Delayed But Not Denied: HC Relief to eligible Professors for Dean Posts

Chennai: In a recent judgment, the Madras High Court bench directed the State Government to appoint eligible Professors specializing in Obstetrics and Gynaecology, General Surgery, and Orthopaedics to the post of Dean in Government Medical Colleges.

The Court noted that the promotions of such doctors were delayed because of a Court order and the imposition of a Model Code of Conduct (MCC) in light of the 2019 general elections.

"In the case in hand, there was an oral direction issued by the Madurai Bench of this Court not to issue the promotion and transfer order till a particular date and ultimately, those writ petitions were dismissed as withdrawn. This oral direction issued by the Madurai Bench of this Court should not act prejudicial to the rights of the petitioners, who would have otherwise got the promotion and transfer orders along with others on 28.2.2019 when the Medical Officers working in the other 22 specialities were issued with the promotion and transfer orders," the HC bench comprising Justice Anand Venkatesh observed in the order.

It was observed by the Court that the Government delayed the promotion of the individuals due to an oral instruction by the Court asking the State not to issue any promotion order until a challenge to the same was heard.

At this outset, the Court noted that the petitioners, who were otherwise eligible to be appointed as Deans, should not be denied the opportunity without any fault of theirs.

"The mind of this Court is redolent with the Latin maxim 'actus curiae neminem gravabit', which means that an act of court shall prejudice no one. It is now too well settled that no person should suffer for the act on the part of the Court and it cannot be put against him to his prejudice," the bench observed.

Addressing the further delay due to the Code of Conduct, which came into force from 11.03.2019 before the 2019 general elections to the Lok Sabha, the bench observed, "It is quite unfortunate that the Code of Conduct has been put against the petitioners. It is not a case of any fresh appointment or a fresh promotion and transfer posting. The entire process was over much before the issuance of the Code of Conduct and what remained was a mere administrative act of issuing promotion and transfer order, which waited till the completion of the Lok Sabha poll."

"The petitioners admittedly participated in the promotion counselling that was held along with others and for reasons, which are not attributable to them or in other words, for which, the petitioners cannot be blamed, the promotion and posting orders came to be issued at a later point of time and that is now being put against the petitioners stating that as on the crucial date i.e on 15.3.2024, the petitioners had not completed the five years' teaching experience as Professors," it further observed.

However, the Court observed that the petitioners were very much eligible for promotion to the post of Professor after having participated in the promotion and transfer counselling along with the Medical Officers of the other specialities.

"Hence, the benefits that accrued in favour of those candidates belonging to the other specialities should be equally extended to the petitioners also. In Service Law, the matter of promotion in many cases would be by virtue of seniority and more so when the mode of appointment to the next higher grade is on the basis of seniority in the feeder category," held the Court.

The court made these observations while considering a plea by a group of doctors seeking directions to the Health and Family Welfare Department to include them in the 2024-2025 panel for the promotion to the post of Dean of medical colleges without reference to the date of joining the post of Professor.

On the other hand, the State argued that as per the Rules, only a person possessing a recognised postgraduate medical degree from a recognised institution with a minimum of 10 years of teaching experience as Professor/Associate Professor in a medical college or institute (out of which, 5 years should be as Professor in the concerned department), can be appointed as the Dean.

In this case, the department contended that the issuance of promotional orders to the petitioners was delayed because of an oral direction of the Court. It was submitted that after the court order, the Model Code of Conduct for the 2019 elections came into force and it resulted in further delay in issuing the promotion orders. The department argued that the petitioner have not challenged their promotion in 2019 and therefore, they could not challenge their non-inclusion for appointment as Dean.

On the other hand, the petitioners submitted that in 2019, they did not have to challenge the promotion orders as they never thought it would be put against them.

The petitioners also relied upon a communication sent by the Principal Secretary to the Secretary asking him to include the names of eligible Medical Officers without referring to their date of promotion. In this regard, the State argued that even though such a communication was issued, it could not promote medical officers as the Rules did not allow such a relaxation.

Observations by Court:

While considering the matter, the HC bench observed that the petitioners could not fulfil the requirement of 5 years due to the Court order and administrative delays, which could not be put against the petitioners, who were otherwise eligible.

"...there was an oral direction issued by the Madurai Bench of this Court not to issue the promotion and transfer order till a particular date and ultimately, those writ petitions were dismissed as withdrawn. This oral direction issued by the Madurai Bench of this Court should not act prejudicial to the rights of the petitioners, who would have otherwise got the promotion and transfer orders along with others on 28.2.2019 when the Medical Officers working in the other 22 specialities were issued with the promotion and transfer orders," observed the Court.

Disagreeing with the State's stand that the petitioners should have challenged the promotional order in 2019, the Court observed that the petitioners never had a cause to question the promotional posting orders as Professors since they never anticipated that it was going to be put against them when they would go for the next promotion to the post of Dean.

"This Court is not able to agree with the submissions made by the learned Advocate General appearing on behalf of the official respondents. As held by this Court, the petitioners never had a cause of action to question the promotional posting orders as Professors since they never anticipated that it is going to be put against them when they go into the next promotion to the post of Dean. In fact, the Government itself gave them an impression that the requirement is going to be considered by relaxing the period, during which, they were not able to be promoted and posted to the post of Professor owing to reasons beyond their control. Therefore, the real cause of action had arisen only when the Government later took a policy decision and came to the conclusion that the five years' experience period has not been fulfilled and that therefore, the petitioners are not entitled for promotion to the post of Dean. Hence, this Court holds that there is absolutely no delay on the part of the petitioners in questioning the decision taken by the Government and they got the earliest cause of action to question the delay in granting the order of promotion and posting to the post of Professor only after the impugned Government Order was issued by the first respondent," observed the HC bench.

"In the light of the above discussions, this Court holds that the act of the Court and the administrative delay should not be put against the petitioners, who would have otherwise fulfilled the requirement of teaching experience like that of the candidates in the other 22 specialities, who got their promotion and transfer orders on time. Consequently, the petitioners must be held to be eligible for promotion to the post of Dean in the Government Medical Colleges in line with their respective CML seniority by including them in the appropriate position below their immediate senior," it further ordered.

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/madras-hc-order-276907.pdf

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