Challa Jaya Bhaskar & Ors vs Thungathurthi Surender & Ors

common judgment passed by the Andhra Pradesh High 2

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 be

adopted 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.

3

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 4

framed 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 5

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 6

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 7

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 the

non-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 8

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- 9

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 CAS

with 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 10

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 11

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, a

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 12

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 13

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 14

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 long

standing 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, 16

prayed for setting aside the said judgment and

order of the High Court on the ground that the same

had 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 17

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 under

the 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) 3

SCC 590], in the medical world there are

specialities and specialities and it is generally

accepted that they are not of equal importance or

utility. But promotions are allowed in the 18

specialized disciplines and a junior with a

relatively less important speciality may be

fortunate enough to get faster seniority than his

senior in a different speciality. 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 19

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 CAS

would 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 20

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 21

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 a

teaching 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. Chaudhari

urged that this was not a case of vertical

upgradation in the same category but a lateral

transfer from the non-teaching line to the teaching 22

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 the

1988 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 Article

309 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 23

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 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.

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 dated

4th May, 2002.

24

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

a 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 the

non-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.

25

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 whereunder Assistant Professors could be

recruited only by way of direct recruitment. We do

not, therefore, agree with the submissions made on 26

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's

case (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 27

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 Rao

in 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 of

2003, must, therefore, succeed and are allowed.

The judgments and orders of the Andhra Pradesh 28

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

therefrom.

26. In the circumstances of the case, the parties

will bear their own costs.

..................................................................J. (ALTAMAS KABIR)

..................................................................J. (DR. MUKUNDAKAM SHARMA) New Delhi Dated: 19.10.2010