Dismissed

Dr.P.Kamalakannan v. the Government of Tamilnadu

Madras HC4 Apr 2014WP/18604/2013

Case brief

AI extract

What is this about?

Writ petitions challenging the appointment of candidates directly to teaching posts despite an undertaking for rural service were dismissed. The court held petitioners were ineligible as they were pursuing their MDS degrees on the notification date, depriving them of locus standi.

What did the court decide?

The writ petitions were dismissed as devoid of merit due to the petitioners' lack of eligibility and locus standi.

Dr.P.Kamalakannan Vs the Government of… — Pension and Retirement Benefits | Madras HC (2014)

¶1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶2

DATED: 04.04.2014

¶3

CORAM

¶4

THE HONOURABLE MR. JUSTICE T.RAJA

¶5

W.P.Nos.18604 and 25957 of 2013

¶6

1.Dr.P.Kamalakannan 2.Dr.M.Shabbir Ahamed 3.Dr.P.S.Kavitha 4.Dr.S.Sivasakthi Kumar 5.Dr.K.Baskaran 6.Dr.R.Rameswari 7.Dr.N.Smitha 8.Dr.T.Kavitha 9.Dr.A.Senthi Kumar 10.Dr.T.Mariasingam 11.Dr.V.Akalya Subramanian 12.Dr.M.Suresh Kumar 13.Dr.A.Pravin Kumar 14.Dr.S.Ramya Devi ... Petitioners in W.P.No.18604/13 Dr.A.Pravin Kumar ... Petitioner in W.P.No.25957/13 Vs. 1.The Government of Tamil Nadu, Rep. by Secretary to Government, Department of Health and Family Welfare, Fort St. George, Chennai – 9. 2.The Special Secretary to Government/Member Secretary, Department of Health and Family Welfare, Medical Services Recruitment Board, Fort St. George, Chennai – 9. 3.The Director, Medical Services Recruitment Board, 7^th Floor, DMS Building, 359, Anna Salai, Teynampet, Chennai – 6. 4.The Director, Directorate of Medical Education, Kilpauk, Chennai.

¶7

... Respondents 1 to 4 in both Wps

¶8

https://hcservices.ecourts.gov.in/hcservices/

¶9

5.The Director, Directorate of Medical & Rural Health Services, DMS Building, 359, Anna Salai, Teynampet, Chennai – 6.

¶10

6.Dr.M.Arulmozhi

¶11

7.Dr.Anitha Valentina

8.Dr.Vidya Jayaram

9.Dr.G.Pamalai

10.Dr.A.Sujatha

11.Dr.S.Jothilatha

12.Dr.D.Kmatchi

13.Dr.Mythireyi

14.Dr.Shanthi

15.Dr.S.Suganthi 16.Dr.D.Lingeshwar

¶20

17.Dr.Geetha Lakshmi 18.Dr.N.Senthilkumar 19.Dr.R.Suresh

20.P.Ramesh

21.J.Santiswarup

22.V.Revathy

23.J.Dhanalakshmi 24.Dr.Kanimozhi ... Respondents 5 to 24 in W.P.No.25957/13 (RR6 to 24 are impleaded as per order of this Court dated 10.1.2013 in M.P.No.3/13 in W.P.No.25957/13)

¶25

PRAYER IN W.P.No.18604/2013: Writ Petitions filed under Article 226 of Constitution of India praying to issue Writ of mandamus to forbear the respondents herein from appointing the candidates directly recruited under the Assistant Surgeon (Dental)(Specialty) Category

¶26

https://hcservices.ecourts.gov.in/hcservices/

¶27

through notification No.01/2013, dated 31.03.2013 issued by the respondents 2 and 3 to the post of Assistant Professor/Tutor in the services of the fourth respondent Directorate of Medical Education, contrary to the clauses in the notification by not serving in the Hospitals under the Department of Medical and Rural Health Services and pass such further orders.

¶28

PRAYER IN W.P.No.25957/2013: Writ Petitions filed under Article 226 of Constitution of India praying to issue Writ of certiorarified mandamus for bearing the respondents herein from appointing the directly recruited candidates in any of the posts in the Medical Colleges and Teaching Institutes under the Assistant Surgeon (Dental) (General & Specialty) Category, in the Directorate of Medical Education and consequently forbearing the respondents 1 to 5 herein from appointing the directly recruited candidates in any of the posts in the Medical Colleges and Teaching Institutes without first serving in the Hospitals for 5 years, as per notification No.01/2013, dated 31.03.2013 issued by the respondents 2 and 3 and pass such further orders.

¶29

Learned counsel appearing for the petitioners submitted that the petitioners, after successfully completing their BDS Course, got selected through Tamil Nadu Public Service Commissioner (TNPSC) for the post of Assistant Surgeon (Dental) under the Directorate of Medical and Rural Health Services. It is further stated that they have been serving as Assistant Surgeons (Dental) in various rural and hilly areas for a period of 3 to 5 years under the Directorate of Medical and Rural Health Services. Upon their selection for Post Graduation (MDS) through TNPG entrance examination on the basis of their merit, they are now studying their final year and some of them, second year of MDS course in Tamil Nadu Government Dental Hospital, Chennai, and now, they are in line to be appointed to the post of Assistant Professor/Tutor in the Directorate of Medical Education. Whileso, the respondents 2 and 3 issued notification No.01/03, dated 31.03.2013 calling upon the eligible candidates to participate in the selection process to fill up various posts of Medical Officers through direct recruitment, and that the selection will be mainly on

¶30

https://hcservices.ecourts.gov.in/hcservices/

¶31

the candidates, who are willing to serve in the rural service for a period of five years and to that effect, the selected candidates to the post of Post Graduate (Dental) (Speciality) category, have to give an undertaking to serve in rural areas, before the accommodation to any other departments. However, it is contended, the respondents 2 and 3, contrary to their own notification and undertaking, are taking steps to post them in the post of Assistant Professor/Tutor in the Directorate of Medical Education, without the directly recruited candidates undergoing the mandatory rural service of five years as per the notification. At this junctures, the petitioners sent their representation objecting to appoint any candidate selected under the Post Graduate (Dental) (Speciality) category, directly to the post of Assistant Professors/Tutors without doing rural service as per the notification. Therefore, when the notification specifically prescribes the mode of selection and nature of employment and when the selected candidates have to mandatory serve in the specific department, the respondents cannot accommodate the selected candidates in the fourth respondent/Directorate of Medical Education, to their own whims and fancies, especially when they are ineligible and barred from such appointment. Had the selected candidates accommodated in the post of Assistant Professors/tutors contrary to the notification, then the entire vacancies will get filled up and thereafter, the petitioners will have to wait for the vacancies to be appointed in the said post. Therefore, he contended, the petitioners having been put in 7 years of service, would be losing their seniority to the ineligible candidates throughout their carrier apart from losing the promotion, inasmuch, as per the Dental Council Regulations, only the date of getting appointed in the Directorate of Medical Education will be counted for seniority. He further stated that he is not pressing the prayer with regard to the petitioners 1 to 8, since they have been selected and posted as Assistant Professor.

¶32

In support of his submission, he has also relied upon a judgement of this Court in Indian Oil Corporation Ltd., v. J.Ranjith (2012 (5) CTC 577) to say that when selection is made on the basis of prescribed procedure made known to the candidates earlier, Corporation is not entitled to make deviation at later point of time. By citing so the above said ratio, it is contended that having issued notification with a clear condition, it is not open to the respondent to make a deviation, therefore, the mandatory condition mentioned in the notification should followed strictly.

¶33

He has also relied upon yet another judgement of this Court in the case of Dr.M.Vennila v. Tamil Nadu Public Service Commission (2006 (3) CTC 449) for a proposition that the condition mentioned in the notification as well as Information Brochure are not only mandatory but also binding on candidates as well as State Government / TNPSC, inasmuch as the prospectus is binding on candidates as well as State including machinery appointed by State

¶34

https://hcservices.ecourts.gov.in/hcservices/

¶35

for identifying candidates for selection and admission and that the Information Brochure have force of Law, therefore, it has to be strictly complied with. No modification/relaxation can be made by Court and application filed in violation of instructions cannot be entertained. By citing the above said ratio, he contended, after issuance of notification, the respondents cannot violate the conditions mentioned in the notification.

¶36

With the aforesaid submissions, he prayed for allowing the writ petitions.

¶37

Per contra, learned Additional Advocate General appearing for the respondents 1 to 4 submitted that though the learned counsel for petitioners has fairly not pressed the prayer in respect of petitioners 1 to 8, he was constrained to prosecute the writ petitions in respect of petitioners 9 to 14, since they are not eligible or qualified candidates to take part in the selection process as per the condition mentioned in the notification. It was further contended that when the condition mentioned in the notification clearly mentioned that the persons, who have completed MDS Course, are entitled to participate in the selection process, admittedly, in the case on hand, the petitioners 9 to 14 have not completed the MDS Course, therefore, the prayer made by the petitioner being premature, the same should be rejected. It was also contended that the impression placed by the learned counsel for petitioners on the basis of Clause (h) of the notification, which runs to the effect as follows;

¶38

“that all the vacancies in the Speciality categories will be filled in only by the candidates, who possess relevant Post Graduate Diploma/Degree/Super speciality degree and who are willing to serve in the Speciality Department of any of the Hospitals in the District i.e. in the District Headquarters Hospitals, Taluk Headquarters Hospitals, T.B. Sanatorium etc., atleast for a period of five years after which they will be considered for transfer to General line i.e. other than the Speciality or to the teaching post.

¶39

does not mean that all the persons will be first posted for a period of five years with an undertaking to serve in the rural areas and after that, they would be considered for a transfer to general line. Therefore, there is no such rule that all the persons, who are going to be selected as per the notification, will have to serve for the first five years in the rural areas and after that, they would be considered for a transfer to general line.

¶40

Further, learned Additional Advocate General contended

¶41

https://hcservices.ecourts.gov.in/hcservices/

¶42

that the intention of the respondents are to provide better medical care to the public attending the government medical institutions, therefore, the candidates who are qualified in MDS Course and secured higher marks alone, are considered for filling up of the vacancies in the teaching medical institutions. Hence, there was no illegality committed by the respondents. Admittedly, on the date of issuance of notifications, the petitioners have not completed the required qualification of MDS, therefore, the stand taken by the petitioners in the affidavit that the petitioners 9 to 14 are studying second year MDS course, shows that they are ineligible even to participate in the selection process, hence, the respondents cannot wait till the petitioners complete their course. With these submissions, learned AAG prayed for dismissal of the writ petitions.

¶43

Learned counsel appearing for the respondents 6 to 24 in W.P.No.25957 of 2013 submitted that when the selection process was over successfully and well-qualified candidates, after making their application, participated in the interview and subsequent to that, they have been declared as selected candidates, only at the time of issuance of appointment order, the present writ petitions have been filed by the ineligible candidates, therefore, the prayer made by the petitioners should not be entertained by this Court. It is further submitted that initially at the time of filing writ petitions, intentionally the petitioners have not impleaded the respondents 6 to 24 as parties to these writ petitioners, which shows that the petitioners have come to this Court with unclean hands, therefore, the prayer sought for by the petitioners against the respondents should be rejected. It is further contended that the respondents 6 to 24, in view of their selection, have resigned their jobs and thereby they have lost their income, hence, the challenge made by the ineligible candidates should not be entertained.

¶44

In support of his submissions, he has also relied upon a judgement of the Hon'ble Apex Court in the case of Rakesh Kumar Sharma v. State (NCT of Delhi) and others ((2013) 11 SCC 58) for a proposition that eligibility conditions should be examined as on the last date for receipt of application and therefore, candidates fulfilling the requisite qualifications has a right to be considered for appointment. But, in the case on hand, the petitioners did not possess requisite qualification on the last date of submission of application and still they are pursuing their MDS course, hence, the petitioners are ineligible for appointment and on that basis, he prayed for dismissal of the writ petitions.

¶45

Heard the learned counsel appearing on either side and perused the materials available on record.

¶46

Admittedly, the third respondent / the Director, Medical Services Recruitment Board, Chennai, issued notification No.01/2013, dated 31.03.2013, calling for applications from the eligible

¶47

https://hcservices.ecourts.gov.in/hcservices/

¶48

candidates for recruitment and in by which, they have mentioned the required qualification to all the posts, which is stated below;

¶49

For Assistant Surgeon (General) - MBBS Degree

¶50

For Assistant Surgeon (Speciality) - PG Degree/Diploma in the concerned Speciality and Super Speciality. For Assistant Surgeon (Dental) (General) – BDS Degree For Assistant Surgeon (Dental) (Speciality) – MDS Degree

¶51

That apart, in the notification, it was also mentioned that all the candidates wishing to apply shall abide by the certain undertaking and for better appreciation, conditions (i) and (iv) of the undertakings are extracted hereunder;

¶52

"i) In the event of selection, the candidate shall serve in the Government Primary Health Centres for a period of not less than three years excluding any period spent on training, leave or higher education.

¶53

iv) In the event of his selection to the Speciality side vacancy, he shall serve in the Special Department of any of the Hospitals in the Districts i.e. in the District Headquarters Hospitals, Taluk Headquarters Hospitals, T.B. Sanatorium, etc. atleast for a period of five years."

¶54

A mere reading of the above said condition mentioned in the undertaking depicts that a person, who is selected to the speciality side vacancy, will have to serve in the Special Department of any of the Hospitals in the Districts i.e. in the District Headquarters Hospitals, Taluk Headquarters Hospitals, T.B. Sanatorium, etc. atleast for a period of five years. Therefore, as stated above, when the condition is very clear in the notification dated 31.03.2013, an objection raised in these writ petitions stating that Clause (h) of General Information of the Notification prescribed that the vacancies in the Speciality categories will be filled in only by candidates who possess relevant Post Graduate Diploma/Degree/Super Speciality degree and who are willing to serve in the Speciality Department of any of the Hospitals in the District atleast for a period of five years and thereafter, they will be considered for transfer to General line, does not mean that every selected candidate will be asked to serve for a period of five years in the Speciality Department of any of the Hospitals in the District i.e. in the District Headquarters Hospitals, Taluk Headquarters Hospitals, T.B. Sanatorium. Likewise, had the petitioners qualified and selected, they need not even serve for a period of five years in the Speciality Department as stated above, for the reason that it is exclusively left with the employer to insist or not to insist upon such conditions, because, in a given

¶55

https://hcservices.ecourts.gov.in/hcservices/

¶56

situation, the respondent depending upon the exigency can requisition the selected doctors to work in a particular hospital in the interest of public safety.

¶57

Moreover, as rightly argued by the learned Additional Advocate General for respondents 1 to 4, it has been well settled that only the candidates who have got qualified and who have participated in the selection process, alone can challenge the correctness of the notification. In the present case, it is admitted by the petitioners in their affidavit that they are still pursuing MDS course. For proper appreciation, relevant portion of the affidavit admitting that they are still pursuing MDS course is extracted below;

¶58

"2.............. the petitioners

¶59

1 to 8 are the third year service Post Graduate Students and the petitioners 9 to 14 are the second year service Post Graduate Students undergoing MDS course in the Tamil Nadu Government Dental College, Chennai, except 13^th petitioner who is studying in the Government Dental College, Bangalore, by obtaining the orders of Government."

¶60

It is also well settled legal position that the selection process commences on the date when applications are invited. Any person eligible on the last date of submission of the application has a right to be considered against the said vacancy provided he fulfils the requisite qualification. But, in the case on hand, even though the notification was issued on 31.03.2013 for recruitment to the post of Assistant Surgeon (Dental) (Speciality) with qualification of MDS Degree, the petitioners, as extracted above, are still pursuing MDS course, therefore, the petitioners are not having the eligibility even to apply for the said post. Moreover, the petitioners 9 to 14, being ineligible candidates, have no locus-standi to challenge the notification.

¶61

Therefore, for the reasons mentioned above, the writ petitions are dismissed as devoid of any merit. No Costs. Consequently, connected miscellaneous petitions are closed. Sd/

Asst.Registrar

//True Copy//

Sub.Asst.Registrar

rkm

https://hcservices.ecourts.gov.in/hcservices/

¶67

¶68

1.The Secretary to Government,
Department of Health and Family Welfare,
Fort St. George, Chennai – 9.
2.The Special Secretary to Government/Member Secretary,
Department of Health and Family Welfare,
Medical Services Recruitment Board,
Fort St. George,
Chennai – 9.
3.The Director,
Medical Services Recruitment Board,
7 th Floor, DMS Building,
359, Anna Salai, Teynampet,
Chennai – 6.
4.The Director,
Directorate of Medical Education,
Kilpauk, Chennai.
5.The Director,
Directorate of Medical & Rural Health Services,
DMS Building, 359, Anna Salai,
Teynampet, Chennai – 6.
+2 cc to Mr.G.Arul Murugan,Advocate, SR. No.16918, 16454
+1 cc to Mr.R.Sankarasubbu,Advocate, SR. No.16480

¶69

W.P.Nos.18604 and 25957 of 2013

¶70

ggk(co) pmk.28.4.2014

¶71

https://hcservices.ecourts.gov.in/hcservices/

Dr.P.Kamalakannan v. the Government of Tamilnadu

Case brief

What is this about?

What did the court decide?

Dr.P.Kamalakannan v. the Government of Tamilnadu

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

M.Shanmugavel Vs the Secretary

Ntt Docomo Inc., Vs the Assistant Controller

Comdt.Aks Panwar, Tm Vs Indian Coast Guard

R.Venkatesan, Vs the State of Tamil Nadu

Sanjeev Ramiakhan Mishra, Vs the Commandant

Muthuswamy Vs the Collector