Allowed

Dr K Sreelatha v. the Director of Medical Education State of Ap

Andhra Pradesh HC14 Sept 2022WP/663/2022

Case brief

AI extract

What is this about?

The court directed respondents to consider the petitioner for promotion to Professor in Obstetrics & Gynecology, considering her seniority from a 2017-18 panel where the committee was not convened, despite her non-joining of a subsequent interim post.

What did the court decide?

Directing respondents to consider the petitioner for promotion to Professor in 2022-23 panel, considering her 2017-18 seniority and posting in Kurnool Medical College.

Dr K Sreelatha Vs the Director of… — Pension and Retirement Benefits | Andhra Pradesh HC (2022)

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HON’BLE DR. JUSTICE K. MANMADHA RAO

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WRIT PETITION No.663 of 2022

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ORDER :

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This petition is filed under Article 226 of the

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Constitution of India for the following relief:-

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“…to grant proper relief more in the nature of Writ of Mandamus declaring the action of the respondents in taking steps to effect promotions to the post of professors other than professor OBGY in pursuance of Circular Rc.No.231121/E1 AB/2021 dated 25.11.2021 issued by the 1^st respondent without taking steps for affecting promotion to the post of professor OBGY also as arbitrary, illegal, discriminatory, malafide and constitutional violating Article 14, 16 and 21 of the Constitution of India and issue consequential directions directing the respondents to forthwith affect promotions to the post of professor OBGY also along with other departments in pursuance of Circular Rc.No.231121/E1- AB/2021 dated 25.11.2021 issued by the 1^st respondent by considering the case of the petitioner for promotion to the post of Professor OBYG by giving postal date of promotion and seniority to the petitioner in the cadre of associates professor OBGY with effect from the date of promotion of associates professors in other departments who were promoted for the panel year 201718 are alternatively prepare the year wise panels for promotions to the post of Associate Professor OBYG in terms of rule 6 of Andhra Pradesh State Subordinate rules and consider and promote the petitioner to the post of Associate Professor OBYG with effect from the date of availability of vacancy in the cadre of Associate Professor

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OBGY with all consequential benefits including for promotion to the post of professor OBGY and issue further direction restraining the respondents from affecting promotions to the post of professors in other departments that is other than Professors OBGY in pursuance of the Circular Rc.No.231121/E1-AB/2021 dated 25.11.2021 issue the first respondent till effecting promotion to the post of Associate Professor OBGY also in terms of rule 6 of Andhra Pradesh State Subordinate rules and pass such other order or orders … … .”

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Brief facts of the case are that the petitioner was initially appointed as Civil Assistant Surgeon in July 2000. Subsequently, she was appointed as tutor in OBGY in August 2000 at Government Medical College, Anantapuram following walk-in interview. The petitioner was redesignated as Assistant Professor OBG at the same place in September, 2001. Thereafter, the petitioner was transferred to Kurnool Medical College, Kurnool in January 2004. Later, she was transferred and posted to SVMC, Tirupati in November 2014. It is further stated that the petitioner was posted as Tutor in Urology at Kurnool Medical College, which is a mismatch post, in January 2016 and she was again posted as Assistant Professor OBGY in the existing vacancy in May 2017. It is further stated that the

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petitioner’s husband died while he was in service, in the year 2008 leaving behind two daughters and the petitioner is the sole person to look after them.

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It is further stated that the 1^st respondent has issued Seniority List of Assistant Professors (OBGY) vide proceedings dated 23.08.2018 for effecting promotions to the post of Assistant Professors, which were vacant at the relevant time in August 2018 to fill up vacant posts. Subsequently, in September 2018, the 1^st respondent transferred and posted Dr. A.Srilakshmi, Associate Professor (OBGY) Kurnool Medical College, Kurnool on deputation as Associate Professor (OBGY), which was vacant and which was supposed to be filled up by promotion vide proceedings in Rc.No.5754/E-1/2018 dated 31.08.2018 at the instance of the then Director, the 2^nd respondent transferred the party respondent as was done in other transfers in January 2019 by way of issuing G.O. But very unfortunately the said GO kept secret for sometime as despite efforts made by the petitioner, she could not be able to get the said GO at the time of filing WP No.8808 of 2019, which is pending before a Divsion Bench of this Court.

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It is further stated that the 1^st respondent has issued Circular dated 25.11.2021 called proposals from the institutions under the control of the 1^st respondent for submitting proposals to convene the departmental promotion committee for the panel year 2021-2022 to the post of Professor in various departments, except OBGY. However, the eligible Associate Professors in this OBGY are not available, that situation arose because of not effecting promotions to the post of Associate Professors, OBGY for the panel year 2017-2018 and effecting promotions to other departments, for which, the 1^st respondent seeking proposals to effect further promotion to the post of Professors, in as much as in these departments, the eligible Associate Professors in the OBGY department.

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Counter affidavit is filed by the respondents denying all the allegations made in the petition and contended that the Government has issued promotional GOs for the cadre of Professors in the specialty of Obstetrics & Gynecology on 30.08.2018 and further proceedings were issued on 06.09.2018 posting the promoted candidates as Professors. The DPC could not convened in Obstetrics &

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Gynecology specialty. In all other specialties the promotional orders were received on 22.08.2018, hence the DPC for promotion from the cadre of Assistant Professors as Associate Professors for the specialties except Obstetrics & Gynecology were conducted in the panel year 2017-2018. Hence the DPC for the specialty of Obstetrics & Gynecology was not conducted during the panel year 2017-2018 due to administrative reasons.

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It is further stated that during the panel year 2018-19, the name of the petitioner was approved by the DPC for promotion to the post of Associate Professor of Obstetrics & Gynecology and during the counseling conducted on 07.02.2019, she has not opted the place of posting. Hence she was posted on promotion as Associate Professor of Obstetrics & Gynecology in the available vacancy at Government Medical College, Ongole. As such it was declared that the petitioner relinquished her promotion. Though new posts of Associate Professors were created at Kurnool Medical College, Kurnool the same were already filled up with the eligible candidates by transfer to meet the National medical Council of India norms. It is further stated

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that the Government being the supreme authority has the power to post doctors working in any Government Medical College to any other Government Medical College including Kurnool Medical College, as per their request or on general transfers. It is further stated that the 1^st respondent has issued a circular vide Rc.No.231121/E1-AB/2021, dated 25.11.2021 calling proposals for promotion to the post of Professor in all departments from the institutions under the control of the Director of Medical Education, AP, Vijayawada for the Panel year 2021-2022 including Obstetrics & Gynecology department and in the department of Obstetrics & Gynecology the DPC cleared four Associate Professors names and counseling was conducted on 18.07.2022 and the list was sent to Government on 18.07.2022 for issuing the posting orders as the Government is the competent authority for promotion to the cadre of Professor so far no orders have been received. It is further stated that the petitioner is not eligible for promotion as Professor for the panel year 2021-22, as she had not completed 3 years of requisite Teaching experience as Associate Professor as on 31.08.2021. She had promoted as Associate Professor

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during the panel year 2019-20 and joined as Associate Professor on 19.10.2020 at Kurnool Medical College, Kurnool. Hence, prayed to dismiss the writ petition.

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Heard Mr. P.V. Krishnaiah, learned counsel appearing for the petitioner and learned Government Pleader for Services-IV appearing for the respondents.

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Learned counsel for the petitioner submits that without any fault on the part of the petitioner, the then respondent authorities willfully, intentionally and with malafide intention to do undue favour to others, not promoted the petitioner for the panel year 2017-2018 to the post of Associate Professor, OBGY, and for that, the petitioner cannot be deprived of her future right.

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On the other hand, learned Government Pleader submits that the Government has the power to transfer and post an Associate Professor accordingly as per the rules. The contention of the petitioner is that the vacant post of Associate Professor in Obstetrics & Gynecology at Kurnool Medical College, Kurnool should be kept vacant and not to be filled up till her DPC is done in order to post her in the

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above mentioned place and such contention is speculative. He further submits that the petitioner is not eligible for promotion as Professor for the panel year 2021-022 as she had not completed 3 years of requisite Teaching experience as Associate Professor as on 31.8.2021. she had prmoted as Associate Professor during the panel year 2019-20 and joined on 19.10.2020 at Kurnool Medical College.

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On hearing, this Court observed that the petitioner was appointed as a Civil Assistant Surgeon in July 2000 and the said post was later re-designated as Assistant Professor Obstetrics & Gynecology. There is no dispute with regard to the various places she working during her tenure of service and now she is working as an Associate Professor of Obstetrics & Genecology, Government Medical College, Anantapuram.

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On perusing the entire material available on record, it is evident from the pleadings that, DPC for promotion to the post of Associate Professor from the cadre of Assistant Professor in Obstetrics and Gynecology Specialty was not conducted for the panel year 2017-18. It is also observed that despite availability of the vacancy in

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the cadre of Associate Professor, OBGY, Kurnool Medical College for the panel year 2017-18 and despite initiating steps to fill up the said post along with other posts, the then Director with malafide intention to do undue favour to the party respondent and others, filled up that post by way of deputation as well as transfer instead of filing up that post by way of promotion for the panel year 2017-18 in terms of Rule 6 of A.P. State and Subordinate Service Rules. During the panel year 2018-19, the case of the petitioner was considered for promotion to the post of Associate Professor and she was promoted as Associate Professor and posted as Associate Professor, Obstetrics and Gynecology, Government Medical College, Ongole, vide proceedings in Rc.No.548/E1A/2018, dated 7.2.2019, which is evident from the material papers at page No.53 & 54. However, she has not joined in the said post.

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As the learned Government pleader contended that the petitioner relinquished her promotion. For that, learned counsel for the petitioner has relied upon Rule 28 of the A.P. State and Subordinate Service Rules, 1996 and contended that such non-joining by the petitioner in the post promoted

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willnot extinguish her right to promotion and the same does not disentitle her from being considered for promotion thereafter. Rule 28 of A.P. State and Subordinate Service Rules, 1996, reads as follows:

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Rule – 28 : Relinquishment of rights by members: Relinquishment of any privilege by the employee may be accepted if it is in public interest.

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In the case of G. Boyanna Vs. Registrar (Administration), High Court of AP and another¹ , a

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Division Bench of this Court held that :

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” merely reversion sought earlier on personal grounds did not disentitle the employee from being considered for promotion thereafter and that Rule 28 of the Rules of 1996 does not have the effect of extinguishing the right of the employee to be considered for promotion permanently. That being the legal position, the rejection of the employee's request to be considered for promotion on the ground of his/her alleged relinquishment is unsustainable.”

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In a case of M.V.R.L.S. Ravikanth vs. The State

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of Andhra Pradesh rep. by its Prl. Secretary,

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Environment, Forests² , wherein a Division Bench of the

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1 2009 (2) ALD 402 (DB)

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2 Indian Kanoon-170838544/W.P.No.13624 of 2015, dated 02.06.2017

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High Court of Judicature for the State of Telangana and the

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State of Andhra Pradesh, held that:

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“11. The right to be considered for promotion is a fundamental right under Article 16(1) of the Constitution of India. The Rule 28 of the Rules of 1996 did not disentitle a member of a service frombeing considered for promotion in a future vacancy merely because he/she had relinquished his/her right for promotion earlier. In the case on hand, the mere fact is that the petitioner's relinquishment for promotion on account of suffering from depression due to sustaining physical disability, loss of wife and son in the accident did not disentitle him from being considered for promotion in future vacancies.

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12. The relinquishment of an opportunity for promotion, which arose for an employee occupying certain place in seniority list, in view of vacancy that arose then, in view of the fact that he/she was eligible for promotion in the light of the criteria laid down in the Rules, would mean that the extent the privilege has been relinquished is confined to the privilege related to that particular vacancy which was available to him/her by virtue of the above mentioned circumstances. The Rule cannot be interpreted to mean that the relinquishment was in respect of future vacancies also. As far as that particular vacancy is concerned, the employee's relinquishment is final. He cannot claim later that he may be deemed to have been promoted to that particular vacancy and that his seniority may be fixed as if he was promoted to that vacancy. If a member of service, who has relinquished his promotion, at one stage, is promoted subsequently when another vacancy arose, he will be junior to a person who was promoted to the vacancy relinquished by him in the promotion post and he cannot claim seniority over the said person.

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13. In the light of the above discussion, we have no hesitation to hold that relinquishment of right or privilege of promotion to a particular vacancy would amount to permanent relinquishment of right or privilege of promotion to that particular vacancy. Rule 28 of the A.P. State and Subordinate Service Rules cannot be read or interpreted to mean that his right to be considered for promotion to any vacancy arising in future also is permanently extinguished. Such interpretation would lead to frustration and unrest in the service defeating the object of promoting efficiency and harmonious functioning. ”

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It is an admitted fact that the petitioner belongs 2017-18 panel for consideration for promotion to the post of Associate Professor, but for the reasons best known to the respondents, DPC was convened in Obstetrics & Gynecology Specialty, though the same was conducted for effecting promotions to other specialties. Further, though the petitioner could not join in her promoted post during the panel year 2018-19, her case was considered in the next panel year and she was promoted as Associate Professor. Now she is due for promotion to the post of Professor.

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In view of the foregoing discussion and in view of the decisions referred to above, this Court is of the considered opinion that, directing the respondents to consider the case of the petitioner for promotion in 2022-23

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panel for promotion to the post of Professor in Obstetrics and Gynecology specialty, considering her seniority in 201718 panel, during which, no DPC was conducted for the reasons best known to the respondents for promotion to the post of Associate Professor from the post of Assistant Professor and her case be considered for posting in Kurnool Medical College, Kurnool.

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