Dr.R.Devashankar Vs. the Secretary to Government - Court Judgment

Excerpt:
[] the date of appointment of the fifteenth respondent herein (writ petitioner) was on 8.9.1975. as per the said government order, the present appellant was placed at no.2 in the tamil nadu public service commission bulletin no.9, dated 16.4.1985, while dr.j.vijayalakshmi and dr.a.gopalakrishnan (17th respondent) have not chosen to appear for the examination conducted by the tamil nadu public service commission and in that view of the matter, the appellant was directed to be placed as senior by accepting the version of the tamil nadu public service commission.judgment(delivered by p.jyothimani,j.)1. the fourth respondent in the writ petition has filed the present appeal against the order of the learned single judge dated 6.4.2010, by which the learned judge has set aside the impugned government order in g.o.ms.no.136, health and family welfare department, dated 11.8.2006. the writ petition was filed by the fifteenth respondent herein and was decided along with other batch of cases. however, it is relevant to note that in all other cases also the present appellant was a party and, in fact, the present appellant has also filed a writ petition in w.p.no.2226 of 2009 and that came to be dismissed by the above said common order and, admittedly, the appellant has not filed any appeal against the said order of dismissal.2. the fifteenth respondent herein (writ petitioner) was appointed by the director of health services and family planning as tutor as per the tamil nadu subordinate service rules, 1955 on temporary basis with a condition that he will be liable for replacement on appointment of candidates on regular basis. the date of appointment of the fifteenth respondent herein (writ petitioner) was on 8.9.1975. at that time, ad hoc rules governing and regulating the appointments of teaching and non-teaching staff to the government homeopathy medical college were not framed. the government homeopathy medical college was started in the year 1975 in chennai and subsequently, it has been shifted to madurai, wherein it is functioning as on date with recognition.3. the appellant herein, who was the fourth respondent in the writ petition, was also appointed before the ad hoc rules came into existence. his appointment was on 26.12.1981 as per g.o.ms.no.2313, health and family welfare department and his appointment was also on tenure basis. the ad hoc rules were framed in the year 1983. however, it was given effect to from 12.6.1975, namely the date on which the institution was created, as per g.o.ms.no.1074, health and family welfare department, dated 28.6.1983. as per the ad hoc rules, various posts like (i) principal; (ii) professors; (iii) lecturers in various disciplines; (iv) assistant superintendent of hospital; (v) tutors in various disciplines; (vi) medical officers; and (vii) lady physician were created. the said rules, especially rule 12, specifically states that these rules shall not adversely affect the holders of the posts on the date of issue of the rules.4. after five years from the date of issue of the ad hoc rules, the government passed an order in g.o.ms.no.3, indian medicine and homeopathy department, dated 21.1.1988. it was by that order the government regularised the services of those persons who were appointed between 1975 and 1982, which includes the appellant as well as the fifteenth respondent. the said government order also states that necessary amendment to tamil nadu public service commission regulations, 1954 will be issued by personnel and administrative reforms (per.m) department separately. the regularisation as per the said government order in respect of the candidates stated in annexures-i and ii was made under the proviso to article 320(3) of the constitution of india by excluding the appointments from the purview of the tamil nadu public service commission. however, there is nothing on record to show that concurrence of the commission has been obtained as per regulation 16(b) of the tamil nadu public service commission regulations, 1954, which is as follows: 16. it shall not be necessary for the commission to be consulted:-(a) ***(b) as respects any of the matters mentioned in sub clauses (a) and (b) of clause (3) of the article 320 of the constitution in the case of posts specified in annexure i-a to these regulations and other posts in respect of which the state government have directed or may, with the concurrence of the commission, direct that appointment may be made without reference to the commission.5. be that as it may, annexure-i to the said government order consisted of seven persons, which includes dr.j.vijayalakshmi and dr.j.sethumani apart from others. annexure-ii to the said government order also consisted of names of persons appointed before the ad hoc rules came into existence numbering fifteen, in which the name of the fifteenth respondent herein (petitioner), whose appointment was on 15.9.1975, was shown in serial no.7, while the seventeenth respondent   dr.a.gopalakrishnan, who is stated to have been holding the post of principal (in charge) as on today and appointed on 31.5.1979, is shown in serial no.9 and the present appellant, who was the fourth respondent in the writ petition   dr.r.devashankar, whose appointment was on 11.1.1982, was shown as serial no.11 and one dr.k.murugesan, whose appointment was on 5.1.1975, has been shows in serial no.13.6. thereafter, in accordance with the regularisation effected, the department has also issued a seniority list. however, the appellant herein and others, who are similarly placed, seem to have made representations to the government, which is stated to be after 18 years from the date of regularisation requesting that they should be considered seniors based on various grounds raised by them. it was based on the said representation made by the appellant and others, the government issued g.o.ms.no.136, health and family welfare department, dated 11.8.2006. as per the said government order, the present appellant was placed at no.2 in the tamil nadu public service commission bulletin no.9, dated 16.4.1985, while dr.j.vijayalakshmi and dr.a.gopalakrishnan (17th respondent) have not chosen to appear for the examination conducted by the tamil nadu public service commission and in that view of the matter, the appellant was directed to be placed as senior by accepting the version of the tamil nadu public service commission. the operative portion of the impugned government order is as follows: 4. the government accept the views of the tamil nadu public service commission and direct that the 15 persons selected by the tamil nadu public service commission for the post of assistant medical officer during the year 1984 including dr.deva sekar may be placed first based on the seniority assigned by the commission and the persons whose services were regularised during the 1988 may be placed below them.7. it is challenging the said government order, the fifteenth respondent   dr.p.r.sekar has filed w.p.no.26611 of 2008. it is also stated that the sixteenth respondent, who is also similarly situated as that of dr.p.r.sekar, has also filed a writ petition challenging the said government order. on the other hand, the present appellant has filed w.p.no.2226 of 2009 for the purpose of implementing the said government order.8. the impugned government order was challenged on the ground that the fifteenth respondent   dr.p.r.sekar (writ petitioner) was appointed and joined duty as medical officer prior in point of time, namely on 15.9.1975 itself, while the appellant has joined duty only on 11.1.1982. further, it was claimed that the fifteenth respondent was promoted as lecturer in 1998, while the appellant was promoted on 18.5.2009. again, it was the case of the fifteenth respondent that he was further promoted as professor in the year 2000, while the appellant was promoted only on 4.2.2011. it has also been the case of the fifteenth respondent that the government order has been issued after 18 years of regularisation, thereby unsettling the seniority which has already been settled and it was contended that it is settled law that the seniority once settled cannot be altered without following the procedure established by law. in any event, such a long delay by the government in passing order in favour of the appellant is only to favour the appellant and, therefore, it is arbitrary in nature.9. the said contention found favour with the learned judge, who, while striking down the said government order, has held that after lapse of 18 years a seniority already fixed cannot be unsettled and that the appellant who got certain benefits by the earlier order has chosen to keep quiet and, therefore, it cannot be said that he had no knowledge about the entire issue as such. it was with that finding the learned judge has set aside the impugned government order.10. heard mr.n.r.chandran, learned senior counsel appearing for the appellant and mr.k.venkataramani, learned senior counsel appearing for respondents 15, 16 and 17, apart from the learned government advocate appearing for respondents 1 and 2.11. insofar as it relates to the finding of the learned judge that it is too well settled proposition that in matters relating to seniority a settled position cannot be unsettled after a long period, there cannot be any dispute. but on the facts of the present case, when it was the case of the government before passing of the impugned order that the appointments were made under the proviso to article 320(3) of the constitution of india, the tamil nadu public service commission regulations, 1954 framed in accordance with the constitution, which contemplates concurrence of the public service commission, should have been scrupulously followed. it was in those circumstances, the government in the impugned order, having found that the seventeenth respondent (dr.a.gopalakrishnan) and also the said dr.vijayalakshmi have not chosen to appear before the selection process by the tamil nadu public service commission, has taken a decision that the appellant should be placed above the seventeenth respondent. that aspect has not been considered by the learned judge.12. again, it was only a dispute between the fifteenth respondent, who has in effect challenged the process of selection and promotion in respect of dr.vijayalakshmi, even though a reference has been made about the present appellant. ultimately, it is not in dispute that the fifteenth respondent has held the post of principal between 8.6.2009 and 30.6.2010 and he has also retired as the principal. after the impugned government order came to be passed, it appears that in accordance with the said order, the present appellant was made as principal (in charge), in which capacity he is stated to have worked nearly for a period of three months, namely from 7.3.2009 to 8.6.2009. it is also brought to the notice of this court that after the order passed by the learned judge, against which the present appeal has been filed, the seventeenth respondent   dr.a.gopalakrishnan has been made as the principal (in charge) with effect from 28.10.2010, in which capacity he is working as on date and it is also stated that he is having another one and half years of service. it is also not in dispute that the appellant is to retire on 29.2.2012.13. considering the reasoning given by the learned judge in respect of the long delay on the part of the government in passing the government order, we do not want to disturb the position of the seventeenth respondent, who is holding the post of principal (in charge) of the college. but at the same time, it cannot be said that the appellant has no manner of right whatsoever. it is true that the appellant's appointment originally was after the appointment of the seventeenth respondent, but as it is seen in the government order, namely g.o.ms.no.136, health and family welfare department, dated 11.8.2006, which cannot also be disputed by anyone, dr.j.vijayalakshmi and dr.a.gopalakrishnan (seventeenth respondent) have not appeared for the examination conducted by the tamil nadu public service commission and it is also not in dispute that while earlier, government wanted to make these appointments and promotions under proviso to article 320(3) of the constitution of india, in accordance with the regulations framed by the tamil nadu public service commission there is no concurrence obtained. it is only stated that in the first instance when appointments were sought to be made under article 320(3) of the constitution by excluding the said appointments from the purview of the tamil nadu public service commission, the commission has refused to grant the same. but in the second instance, when the seniority was drawn and the same was sent for approval and concurrence by the commission, the commission no doubt has not opposed, but it remains a fact that the commission has left it open to the government and it has not given concurrence as it is required under regulation 16(b) of the tamil nadu public service commission regulations, 1954. in such view of the matter, we are of the view that without affecting the seventeenth respondent's continuing to hold the post of principal (in charge), the appellant's case should have been considered by the learned judge.14. for the foregoing reasons and after taking note of the fact that the appellant is to retire on 29.2.2012, we are of the view that without affecting the status of the seventeenth respondent in continuing to be the principal of the college, the appellant should be permitted to retire in the status of principal of the college on notional basis. at the risk of repetition, it is reiterated that by granting such privilege to the appellant, we do not intend to obstruct the continuous right of the seventeenth respondent, who shall continue to be the principal of the college. taking note of the above said infirmity only we have decided to confer such privilege to the appellant to enable him to retire as principal on the date of his retirement. it is also made clear that the appellant shall not be entitled to any salary as a principal for the period, since he has not actually worked as a principal and the seventeenth respondent is, in fact, working as a principal and receiving salary. we also make it clear that this order shall not affect the seniority or promotions of any other persons (including the contesting respondents) and the privilege has been conferred only to the appellant on the peculiar circumstances of this case, which we have stated above and need not be quoted as precedent.in the result, the writ appeal stands disposed of in the above terms and the order of the learned single judge is confirmed. no costs. consequently, m.p.no.2 of 2010 is closed.