Challa Jaya Bhaskar
& Ors. Vs. Thungathurthi Surender & Ors. ...
WITH CIVIL APPEAL
NOS.5588-5592, 5587 & 8498 OF 2001 AND WRIT PETITION (C)NO.566 OF 2003
JUDGMENT
ALTAMAS KABIR, J.
1.
This
batch of Civil Appeals arises out of a common judgment passed by the Andhra
Pradesh High Court in a batch of Writ Petitions allowing the same and setting
aside an order dated 10th March,1998, passed by the Andhra Pradesh Administrative
Tribunal in O.A. No.3599 of 1995 and other connected matters and consequently setting
aside G.O.Ms. No.325 dated 15th June, 1999. In that view of the matter, these
Civil Appeals have been taken up for hearing together along with Writ Petition
(Civil) No.566 of 2003.
2.
The
question to be decided in all the writ petitions was in regard to the procedure
to bead opted in determining the seniority of Civil Assistant Surgeons in the
Andhra Pradesh Medical &Health Services.
3.
In
order to appreciate the aforesaid question, it is necessary to set out the
background in which the said question arose.
4.
The
Appellants and the Respondents are members of the Medical and Health Department
in the State of Andhra Pradesh. The Appellants herein were promoted to the post
of Associate Professors and Professors by virtue of an order passed by the
Tribunal, which was approved by the High Court and thereby attained finality. The
present dispute concerns the methodology which has been adopted by the State
Government for determining the seniority of those who were functioning as Civil
Assistant Surgeons and, thereafter, opted for teaching and were appointed as
Assistant Professors, which was the feeder post for further promotion to the post
of Associate Professors and Professors in the Medical Services.
5.
The
Medical and Health Department in the State of Andhra Pradesh is governed by Special
Rules under the proviso to Article 309 of the Constitution, which, as indicated
hereinabove, are known as the A.P. Medical and Health Services Rules, hereinafter
referred to as "the Health Services Rules". Without going into details
of the said Rules, it will be sufficient for our purpose to consider the impact
of the said Rules and Government Orders on the question of seniority of Civil
Assistant Surgeons in the State Health Services.
6.
As
early as in 1976, the Government of Andhra Pradesh felt the need for separation
of the teaching cadre in medical education. Accordingly, G.O.M. No.1170 dated
16th December, 1976, was issued separating the teaching cadre from the non-teaching
cadre and issuing executive instructions to implement the same. This was also felt
to be necessary on account of the advice of the Medical Council of India, which
otherwise threatened to de-recognize the medical certificates which had been
granted to the students. Accordingly, the Special Rules were issued as
mentioned hereinabove, by G.O.M. No.43 dated 16th January, 1982.
7.
Originally,
there were no posts of Assistant Professors and only the post of Civil Assistant
Surgeons (CAS) was used for teaching in the medical colleges. Among them, those
Civil Assistant Surgeons who had acquired Post-Graduate qualifications were
given the task of teaching in the teaching colleges. According to the Appellants
herein, there was no watertight compartment between the teaching stream and non-teaching
stream and whoever either had or subsequently acquired the Post-Graduate qualification
was shifted to the teaching stream from the non-teaching stream. As this method
was contrary to its Rules and Regulations, the Medical Council of India threatened
to withdraw recognition to the medical colleges and subsequently the Rules were
amended vide G.O.M. No.182 dated 29th March, 1988. By virtue of such amendment,
the said Rules were divided into three parts, of which the first part consists
of only one Rule which provides that the service was to be divided into three branches,
viz., Teaching cadre, Non-teaching cadre and Laboratories. Part II of the Special
Rules prescribes separate rules for each of the three branches and Part III
contains general and common provisions for all the three branches. One of the
more important aspects of the amendment was that Rules 7 and 8 were deleted. Rule
7 provided for special training as an Assistant Professor for the purpose of
promotion to higher post. Rule 8 dealt with the preparation of half-yearly
panels. While in the earlier Rules, the post of Assistant Professor in each
specialty was to be filled up only by direct recruitment with persons having
requisite qualifications, there was no provision for appointment by transfer
from persons in then on-teaching cadre. Under the new Rules, the teaching and non-teaching
cadres were separated. The posts of the teaching cadre were separately brought
out in a new cadre strength designated as Assistant Professors, whereas non-teaching
posts such as Civil Assistant Surgeons, Deputy Civil Surgeons and Civil Surgeons
were separately categorized and the qualifications for these posts were also different
and distinct. What is of significance is that no channel was provided for interchangeability
between these two cadres.
8.
It
is in this background that vacancies arose to the posts of Associate Professors
and Professors. As the Department was not implementing the Rules, various
Original Applications were filed before the Andhra Pradesh Administrative Tribunal,
which were disposed of on 28th April, 2003, with directions to the Departments
to strictly follow the Rules issued under G.O.M. No.154 dated 4th May,2002. However,
there were certain deviations which resulted in Civil Assistant Surgeons also being
made part of the teaching cadre, thereby making such persons eligible to be
promoted as Associate Professors and, thereafter, to the post of Professors. It
is this issue which is at the centre of controversy in all these matters and which
has given rise to various questions relating to the main issue as to whether
persons who had joined earlier as CAS, with only M.B.B.S. qualifications, and could
not be appointed as Assistant Professors since they did not have Post-Graduate qualifications,
and were subsequently appointed as Assistant Professors after attaining such
qualifications, would be entitled to seniority over others who had already been
appointed as Assistant Professors earlier. In other words, would those CAS with
only M.B.B.S. qualification be given seniority over those appointed as Assistant
Professors from CAS, who already had Post-Graduate qualification, but were
appointed after those CA Swith only M.B.B.S. qualification?
9.
It
is the case of the Appellants that the teaching cadre constitutes a separate
category for the purpose of appointment, seniority and promotion. It consists
of an administrative post in Category I, such as Additional Director of Medical
and Health Services and non-administrative post in Category II, such as
Professors, Clinical and Non-clinical. According to the Appellants, the feeder category
for the post of Professor is Deputy Civil Surgeon, since re-designated as Associate
Professor, and in case Associate Professors were not available, Assistant Professors
belonging to Category VII. The minimum qualification for appointment to the
cadre of Assistant Professor is a Post-Graduate degree. The Appellants when they
were appointed as Assistant Professors already had a Post-Graduate
qualification and in view of the existing practice, those Civil Assistant Surgeons,
who had Post-Graduate qualification, were selected and appointed as Assistant
Professors. It is the further case of the Appellants that they had all been
appointed as Assistant Professors on various dates ranging between 1982 and
1995. It is during this period only that some of the Civil Assistant Surgeons, who
did not have Post-Graduate qualification, got admission in the Post-Graduate classes
and completed their Post-Graduate courses during the years 1989 to 1995. The
Appellants have mentioned that many of these CAS were students of the
Appellants in the Post-Graduate degree course. After acquiring the
Post-Graduate degree, the said Respondents became qualified and eligible to be
appointed as Assistant Professors. Accordingly, they were appointed as Assistant
Professors on different dates between 1989 and 1995.
10.
It
is also the case of the Appellants that in accordance with the Rules, after
having completed five years of teaching as an Assistant Professor, candidate who
acquired the Post-Graduate qualification after his appointment as CAS, would
become eligible for a further five years of teaching experience in the next category
of Associate Professor, which would then make them eligible for higher promotion
to the post of Professor. The Appellants have also tried to make out a case that
according to the Rules, Deputy Civil Surgeons, presently re-designated as
Associate Professors, and Assistant Professors, would have separate seniority in
order of specialty. Accordingly, it is only the seniority in the category of
Assistant Professors alone which is relevant for the purpose of promotion to
the post of Professor.
11.
In
addition to the above, it has been contended that the said issue is no longer
res integra and that it has been held by the Tribunal that in computing seniority
in the category of Civil Assistant Surgeons, the period during which Civil
Assistant Surgeons did not have a Post-Graduate degree, could not be taken into
consideration for promotion to the post of Professor, since Civil Assistant Surgeons
could not be appointed as Assistant Professors till they acquired the
Post-Graduate qualification. Accordingly, not having functioned as Assistant Professor
or Associate Professor after their appointment as CAS, the said period, prior
to their acquisition of Post-Graduate qualification, could not be counted for
the purpose of promotion to the post of Professor.
12.
According
to the Appellants, the High Court erred in counting the previous service of those
Civil Assistant Surgeons, who had acquired their Post-Graduate degree
subsequent to their entry into service as Civil Assistant Surgeons. Since for the
purpose of promotion to the post of Associate Professor or Professor, a post-Graduate
qualification was necessary, the period during which they had functioned as Civil
Assistant Surgeons, without having obtained a Post-Graduate degree, could not logically
be taken into consideration for computing seniority for elevation to the post
of Professor.
13.
Another
point which has been taken on behalf of the Appellants is that without going
before the Central Administrative Tribunal, the Petitioners in the Writ
Petition could not have challenged the Government Order by filing a Writ
Petition directly in the High Court. It has been canvassed that, in any event,
without any formal order having been challenged, the proceedings before the
Writ Court were not maintainable.
14.
In
support of the first contention regarding the counting of the period of service
as Civil Assistant Surgeons prior to having obtained the Post-Graduate degree for
computing seniority, reliance was placed on a decision of this Court in N.
Suresh Nathan v. Union of India [(1992) Supp.15(1) SCC 584], wherein, in
similar circumstances, this Court held that diploma holder Junior Engineers, who
had obtained degrees while in-service, were not entitled to count their service
prior to obtaining the degree for computing the period of three years for the
purpose of promotion. It was also laid down that in interpreting Service Rules,
a construction which is in keeping with longstanding practice prevailing in the
concerned Department is to be preferred. The same view was taken by a three-Judge
Bench of this Court in Shailendra Dania v. S.P. Dubey [(2007) 5 SCC
535],wherein it was reiterated that the reckoning of three years' experience
required for promotion in the quota of Graduate Engineers, would be from the
period when such degree was acquired irrespective of the number of years of
service rendered as a diploma holder. The Appellants have, therefore, prayed for
setting aside the said judgment and order of the High Court on the ground that
the samehad been delivered in contravention of the Medical Service Rules.
15.
Mr.
H.S. Gururaja Rao, learned Senior Advocate, who appeared for some of the
respondents, submitted that the entire procedure adopted for recruitment to the
post of Assistant Professors was contrary to the 1982 Rules which were
promulgated under G.O.Ms.No.43 dated 16.1.1982. Mr. Rao urged that no
appointment had been made in the post of Assistant Professors, but an option was
given to Civil Assistant Surgeons who had acquired Post-Graduate qualification
to go over to the teaching cadre on an ad-hoc basis. The selected candidates were
chosen for the purpose of providing them with five years' teaching experience,
but such selection was not done according to the Rules which only provided for
direct recruitment. Mr. Rao submitted that there were neither any Rules nor guidelines
providing for transfer from non-teaching to teaching posts. Mr. Rao denied the
case of the Appellants that there was no watertight compartment between
Teaching and Non-Teaching disciplines and that whoever acquired Post-Graduate qualifications
was deputed to the Teaching side from the Non-Teaching side. Mr. Rao submitted
that even underthe 1988 Rules appointment of Assistant Professors was to be by
way of direct recruitment.
16.
Mr.
Rao then contended that, in any event, as had been held by this Court in State
of Andhra Pradesh Vs. Dr. N. Ramachandra Rao & Ors. [(1990) 3SCC 590], in the
medical world there are specialties and specialties and it is generally
accepted that they are not of equal importance or utility. But promotions are allowed
in the specialized disciplines and a junior with a relatively less important specialty
may be fortunate enough to get faster seniority than his senior in a different specialty.
However, juniors who get accelerated promotion on account of such fortuitous
circumstances should not be allowed to steal a march over their seniors for
appointment to administrative posts.
17.
Mr.
Rao urged that "posting" and "appointment “are two different concepts
and often one is mistaken for the other. Referring to the decision of this
Court in S.N. Dhingra & Ors. vs. Union of India & Ors. [(2001) 3 SCC
125], Mr. Rao submitted that in the said case this Court had, inter alia, held
that seniority would have to be counted on the basis of continuous length of
service from their initial appointment. Mr. Rao submitted that those candidates
from amongst Civil Assistant Surgeons who had acquired the Post Graduate qualifications
and had been permitted to opt for the Teaching line, could claim seniority in the
cadre of Assistant Professor only from their entry into the teaching stream,
and their previous service as Cotswold not count in reckoning their service in the
post of Assistant Professor, for the purpose of future promotion.
18.
Mr.
A.D.N. Rao, learned Advocate for the Respondent Nos.14 to 17 in C.A.No.5589 of
2001,denied the submissions made on behalf of the Appellants that the transfers
from the Non-Teaching to the Teaching line were initiated by the method of pick
and choose adopted for selection of candidates for appointment as Assistant Professors.
Learned counsel also urged that these points had not even been urged before the
Tribunal or the High Court. Mr. A.D.N. Rao reiterated Mr. Gururaja Rao's
submissions that a person posted for gaining experience for several years, may
not be entitled to the benefit of the said period for counting his seniority
until he is actually appointed to the cadre.
19.
Mr.
Anoop Chaudhari, learned Senior Advocate, appearing for the State of Andhra Pradesh,
submitted that the decision to allow teachers from the Non-Teaching line to
cross over to the Teaching line after they acquired Post-Graduate qualification,
was a matter of policy of the State Government and the Court should not normally
interfere with such policy matters, unless some grave injustice or mala fide
intention was proved.
20.
Mr.
Chaudhari submitted that seniority list in the teaching stream had been
prepared on the basis of appointment of the candidates as Assistant Professors and
the Respondents could not, therefore, claim that their service as Civil
Surgeons be counted for seniority though they had not acquired the
Post-Graduate degree and were not, therefore, entitled to be appointed against attaching
post prior thereto. Mr. Chaudhari submitted that the decision in Dr. N.
Ramachandra Rao's case (supra) cited by Mr. Gururaja Rao had no application to the
facts of this case since it dealt with the 1982 Rules and a person who did not have
the requisite qualification for being transferred to the teaching cadre could
not claim the benefit of seniority over those who had already been transferred
to the teaching cadre since they had the requisite qualifications. Mr.
Chaudhariurged that this was not a case of vertical up gradation in the same category
but a lateral transfer from the non-teaching line to the teaching line after
the candidate in the non-teaching line had acquired the requisite
qualifications for such transfer, as would be evident from Rule 14 of the1988
Rules.
21.
From
the submissions made on behalf of respective parties what emerges is that the Medical
Service under the Medical and Health Department in the State of Andhra Pradesh is
governed by the Special Rules framed under the proviso to Article309 of the
Constitution and issued under G.O.Ms.No.43 dated 16th January, 1982. Under the said
Rules, there was no post of Assistant Professor and provision had been made
only for appointment of Civil Assistant Surgeons, both for teaching and non-teaching
purposes in the medical colleges. The Medical Council of India threatened to withdraw
recognition to the medical colleges unless separate provision was made to
separate the teaching and the non-teaching cadre by appointment of Assistant
Professors, which resulted in the amendment of the Rules vide G.O.Ms. No.182
dated 29th March, 1988.The said Rules provided for the division of the medical
services into teaching cadre, non-teaching cadre and laboratories. Under the
new Rules, the teaching cadre was separately constituted into anew cadre strength
designated as Assistant Professors, whereas non-teaching posts such as Civil
Assistant Surgeons, Deputy Civil Surgeons and Civil Surgeons were separately
categorized and the qualifications for these posts were also different. As
vacancies arose in either of the cadres, several applications were filed before
the Andhra Pradesh Administrative Tribunal, which were disposed of with directions
to the Department to strictly follow the Rules issued under G.O.Ms. No.154
dated4th May, 2002.
22.
In
this state of facts, those Civil Assistant Surgeons, who had acquired the
Post-Graduate degree and were subsequently included in the teaching cadre,
claimed that for reckoning seniority, their past service as non-teaching staff
should also be taken into consideration. According to the Respondents, the
doctrine of eclipse would apply in case like this. According to the Respondents,
the date of reckoning of seniority in the teaching and non-teaching posts which
formerly formed one cadre, the period during which candidates from then on-teaching
line did not have the Post-Graduate qualifications, would be the period of
eclipse and upon acquisition of such qualification, the right to seniority would
stand revived and would get precedence over those who may have already been
appointed as Assistant Professors since they had the requisite qualification.
23.
We
are unable to accept such a proposition on behalf of the Respondents since
although there was no formal separation between teaching and non-teaching
staff, there was this existing distinction that those belonging to the
non-teaching line could not be appointed in the teaching line till they had
acquired the Post-Graduate degree. This distinction always remained till the
1988 Rules when teaching and non-teaching posts were treated as different
cadres and the seniority in the teaching cadre was calculated from the date of
their appointment as Assistant Professors. Even if the feeder post for
appointment of Assistant Professors was Civil Assistant Surgeons at the initial
stage, the said situation stood altered with the amendment of the Rules where
under Assistant Professors could be recruited only by way of direct
recruitment. We do not, therefore, agree with the submissions made on behalf of
the Respondents that such candidates, who had obtained lateral transfer from
the non-teaching to the teaching line, would be entitled to carry their period
of service as non-teaching staff for the purpose of computing their seniority
in the cadre of Assistant Professors, since the basic qualification for being appointed
as Assistant Professors in the teaching line was a Post-Graduate degree, which
the Respondents acquired during the course of their service as Civil Assistant Surgeons
and were thereafter transferred to the teaching line. The view of the Tribunal
to the contrary cannot be supported having particular regard to the view
expressed by this Court in N. Suresh Nathan'scase (supra) and in Shailendra Dania's
case (supra), wherein the same view which we have taken, was taken by this
Court upon holding that those diploma holder Junior Engineers who had obtained degrees
while in service were not entitled to count their service prior to obtaining
the degree for computing the required period for the purpose of promotion.
24.
The
other decisions cited by Mr. Gururaja Raoin Dr. N. Ramachandra Rao's case
(supra), as stated hereinbefore, would not have application to the facts of
this case since in the instant case it is a case of lateral transfer from one
discipline to another where seniority would have to be reckoned from the date
of joining the teaching line. Even the decision of this Court in S.N. Dhingra's
case (supra), cited by Mr. H.S. Gururaja Rao, cannot be of any application for
the same reason.
25.
The
Appeals and the Writ Petition No.566 of2003, must, therefore, succeed and are allowed.
The judgments and orders of the Andhra Pradesh Administrative Tribunal dated
10th March, 1998 in O.A. No.3599 of 1995 are, therefore, set aside along with G.O.Ms.
No.502 dated 13th September, 2003, and G.O.Ms. No.325 dated 15th June, 1999, is
restored together with all consequences arising there from.
26.
In
the circumstances of the case, the parties will bear their own costs.
.................................................................J.(ALTAMASKABIR)
..................................................................J.
(DR. MUKUNDAKAM SHARMA)
New
Delhi
Dated:
19.10.2010
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