Judgment:
1. The applicants in all the three original applications have sought to quash the proceedings in A-22012/14/06 dated 12.9.2006, while the applicants in O.A. 128/2007 seek for a consequential direction to respondents 1 and 2 to consider and appoint any of the applicants herein as Additional Director CGHS, Chennai in the place of the third respondent in conformity with the directions of the Hon'ble Supreme Court as contained in the case of Dr. P.P.C. Rawani and Ors. v. Union of India Civil Appeal No. 3519/1994 with all attendant benefits; and for such further or other relief or reliefs as this Hon'ble Tribunal deems fit in the circumstances of the case and thus render justice.
2. As the facts and circumstances in all the three O.As. as also the relief sought for are similar, the three O.As. are disposed of by this common order.
3. The applicants in O.As. No. 891 and 894/2006 were appointed as Medical Officer on 11.10.1977 and 10.6.1977 and presently working as Chief Medical Officer (Non-Functional Selection Grade) and Senior CMO (Super Time Administrative Grade) respectively. They were appointed after interview by Selection Committee in the Group 'A' through the Union Public Service Commission.
4. The applicants in O.A. No. 128/2007 were originally appointed as regular doctors through Union Public Service Commission in the year 1977, 79 etc. as Medical Officers thereafter they were promoted as Senior Medical Officers, Chief Medical Officers and C.M.O. (NFSG) on various years. The first applicant in this O.A. has been further promoted as Senior Administrative Grade in May 2006.
5. According to the applicants, the Union of India after recommendations of the Third Pay Commission had merged the Group 'A' and Group 'B' services. They stated that the conflict between the Group 'A' and 'B' officers were resolved by the Hon'ble Supreme Court in the case filed by Dr. P.C.C. Rawani and Ors. V. UOI and Ors.
, wherein it was stated that they were the regularly recruited doctors and certain guidelines were also given in that order which were to be implemented by the respondents. The applicants submitted that without following the guidelines and directions issued by the Hon'ble Apex Court in Dr. P.C.C. Rawani's case the respondents had acted in violation of the said order after the retirement of one Dr. G.B. Naidu who was Additional Director, CGHS, Chennai, on 30.6.2005 which is a regular vacancy and which has to go to regularly appointed Doctors. Instead of that one Dr. Elizabeth Mathews, the regularised CMO (NFSG) has taken over charge as Additional Director CGHS in contravention of the Hon'ble Apex Court's order, where it was clarified that the existing regular post would go only to the regularly appointed doctor.
6. The applicants in O.A. No. 128/2007 further submitted that the administration has been maintaining two separate seniority lists based on the Hon'ble Apex Court inDr. P.C.C. Rawani's case for regularly appointed doctors like them and the regularised doctors who were earlier appointed as ad hoc doctors in Group 'B' and subsequently regularised as Group 'A' after merger of the two scales on the recommendations of the Third Pay Commission. As per the specific directions in sub-para 4 of the Hon'ble Apex Court's order in Dr.
P.C.C. Rawani's case, regularised doctors are to be given promotions only in supernumerary posts to be created for regularised doctors and regular doctors' promotions are to be given in the existing regular posts. The administration has been following the said directions and all promotions have been effected in two distinct streams as between.
regular and regularised doctor.
7. The first respondent by order dated 12.4.2006 promoted the third respondent to the Supertime Administrative Grade along with several doctors in the regularised side. Some of the applicants were promoted in the regular side by order dated 24.4.2006. The third respondent on being granted promotion by order dated 30.8.2006 was posted as Senior C.M.O. Perambur, CGHS Chennai, which post falls within the regularised side. However, the said posting order subsequently came to be superseded by the present impugned order dated 12.9.2006. According to the impugned order, the third respondent has been appointed to the post of Additional Director, CGHS, Chennai instead of the original posting at Peiambur CGHS. The applicants contended that the posting of the third respondent as Additional Director, CGHS Chennai is impermissible because the said post is a regular post and not available for the third respondent as per the specific directions of the Hon'ble Apex Court The third respondent being a regularised doctor can be only posted against the supernumerary post in accordance with the directions of the Hon'ble Apex Court.
8. The applicants stated some of them have represented against the said posting of third respondent as Additional Director to the respondents who has passed the impugned order but without any response. The appointment of the third respondent as Additional Director over looking the claim of the doctors from the regular side is in total contravention of the directions of the Hon'ble Apex Court and such actions on the part of the authorities cannot advance cause of administration and public interest. The applicants in O.A. No. 128/2007 further added that the Principal Bench in its order dated 2.2.2007 had ruled that the posting of regularised doctors as Additional Director is impermissible and only regular doctors can be posted. The denial of appointment to the regular doctors in spite of specific directions from the Hon'ble Apex Court and the instructions issued by the Ministry is violative of doctrine of 'Promissory Estoppal' and the 'Principle of Legitimate Expectations' and therefore illegal and hence the O.A.9. The respondents have filed separate reply, more or less on the same lines in the 3 O.As., denying the averments made in the O.As. They had also traced the background of recruitment of Group 'A' and 'B' officers directly through UPSC and on adhoc basis respectively. According to them, the status of the doctors appointed onadhoc basis (Group 'B', commonly known as regularised doctors) was finally settled by the Hon'ble Apex Court in their order dated 29.10.1991 in Dr. P.P.C. Rawani and Ors. v. UOI and Ors. The Hon'ble Apex Court in the said order directed the Govt. to regularise the appellants regularised doctors) in Group 'A' Post of the Central Health Service, maintain separate seniority list of these officers, create supernumerary posts and promote these officers on the basis of the seniority list of these officers against the supernumerary posts at par with promotional avenues available to those appointed through UPSC. The Apex Court also clarified that no promotion will be given to any of the appellants in the existing vacancies which will go only to the regularly appointed officers.
10. The respondents contended that the Ministry of Health, and Family Welfare implemented the orders of the Hon'ble Apex Court and regularised officers have also got promotions from Medical Officers to Senior Medical Officers, Senior Medical Officers to Chief Medical Officers, Chief Medical Officers (NFSG) to Senior Administrative Grade.
While promoting these regularised officers upto CMO (NFSG) supernumerary posts were not created as regularised doctors were adjusted on the combined strength of Medical Officers, Senior Medical Officers, Chief Medical Officers and CMO (NFSG) which are interchangeable.
11. They added that in terms of CHS Rules, 1996 as amended from time to time 163 SAG posts have been sanctioned. In compliance of the judgment of the Hon'ble Apex Court, some regularised doctors have been promoted as SAG vide order dated 12.4.2006 by creating supernumerary posts. Some of the regularised doctors have been posted against the posts which have been identified for being manned by SAG level officers and which were lying vacant. The CGHS Chennai has 6 sanctioned posts including Additional Director, CGHS Chennai of SAG level. Consequent on the superannuation of Dr. G.B. Naidu, Dr. Elizabeth Mathews, though from the regularised side officer and working as Chief Medical Officer (NFSG), being the senior most officer in CGHS Chennai was handed over the charge of the post of Additional Director, CGHS Chennai. The criteria and bench mark for promotion of SAG in regular and regularised side are similar, as also the pay scale and entrusting the duties and responsibilities to regularised SAG Officers commensurate with the pay scale with the scale of pay attached to the post is justified as it fulfills the administrative requirement.
12. Further the Hon'ble Apex Court in its judgment in Dr. P.P.C.Rawani's case has only said that regularised officers cannot be given promotion against the vacancies meant for regular officers. Accordingly supernumerary posts were created for promotion of regularised officers.
Nowhere has it been directed that regularised doctors cannot be assigned duties and responsibilities commensurate with the pay scale.
The judgment nowhere specified for not posting regularised officers against the regular posts.
13. In this connection, the respondents mentioned that the issue of assigning -administrative responsibilities to the regularised officers was earlier considered by the Apex Court and the Court vide its order dated 27.2.1998 held that the observations of CAT Allahabad that the directly recruited doctors alone should be given administrative responsibilities irrespective of seniority was not in order. The Apex Court set aside the order of the CAT Allahabad and stated that the impugned letter before the Tribunal did not suffer from any illegality.
Further there is no mention in the judgment of 29.10.1991 of the Hon'ble Apex Court that the regularised officers on promotion cannot occupy cadre posts. In view of the above submissions, posting of Additional Director, CGHS, Chennai from amongst the SAG level officers of regular and regularised side (as both were available) was considered in detail in the Ministry and in view of the fact that Dr. (Mrs) Elizabeth Mathews is the senior most (SAG with effect from 18.2.2005) in comparison to Dr. T. Krishnan (SAG w.e.f. 24.4.2006) and other SAG Officers at CGHS Chennai Dr. Madiyalagan (SAG w.e.f. 24.4.2006) and Dr.
A. Vatsala (SAG w.e.f. 1.5.2000) who has since retired, Dr. Elizabeth Mathews was posted as Additional Director after duly considering the representation received from the applicants. However, this does not come in the way of the above mentioned two regular SAG officer from their right to hold a SAG post as these two are also holding SAG level posts in CGHS, Chennai. In view of the submissions made above the respondents pleaded for the dismissal of the O.As. as devoid of merit.
14. We have heard the learned Counsel for the applicants and the respondents and perused the relevant records carefully.
15. Both the learned Counsel for the applicants in the three O.As.
strenuously argued mat there are two clear streams of doctors in CGHS namely 'regular' and 'regularised' doctors and only regular.doctors are posted to regular posts, while the regularised doctors are posted against supernumerary posts based on the decision of the Hon'ble Apex Court in P.P.C. Rawani's case and this has been strictly practiced by the respondents for the last 16 years, since the Hon'ble Apex Court gave its decision on 29.10.1991 and without any valid reason the respondents have changed the time tested practice for the first time, by posting regularised doctors in regular post instead of in the supernumerary posts though such a post was specially created as per order dated 30.8.2006 for respondent No. 3 and also in another case in Delhi and as the directions of the Hon'ble Apex Court's order dated 29.10.1991 is clearly violated in this case and as the action of the respondents is not an isolated instance of posting but affecting the future of regular doctors by creating a precedent much against the directions of the Hon'ble Apex Court in P.P.C. Rawani's case and the respondents are trying to make a distinction between promotion and posting in an artificial manner against the spirit of the Hon'ble Apex Court order of 1991 and the respondents are planning to issue orders making the post of Director as supernumerary to set right the mistake of posting supernumerary doctors from regularised line in the regular post for all these reasons the action of the respondents which is against the Hon'ble Supreme Court order in Dr. P.P.C. Rawani's case is clearly illegal and hence cannot be sustained.
16. The learned Counsel for the respondents however, stated that the impugned order is the posting order and not a promotion order and the Hon'ble Apex Court has not said anything regarding posting but has only decided on the promotion prospects in Dr. P.P.C. Rawani's case and the respondents were not posting regularised doctors in regular post of administration so far because none has reached the position as the third respondent, herein, and also indicated that the order of the Principal Bench in O.A. No. 1947/2006 dated 2.2.2007, has been granted stay by the Hon'ble High Court of Delhi and further the posting of regularised doctors as "Director" in Delhi has been upheld by the Division Bench Principal, Bench in its order dated 9.3.2007 in O.A. No.2474/2006 and as the promotion of the applicants will not be affected as they are already in equivalent scale, and so the question of promotion coming in the way of regular doctor because regularised doctors being posted to regular posts cannot be an issue and for these reasons he contended that the O.As. are devoid of merit.
17. At this stage, it is to be recorded that the main issue in these O.As. need to be decided by this Tribunal expeditiously in accordance with the directions of the Hon'ble High Court of Madras in W.P. Nos.
50091 and 50092/2006 vide order dated 13.3.2007 and hence we proceed with the main O.As. as under.
18. The submissions made by the learned Counsel for the respondents regarding the decision of the Division Bench of the Principal Bench in O.A. No. 2474/2006 dated 9.3.2007 is entirely on a different matter, namely, regarding transfer of the Director Health Services to Medical Superintendent, DDU Hospital, Delhi by a regularised doctor and the applicant therein being a regular doctor. The issue in the said O.A. is of transfer as stated by the order dated 9.3.2007 itself as under: The primary issue which needs consideration in the present case is whether applicant has legal and vested right to continue as Director, Health Services? As noticed herein above, the law on the said subject is well settled that Courts/Tribunals cannot be used as an appellate forum to decide transfer. We are of the view that the present is the case of pure posting and transfer and not of 'promotion'. Who should be posted where, is well within the domain of executive Govt. Courts/Tribunals are not appellate forums to decide posting and transfers on administrative grounds....
In view of the settled law, that no official has vested right to continue in the post concerned indefinitely. Accordingly we find no merit and justification in the claim laid by the applicant.
19. Based on the above, the Principal Bench refused to interfere with the impugned order dated 23.11.2006 transferring the applicant, a regular doctor from the post of Director, Health Services to Medical Superintendent, DDU Hospital, Delhi. Thus the said O.A. referred supra is essentially on transfer and it has nothing to do with the issues in the present O.As.
20. Having heard the learned Counsel for both sides, we notice that the fundamental issue to be looked into in these O.As. is, whether the respondents have infringed the directions of the Hon'ble Apex Court orders in Dr. P.P.C. Rawam's case dated 29.10.1991, keeping in view also Hon'ble Apex Court order in Union of India and Anr. v. Dr. Akilesh Chandra Agarwal and Ors. order dated 27.2.1998, .
21. The respondents have relied on the order dated 27.2.1998 of the Hon'ble Apex Court in Union of India and Anr. V. Dr. Akilesh Chandra Agarwal, (supra), to support their claim that assigning administrative responsibilities to regularised officers, was considered by the Hon'ble Apex Court and held that the observations of the CAT Allahabad Bench that directly recruited doctors alone should be given the administrative responsibil ities irrespective of the seniority was not in order and also the Hon'ble Apex Court order dated 29.10.1991 in Dr.
P.P.C. Rawani's case does not mention that the regularised officers on promotion cannot occupy cadre posts. In this regard the order of the Hon'ble Apex Court in Dr. P.P.C. Rawani's case are referred to as under: 8. From the narration of the facts, it is evident that the appellants, who are to be considered as regularised doctors, have consistently succeeded before this Court at every stage in establishing their seniority. As noticed above, this Court while giving directions in unmistakable terms has stated that the regularised doctors will take their seniority on and from 1.1.1973 or the date of their first initial appointment in the service (though as ad hoc Group 'B' doctors), whichever is later. In view of this direction read with directions 2 and 3 (supra), which was arrived at after a prolonged discussion, the view taken by the Tribunal that the impugned letter dated 17.10.1993 was in violation of the directions given by this Court is totally uncalled for.
Likewise, the view taken by the Tribunal that those appointed in the supernumerary posts cannot claim the administrative powers as that will go only with regular posts is also wrong. The Tribunal treated supernumerary posts as different one from the regular posts. This view of the Tribunal cannot be sustained in view of a decision of this Court in D.K. Reddy and Anr. v. UOI and Ors. .
This Court while considering a similar question repelled an argument similar to the view taken by the Tribunal by observing as follows: As a result of such an exercise, if need arose appellant No. 1 could be treated to have been holding supernumerary post in Junior Time Scale Grade of Group 'A' posts and in all other promotional cadres.
He cannot be treated to be outside the sanctioned strength of posts in Junior Time Scale grade of Group 'A' or other promotional posts as contended by learned Counsel for respondents. Otherwise, the very creation of supernumerary posts would become otiose and meaningless.
9. The two reasons given by the Tribunal to hold the impugned letter as not sustainable in law, cannot be accepted as correct one. It is not in dispute that there was no quarrel between the two groups regarding the seniority or promotion. Both sides agreed that so far as promotion and seniority are concerned, they are given in accordance with the directions of this Court, but only regarding the administrative responsibilities/powers the directly recruited doctors claimed that they alone should be given such administrative powers irrespective of the seniority which was accepted by the Tribunal. We do not think that the Tribunal was right in conceding the claim of the directly recruited doctors on this aspect.
10. In the result, the order of the Tribunal is set aside and the letter impugned before the Tribunal does not suffer from any illegality. The appeals are allowed. There will be no order as to costs.
22. Thus we find that the Hon'ble Apex Court had upheld the fact that the supernumerary posts are not different from regular post and that the administrative responsibilities/powers cannot be vested only with the directly recruited doctors and regular doctors claim that they alone should be given such administrative powers irrespective of seniority was not in order. Further, this order of the Hon'ble Apex Court reiterated the decision of Hon'ble Apex Court in Dr.P.P.C.Rawani's case when their Lordships observed that "Both sides agreed that so far as promotion and seniority are concerned, they are given in accordance with the directions of this Court". Thus, it is settled that the regularised officers can also be vested with administrative responsibilities/powers and at the same time their promotion and seniority has to be made in accordance with the directions given by the Hon'ble Apex Court as detailed in the order dated 29.10.1991 in Dr.
P.P.C. Rawani's case which lays down the future path of promotion and seniority for the regular and regularised doctors as finally settled law, as under: 4. In view of this, we direct that the following proposal be implemented by the Department by way of giving effect to the order of this Court in C.A. 3519/ 1984 dated April 1987 and the subsequent clarificatory orders passed by this Court: 1. Each of the appellants will be treated as regularised in Group 'A' of the Central Health Service from 1.1.1973 or the date of his first initial appointment in the service (thought as ad hoc Group 'B' doctor) whichever is later.
2. In order to ensure that there is no disturbance of the seniority and the promotional prospects of the regularly recruited doctors there will be a separate seniority list in respect of the appellants and their promotions (about which directions are given below) shall be regulated by such separate seniority list and such promotions will only be in supernumerary posts to be created as mentioned below: 3.(a) Each of the appellants will be eligible for promotion to the post of Senior Medical Officer or Chief Medical Officer or further promotional posts there from taking into account his seniority in the separate seniority list which is to be drawn up as indicated above.
(b) The promotion of any of the appellants to the post of Senior Medical Officer, Chief Medical Officer and further promotional post there from will be on par with the promotion of the regularly recruited doctor who is immediately junior to the concerned appellant on the basis of their respective dates of appointment. In other words, if a regularly recruited doctor, on the basis of the seniority list maintained by the Department, gets a promotion as Senior Medical Officer or Chief Medical Officer or further promotion thereafter, then the appellant who was appointed immediately earlier to him will also be promoted as a Senior Medical Officer or Chief Medical Officer or further promotion therefrom (as the case may be) with effect from the same date.
4. In order that there may be no conflict or any possibilities of reversion, the post to which an appellant will be promoted (whether as Senior Medical Officer or Chief Medical Officer or on further promotion therefrom) should only be to a supernumerary post. Such number of supernumerary posts should be created by the Govt. as may be necessary to give effect to the above directions. No promotion will be given to any of the appellants in the existing vacancies which will go only to the regularly appointed doctors.
5. The applicants hereby agree to give up all monetary claims on account of revision of scales, regularisation or promotion to which they would be entitled till 31.10.1991.
23. The order of the Hon'ble Apex Court cited supra has finally settled the formula and the procedure for promotion of regular doctor and regularised doctors in clear terms as under: (a) Regular doctors will be promoted in their own line according to the seniority maintained for the regular doctors in the vacancies meant for them.
(b) Once the regular doctor is promoted, a regularised doctor appointed immediately earlier to him in the feeder grade will be promoted from that date.
(c) No promotion will be given to any of the appellants (regularised doctors) in the existing vacancies which will go only to the regularly appointed doctors.
24. Thus the promotions prospects of both the regular doctors and the regularised doctors depend upon the existing regular vacancies in each grade in accordance with the Hon'ble Apex Court's directions cited supra, which has also the stipulation that no promotion to the regularised doctors will be given in the existing vacancies as they should go to the regularly appointed doctors. At this stage, we have to look into the impact if any of the respondents' action in posting regularised doctors in existing vacancies instead of in supernumerary posts. The respondents action of posting regularised doctor after promotion after creating a supernumerary post, to a regular post, has reduced the promotional prospect of the regular doctors in the feeder cadre, to the higher post in which the regularised doctor has been posted, in the regular line in existing vacancy. To that extent, the promotion prospect of regular doctors gets affected which in turn vitiates the directions of the Hon'ble Apex Court order in Dr. P.P.C.Rawani's case order dated 29.10.1991. Further, the promotion, prospects of even the regularised doctors will be affected in the cascading process because the promotion prospects of regularised doctors are fully linked to the promotion prospects of regular doctors. Thus, the action of the respondents not only goes against the directions of the Hon'ble Apex Court order dated 29.10.1991 but also works against the interest of the regular doctors as well as regularised doctors.
25. In the instant case, the respondents have posted in the Senior Administrative Grade post of Additional Director, Chennai, the regularised doctor though initially she was promoted only by creating a supernumerary post only in the position of Senior Chief Medical Officer CGHS Dispensary Perambur by order dated 30.8.2006 which, inter alia is as under: In continuation to this Ministry's order of even number dated 12th April, 2006, the President is pleased to post the following SGA (regularised) officers of General Duty Medical Sub cadre of Central Health Service against the supernumerary posts at the place mentioned against the name of each. These posts will be personal to these officers and the posts will stand abolished after the retirement of the officer on superannuation on account of death, dismissal resignation etc.----------------------------------------------------------------------Sl. No. Name of the Officer Place of Posting----------------------------------------------------------------------1.
Dr. Elizabeth Mathew Senior C.M.O. CGHS Dispensary, Perambur, 26. According to the order cited supra, the supernumerary post specially created for the respondent No. 3 as Senior Chief Medical Officer CGHS Dispensary, Perambur will stand abolished when the applicant vacates the post due to various grounds cited therein including etc., thereby implying that the present order of the respondents in posting respondent No. 3 as Additional Director, CGHS Chennai vide order dated 12.9.2006 in partial modification of the earlier order of 30.8.2006 will also fit into the ground for abolition of the said supernumerary post created for promoting respondent No. 3.
As a consequence of this, the regular doctors who are waiting for promotion to the Senior Administrative Grade will lose one post for the promotion, thus affecting the promotion prospect of the regular doctor and it is not intended to be done in the light of the Hon'ble Apex Court order dated 29.10.1991.
27. Assuming for the sake of argument, the respondents, against the regularised doctor occupying the regular post of SAG, want to promote a regular doctor from the lower grade of Chief Medical Officer to Senior Chief Medical Officer in SAG, such a step would go against the approved promotion practices because no person can be promoted unless there is a clear vacancy available in the regular establishment and the DPC can not approve of any promotion of a person from a lower grade to a higher grade without a clear vacancy (and not in a supernumerary vacancy).
Hence the respondents cannot hold DPC for promoting a regular doctor, in a supernumerary post by showing that as vacant after posting the regularised doctor promoted in a supernumerary post, in a regular vacancy as Assistant Director, because an argument of that kind cannot be justified by the D.P.C. Rules, thus the respondents action, through the impugned order has clearly come in the way of promotion of a regular doctor in JAG to SAG in his line. As some of the applicants are in JAG, JAG (NFSG)) awaiting promotion to SAG the respondents cannot take the stand that they have not done any thing to affect the promotion chances of the applicants. Even if some of the applicants are not immediately affected because their seniority, the cascading effect of immediate junior losing promotion can impact the promotion of the applicants' chances and by virtue of 29.10.1991 order of the Hon'ble Apex Court, the respondents have to ensure promotion of regular doctors in existing vacancies, which meant excluding those created on supernumerary and without reducing those existing vacancies by being occupied by regularised doctors holding their lien in supernumerary posts.
28. The Hon'ble Apex Court in UOI and Anr. v. Dr. Akilesh Chandra Agarwal's case allowed administrative powers to be exercised by the regularised doctors also and in keeping with the said decision of the Hon'ble Apex Court, the respondents are well within their right to provide appropriate administrative/financial powers to the regularised doctors in whatever capacity they are posted in the supernumerary positions so created for them which, in accordance with the stipulations of respondents order dated 30.8.2006 regarding the life time of these supernumerary posts because the said posts will stand abolished after the retirement of the officers on superannuation, vacating the post on account of death, dismissal, resignation etc.
29. Thus there is a special di stinction made in the nature of supernumerary posts created by virtue of Hon'ble Apex Court order dated 29.10.1991 vis-a-vis supernumerary posts generally created in Govt.
Departments in that, these supernumerary posts created because of 29.10.1991 order, have to be implemented in such a way that respondents do not disturb the rest of the provisions of 29.10.1991 orders viz. the promotion of regular doctors in the existing vacancies by harmonious reading of the order in its entirety and holistic implementation in toto. Therefore, the respondents will have to realise the deviation they are making from the road map given by Hon'ble Apex Court upholding equity between the two contending groups of regular and regularised doctors, when they claim that they are not in wrong by posting regularised doctors in regular existing vacancy, such as the one they had done by appointing respondent No. 3 in the existing vacancy as Additional Director, CGHS, Chennai because the said decision of the respondents has directly affected the promotion prospect of regular doctors in their line in the existing vacancies. According to the Hon'ble Apex Court order of 29.10.1991, the regularised doctors and regular doctors have to get the benefit of promotion in their own line, based on their respectiveseniority lists and the regularised doctors posting after promotion to a supernumerary post, in the existing vacancy, being an impediment for the promotion prospects of regular doctors as discussed supra, also to be noticed as affecting the promotion prospects of the regularised doctors too in view of the formula ordered by the Hon'ble Apex Court dated 29.10.1991. Looking at the issue herein as one of 'posting and transfer' and not one of promotion is clearly an aspect of ostrich approach of ignoring its ramifications on 'promotion' in the lightof the Hon'ble Apex Court's order dated 29.10.1991 on the promotion of regular doctors as also that of the regularised doctors.
30. The respondents through the impugned order have attempted to disturb the apple cart after a period a 16 years, in an avoidable exercise, creating disturbance in the administration of Health in the field, as Medical Officers, arrayed against one another, cannot look after their main responsibility of patient care with all the attention the same would require, thereby coming in the way of the health of the Govt. servants from getting appropriate medical support which itself can leave a question mark on the functioning of very Govt. in the place where the Medical Officers are in serious disputes in terms of their career prospects. Hence the respondents have very great responsibility to ensure that any change they make in such matters, as the one we are dealing with and where there has been a clear direction from the Hon'ble Apex Court as the one dated 29.10.1991 which itself was evolved after careful thinking by Hon'ble Apex Court based on submissions from disputing parties, to go deep into the implications of their deviating from the same, in terms of their impact instead of looking at thesame as one more posting order of one more medical officer.
31. The Hon'ble Apex Court order dated 29.10.1991 which stipulates that "no promotion will be given to any of the appellants in the existing vacancies which will go only to regularly appointed doctors" having settled the law on promotions of doctors in CHS, it has to be implemented in letter and spirit by the respondents and the respondents now trying to block a regular vacancy in SAG available for promotion from the feeder grade to JAG doctor in regular line by posting the regularised doctor respondent No. 3 in the existing regular post, thus reduces one existing vacancy in SAG for regular doctors for their promotion. As seen in our earlier discussion, no regular JAG doctor can be promoted to the SAG by creating a supernumerary post, for them, when a clear vacancy is already available (but blocked by respondent 3 there) because such a promotion of regular doctor in supernumerary post is against financial and administrative propriety. Hence the respondents have infringed both the letter and spirit of the Hon'ble Apex Court order by reducing the chance of promotion of regular doctor to that extent and incidentally (perhaps unknowingly) affecting the promotional prospect of regularised doctors too.
32. Thus we are left with no option, in the interest of regular and regularized doctors and in keeping with law settled by the Hon'ble Apex Court in their order dated 29.10.1991 which has been strictly followed hitherto, all these years, but to quash the impugned order of the respondents dated 12.9.2006 as in O.As. (21.9.2006 as per respondents) posting respondent No. 3 as Additional Director, CGHS, Chennai in the existing regular post, as one made infringing the Hon'ble Apex Court's order dated 29.10.1991. However, we also direct the respondents that while posting a doctor from the regular line as Additional Director, it should be ensured that the doctor so posted as Additional Director is appointed in that grade earlier than all the regular and the regularised doctors in that grade, over whom the Assistant Director has supervisory role.
33. The original applications are allowed as above. No order as to costs.
34. We direct that the copy of this order may be sent to Secretary, Ministry of Health and Family Welfare by name for appropriate action.