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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