for this Court to make a pertinent
mention that even if a Court of Law or Tribunal comes to a conclusion that
denial of promotion to a individual was unjustified, since it was passed on
the basis of adverse remarks, which were vague or not sufficient, it is not
competent to direct the authorities to grant promotion to the concerned
employee, but can give directions for reconsideration of the case in
accordance with law, as per the decision of the Hon'ble Supreme Court in
STATE OF MADHYA PRADESH VS SRIKANT CHAPHEKAR reported in AIR 1993 SC (WEEKLY)

129. 11.Conclusion:-

Be that as it may, on a careful consideration of respective contentions
and on an over all assessment of the surrounding facts and circumstances of
the instant case, in a cumulative manner, this Court, comes to an
irresistible conclusion that the G.O.(D)No.948, Health and Family Welfare
(A1) Department, dated 25.04.2017, had not weighed the pros and cons of
comparative merit and ability of the Medical Officers coupled with their
seniority and when the First Respondent in W.A.(MD)Nos.1300 and 1301 of
2017/Writ Petitioner pleads that she is senior to the Second Respondent in
W.A.(MD)No.1300 of 2017 and the Appellant in W.P.(MD)No.1301 of 2017, the
same was not reflected in a qualitative and quantitative terms in the
aforesaid Government Order and besides that, when the Second Respondent in
W.A.(MD)No.1300 of 2017 has come before this Court to take stand that he is
the most meritorious candidate that can be borne out of records; when the
Appellant in W.A.(MD)No.1301 of 2017, contends that his appointment is made
on merit and ability, the seniority has no priority; further that the
administrative experience in the post of Dean, is not relevant to the post of
Director of Medical Education, which is contrary to Service Rule
12(8)(b)(iii); also that in the note file bearing C.No.29643/A1/16 at page
579, certain insertions made in black ink etc., do not inspire the confidence
of this Court; when the Appellant in W.A(MD)No.1301 of 2017, comes out with a
plea that he is senior to the First Respondent in W.A.(MD)Nos.1300 and 1301
of 2017/Writ Petitioner; in short, when the Appellant in W.A.(MD)No.1301 of
2017, was mentioned by name, as the senior most Dean and senior of all
promotional level in the note file in C.No.29643/A1/16 at page 579, as afore
stated etc., by scoring out the words 'merit and ability of the Medical
Officers are equal' and when the words 'meritorious also the Appellant in
W.A.(MD)No.1301 of 2017 was mentioned as he is the senior most meritorious
among the candidates in the panel' by way of interpolation/insertion, this
Court, based on equity, fair play, justice and good conscience and even as a
matter of prudence, sets aside the G.O.(D)No.948, Health and Family Welfare
(A1) Department, dated 25.04.2017 and the consequential G.O.(D)No.950, Health
and Family Welfare (A1) Department, dated 25.04.2017, to prevent an
aberration of justice and to promote substantial cause of justice. Further,
this Court, directs the First Appellant in W.A.(MD)No.1300 of 2017/First
Respondent, to re-consider the case of the First Respondent in
W.A.(MD)Nos.1300 and 1301 of 2017/Writ Petitioner, the Second Respondent in
W.A.(MD)No.1300 of 2017 and the Appellant in W.A.(MD)No.1301 of 2017 afresh
for promotion to the post of Director of Medical Education, in a 'Fair',
'Free',

'Just', 'Impartial', 'Unbiased', 'Dispassionate manner' and that too with an
open mind, and to pass necessary qualitative, quantitative and tangible
reasons by evaluating the comparative merit, ability and seniority etc.,
ofcourse, in accordance with Law/Rules and Regulations, within a period of
six weeks from the date of receipt of a copy of this Judgment. Insofar as the
observation of the Learned Single Judge in issuing positive direction in
W.P.(MD)No.10257 of 2017, dated 20.09.2017, to the First Respondent (i.e. The
Government of Tamil Nadu, Rep. by its Principal Secretary, Health and Family
Welfare Department - The First Appellant in W.A.(MD)No.1300 of 2017) to grant
promotion to the First Respondent/Writ Petitioner, as Director of Medical
Education with all consequential benefits, as she is due to retire in
February, 2018, are held to be incorrect, in the eye of Law and accordingly,
they are set aside to prevent an aberration of Justice.

12.With the aforesaid Direction(s) and Observation(s), these Writ
Appeals stand disposed of. No costs. Consequently, connected Miscellaneous
Petitions are closed.

To

1.The Government of Tamil Nadu,
Represented by its Principal Secretary,
Health and Family Welfare Department,
Fort St.George, Chennai ? 600 009.

2.The Director of Medical Education,
Kilpauk,
Chennai ? 600 010.

3.The Dean,
Government Tiruvarur Medical College and Hospital,
Tiruvarur.

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