Dr. N. Rajendran vs The State of Tamil Nadu and Others

V.S. Sirpurkar, J.—This judgment will govern two sets of writ petitions, they being W.P. Nos. 18969 to 18971 of 1997, having been filed

by Dr. N. Rajendran and W.P. Nos. 18972 to 18974 of 1977, having been filed by Dr. Arthur Joseph Ashirvatham. Each Petitioner before us in

the two batch of writ petitions has joined Dr. G.R. Anand Moses, Dr. S. Venkataraman and Dr. R. Madhavan as sixth Respondent. The three

Respondents named above and one Dr. K. Rajendran had filed four Original Applications before the Tribunal wherein, the present two writ

Petitioners and one Dr. A. Pannerselvam were party Respondents. All the four applications, three applications filed by the 6th Respondent in the

two batch of writ petitions herein, viz., O.A. No. 3428 of 1996 filed by Dr. S. Venkataraman, O.A. No. 3429 of 1996 filed by Dr. R. Madhavan,

O.A. No. 3429 of 1996, O.A. No. 3430 of 1996 filed by Dr. C.R. Anand Moses and the fourth application, viz., O.A. No. 3700 of 1996 filed

by Dr. K. Rajendran came to be allowed. However, we do not find any reference or challenge to the order of the Tribunal in so far as it pertains to

the applications filed by Dr. K. Rajendran. The Tribunal has allowed the applications and has passed the following order:

In this view of the above, we conclude that Rule 4 substituted in the adhoc rules governing the post of Reader in Diabetology, issued in G.O. Ms.

No. 941, Health, dated 29.5.79, by G.O. Ms. No. 141, Health and Family Welfare Department, dated 7.3.1996 is illegal and void and the same

is directed to be deleted. Taking into account the above direction, the claims of the applications for consideration of their names for the post of

Reader in Diabetology be considered, if they are otherwise qualified. These applications are allowed on the above terms.

All the writ petitions challenge the common order passed by the Tribunal, the operative part of which we have quoted above. The following factual

matrix will help to understand the controversy involved.

The three successful Respondents as also Dr. K. Rajendran held M.D. Degree in General Medicine at the relevant time. They were working as

Assistant Professors in Diabetology Department in Government General Hospitals. The rules governing the post of Reader in Diabetology

Department are to be found in G.O. Ms. No. 941, Health Department, dated 29.5.1971. Rules 3 and 4 thereof provide for the ""Appointment and

the Qualifications"" required for the post of Reader. They were as Under:

APPOINTMENT: - Appointment to the post shall be made.

(i) by promotion from the categories of Clinical Tutors or Clinical Lecturers or Clinical Assistants; or

(ii) by transfer from any other category included in the cadre or Civil Surgeons in Class I in Branch I - Medical of Tamil Nadu Service.

QUALIFICATIONS: No person shall be eligible for appointment to the post unless he possesses the following qualifications, namely: -

(i) Must have obtained M.D. degree in General Medicine;

(ii) Must have worked as Clinical Tutor / Clinical Lecturer/Clinical Assistant under a Diabetologist for a period of not less than two years ;

(iii) Must have had the following teaching experience in the speciality of General Medicine and / or Diabetologist:

Five years prior to and two years subsequent to acquiring M.D. Degree (General Medicine);

or

Three years prior to and three years subsequent to acquiring M.D. Degree (General Medicine);

Four years subsequent to acquiring M.D. Degree (General Medicine);

(iv) the period of experience referred to in Clauses (ii) and (iii) shall be concurrent,

(v) Omitted

By Notification-II appended to G.O. Ms. No. 141, Health and Family Welfare Department, dated 7.3.1996, the following Rule 4 was

substituted for the old rule. It is as under:

QUALIFICATION: No person shall be eligible for appointment to the post, unless he possesses the following qualifications, namely:

(i) M.D. Degree in General Medicine and a diploma in Diabetology.

(ii) Teaching experience in the speciality of General Medicine or Diabetology, for the period specified below, namely:

(a) Seven years, of which five years shall be prior to, and two years subsequent, the obtaining of the diploma in Diabetology; or

(b) Six years, of which three years shall be prior to, and three years subsequent to, the obtaining of the diploma in Diabetology; or

(c) Four years subsequent to the obtaining of the Diploma in Diabetology.

Thus, it is clear that now the minimum education qualification are ""M.D. in General Medicine"" and a ""Diploma in Diabetology"", which diploma was

not required earlier. Even the ""teaching experience"", which was earlier required under the original rules, was in reference to M.D. Degree in

General Medicine. Now, after the amendment, the said ""teaching experience"" is in reference to the ""Diploma in Diabetology"". Needless to mention

that a diploma in Diabetology in addition to M.D. (General Medicine) has become a must after the amendment of the rules.

Aggrieved by this, all the four Doctors named above in paragraph 2, filed original applications challenging the validity of the above mentioned

G.O. Ms. No. 141 dated 7.3.1996. Admittedly, all of them did not have the diploma in Diabetology and they were till then working as Assistant

Professors and, therefore, naturally expected their next promotion to the post of ""Reader"" in Diabetology. With the amended provisions regarding

the educational qualifications none of them could have been appointed or promoted as Reader. This appears to be the main reason why they

challenged the aforementioned G.O. Ms. No. 141.

The main stay of their contention was that they did not have any opportunity to obtain this diploma though the said diploma was introduced in

Madras Medical College in 1986-87 for which no candidate who had undergone any postgraduate course in one speciality could take admission

unless the prospectus specially permitted the same. It has come in the original applications that Dr. K. Rajendran, one of the successful applicants

before the Tribunal, who then was Assistant Professor in the Department of Diabetology and who possessed the qualification in M.D. (General

Medicine) had applied for diploma in Diabetology course but the said application was not entertained. According to the original applicants, an

admission for that course was totally prohibited for holders of M.D. degree. It was, however, admitted in the applications that five persons had

obtained that diploma though the said five persons also were holding the M.D. degree. It is haltingly pleaded in all the applications that the

applicants had also sought admission somewhere in 1990''s for that course but their applications were not entertained. In short, the contention

raised was that though under the adhoc rules issued in 1979, the original applicants were entitled to be promoted on the basis of their educational

qualification of M.D. (General Medicine), their chances of promotion to the post of Reader in Diabetology were completely annihilated on account

of the subsequent amendment made in the year 1996 by G.O. Ms. No. 141. It was on this account that the said G.O. Ms. No. 141 came to be

challenged as ""discriminatory"".

In addition to these general pleadings, which were more or the less common, Dr. R. Madhavan, applicant in O.A. No. 3429 of 1996, had

pleaded that his name was recommended by the Dean, Government General Hospital, Director of Medical Education in reference dated

22.2.1996 and the impugned amendment had deprived him of the promotion. So also, Dr. K. Rajendran also pleaded that his name was included

in the list of persons fit for promotion to the post of Reader and he was put at Sr. No. 4 and the amendments had completely demolished his

chances for promotion.

It is admitted that the present two writ Petitioners, who were originally joined in all the original applications as party-Respondents along with one

Dr. A. Pannerselvam, are, however, armed with the diploma in Diabetology in addition to their degree of M.D. (General Medicine). A very halting

pleading was made that it was not known under what circumstances some persons (obviously) meaning the party-Respondents had obtained the

said diploma in the wake of the express prohibition to that effect in the prospectus. These Respondents were not joined originally but were joined

by way of amendment to the original applications.

As against the aforementioned contentions raised by the applicants, it was stated on behalf of these original Respondents that the Government

always have the power to prescribe the qualifications for a particular post by exercising the powers given under proviso to Article 309 of the

Constitution of India and there was nothing wrong if the Government insisted on the additional qualifications and for that purpose, amended the

original G.O. Ms. No. 941. It was also pointed out that for holding the post of ""Reader"" in Diabetology, the additional qualification of diploma in

Diabetology could always have been provided and there was nothing wrong much less ""discriminatory"" and, therefore, the added original

Respondents, who were armed with that diploma as an additional qualification, were always better candidates.

The Tribunal took note of the earlier prohibition contained in the prospectus for the admission to the postgraduate Courses and noted that all the

diploma courses were included as the postgraduate courses. The prospectus of the year 1986-87 was referred wherein, the said postgraduate

courses were divided in Group A and Group B while Group A related to the M.D. degree and M.S. degree in various specialities, in Group B

amongst the 11 entries, the last entry at Sr. No. 11 was ""All Diploma Courses"". The Tribunal also took note of the paragraph III in the general

instructions, which reads as under:

No candidate who has undergone or is undergoing any post graduate course in one speciality will be eligible for admission subsequently to another

speciality unless speciality mentioned to in prospectus. Candidates qualified in one speciality securing admission into another speciality by

suppressing the fact that they have already undergone a Post Graduate Course or undergoing any Post-Graduate course are liable to be expelled

and their selection cancelled. The above condition will not be insisted upon in the case of candidate seeking admission to Nonclinical Post

Graudate courses.

The Tribunal also took note of the fact that though Dr. K. Rajendran had applied for this course is the year 1986-87 itself, when it was first

introduced, his application was not entertained and remained without any response and he was subsequently informed that since he was the holder

of M.D. Degree in General Medicine, his application was not considered. The Tribunal also noted the change in this position in the prospectus for

the year 1993-94 wherein the eligibility criteria given in paragraph 1 (d) was as follows:

A candidate who is already having a Post-Graudate Degree/Diploma in any one speciality shall not be eligible to appear for entrance test for

admission to any other Post-Graduate Degree/ Diploma. Non-clinical degree holders are not eligible for clinical degree courses, whereas clinical

degree holders are eligible for non-clinical degree courses only, irrespective of the speciality.

It was specifically pointed out to the Tribunal that the newly added Respondents (present writ Petitioners) had acquired that diploma.

Unfortunately, the Tribunal left it at that and beyond a mention of the contention, there does not appear to be any consideration on the part of the

Tribunal of the factual position that in spite of the provision in paragraph III of the prospectus for the year 1986-87, there were as many as about

five persons who had obtained the diploma on the basis of that very prospectus. A contention was raised on behalf of the original-Respondents to

the original applications that initially under paragraph III, a candidate holding the postgraduate degree in General Medicine was eligible to apply for

admission to diploma course in Diabetology and the prohibition was in respect of admission to a ""degree course"" in contradistinction to a ""diploma

course"" and, therefore, the Respondents were, in fact, admitted and were successful in obtaining the said diploma in addition to their original

qualification of M.D. (General Medicine). This was reiterated on the basis of the amended prospectus, which we have quoted above wherein, it is

clarified that the prohibition would apply both to ""postgraduate degree"" as well as the ""diploma"". This contention was also rejected by the Tribunal

practically without giving any reasons and by simply saying that the Tribunal was unable to accept this submission. The Tribunal then went on to

hold in paragraph 18 that a person holding M.D. degree in General Medicine could not have acquired the qualification of diploma in Diabetology

and, therefore, the subsequent amendment requiring the diploma in Diabetology for promotion had to be struck down.

In short, the Tribunal held the said G.O. Ms. No. 141 to be unconstitutional only on the ground that the applicants herein could not have

obtained that diploma. The Tribunal then noted that insistence of a qualification ,which was impossible of acquisition, for appointment to a

particular post would clearly arbitrary and would deprive a person otherwise qualified to get promotion and this would infringe the ""fundamental

rights"" of such persons and if such conditions are prescribed then, it had to be necessarily struck down. The Tribunal then went on to record a

finding that the said G.O. Ms. No. 141 was in breach of Articles 14 and 16 of the Constitution of India and, therefore, invalid. The Tribunal then

directed the applicants to be considered for the post of Reader in Diabetology even without that diploma qualification.-

We have given our very serious consideration to the rival contentions made before us, which were more or the less similar before the Tribunal

and we are unable to agree with the findings of the Tribunal.

In the first place, it is to be seen that the finding of the Tribunal on facts that the said diploma qualification was impossible to be acquired is itself

factually incorrect. We have atleast three Doctors (five as per the admission in the original applications in paragraph 14) who have been able to

obtain that diploma that too, after its introduction in the year 1986-87 from the same University. There is a clear admission to that effect even in the

original application. The Tribunal has clearly ignored this factual position. Even if we accept the contention that Dr. K. Rajendran sought for the

admission to the diploma course in Diabetology in the year 1986-87 and was refused, we wonder why had he then kept quiet and not challenged

the decision. There is no plea raised factually that all the applicants had made such applications even before the amendment of prospectus in the

year 1993 and the contentions raised are in an extremely halting manner that the said Doctors tried to get the admission to the diploma course but

were told that they could not have applied for the same. If the Respondents were given admissions and were able to obtain the diploma, we fall to

follow why could not the applicants assert their right. It was for them to insist upon their right and it is clear that they kept quiet.

The second aspect of the matter is, they did not even challenge the admissions granted to the persons like the present Petitioners for the

diploma course in Diabetology. It is impossible that they did not know about such admissions given to the Respondents to the diploma course in

Diabetology. After all, they were all serving more or the less in the same institution. Therefore, a position is obtained that where the original

Respondents and the present Petitioners herein had bettered their qualifications, the original applicants and the Respondents herein did not do so.

We are not on the question as to whether in reality it was proper for the University to impose a bar on the candidates having the degree of

M.D. from obtaining the diploma in Diabetology. The fact remains that there were the persons who actually were allowed to obtain the diploma

and the further fact remains that the Respondents herein did not question either the grant of admission to the Petitioners for diploma or the denial of

admissions to themselves to the diploma course in Diabetology. The first factual premise of the Tribunal, therefore, itself is shaky. It is obvious that

the resultant view taken by the Tribunal is that because it was impossible for the applicants, or for that matter anybody, to take admissions to the

diploma course in Diabetology, the subsequent rule providing the having of that diploma as a necessary qualification itself constitutionally invalid.

When the very factual basis is incorrect, the resultant conclusion has to suffer.

We also find that though the mainstay of the challenge of the original applicants was the illegal denial of admission to them to the Diabetology

diploma course or the illegal admission given to the original non-applicants (Petitioners herein), the University was not made a party. Thus, under

what circumstances, the admissions were rejected (if at all they were really rejected) and under what circumstances the original non-applicants

were admitted to that diploma course remained a mystery. It was only the University authorities who could have explained the situation and then

the Tribunal would have been justified in declaring whether the action by the University in refusing the admission to the original applicants and giving

them to the original non-applicants was correct in law or not. In our view, the original applications were bad for nonjoinder of necessary parties,

i.e. the University or as the case may be the medical colleges (the authorities who controlled the admission).

It will also be seen that the logic in holding the G.O. Ms. No. 141 unconstitutional is wholly incorrect. Merely because, the applicants were

refused the admission or could not have obtained the admission to the diploma course, which was introduced as the essential qualification for the

post of Reader, cannot be a reason to invalidate the subsequent G.O. Ms. No. 141. There was nothing arbitrary in introducing the additional

qualification for the post of Reader. After all, ""promotion"" is never deemed as a ""right"" in the service jurisprudence. There was nothing wrong on

the part of the authorities to change the rules and to introduce the additional qualifications for the post of Reader in Diabetology. It is not as if there

was no person holding that qualification available because, we have on record that the present Petitioners were such persons who were having that

diploma qualifications of that very institute.

It is not again as if, there was no such persons available elsewhere because we do not have any evidence before us to suggest that the post of

Reader was to be filled in only by way of ""promotion"" and that too, from the staff of the institute alone. The said post could be filled in even by

transfer"" from any other category included in the cadre of Civil Surgeons in Class I or Branch I of Tamil Nadu Medical Services. So, it is not as if

the post was meant only for the persons who were working as the Assistant Professors in that very institute. There could have been some others

who were having the requisite qualifications. Therefore, the logic mat merely because the applicants could not obtain the diploma, the subsequent

rule becomes constitutionally invalid is clearly faulty.

It is not a case of the original applicants that the aforementioned amendment introduced by G.O. Ms. No. 141 was calculated one to exclude

the original non-applicants and was in any way of mala fide nature. If it was a bona fide exercise to improve the level of qualification for the post of

Reader, which was undoubtedly a ""promotional post"", then merely because there were some persons in the Department who could not or could

not have obtained the diploma in Diabetology cannot be a reason for invalidating the whole G.O. Ms. No. 141. At best, the original applicants

could have pleaded that they were ""discriminated"" against if their claim to the promotion was rejected but, they could never have prayed for the

invalidation of G.O. Ms. No. 141 itself. After all, a policy to enhance the qualification for holding a particular post cannot and does not rest on the

ability or inability of the incumbents to have that qualification. If such a view is taken, devastating results would ensue. There would be no occasion

then for raising the level of qualification for holding a particular post. We have already said so and even at the cost of repetition, we would say that

if promotion to the post of Reader in Diabetology was not a right then to raise the level of qualification for that post could never have been seen as

constitutionally invalid exercise by the State.

Then again, the Tribunal has unfortunately restricted itself only to the first clause of the amendment which speaks about having of the diploma in

Diabetology as an essential qualification but has ignored the other parts which speak about the ""teaching experience"" after obtaining the diploma in

contradistinction to the experience after obtaining M.D. Degree. The true import of the amendment is very clearly reflected in the conditions

providing the essential teaching experience. It has direct nexus with the main clause and it suggests that the authorities required the teachers who

had the requisite teaching experience after obtaining the diploma thereby, the required degree of excellence was raised which could not be seen as

an ""arbitrary"" or ""discriminatory"" act. In our opinion, the Tribunal has clearly erred in holding the said G.O. Ms. No. 141 as ''constitutionally

invalid"". The order of the Tribunal quashing the G.O. Ms. No. 141 is set aside and the original applications are dismissed. The writ petitions are

allowed. The Rule is made absolute in the above terms. Under such circumstances, however, there will be no order as to the costs. All the W.M.

Ps. are closed.