Dr. K.V. Narasimha Murthy vs The Andhra Pradesh Administrative Tribunal and Others

V.V.S. Rao, J.—The petitioner is Joint Director in the Department of Insurance Medical Service. He is physically challenged person. He questioned G.O.Ms. No. 418 Health, Medical and Family Welfare Department dated.18.4.2001 issued by the second respondent before the Administrative Tribunal by filing O.A. No. 2571 of 2001. An administrative member of the Tribunal by the impugned judgment dated.25.4.2001 dismissed the O.A. Hence, this Writ Petition challenging the impugned judgment of the Tribunal.

By the impugned G.O.Ms. No. 418 dated. 18.4.2001 the fourth respondent herein was placed in full additional charge of the post of Director of Insurance Medical Service with effect from the date of taking charge of the post. The Secretary of Medical and Health Department, who was holding additional charge was requested to handover the charge to the fourth respondent. The petitioner challenged the said G.O. inter alia on the ground that he is senior to the fourth respondent both in the category of Civil Assistant Surgeons and Civil Surgeon (Specialist) and therefore he ought to have been preferred to fourth respondent and that as per the statutory rules issued in G.O.Ms. No. 183 dated. 4.5.1996 a minimum service of three years in the feeder category of Special Grade Civil Surgeons was required which the fourth respondent does not satisfy. The application was opposed by the second respondent as well as the fourth respondent on the ground that the petitioner is not qualified to hold the post of Director as he does not have Post Graduate Qualification and in any event placing the fourth respondent as full additional charge, no service benefits would accrue to her and therefore there cannot be any grievance to be redressed by the Tribunal. The Tribunal placing reliance on the judgment of the Supreme Court in Ramakant Shripad Sinai Advalpalkar Vs. Union of India and others, , in which it was held that in making arrangements for placing full additional charge, rule of seniority need not be followed, dismissed the O.A. observing as under:

It is the contention on behalf of the official respondents that the applicant though is senior in the category of Special Grade Civil Surgeon, he is not qualified to hold the post of Director, IMS and therefore he cannot have any grievance. On the other hand, it is the contention of the applicant that Post Graduate qualification is not required for promotion to the post of Director. The above question need not be gone into in the O.A. as in the impugned order no promotion is given to the unofficial respondent but she was only placed in full additional charge of the post. When through the impugned order no service benefits accrue to the unofficial respondent and when such an arrangement need not be strictly in accordance with the seniority in a judicial review I am not inclined to interfere with the impugned orders.

The learned counsel for the petitioner, the learned Government Pleader for Medical and Health and the learned counsel for the fourth respondent reiterated the respective rival contentions before this Court also. The learned Government Pleader also submitted that in view of the amendment notified vide G.O.Ms. No. 167 dated.1.5.2001 a person to become eligible for promotion to the post of Director must have a minimum period of one year service before retirement and as the petitioner has left over service of ten months only, the Government did not consider placing the petitioner as full additional charge of the post of Director.

Reliance placed by the learned Government Pleader on G.O.Ms. No. 167 dated.1.5.2001 is misplaced. By the said G.O., an amendment was made to A.P. Medical and Health Service Rules which was issued in G.O.Ms. No. 43 dated.16.1.1982. The same cannot be taken as an amendment to the Special Rules dealing with Insurance Medical Service which were issued in G.O.Ms. No. 183 dated. 4.5.1996. In any event the said ground was not taken before the Tribunal. This has no bearing on the case on hand.

However, we find force in the submission made by the learned counsel for the fourth respondent that the petitioner is not qualified for being promoted to the post of Director, which is category-1 of Class-A post, as per A.P. Insurance Medical Service Rules, 1996. Rule 5 read with Annexure appended to the Rules provides for qualifications. Though the post of Director is to be filled up by promotion of Special Grade Civil Surgeons, a Civil Surgeon (Specialist) cannot be promoted to the post of Special Grade Civil Surgeon, unless he/she possesses P.G. Degree qualification in the specialty in which the post of Civil Surgeon (Specialist) is available. Admittedly, the petitioner has a Diploma in Industrial Health and therefore he is ineligible for the post of Director. Be that as it may, as per Rule 5 of A.P. State and Subordinate Service Rules 1996 all promotions/appointments by transfer in State Service shall be made on ground of merit and ability and seniority being considered only when merit and ability are approximately equal. It may also be mentioned that Rule 5 of A.P.Civil Services (Classification, Control and Appeal) Rules 1991 (''A.P.C.C.A. Rules'' for brevity) classifies civil services of the State as State Services and Subordinate Services and as per Rule 6 State Services are those services included in schedule-I of A.P.C.C.A. Rules or any other service that may be notified by the Government from time to time. It is not denied that being State Service, Director of Insurance and Medical Service is a selection post and therefore seniority is of least importance in promotion to the post. Likewise even for placing a person as full additional charge of the post, in our considered opinion, seniority is not of much significance.

In Ramakant Shripad Sinai Advalpalkar''s case (supra) the Supreme Court categorically held that in-charge arrangement does not give rise to rights and equities or expectations. It was further observed:

The distinction between a situation where a Government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion. In such a case he does not get the salary of the higher post; but gets only that in service parlance is called a "charged allowance". Such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it.The person continues to hold his substantive lower post and only discharges the duties of the higher post essentially as a stop-gap arrangement.

It is needless to point out that as per Section 19 of the Administrative Tribunals Act, 1985 only person aggrieved by any order can make application to the Tribunal for redressal of grievance. Further, as per Section 20 the Tribunal shall not ordinarily admits an application unless the person with perceived grievance seeks redressal of grievance by availing all departmental remedies available. The petitioner has not availed the departmental remedy for seeking redressal and therefore on this ground also in our considered opinion the O.A. was not maintainable.

Yet another submission made by the learned counsel for the respondents is that the post of Director involves onerous duties including frequent travel from Hyderabad to other far off places in India and the petitioner being a physically challenged person would not be able to discharge the onerous duties. Though a ground is taken in the pleadings before the Tribunal as well as here in writ affidavit that the petitioner is entitled to the benefits under the provisions of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the learned counsel for the petitioner did not make any attempt on this score and therefore we need not advert to this.

In the result, we are convinced that no ground is made out for interfering with the judgment of the learned Tribunal and the Writ Petition is accordingly dismissed. There shall be no order as to costs.