Dr.R.Selvaraj v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 16-4-2008CORAMTHE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMARW.P.No.33600 of 2007 and M.P.No.2 of 2007W.P.No.34296 of 2007 and M.P.No.2 of 2007Dr.R.Selvaraj...Petitioner in W.P.No.33600/2007Dr.K.Raju...Petitioner in W.P.No.34296/2007Vs.

The State of Tamil Nadu, rep.by the Secretary to Government, Health & Family Welfare Department, Fort St.George, Chennai - 600 009.

The Director of Medical Education, Poonamallee High Road, Kilpauk, Chennai - 600 010.

Dr.R.Subbiah...RR-1 to 3 in both writ petitionsPrayer in both writ petitions: This writ petition is filed under Article 226 of Constitution of India, praying this Court toissue a writ of Certiorarified mandamus calling for the records relating to the third respondent, comprised in G.O.(D)No.1187Health and Family Welfare (A1) Department, dated 18.9.2007promoting the third respondent as Reader in Spine Surgery, MadrasMedical College/Government General Hospital, Chennai, quash the same and consequently direct the first respondent to promote the petitioner as Reader in Spine Surgery, Madras MedicalCollege/Government General Hospital, Chennai. For Petitioners :Mrs. Nalini Chidambaram, Senior Counselfor Mr.C.Ganapathy https://hcservices.ecourts.gov.in/hcservices/ For Respondents 1 & 2:Mrs. Dakshayani Reddy, Government AdvocateFor 3rd respondent: Mr.R.Muthukumaraswamy, Senior Counselfor Mr.R.KarthikeyanCOMMON ORDERBy consent of both parties, the writ petitions are taken up for final disposal.

The service details of the petitioner in W.P.No.34296 of2007 are that he joined in the Tamil Nadu Medical Service as CivilAssistant Surgeon on 9.4.1990 and his CMC (Civil Medical List)number is 4712. Petitioner underwent MS (Ortho) during the academic year 1991-1994 in the Madras Medical College and passed. https://hcservices.ecourts.gov.in/hcservices/ Petitioner joined as a Tutor in the Department of Orthopaedics in the Stanley Medical College on 21.7.1994. The Doctor in charge of the entire Orthopaedics department will be in charge of the SpinalInjury cases. He was promoted as Assistant Professor of Orthopaedics Department in the Stanley Medical College from20.7.1995 and was further promoted as Senior Assistant Surgeon on29.10.1998 and transferred and posted at Kilpauk Medical Collegeon 30.4.2004. He was promoted as Civil Surgeon on 30.8.2007 and he is now serving in the Department of Orthopaedics in KilpaukMedical College. According to him, he is the senior-mostAssistant Professor in Orthopaedics in the GovernmentHospitals/Colleges in Chennai and he has performed more than 500spinal surgeries and after passing MS, he is having 13 years of teaching experience and he satisfies the norms prescribed by the Medical Council of India for promotion to the post of Reader.

Mrs. Nalini Chidambaram, learned Senior Counsel for the petitioners submitted that the impugned order passed by the first respondent giving promotion to the third respondent as Reader in Spinal Surgery in Madras Medical College/Government GeneralHospital, Chennai, even though temporary under Rule 39 of the Tamil Nadu State and Subordinate Service Rules, the third respondent is not qualified for the post of Reader as per theadhoc rules as well as the Medical Council of India regulations. The learned Senior Counsel further submitted that when Dr.NalliR.Yuvaraj was promoted as Reader by order dated 25.6.2007, the third respondent filed W.P.No.21767 of 2007 and challenged the order of promotion given to the said Dr.Nalli R.Yuvaraj under Rule39. In the said writ petition, the second respondent filed counter affidavit on 11.7.2007 stating that the third respondent was having only 4 years of teaching experience in the Orthopaedicsdepartment after acquiring MS (Ortho) degree and the third respondent was denied promotion due to want of qualification viz, experience and the said Dr.Nalli R.Yuvaraj was given promotion after considering his merits and as per the adhoc rules. The saidDr.Nalli R.Yuvaraj was also having DNB degree awarded by the National Board of Examinations, which is a recognised degree and eligibility for promotion to the post of Reader is to be ascertained as per the adhoc rules and MCI regulations. Thelearned Senior Counsel pointing out the said counter affidavit, submitted that the third respondent having been found unqualified for promotion even under Rule 39, cannot be promoted as Reader in Spine Surgery Unit before his completion of five years of experience after acquiring MS Degree, particularly when there are several qualified candidates available and therefore the learnedSenior Counsel sought to set aside the impugned order with adirection to the respondents 1 and 2 to promote a fully qualified person to the post of Reader either under Rule 39 or on permanent basis. https://hcservices.ecourts.gov.in/hcservices/

Mr.R.Muthukumaraswamy, learned Senior Counsel appearing for the third respondent on the other hand submitted that the third respondent is given promotion under Rule 39 by invoking emergency provision and the petitioners have no vested right to claim temporary promotion and therefore they have no locus standito challenge the impugned order. The learned Senior Counselfurther submitted that the adhoc rule has not been notified till date and therefore no reliance could be made by the petitioners to challenge the impugned order. The learned Senior Counsel further submitted that the rules issued by the respondents viz., Rule 4 of the General Rules for the Tamil Nadu State and SubordinateServices for the year 2004-2005 requires only four years of experience after passing post graduate qualification in the speciality and as per the said rule, third respondent is fully qualified.

The learned Government Advocate appearing for respondents1 and 2 submitted that the third respondent was found qualified asper the adhoc rules as well as the General rule and the petitioners cannot maintain these writ petitions, particularly when the promotion is made under Rule 39 of the Tamil Nadu Stateand Subordinate Service Rules.8.I have considered the rival submissions made by the learned Senior counsel for the petitioners as well as respective respondents.

The point in issued is, while giving promotion under Rule39 of the Tamil Nadu State and Subordinate Service Rules, whethera person can be given promotion contrary to the qualifications prescribed by the Medical Council of India, 1956, and the minimum qualifications for Teachers in Medical Institutions Regulations,1998, published by the Government of India in its gazette on5.12.1998.

Rule 39 of the Tamil Nadu State and Subordinate ServiceRules deals with temporary promotion and the relevant portion of which reads as follows: "Rule 39(a)(i) Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately avacancy in a post borne on the cadre of ahigher category in a service or class by promotion from lower category and there would be undue delay in making such promotion in accordance with the rules, the appointing authority may temporarily promote a person, who possesses the qualifications prescribed https://hcservices.ecourts.gov.in/hcservices/ for the post, otherwise than in accordance with the rules. "11. The Medical Council of India framed regulations and prescribed qualification for the post of Readers in MedicalColleges. In schedule I, it is stated as follows: "Every appointing authority before making an appointment to a teaching post in medical college or institution shall observe the following norms. "In Clause (6) and (7) to Schedule I, it is stated as follows: "(6)The teachers in a medical college or institution having a total of eight years'teaching experience out of which at least five years teaching experience as Lecturer or Asst. Professor gained after obtaining postgraduate degree shall be recognised as postgraduate teachers in broad specialities. In the case of super-specialities only those teachers who possess eight years' teaching experience out of which at least five years'teaching experience as Lecturer/Asst. Prof.gained after obtaining the higher speciality degree shall be recognised as postgraduate teachers: Provided that the case of super-specialitycourses which are being newly instituted, matter regarding relaxation of qualification and experience of postgraduate teachers maybe taken up by the appointing authority with the Medical Council of India. (7)In cases where candidates with requisite experience are not available, a reference maybe made by the appointing authority to the Medical Council of India for consideration on merits. "For the post of Reader in the Department of Orthopaedics the following qualifications are prescribed,"(i)As Assistant Professor/Lecturer in Orthopaedics for five years in a recognised medical college. Desirable(ii)Minimum of four Research publications indexed in Index Medicus/national journals. " https://hcservices.ecourts.gov.in/hcservices/

For the post of Assistant Professor/Lecturer, the requisite qualification is PG degree in the subject and three years teaching experience in the subject in a recognised MedicalCollege. Thus, it is manifestly clear that for the post of Lecturer/Assistant Professor, a person must have PG degree in the relevant subject with three years teaching experience and for the post of Reader/Associate Professor, a person must possessP.G.degree in the relevant subjects and five years experience in arecognised Medical College. As per the adhoc rules, a person must have PG degree, 5 years of experience and must have conducted not less than 500 Spine operations.

The learned Senior Counsel for the third respondent maybe right in contending that the said adhoc rules are not notified till date. However, the qualifications prescribed by the MedicalCouncil of India for the post of Reader in all MedicalInstitutions is bound to be followed by the respondents 1 and 2while filling up the post of Reader in Spine surgery. Admittedly, the third respondent is not having five years of teaching experience after passing MS (Ortho). Even for giving temporary promotions under Rule 39, as extracted above, the candidate must have the necessary qualification prescribed for the post. Hencethe respondents are not justified in contending that the promotion having been made under Rule 39, petitioners have no locus standito challenge the said promotion given to the third respondent. For getting temporary promotion petitioners may not have any statutory right. But the fact remains, the third respondent, who is given temporary promotion is not qualified for getting even temporary promotion in the cadre of Reader in spine surgery in the Government Medical College, Chennai, as per MCI regulation.

The second respondent in the counter affidavit filed inW.P.No.21767 of 2007 also stated that the third respondent, who is the petitioner in the above writ petition is not qualified as per the adhoc rules as he was having only four years of teaching experience after passing MS degree.

Whether an unqualified person can be posted in the teaching post of Medical Institution, contrary to the Regulations,1998 framed by the Medical Council of India was considered by mein (2006) 2 MLJ 775 (Dr.P.Sivanesan v. Secretary to Government).In the said case, an attempt was made to transfer a person as Assistant Professor of Community Medicine in Teaching post in Tirunelveli Medical College, who was not found qualified. Thesaid order was set aside by me holding that the respondents 1 and2 therein are bound to follow the minimum qualification for teachers in Medical Institutions Regulation, 1998, before posting any person in the teaching post in the Government MedicalColleges. It is also held therein that the Government cannot bye- https://hcservices.ecourts.gov.in/hcservices/ pass or violate the statutory regulations and the Governmentshould be a model to other private Colleges while appointing teaching staff.

In the decision reported in (1999) 7 SCC 120 (Dr.PreetiSrivastava Vs. State of M.P) in paragraph 57 the Supreme Courtheld that the regulations framed by the Medical Council of Indiais having a statutory force and it has to be mandatorily followed. The regulations having been framed under the Indian MedicalCouncil Act, 1956, the expert body to control the minimum standards of Medical Education to regulate their observance, the said regulation, 1998, is bound to be followed by the respondents1 and 2 while filling up the post of Reader in Spine Surgery.