T. Karikalan vs The Director, Public Health and Preventive Medicine and Others

V. Ramasubramanian, J—This is an application seeking review of the order passed by me in a writ petition filed by the applicant herein.

Heard Mrs. R. Maheswari, learned counsel for the applicant and Mr. R. Vijayakumar, learned Additional Government Pleader for the respondents.

The applicant was selected for appointment as Assistant Surgeon (General) in the Tamilnadu Medical Service, in a recruitment undertaken by the Tamilnadu Public Service Commission in the year 1995. But, by the time the applicant was informed by the Tamilnadu Public Service Commission, by a communication dated 15.11.1995, of his provisional selection for appointment to the post, he had already got admission to M.S. (Orthopaedics) in the Karnatak Medical College, Hubli, under All India Quota, for which, selection was made through a competitive examination. Since the applicant had already joined the post graduate medical course on 24.3.1995 itself and also since the post graduate course was of a duration of three years expiring in February 1998, he could not join duty as Assistant Surgeon, when an order of appointment was issued by the Director of Public Health and Preventive Medicine on 18.1.1996.

However, thinking that he could strike a balance and also with a view not to lose either of the opportunities, the applicant reported for duty on the forenoon of 19.2.1996. But, on the very next day namely 20.2.1996, he sought permission to get relieved so as to continue the post graduate studies. Without either rejecting or allowing the request of the applicant permitting him to continue his post graduate studies, a memo was issued on 10.4.1996 initiating disciplinary action against the applicant on the ground that he stayed away from duty. Immediately, the applicant filed an application in O.A. No. 2649 of 1996 on the file of the Tamilnadu Administrative Tribunal seeking a direction to the respondents to grant study leave to him and to relieve him so as to enable him to pursue his post graduate course. The said application was pending for more than 8 years before the Tribunal and eventually, the Tribunal was abolished in the year 2004. Thereafter, the said application got transferred to this Court and renumbered as W.P. No. 21635 of 2006. The writ petition came up before me for final hearing on 19.10.2006. At that time, it was pointed out that during the pendency of the original application before the Tribunal, the applicant continued and completed his post graduate course pursuant to an interim order passed on 17.5.1996 by the Tribunal directing the respondents to relieve the applicant. Therefore, without reference to the pendency of the said application, the Department also permitted the applicant to rejoin duty by an order dated 2.5.2001, after the applicant completed his post graduate course.

Hence, taking note of the fact that the applicant had completed his post graduate course and that he had also rejoined duty, I dismissed the writ petition as having become infructuous, by an order dated 19.10.2006. Paragraphs 6 and 7 of my order read as follows:

"However, by an interim order dated 17.5.1996 in O.A. No. 2649 of 1996, the petitioner was relieved from duty to enable him to undergo the post graduate course. In pursuance of the said interim order, the petitioner was relieved and he has also completed the course.

It appears from a letter issued by the first respondent in R. No. 77248/E5/96-A3 dated 2.5.2001 that after the completion of the post graduate course, the petitioner rejoined duty, as Medical Officer in the Primary Health Centre, Valayapatti. Thus, the prayer of the petitioner has virtually become infructuous. Under such circumstances, nothing survives in this writ petition and hence, the writ petition is dismissed. No costs. It is open to the petitioner to work out his remedies in so far as the period during which he underwent the post graduate medical course."

Thereafter, the applicant has come up with the above review application contending that it was an error to think that the prayer in the writ petition has become infructuous.

According to applicant, he was not given posting as per the selection made in 1995. But, the applicant was given posting only in pursuance of another selection made in the year 2000. The applicant claims that the posting order issued to him on 18.5.2000 and his joining duty under the proceedings dated 2.5.2001, were wrongly projected by the respondents as though it was in pursuance of the selection held in 1995 and the interim order passed by the Tribunal in the said original application. Therefore, the applicant claims that the order passed by me is liable to be reviewed, in view of the error apparent on the face of the record.

I have carefully considered the above submissions.

Unfortunately, when the applications filed before the Tamilnadu Administrative Tribunal long time ago got transferred to this Court and renumbered as writ petitions and they came up for final disposal, many of them had actually become infructuous. Alternatively, subsequent events had overtaken the original grievance of the applicants before the Tribunal. Therefore, based on the reply statements made by the respective Departments before the Tribunal, those transferred cases are normally disposed of. The case on hand is a standing example of one such instance.

At the time when the writ petition was disposed of by me, the respondents produced a letter dated 2.5.2001 issued by the Director of Public Health and Preventive Medicine. The said letter read as follows:

"Dr. T. Karikalan, Medical Officer, Primary Health Centre, Valayapatti, Namakkal District is hereby informed that as per the orders of Tamilnadu Administrative Tribunal, is relieved from duty to undergo P.G. course in the year 1996. Hence, the case O.A. No. 2649 of 1996 filed by him praying relief from duty to undergo P.G. course has become infructuous. He is therefore directed to take immediate necessary action to withdraw the case and obtain orders of dismissal of the case from the Tamilnadu Administrative Tribunal at the earliest."

On the basis of the above letter, I presumed that the applicant was permitted to join duty, after he had completed post graduate course. But now, the applicant has produced an order of the Director of Public Health and Preventive Medicine dated 18.5.2000, selecting the applicant for appointment once again pursuant to the selection made by the Public Service Commission in the year 2000. Therefore, the applicant is right in his contention that the main application filed him before the Tamilnadu Administrative Tribunal, which got transferred to this Court as a writ petition, had not become infructuous.

The question as to whether the writ petition had become infructuous or not has to be tested based upon the consequence that will ensue, if the writ petition is decided one way or the other on merits. If the petition had been dismissed on merits, the applicant would be entitled only to claim the benefit of the fresh selection, in which, he participated in the year 2000 and in respect of which, he was given a posting on 2.5.2001. On the contrary, if the claim of the applicant in the main writ petition had been allowed, he would have become entitled to study leave for a period of three years and he would have become entitled, as a matter of right, to rejoin duty in the year 1998. If this had happened, the applicant''s name would have found a place in the Civil Medical List of the previous years and not of the year 2005. Now, his claim for promotion to the post of Associate Professor has also been rejected on account of the dismissal of the writ petition.

In view of the above, it is clear that the very foundation, on which, I dismissed the writ petition as infructuous, was obviously wrong. The respondents committed a mistake in not bringing to my notice that the order dated 2.5.2001 was not pursuant to the original selection made in the year 1995. Hence, the order requires to be reviewed and the writ petition needs to be heard on merits.

Accordingly, the review application is allowed. The order passed on 19.10.2006 is recalled and the writ petition is directed to be listed for final disposal.