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Judgment
K. Chandru, J.—Though the third respondent was served through private notice and proof affidavit was filed, he has not chosen to appear
either in person or through counsel. In the absence of the third respondent, arguments of the counsel for the petitioner and the official respondents
were heard.
These writ petitions arose out of O.A. Nos. 10494 of 1997 and 86 of 1998 filed by the petitioner before the Tamil Nadu Administrative
Tribunal. In view of the abolition of the Tribunal, the matters were transferred to this Court and were renumbered as W.P. Nos. 27288 and 31998
of 2005.
In W.P. No. 27288 of 2005, the petitioner sought for the issuance of a writ of certiorarified mandamus to call for the records relating to the
impugned proceedings of the first respondent in G.O.D. No. 1147 Health dated 2.9.1996 and the consequential proceedings of the second
respondent in R.D.C. No. 28254/E1(1)/96, dated 9.9.1996, quash the same and to direct the respondents 1 and 2 to appoint the applicant as
Reader in the department of Pediatric Hematology.
In W.P. No. 31998 of 2005, the same petitioner sought for the issuance of a writ of mandamus to direct the respondents to treat the period of
training in Pediatric Hematology undergone by the applicant at Queen''s University, United Kingdom as study leave with full pay or deputation with
full pay.
In the first writ petition the challenge is to the order of the first respondent, dated 2.9.96 and the consequential proceedings of the second
respondent dated 9.9.96 and for a direction to respondents 1 and 2 to appoint the petitioner as a Reader of Pediatric Hematology. It is the claim
of the petitioner that the third respondent did not possess qualification for holding the post of Reader in Pediatric Hematology.
In the second writ petition, the same petitioner had sought for a direction to treat the period of training that the petitioner had undergone under
the Queen''s University in U.K. as study leave with full pay or deputation with full pay.
It is the stand of the petitioner that several persons were sent on deputation for working in Gulf countries. Whereas in the case of the petitioner,
he was granted 81 days of EL and the period from 31.5.90 to 8.3.92 as leave on loss of pay. But, the same will be counted for reckoning pension.
When the petitioner claimed to extend similar benefits, his claim was rejected by orders dated 25.11.94 and 26.6.95. The attempt by the petitioner
to rely upon G.O.D No. 565, Health and Family Welfare Dept., dt.22.7.94 was sought to be explained by stating that the deputation granted in
those cases was for employment purpose and not for training purposes. Therefore, in the absence of any legal or enforceable right, the petitioner
cannot seek to treat the period as to one of duty and there is no illegality or infirmity in the orders passed by the respondents. The petitioner himself
never challenged the orders negativing his claim. Hence W.P. No. 31998 of 2005 will stand dismissed.
Insofar as W.P. No. 27288 of 2005 is concerned, the post of Reader in Pediatric Hematology is concerned, it is governed by the adhoc rules.
The adhoc rules were in force from 8.10.1984. The relevant rule reads as follows:
The General and Special Rules applicable to the holders of the permanent post of Clinical Reader in Category 9 in Class I in Branch I-Medical of
Tamil Nadu Medical Service, shall apply to the holder of the temporary post of Reader in Pediatric Haematology, sanctioned from time to time
subject to the modifications specified in the following rules.
...
Qualification: No person shall be eligible for appointment to the post unless he possess the following qualifications namely:
(1) M.D. Degree in Paediatrics; and
(2) Degree in Haematology/Training in Pediatric Haematology for a period of not less than one year in a recognised Pediatric Centre in India or
abroad and
(3)Must have had teaching experience in the speciality of Paediatrics/Paediatric Haematology as follows:
(a) (b) (c) omitted.
Even when the respondents called for applications by proceedings dated 11.4.96, these qualifications were reiterated. It is only pursuant to this
notification, the petitioner and the third respondent had applied for the said post and their claims were considered.
On notice from the Tribunal, the first respondent has filed a counter affidavit, dated 25.7.2001. In the counter, it was averred as follows:
While filling up of the post of Reader, the claims of both the applicant and the 3rd respondent, their seniority, qualifications and experience
prescribed for the post/possessed by the claimants, were duly examined, their qualifications and experiences, at that time, were as follows:
(1) Dr. M. Venkatadesikalu; (Third Respondent)
Commenced service on 9.9.71 afternoon and obtained MD., Paediatrics in the year 1978. He has been working as Assistant Surgeon/Assistant
Professor of Paediatrics for the past 19 years, out of which 9 years were as Assistant Professor of Paediatrics in the Heamatology Department of
Institute of Child Health and Hospital for Children, Chennai. He has been senior enough to hold the post of Reader in Paediatrics Haematology,
that since, 1985 he has been taking classes for under graduates and post graduates in Paediatrics Haematology, topics and that he also presented
papers in the above speciality at both National and International conferences. The retired Professor of Haematology, Dr. V. Pushpa had also
certified that the Medical Officer has been working in Haematology Department of Institute of Child Health and Hospital for Children, Chennai
continuously for over ten years, that he has had considerable training and experience in the diagnosis and management of a vide variety of
Haematologic problems in infants and children and that he has been teaching under graduates/post graduates and also presented papers at National
and International conferences.
(2) Dr. P. John Solomon :(Applicant herein)
Commenced service on 31.5.82 and obtained the degree of MD (Paediatrics) in March 1985. He also obtained the degree of Master of Medical
science in Haematology of the Queen''s University of Belfast in July ''92. He has been working as Tutor/Assistant Professor of Paediatrics from
14.11.85 to till date except during the period of his training in United Kingdom in Haematology for two years. He has been working as Assistant
Professor of Paediatrics and looking after Paediatrics Haematology and Oncology at Institute of Child Health and Hospital for Children, Chennai
from 7.5.92 and also teaching and training MBBS, DCH., and MD., (Paediatrics Student).
Among them the senior Dr. M. Venkatadesikalu has been working in the Pediatric Haematology Department of the Madras Medical College and
Research Institute/Institute of Child Health and Hospital for Children, Chennai (after obtaining his Post Graduate degree in Paediatrics) for more
than 9 years at that time and has also gained considerable experience in the speciality, though he did not have a degree in Haematology or
undergone training in Haematology for one year, in a recognized Paediatrics Centre in India or abroad. The junior, Dr. P. John Solomon was in
possession of a degree in Haematology of the University of Belfast. Both of them had the required teaching experience in the speciality of
Paediatrics Haematology.
It is submitted that though the senior i.e., the 3rd respondent, had not obtained any degree in Haematology (No such degree available in India),
he had undergone training in Paediatrics Haematology for more than ten years (the required period not less than one year) in a recognized
paediatrics center i.e., in the Chennai Medical College, Chennai in the Institute of Child Health and Hospital for Children, Chennai and thus fully
qualified for appointment as Reader in Paeditrics Haematology. The applicant, Dr. P. John Solomon, i.e. the junior was also possessing the
qualification and experience prescribed for the post and he also had the training in United Kingdom for 2 years. Since, both the senior and the
junior were having the required qualifications and experiences, the senior among them i.e., Dr. M. Venkatadesikalu was appointed as Reader in
G.O.(D) No. 1147, Health, dt.2.9.96 and had also joined as Reader on 12.9.96 forenoon. Against the above orders, the applicant has now filed
the Original Application No. 10494 of 97.
... it is submitted that, the applicant''s qualifications and experience to hold the post of Reader, had not been questioned. He was also qualified
to hold the post, his request for appointment as Reader was also examined and he being the junior among the qualified candidates, his request
could not be complied with. Accordingly, the senior among the qualified i.e., the 3rd respondent was appointed as Reader and the required
certificate issued....
It is shocking to note that in the absence of third respondent not possessing minimum educational qualification prescribed for the post under
statutory rules, as to how the respondents can justify his appointment. It is not the case of the respondents that the third respondent had the benefit
of any relaxation from the relevant service rules. On the contrary, attempt is being made to justify his appointment on the basis of his training in the
institute. But such training will come only after a person possess an academic qualification. Since the petitioner is the only qualified candidate having
the academic qualification, the question of his being junior to the third respondent does not arise.
In this context, it is necessary to refer to the following decision of the Supreme Court, wherein it was clearly held that if a person does not
possess the educational qualification prescribed under the relevant rule, he cannot be considered for any appointment. The said decision in Ram
Sarup Vs. State of Haryana and Others, reads as follows:
...But the argument was that by reason of Clause (2) of Rule 4 the minimum educational and other qualifications set out in Sub-clause (1) were
applicable only to a candidate who was appointed by promotion and these qualifications could not possibly apply in case of direct recruitment or
transfer. Now it is true that Clause (2) of Rule (4) deals with a case of recruitment by promotion and it requires in so many terms that the candidate
who is to be promoted must possess the minimum qualifications prescribed for the higher post to which promotion is to be made and the proviso
permits the Government to relax these qualifications in case of an official who is of outstanding merit. But we fail to see how this clause which deals
with the specific case of recruitment by promotion can possibly be read as cutting into the requirement imposed by Sub-clause (1) that every
person appointed to the service must possess educational and other qualifications set out in that clause by limiting such requirement only to cases of
recruitment by promotion. Clause (2) of Rule 4 does not seek to qualify Sub-clause (1) or to restrict its ambit and operation. What it does is
merely to deal with specific cases of recruitment by promotion and to confer power on the Government to relax the requirement of qualifications in
case of promotion, where the official to be promoted is of outstanding merit. Clause (1) of Rule (4) is absolute in its terms and does not permit
appointment of any person as Labour-cum-Conciliation Officer unless he possesses the educational and other qualifications set out in that clause,
regardless of whether the appointment is to be made by promotion or by direct recruitment or by transfer. The appellant could not, therefore, be
legitimately appointed to the post of Labour-cum-Conciliation Officer unless, amongst other things he possessed five years'' experience in the
working of Labour Laws as Labour Inspector, Deputy Chief Inspector for Shops or Wage Inspector, which he admittedly did not. It is no doubt
true that the Government at one time decided that the post of Statistical Officer and Labour-cum-Conciliation Officer should be made inter-
changeable but this decision was not implemented by carrying out the necessary amendments in the Punjab Labour Service (Class I and II) Rules,
1955. The result was that the decision of the Government remained what we may call brutum fulman and it could not operate in derogation of the
requirement of the statutory rules made in exercise of the power conferred under the proviso to Article 309 of the Constitution. The appointment of
the appellant to the post of Labour-cum-Conciliation Officer was, therefore, clearly in breach of Rule 4, Clause (1) of the Rules.
13.Therefore, the order of the Government in G.O.D. No. 1147, Health and Family Welfare Dept., dated 2.9.96 holding that the third respondent
is fully qualified to hold the post of Reader in Pediatric Haematology under the Tamil Nadu Medical Service is clearly illegal and contrary to the
relevant adhoc rules framed for the said purpose. Hence the appointment of the third respondent is hereby set aside. However, it is now stated in
the reply affidavit that the third respondent is holding the post with effect from 12.9.96, i.e. nearly for a period of 13 years. Therefore, the
contention that the petitioner should be appointed to the said post as he was the only eligible candidate at the time of selection in the year 1996
cannot be accepted. It is open to the respondents to call for fresh application in accordance with the rules and fill up the post in a manner known to
law. 14.Hence W.P. No. 27288 of 2005 (O.A.10494 of 1997) stands allowed. W.P. No. 31998 of 2005 (OA No. 86 of 1998) will stand
dismissed. However, there will be no order as to costs.