State of
Andhra Pradesh Vs. Dr. N. Ramachandra Rao &
Ors [1990] INSC 180 (3
May 1990)
Shetty,
K.J. (J) Shetty, K.J. (J) Fathima Beevi, M. (J)
CITATION:
1990 SCR (3) 55 1990 SCC (3) 590 JT 1990 (2) 563 1990 SCALE (1)118
ACT:
Services:
The Special Rules for the A.P. Medical and Health Services, 1982--Rules 2 and
10--Teaching and Non- Teaching Cadres-Promotion to the post of Additional
Director of Medical and Health Services and equivalent posts--Senior- ity
determined in order of speciality should not be basis for promotion--Proper
amendment of Wordings of rules with perspicuity--Need for.
A.P.
Subordinate Services Rules--Rule 33(a)--Senior- ity-Determination of.
HEAD NOTE:
Under
Rule 2 of the Special Rules for the A.P. Medical and Health Services, 1982,
which provided for the method of recruitment to different classes and
categories in the A.P. Medical and Health Services, there were three
requirements for eligibility for consideration for promotion to the Class I,
Category I posts of Additional Director (Medical Educa- tion) and equivalent
posts. These were (i) the person should be in categories 2 and 3 posts of
Professors, (ii) he should have a minimum service of two years in the said
categories, and (iii) he should have a total service of not less than three
years.
The
respondents were all originally recruited as Civil Assistant Surgeons, upon
selection by the State Public Service Commission. In the Select List prepared
by the Commission, respondents No. 1 to 12 were recruited above the other
respondents. However, they were not considered for promotion to the category of
Additional Director and other equivalent posts. Hence the aggrieved respondents
took their grievance to the State Administrative Tribunal. The dispute before
the Tribunal was whether the requirement of three years service should be only
in Class I, Categories 2 and 3, or it was inclusive of service in Class II. The
Tribunal held that it should be on the basis of total period of service
including in the lower categories, subject to the condition that the person
should be holding the post of Professor or equivalent post for at least two
years.
56 In
the appeal before this Court, on behalf of the State.
it was
contended that the seniority for zone of considera- tion for promotion should always
be of the feeding cadre and not from any other cadre. and that the minimum of
three years must be in Class I in any category and can never be in Class II
service.
Dismissing
the appeals, this Court,
HELD:
1.1 The juniors who get accelerated promotion on account of fortuitous
circumstances depending upon their speciality and availability of vacancies in
such speciality should not be allowed to march over their seniors for ap- pointment
to administrative posts. Any advantage gained by juniors on such fortuitous
circumstances of having some speciality and promotion should not impair the
rights of their seniors for promotion to posts where speciality or teaching
experience is not called for. The seniority deter- mined in order of speciality
should not. therefore, be the basis for promotion to administrative posts. Any
rule pro- viding for the contrary may be vulnerable to attack on the ground of
arbitrariness. [62G-H; 63A]
1.2 It
would be unreasonable and unjust to exclude the service and overlook the vertical
seniority in the substan- tive cadre to which everyone was selected by the
Public Service Commission. In medical profession, there are spe- cialities but
it is generally accepted that they are not of equal importance or utility.
However, the promotions are allowed on the basis of the respective specialities
and the availability of promotional vacancies in such specialities.
A
junior with relatively less important speciality may be fortunate enough to get
quick promotion than his senior with a different speciality. [62E-G]
1.3
The seniority in the category of professors in the teaching and non-teaching
cadre or in the lower cadre based on speciality-wise will not be relevant for
preparation of a panel for promotion to the cadre of Additional Director and
other equivalent posts in Category I. Equally. the service rendered as Deputy
Civil Surgeon in Category 5 cannot also be the basis for preparing the panel
for consideration.
Further
more. Rule 2 does not expressly exclude the service in Class 11 Cadre for
preparing panel for consideration for promotion to the Category of Additional
Director and equiva- lent posts. [62B-E] 2 Imprecise drafting of the Rules has
led to misunder- standing and litigation. It would, therefore. be proper for
the State Government to have the wordings of the Rules properly amended with
perspicuity to 57 give effect to the view indicated' herein. [63B-C]
CIVIL
APPELLATE JURISDICTION: Civil Appeal Nos. 3131 and 3132 of 1988.
From
the 'Judgment and Order dated 15.4.1987 of the A.P.
Administrative
Tribunal in R.P. No. 1909 of 1985.
K. Madhava
Reddy, G. Prabhakar and Narasimhu P.S. (NP) for the Appellant.
S. Ramachandran,
B. Kanta Rao and N. Venkatarayudu for the Respondents.
Ms. Rani
Chhabra and B. Rajeshwar Rao for the Interveners.
The
Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. These appeals
are directed against the order of the A.P. Administrative Tribunal, Hyderabad dated April 15, 1987 directing the State Govern- ment to consider the cases of
Officers for promotion to the category of Additional Director of Medical and
Health Serv- ices and equivalent posts on the basis of seniority includ- ing
service in their lower cadre.
The
appointment in the A.P. Medical and Health Services is regulated by the statutory
rules called "The Special Rules for the A.P. Medical and Health Services,
1982" (called shortly as the "Rules").
All
the respondents were originally recruited as Civil Assistant Surgeons upon
selection by the State Public Serv- ice Commission. The minimum qualification
for Civil Assist- ant Surgeon is M.B.B.S. The post of Civil Assistant Surgeon
is equivalent to the post of Assistant Professor. They are inter-transferable
posts but a Post Graduate Degree is necessary for posting as Assistant Professor.
The Civil Assistant Surgeon is also posted as Tutor in the teaching side if he
has no Post Graduate Degree qualification. In the select list prepared by the
Public Service Commission, respondents 1 to 12 were ranked above the other
respondents, but they were not considered for promotion to the category of
Additional Director and other equivalent posts. Their juniors in the original
cadre were appointed to such posts, and that was their grievance before the
A.P. Administrative Tribunal.
58 All
Civil Assistant Surgeons including Assistant Profes- sors and Tutors are
eligible for promotion as Deputy Civil Surgeon on the basis of seniority of
Assistant Professors/Civil Assistant Surgeons and Tutors. It is said that the
post of Deputy Civil Surgeons are not cadre posts.
They
are just like Selection Grade posts covering 15% of total cadre strength of
Civil Assistant Surgeon posts. They are common both in teaching cadre as well
as in non-teaching cadre.
From
the very beginning after formation of Andhra Pra- desh State, the Civil Assistant Surgeons are
appointed by direct recruitment except perhaps in the year 1984, when there was
direct recruitment of Assistant Professors with the minimum qualification of
Post Graduate degree in the concerned speciality.
The Rules
contain inter alia two parts; Part-I and Part-II. We are concerned with Part-I
only. It consists of the following three branches:
Branch-I
Teaching cadre Branch-II Non-teaching cadre Branch-III Laboratories Branch-I
Teaching cadre again consists of Class-I and Class-II. Under Class-I. there are
six categories of posts.
They
are as follows:
Category-1
Additional Director of Medical and Health Services (Medical Education),
Principals of Medical Colleges, Superintendents of Medical Colleges, Superintendents
of Teaching Hospitals and Principal, Govern- ment Dental College.
Category-2
Professors--Clinical.
Category-3
Professors--Non-Clinical.
Category-4
Dental Professors.
Category-5
Deputy Civil Surgeons--Clinical and non- clinical.
Category-6
Deputy Civil Surgeon--Dental.
Class-II
consists of the following three categories:
Category
1 Assistant Professors--Clinical and non- clinical.
59
Category-2 Assistant Professors-Dental.
Category
3 Tutors.
Rule 2
under Branch-I Teaching cadre provides for method of recruitment to different
classes and categories. This Rule is important and may be read in full:
"Rule
2 Appointment--Appointment to the various classes and categories shall be made
as follows:
Class
and Category Method of Recruitment Class-I Category- 1 (i) By promotion from
among the Additional Director of holders of the post of Professors Medical
& Health Services included in Class-I Categories 2 (Medical Education), and
3 of this branch with not less Principals of Medical than three years service
of which Colleges,Superintendents at least two years service in the of Teaching
general said Category on First year in Hospitals and Principal, which panel is
prepared.
Government Dental College.
Provided
that the post of princi pal, Government Dental College shall be filled in by promotion from among the holders of
the posts included in class-I,Cate- gory-4.
(ii) who
have completed 45 years of age on first January or 1st July of the year in
which panel is prepared.
Category-2
(i) By promotion from among the holders of the posts of Deputy Civil Surgeons
(clinical) included in Class-I, Catego ry-5 of this branch;
(ii)
By promotion from the holders of posts of Assistant Professors (clinical)
included in Class-II, Category- 1 of this branch if persons from item (i) are
not available." Similar are the provisions for promotion to the posts of
pro- 60 fessors (non-clinical) in Category-3:
"Category-3:
(i) By promotion from among the holders of the posts of Deputy Civil Surgeons
(non- clinical) included in Class-I, Category-5 of this branch;
(ii)
By promotion from the holders of posts of Assistant Professors (Non- clinical)
included in Class-II, Catego- ry- 1 of this branch if persons from item (i)
above are not available." It will be convenient, if at this stage, we also
read the amendment to the foregoing Rules made on March 29, 1988.
They
are as follows:
AMENDMENT
TO SPECIAL RULES FOR THE ANDHRA PRADESH MEDICAL AND HEALTH SERVICES (G.O.M.No.
182, Health, Medical and Family Welfare (A- 1) 29 March, 1988) 1. Constitution
..........
2.
Appointment to the various categories of posts shall be made as shown in the
Table below:
Category
of Post Method of Recruitment Category: 1 Additional Director of By promotion
from among the holders Medical & Health Service of the post of professors
in Cate- (Medical Education), gories 2 and 3 with not less than Principals of
Medical three years of service of which at- Colleges,Superintendents least two
years shall be in one of Teaching General the said categories as on first
Hospitals and Principals January or 1st July of the year in Government Dental
which panel is prepared.
College.
There
are three requirements for eligibility for considera- tion 61 for promotion to
the category of Additional Director and equivalent posts: (i) He should be in
cadre 2 and 3 in Class I; (ii) He should have a minimum service of two years in
the said categories; and (iii) He should have a total service of not less than
three years.
Two
years service in the category appears to mean two years service as Professor
and this is not in doubt or dispute. The dispute, however, is about the
requirement of service of three years. Whether that service should be only in
Class-I categories 2 and 3 or inclusive of service in Class-II is the question
for consideration. The Tribunal appears to have accepted the latter view. It
has been held that promotion to the post of Additional Director and equiv- alent
posts is to be made on the basis of total period of service in including
service in the lower categories subject to the condition that the person should
be holding the post of Professor or equivalent post for at least two years.
Mr. Madhava
Reddy, learned counsel for the appellants argued that the view taken by the
Tribunal would be contrary to the rule of seniority in the cadre of Professors.
The seniority for zone of consideration for promotion should always be of the
feeding cadre and not from any other cadre.
Reference
was made to Rule 10 of the Rules and also to Rule 33(a) of the Andhra Pradesh
State and Subordinate Services Rules. Counsel also contended that the minimum
three years of service provided under rule 2 in any event must be in class-I in
any category and it can never be in Class-II Service.
We are
unable to accept the submission of learned coun- sel for the appellants, having
regard to the facts and circumstances of this case. Rule 10 of the Rules
requires determination of seniority on unit wise. It reads:
"10.
Seniority. For purposes of seniority and appointment as full members the posts
included in this branch shall consti- tute separate units as indicated below:
Unit 1
Class I Category- 1, viz. Additional Director of Medical and Health Services
(Medical Education),Principals of Medical Colleges, Superintendents of Teaching
General Hospitals.
Unit 2
Class I Category-2 viz. (i) Professors (Clinical and nonclinical).
62 Unit
3 Class I Dental Professors.
provided
that Deputy Civil Surgeons and Assistant Professors shall have separate
seniority in order of speciality" Rule 33(a) of the A.P. Subordinate
Service Rules pro- vides that seniority of a person in service, class, category
or grade shall, unless he has been reduced to a lower rank as a punishment, be
determined by the date of his first appointment to such service, class, category
or grade. It seems to us that the seniority in the category of professors in
the teaching and non-teaching cadre or in the lower cadre based on speciality
wise may not be relevant for preparation of a penal for promotion to the cadre
of Additional Director and other equivalent posts in Category. Equally the
service rendered as Deputy Civil Surgeon in category 5 cannot also be the basis
for preparing the panel for consideration. As observed earlier, Deputy Civil
Surgeon is a common category in all the Branches; Branch-I teaching cadre;
Branch-II non-teaching cadre and Branch-III Laboratories. It is a part of the
category of Civil Assistant Surgeons, and not cadre post. It is just like
selection grade post covering in all 15% of total cadre strength of Civil Assistant
Surgeons. The posts are distributed in all the three Branches and promo- tion
to the posts depends upon the available vacancies in every branch.
Furthermore,
Rule 2 does not expressly exclude the service in Class-II Cadre for preparing
panel for considera- tion for promotion to posts with which we are concerned.
We also consider that it would be unreasonable and unjust to exclude the
service and overlook the vertical seniority in the substantive cadre to which
everyone was selected by the Public Service Commission. In medical profession
there are specialities and specialities, but it is generally accepted that they
are not of equal importance or utility. However, the promotions are allowed on
the basis of the respective specialities and the availability of promotional
vacancies in such specialities. A junior with relatively less impor- tant speciality
may be fortunate enough to get quick promo- tion than his senior with a
different speciality. We are of the opinion that the juniors who get accelerated
promotion on account of fortuitous circumstances depending upon their speciality
and availability of vacancies in such speciality should not be allowed to march
over their seniors for ap- pointment to administrative posts. Any advantage
gained by juniors on such fortuitous circumstances of having some speciality
and promotion should not impair the rights of their seniors for promotion to
posts where speciality or teaching experience 63 is not called for. The
seniority determined in order of speciality should not therefore be the basis
for promotion to administrative posts. Any rule providing for the contrary may
be vulnerable to attack on the ground of arbitrariness.
We
therefore, concur with the view expressed by the tribunal and dismiss these
appeals with costs.
Before
parting with the case, however, it is necessary to point out that the imprecise
drafting of the present Rules has led to misunderstanding and litigation and it
would be proper for the State Government to have the word- ings of the Rules properly
amended with perspicuity to give effect to the view indicated.
N.P.V.
Appeals dis- missed.
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