Madras High Court
Dr.S.Revwathy vs Mr.J.Radhakrishnan on 28 February, 2018
Bench: T.S.Sivagnanam, R.Tharani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.02.2018
Orders reserved on: 26.02.2018
Orders pronounced on: 28.02.2018
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
and
THE HONOURABLE MRS.JUSTICE R.THARANI
CONT.P(MD)No.146 of 2018
and
W.P(MD)Nos.2907 and 4044 of 2018
and
W.M.P(MD)Nos.3080, 3081, 4204 and 4205 of 2018
CONT.P(MD)No.146 of 2018
Dr.S.Revwathy .. Petitioner/
Respondent
Vs.
Mr.J.Radhakrishnan, I.A.S.,
The Principal Secretary,
Government of Tamil Nadu,
Health and Family Welfare Department,
Fort. St. George, Chennai - 600 009. .. Contemnor/
Appellant
PRAYER: Contempt Petition is filed under Section 11 of the Contempt of Courts
Act, 1971 praying to punish the contemnor/appellant for the willful
disobedience of the orders of this Court made in Writ Appeal in
W.A(MD)Nos.1300 of 2017 and 1301 of 2017, dated 12.12.2017.
!For Petitioner : Mr.S.Alagarsamy
^For Respondent : Mr.B.Pugalendhi,
Additional Advocate General,
assisted by Mr.A.K.Baskarapandian,
Special Government Pleader.
W.P(MD)No.2907 of 2018:
Dr.S.Revwathy .. Petitioner
Vs.
1.The Government of Tamil Nadu
rep. by its Principal Secretary,
Health and Family Welfare Department,
Fort. St. George, Chennai - 600 009.
2.The Director of Medical Education,
Kilpauk, Chennai - 600 010.
3.Dr.A.Edwin Joe,
Director of Medical Education,
Kilpauk, Chennai - 600 010. .. Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Certiorarified Mandamus calling for the
records of the first respondent herein relating to the impugned
G.O.(D).No.173, Health and Family Welfare (A1) Department, dated 01.02.2018
and consequential impugned G.O.(D)No.174, Health and Family Welfare (A1)
Department, dated 01.02.2018, quash the same and consequently direct the
first respondent to promote and appoint the petitioner in the post of
Director of Medical Education forthwith.
For Petitioner : Mr.S.Alagarsamy
For Respondents 1 and 2 : Mr.B.Pugalendhi,
Additional Advocate General,
assisted by Mr.A.K.Baskarapandian,
Special Government Pleader.
For Respondent No.3 : Mr.S.Ramesh
for Mr.V.Raghavachari
W.P(MD)No.4044 of 2018:
Dr.A.L.Meenakshi Sundaram,
Dean,
Government Thiruvarur Medical College and Hospital,
Thiruvarur. .. Petitioner
Vs.
1.The State of Tamil Nadu
rep. by Secretary to Government,
Health and Family Welfare Department,
Secretariat, Fort. St. George,
Chennai - 600 009.
2.Dr.A.Edwin Joe,
Director of Medical Education,
Kilpauk, Chennai. .. Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Certiorarified Mandamus calling for the
records relating to G.O.(D)No.173, Health and Family Welfare (A1) Department,
dated 01.02.2018 and quash the same and consequently direct the respondents
to conduct selection for promotion to the post of Director of Medical
Education in accordance with rules and in strict compliance with the
directions of the orders passed in WA.No.1300 and 1301 of 2017, dated
12.12.2017 and promote the petitioner to the post of director or medical
education based on the merit and selection.
For Petitioner : Mr.G.Sankaran
For Respondent No.1 : Mr.B.Pugalendhi,
Additional Advocate General,
assisted by Mr.A.K.Baskarapandian,
Special Government Pleader.
For Respondent No.2 : Mr.S.Ramesh
for Mr.V.Raghavachari
:COMMON ORDER
[Common Order of the Court was made by T.S.SIVAGNANAM, J.] Since the issued involved in all these matters are common pertaining to the appointment of an incumbent to the post of Director of Medical Education, all the cases were heard together and are disposed of by this common order.
2.The contempt petition and W.P(MD)No.2907 of 2018 have been filed by Dr.S.Revwathy and W.P(MD)No.4044 of 2018 has been filed by Dr.A.L.Meenakshi Sundaram. Both the petitioners competed for being considered to the post of Director of Medical Education, which is a single post in the State. However, the Government by G.O.(D).No.173, Health and Family Welfare (A1) Department, dated 01.02.2018, appointed Dr.A.Edwin Joe, as the Director of Medical Education. This Government Order is impugned in both these writ petitions.
3.The case on hand has had a chequered history, as litigations commenced in the year 2016, at the instance of the petitioner-Dr.S.Revwathy. Ultimately, the matter has now culminated in the issuance of the impugned Government Order, appointing Dr.A.Edwin Joe, as the Director of Medical Education.
4.Mr.S.Alagarsamy, learned counsel appearing for the petitioner Dr.S.Revwathy, submitted that the Court should first hear Cont.P(MD)No.146 of 2018 and thereafter, may proceed to hear the writ petition filed by his client. Mr.B.Pugalendhi, learned Additional Advocate General, assisted by Mr.A.K.Baskarapandian, learned Special Government Pleader, agreed to the said submission and the Court heard the learned counsels in the contempt petition.
5.The contempt petition has been filed by Dr.S.Revwathy alleging that there is a wilful disobedience of the Judgment of the Division Bench in W.A(MD)Nos.1300 and 1301 of 2017, dated 12.12.2017. Two writ appeals came to be filed one by the State, namely, W.A(MD)No.1300 of 2017 and another one by Dr.A.Edwin Joe, in W.A(MD)No.1301 of 2017, challenging the order passed in W.P(MD)No.10257 of 2017, filed by Dr.S.Revwathy. The Division Bench, by common Judgment, dated 12.12.2017, disposed of the appeals with certain directions, which are contained in paragraph No.11 and 12 of the Judgment. For better appreciation, the same are quoted herein below:
"11.Conclusion:-
Be that as it may, on a careful consideration of respective contentions and on an over all assessment of the surrounding facts and circumstances of the instant case, in a cumulative manner, this Court, comes to an irresistible conclusion that the G.O.(D)No.948, Health and Family Welfare (A1) Department, dated 25.04.2017, had not weighed the pros and cons of comparative merit and ability of the Medical Officers coupled with their seniority and when the First Respondent in W.A.(MD)Nos.1300 and 1301 of 2017/Writ Petitioner pleads that she is senior to the Second Respondent in W.A.(MD)No.1300 of 2017 and the Appellant in W.P.(MD)No.1301 of 2017, the same was not reflected in a qualitative and quantitative terms in the aforesaid Government Order and besides that, when the Second Respondent in W.A.(MD)No.1300 of 2017 has come before this Court to take stand that he is the most meritorious candidate that can be borne out of records; when the Appellant in W.A.(MD)No.1301 of 2017, contends that his appointment is made on merit and ability, the seniority has no priority; further that the administrative experience in the post of Dean, is not relevant to the post of Director of Medical Education, which is contrary to Service Rule 12(8)(b)(iii); also that in the note file bearing C.No.29643/A1/16 at page 579, certain insertions made in black ink etc., do not inspire the confidence of this Court; when the Appellant in W.A(MD)No.1301 of 2017, comes out with a plea that he is senior to the First Respondent in W.A.(MD)Nos.1300 and 1301 of 2017/Writ Petitioner; in short, when the Appellant in W.A.(MD)No.1301 of 2017, was mentioned by name, as the senior most Dean and senior of all promotional level in the note file in C.No.29643/A1/16 at page 579, as afore stated etc., by scoring out the words 'merit and ability of the Medical Officers are equal' and when the words 'meritorious also the Appellant in W.A.(MD)No.1301 of 2017 was mentioned as he is the senior most meritorious among the candidates in the panel' by way of interpolation/insertion, this Court, based on equity, fair play, justice and good conscience and even as a matter of prudence, sets aside the G.O.(D)No.948, Health and Family Welfare (A1) Department, dated 25.04.2017 and the consequential G.O.(D)No.950, Health and Family Welfare (A1) Department, dated 25.04.2017, to prevent an aberration of justice and to promote substantial cause of justice. Further, this Court, directs the First Appellant in W.A.(MD)No.1300 of 2017/First Respondent, to re-consider the case of the First Respondent in W.A.(MD)Nos.1300 and 1301 of 2017/Writ Petitioner, the Second Respondent in W.A.(MD)No.1300 of 2017 and the Appellant in W.A.(MD)No.1301 of 2017 afresh for promotion to the post of Director of Medical Education, in a 'Fair', 'Free', 'Just', 'Impartial', 'Unbiased', 'Dispassionate manner' and that too with an open mind, and to pass necessary qualitative, quantitative and tangible reasons by evaluating the comparative merit, ability and seniority etc., ofcourse, in accordance with Law/Rules and Regulations, within a period of six weeks from the date of receipt of a copy of this Judgment. Insofar as the observation of the Learned Single Judge in issuing positive direction in W.P.(MD)No.10257 of 2017, dated 20.09.2017, to the First Respondent (i.e. The Government of Tamil Nadu, Rep. by its Principal Secretary, Health and Family Welfare Department - The First Appellant in W.A.(MD)No.1300 of 2017) to grant promotion to the First Respondent/Writ Petitioner, as Director of Medical Education with all consequential benefits, as she is due to retire in February, 2018, are held to be incorrect, in the eye of Law and accordingly, they are set aside to prevent an aberration of Justice.
12.With the aforesaid Direction(s) and Observation(s), these Writ Appeals stand disposed of. No costs. Consequently, connected Miscellaneous Petitions are closed".
6.The writ petition in W.P(MD)No.10257 of 2017 was filed by Dr.S.Revwathy, praying for issuance of a writ of certiorarified mandamus to quash G.O.Ms.No.948, Health and Family Welfare (A1) Department, dated 25.04.2017 and the consequential Government Order in G.O.(D)No.950, dated 25.04.2017 and for a direction to the State Government to promote and appoint Dr.S.Revwathy in the post of Director of Medical Education. By the impugned Government Orders, namely, G.O.(D).No.948 and G.O.(D)No.950, the Government approved a regular panel for the post of Director of Medical Education, 2016- 2017, by mentioning the name of Dr.A.Edwin Joe, with the direction to place the Government Order in the Notice Board of Government Teaching Medical Institution and to communicate a copy of the order to all other Medical Officers in the cadre of Dean, who are seniors to Dr.A.Edwin Joe, by Registered Post and with specific instructions that appeal, if any shall be submitted through proper channel, within two months from the date of issue of the said Government Order. It was stated in the said Government Order that as per the third proviso of Section 7(1) of Tamil Nadu Government Servant's (Conditions of Service) Act, 2016, in respect of filling up of vacancies in the post of Head of Department, the number of names of qualified candidates to be considered shall be fixed as twice the number of vacancies plus three in the seniority list in a class, category or service. Further, it was stated that as per Special Rules for Tamil Nadu Medical Services, the mode of appointment to the post of Director of Medical Education is by promotion from among the officers holding the posts of Deans of Medical Colleges, Director, King Institute, Guindy and Directors of Upgraded Institutes. The proviso states that if no qualified and suitable officer is available for promotion from among the above mentioned categories, by promotion from among Civil Surgeons holding the posts of Clinical Professors/Associate Professors and Non-Clinical Professors/Associate Professors.
7.By referring to the above provisions, the Government stated that they have considered the names of five Medical Officers as per the panel seniority in the category of Dean, which includes Dr.A.Edwin Joe, Dr.S.Revwathy and Dr.A.L.Meenakshi Sundaram, whose names found place in Serial Nos.1, 2 and 3 and two other Deans, namely, Dr.B.Shanthakumar and Dr.R.Shanthimalar. Further, it has been stated that as per Rule 8(b)(i)(ii) and (iii) of the Special Rules for the Tamil Nadu Medical Services, the aforementioned five Medical Officers fulfilled the educational qualifications and the teaching experience. Further, as per Rule 4(1) of the Special Rule for Tamil Nadu Medical Services, among others, promotion to the post of Director of Medical Education, shall be made on the grounds of merit and ability and seniority being considered only where merit and ability are approximately equal. It is stated that the eligibility of the five Medical Officers was fixed based on the services rendered by them.
8.It was mentioned that among the five Medical Officers, disciplinary action has been initiated against Dr.A.L.Meenakshi Sundaram, under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. However, he has filed W.P.No.42367 of 2016, challenging the charge memo, before this Court. In the said writ petition, an interim order was passed on 02.12.2017, directing the State to consider the name of Dr.A.L.Meenakshi Sundaram for promotion to the post of Director of Medical Education based on the inclusion of his name in the panel without reference to the impugned charge memo. Thus, it was stated that based on the orders of this Court, the Government considered the eligibility of all the five Medical Officers and found Dr.A.Edwin Joe, is the senior most Dean and senior at all the promotional level and he was the first to complete more than ten years of teaching experience and merit-wise also, he is the most meritorious among the candidates in the panel. For such reason, the Government considered and according to the seniority in the cadre of Dean as well as being meritorious, Dr.A.Edwin Joe's name was approved and included in the regular panel, giving liberty to the persons aggrieved, to prefer an appeal.
9.Pursuant to G.O.(D)No.948, the Government by G.O.(MD)No.950, issued permission and posting orders to Dr.A.Edwin Joe and posted him as Director of Medical Education, vice Dr.R.Vimala, retired. Much prior to the aforementioned exercise carried out by the Government, Dr.S.Revwathy, filed W.P(MD)No.3523 of 2017, praying for a direction to the Government to promote her as Director of Medical Education in the light of the Judgment made in W.A(MD)No.1304 of 2016, dated 09.11.2016. Dr.S.Revwathy was the appellant in the said writ appeal, where she challenged the order passed in W.P(MD)No.6790 of 2016, in which, she had challenged the Government Order, in G.O.(D)No.446, dated 18.03.2016 and the consequential Government Order in G.O.(D).No.447, dated 18.03.2016. By the said Government Orders, Dr.R.Vimala, the then Dean, Madras Medical College, Chennai, was promoted and posted as Director of Medical Education, vice Dr.S.Geethalakshmi retired and sought for consequential direction to appoint her as Director of Medical Education forthwith. Since, the Government Orders in G.O.(D)No.948 and G.O.(D).No.950 were issued, by promoting and appointing Dr.A.Edwin Joe as Director of Medical Education, Dr.S.Revwathy - the petitioner, had challenged the same in W.P(MD)No.10257 of 2017.
10.At this juncture, it would be relevant to note the directions issued in W.A(MD)No.1304 of 2016, vide Judgment, dated 09.11.2016. Be it noted that in the said writ appeal, the issue was as to whether the promotion and appointment of Dr.R.Vimala as Director of Medical Education was justified, primarily on the ground that she did not have one year of remaining service before the date of her superannuation. By the time, the appeal was heard by the Division Bench, Dr.R.Vimala, had retired and therefore, the Division Bench, by Judgment, dated 09.11.2016, disposed of the same, by issuing certain directions. The Division Bench pointed out that on a careful analysis of the materials available on record, it was of the considered opinion that while appointing Dr.R.Vimala, Sub-clause (a) to Clause 4 in Part II of Section 21 of the Tamil Nadu Medical Service, has not been complied with. It was noted that by then Dr.R.Vimala retired from service on 31.10.2016 and therefore, the Division Bench held that the subject matter of challenge no longer survives. While concluding the Judgment, the Division Bench observed that since the post of Director of Medical Education has fallen vacant, the Government is under a statutory obligation to draw a panel for the appointment to the post of Director of Medical Education and consider the short listed candidates, strictly in accordance with Sub-clause (a) to Clause 4 in Part II of Section 21 of the Tamil Nadu Medical Service and such exercise is to be done in a fair and transparent manner and strictly in accordance with law.
11.After the Judgment of the Division Bench, dated 09.11.2016, the petitioner made a representation for being appointed as Director of Medical Education and since no action was initiated, W.P(MD)No.3523 of 2017, had been filed. Subsequently, since Dr.A.Edwin Joe, was appointed, by G.O.(D).No.948, the petitioner questioned the same in W.P(MD)No.10257 of 2017. Thus, both the writ petitions were heard together and the Writ Court, by common order, dated 20.09.2017, allowed W.P(MD)No.10257 of 2017, quashed G.O.(D).No.948 and G.O.(D).No.950 and directed the Government to grant promotion to Dr.S.Revwathy forthwith as Director of Medical Education with all consequential benefits, as she is due to retire in February, 2018. Consequently, W.P(MD)No.3523 of 2017 was closed.
12.As mentioned above, the State preferred W.A(MD)No.1300 of 2017, against the said order and Dr.A.Edwin Joe, who was the aggrieved individual, preferred a separate appeal in W.A(MD)No.1301 of 2017. These writ appeals have been disposed of, by common Judgment, dated 12.12.2017 and the operative portion of the Judgment has been quoted in the preceding paragraph.
13.Mr.S.Alagarsamy, learned counsel appearing for the petitioner- Dr.S.Revwathy, vehemently contended that the State has disobeyed the Judgment of the Division Bench and the Principal Secretary, Health and Family Welfare Department, Chennai, is liable to be punished for the wilful disobedience. Mr.B.Pugalendhi, learned Additional Advocate General, appearing for the official respondents, would contend that the Judgment of the Hon'ble Supreme Court was scrupulously followed and as directed, the entire matter was reconsidered in a fair, free, just, impartial, unbiased, dispassionate manner with an open mind and Dr.Edwin Joe has been appointed and there is no violation of the Judgment of the Division Bench. After elaborately hearing Mr.S.Alagarsamy, learned counsel for the petitioner-Dr.S.Revwathy, we find that the contempt which is alleged against the Principal Secretary to Government of Tamil Nadu, Chennai is on account of alleged non-compliance of the Judgment of the Division Bench, dated 12.12.2017. It became clear not only after we heard the argument of Mr.S.Alagarsamy, but also after having perused the affidavit filed in the contempt petition. In the said affidavit, upto paragraph No.9, Dr.S.Revwathy, has stated about various orders passed by the Writ Court as well as by the Division Bench and would state that inspite of G.O.(D).No.948 and G.O.(D).No.950 having been quashed, Dr.A.Edwin Joe, has no authority to continue to hold the post and only after Dr.S.Revwathy, filed a writ of quo warranto in W.P(MD)No.36 of 2018, action was initiated and Dr.A.Edwin Joe proceeded on leave from 04/05.01.2018. Thus, it is stated that it is a clear case of contempt of the Judgment of the Division Bench and the attitude of the contemnor showing scant respect to the orders of the Court, amounts to contempt of Court and as he had willfully neglected to comply with the Judgment, he is punishable under the Contempt of Courts Act. Thus, we are required to see as to whether there has been wilfull and deliberate disobedience of the Judgment of the Division Bench.
14.The Principal Secretary to Government, Health and Family Welfare Department, Chennai, filed a counter affidavit, dated 06.02.2018, tendering unconditional apology and requesting him to be purged from the contempt and stating that he has never disobeyed the orders of this Court. Further, it was stated that the Government has fully complied with the orders of the Court and after the Judgment was rendered, the opinion of the learned Advocate General was sought for, who opined that it is a fit case for filing appeal before the Hon'ble Supreme Court and a Special Leave Petition was filed before the Hon'ble Supreme Court and it was assigned Diary No.1991 of 2018 and subsequently, Dr.A.Edwin Joe proceeded on leave on 04.01.2018 and orders were issued placing Dr.R.Narayana Babu, Dean, Government Medical College, Omandurar Estate, Chennai, to hold full additional charge of the post of Director of Medical Education, till a regular person is posted vide G.O.(D).No.58, dated 05.01.2018.
15.It is further submitted that in the mean time, Dr.S.Revwathy, filed writ of quo warranto in W.P(MD)No.36 of 2018 and the Government in G.O.(D).No.127, dated 22.01.2018, clarified that in compliance of the Judgment of the Division Bench and since the post of Director of Medical Education has been declared as vacant, Dr.A.Edwin Joe, has been reverted as Dean from 05.01.2018. Parallely, the Additional Director of Medical Education, vide letter, dated 03.01.2018, requested the Government to draw panel as ordered by the Division Bench in accordance with law/rules and regulations. It is submitted that though special leave petition was filed before the Hon'ble Supreme Court against the Judgment of the Division Bench, dated 12.12.2017, the Government took immediate action to prepare the panel afresh for promotion to the post of Director of Medical Education in a fair, free, just, impartial, unbiased, dispassionate manner and with an open mind and in accordance with the rules and regulations. It is further submitted that after analysing the merit and ability and also examining the sectional notes and comparative statement without excluding any one from the consideration for panel on any other ground, Dr.A.Edwin Joe, has been considered for appointment to the post of Director of Medical Education. Further, it is submitted that the Government has preferred the panel for the post of Director of Medical Education as per Rule 4(a) of the Special Rules for Tamil Nadu Medical Services, which govern the post of Director of Medical Education. It is further reiterated that the merit and ability of five candidates has been examined and Dr.A.Edwin Joe was found more meritorious and with better ability and the Government decided to grant promotion to him as Director of Medical Education.
16.We heard the contempt petition on 21.02.2018 and noted that when the contempt petition was heard on 31.01.2018, the Division Bench made certain observations and pointed out that though the order appointing Dr.A.Edwin Joe, was set aside by the Division Bench, by Judgment, dated 12.12.2017 and copy of the order was made ready and delivered on 15.12.2017, the respondent belatedly obtained it on 22.12.2017 and prima facie, the Court found that the Judgment of the Division Bench has not been complied with. In the light of the said observations of the Division Bench, the learned Additional Advocate General, sought for two days time to get instructions. As mentioned above, we heard the matter on 21.02.2018. After perusing the observations made by the Court on 31.01.2018, we found that the counter affidavit filed by the contemnor, dated 06.02.2018, does not answer the prima facie observation recorded by the Court on 31.01.2018. Therefore, we directed the contemnor to file a counter affidavit with regard to the observations made by the Court on 31.01.2018.
17.Mr.S.Alagarsamy, learned counsel appearing for the petitioner- Dr.S.Revwathy, submitted that the Division Bench having set aside the order of appointment of Dr.A.Edwin Joe, he should have immediately vacated office and the contemnor should have ensured that he no longer holds office, but Dr.A.Edwin Joe, was permitted to continue till 04.01.2018 and proceeded on leave only after Dr.S.Revwathy, filed a writ of quo warranto against him, which was numbered on 03.01.2018. In the light of the above, we directed the contemnor to file a fresh counter affidavit, specifically explaining the above aspects. Accordingly, the Additional Secretary to Government, Health and Family Welfare Department, Chennail, filed a counter affidavit, dated 23.02.2018. In the said counter affidavit, it has been stated that he has been authorised by the Principal Secretary to Government, Health and Family Welfare Department, Chennai, to file the counter affidavit. The following are the averments set out in the counter affidavit, answering the allegations made against the contemnor. For better appreciation, we extract the said averments:
"3. ... ... ... On receipt of the above orders of this Hon'ble Court, the Government have taken immediate action and addressed the Learned Advocate General, Madras High Court to offer his considered opinion on the question as to whether it is a fit case for appeal or not vide Government letter dated 21.12.2017. The Advocate General, High Court of Madras in his opinion dated 05.01.2018 has offered his considered opinion that this is a fit case for filing an appeal before the Supreme Court of India for the reasons stated therein and since there is a likelihood of contempt petition being filed, the Government may consider filing of appeal at the earliest in order to avoid a contempt petition. According to the opinion of the learned Advocate General, the Government have filed SLP before the Supreme Court of India and it has been assigned Diary No.1991-2018. Consequent on the orders of this Hon'ble Court, Dr.A.Edwin Joe, the third respondent herein has proceeded on leave from 04.01.2018. Hence, orders were issued placing Dr.R.Narayana Babu, Dean, Government Medical College Block B, Omandurar Estate, Chennai to hold full additional charge of the post of Director of Medical Education, till a regular person is posted in G.O.D.No.58, Health and Family Welfare Department, dated 05.01.2018. In the meantime, the petitioner herein has filed quo warranto petition in W.P.(MD)No.36 of 2018 before this Hon'ble Court. In G.O.D.No.127, Health and Family Welfare Department, dated 22.01.2018, this department again clarified that on complying the orders of this Hon'ble Court, since the post of Director of Medical Education has been declared vacant and the said third respondent herein stands reverted as Dean from 05.01.2018. These are the reasons for not taking action to revert the said Dr.A.Edwin Joe, Director of Medical Education as Dean immediately in response to the orders of this Hon'ble court dated 12.12.2017.
4.It is further submitted that though SLP has been filed before the Supreme Court of India against the orders of this Hon'ble Court dated 12.12.2017 in W.A(MD)Nos.1300 and 1301 of 2017, the Government have taken immediate action to prepare the panel afresh for promotion to the post of Director of Medical Education in a Fair, Free, Just, Impartial, Unbiased, Dispassionate manner and that too with an open mind and to pass necessary qualitative, quantitative and tangible reasons by evaluating the comparative merit, ability and seniority etc., of course, in accordance with Law/Rules and Regulations as directed by this Hon'ble Court in the Writ Appeal (W.A.Nos.1300 and 1301 of 2017) filed by the Government.
5.It is submitted that the petitioner has filed contempt petition (C.P.No.146 of 2018) before this Hon'ble Court to punish the first respondent for the willful disobedience of the orders of this Hon'ble Court in W.A(MD)Nos.1300 and 1301 of 2017, dated 12.12.2017.
6.It is submitted that the Government have implemented the orders of this Hon'ble Court vide G.O.D.Nos.173 and 174, Health and Family Welfare Department, dated 01.02.2018. Hence, the orders passed by this Hon'ble Court, dated 12.12.2017, made in W.A(MD)Nos.1300 of 2017 and 1301 of 2017 has been fully complied with".
18.In the light of the contentions advanced on either side and the averments set out in the respective pleadings, it has to be seen as to whether the respondent is guilty of wilful disobedience of the Judgment of the Hon'ble Division Bench. Before, we proceed to consider this aspect, we wish to observe that Dr.A.Edwin Joe, was appointed by the Government to a very important post in the State and that being a single post and the duties and responsibilities are onerous. Dr.A.Edwin Joe, being a party to the Judgment, dated 12.12.2017, could have acted in a more diligent manner by stepping down from his office on the Judgment being delivered by the Division Bench. However, he did not do so. Be that as it may, we are required to consider as to whether there has been wilful disobedience of the Judgment of the Division Bench.
19.The Hon'ble Supreme Court in All India Anna Dravida Munnetra Kazhagam v. L.K.Tripathy and Others reported in (2009)5 Supreme Court Cases 417, held that some disobedience is not sufficient and the requirements for wilful disobedience are that the action should be deliberate with specific intent to fail to do something, which law requires with the purpose to disobey or disregard the law. Thus, to punish a person for having committed contempt what is required to be proved is that conduct of the person so allowed to be deliberate and contempt. Bearing in mind the above legal principle, if we examine the facts of the instant case, we find that there is no deliberate or wilful disobedience of the Judgment of the Division Bench by the Principal Secretary to Government, Health and Family Welfare Department, Chennai. We say so, because all the events which tookplace after the Judgment was delivered.
20.It is no doubt true that on the date of pronouncing of the Judgment, the parties to the litigation are aware of what is the effect of the Judgment. Nevertheless, any aggrieved party is entitled to avail the appeal remedy prescribed and in the instant case, an appeal remedy was available to the respondent/contemnor before the Hon'ble Supreme Court. Time limit for preferring such appeal has been prescribed. Therefore, we have to examine as to whether the respondent/contemnor could be foreclosed/ prevented from pursuing the appeal remedy and state that they are guilty of contempt. However, one factor which strikes our mind is that Dr.A.Edwin Joe, did not vacate office after he was aware of the Judgment of the Division. However, Dr.S.Revwathy, has not filed any contempt petition against Dr.A.Edwin Joe. But, her plea is that the Principal Secretary to Government, Health and Family Welfare Department, Chennai is guilty of not implementing the Judgment.
21.In the background of these facts, if we take note of the submissions made in the counter affidavits, dated 06.02.2018 and 23.02.2018, we find that though the State preferred special leave petition before the Hon'ble Supreme Court, parallel action was initiated to implement the Judgment of the Division Bench. The Hon'ble Supreme Court in All India Anna Dravida Munnetra Kazhagam's case (cited supra), pointed out that the term "wilful" (willfull) has not been defined under the Contempt of Courts Act, 1971 and therefore referred to the dictionary meaning, which would mean "asserting or disposed to assert one's own will against instruction, persuasion, etc.; obstinately self-willed; deliberate, intentional, showing perversity or self-will". Referring to the decision in the case of Ashok Paper Kamgar Union v. Dharam Godha reported in (2003)11 SCC 1, it was pointed out that Section 2(b) of the Contempt of Courts Act, defines 'civil contempt' and it means wilful disobedience to any Judgment, decree, direction, order, writ or other process of a court or wilful breach of undertaking given to a Court. It is pointed out that wilful means an act or omission which is done voluntarily and intentionally and with a specific intent to fail to do something the law forbids. It signifies a deliberate action done with evil intent or with a bad motive or purpose.
22.Thus, it was held that in order to constitute contempt the order of the Court must be of such a nature which is capable of execution by the person charged in normal circumstances and it should not require any extraordinary effort nor should be dependent, either wholly or in part, upon any act or omission of a third party for its compliance. Thus, for holding the respondent, to have committed contempt, it has to be shown that there has been wilful disobedience of the Judgment and the power to punish for contempt can be resorted to when there is clear violation of the Court's order. The Hon'ble Supreme Court explained that notice of contempt and punishment for contempt is a far-reaching consequence and the power should be invoked only when a clear case of wilful disobedience of the Court's order, has been made out. Whether disobedience is wilful in a particular case, depends on the facts and circumstances of that case. Further, it was pointed out that wilful would exclude casual, accidental, bona fide or unintentional acts or genuine inability to comply with the terms of the order.
23.The facts, which have been presented to us, clearly show that there was no wilful intention on the part of the Principal Secretary to Government, Health and Family Welfare Department, Chennai, to deliberately violate the Judgment of the Division Bench, dated 12.12.2017. Thus, we find that there is no wilful disobedience of the Judgment and consequently, the petitioner has not made out any case for punishing the respondent. Accordingly, the contempt petition is dismissed without costs.
24.Now, we move on to consider the validity of G.O.(D)No.173 and G.O.(D)No.174, which have been challenged by Dr.S.Revwathy and Dr.A.L.Meenakshi Sundaram in the two writ petitions. As mentioned earlier, by the said Government Orders, Dr.A.Edwin Joe, has been promoted and appointed as Director of Medical Education.
25.We have heard Mr.S.Alagarsamy, learned counsel appearing for the petitioner in W.P(MD)No.2907 of 2018-Dr.S.Revwathy, Mr.G.Sankaran, learned counsel appearing for the petitioner in W.P(MD)No.4044 of 2018- Dr.A.L.Meenakshi Sundaram, Mr.B.Pugalendhi, learned Additional Advocate General, representing Mr.A.K.Baskarapandian, learned Special Government Pleader, appearing for the official respondents and Mr.S.Ramesh, learned counsel representing Mr.V.Raghavachari, learned counsel appearing for the third respondent in W.P(MD)No.2907 of 2018 - Dr.A.Edwin Joe.
26.While dealing with the contempt petition, we have set out the facts in extenso and briefly dealt with the various litigations, which were initiated by Dr.S.Revwathy and Dr.A.L.Meenakshi Sundaram, which have ultimately culminated in the impugned Government Orders. The challenge to the impugned Government Orders are on the following grounds:
(i)Dr.A.Edwin Joe, is not qualified to hold the post of Director of Medical Education and his appointment is contrary to G.O.(Ms)No.354, dated 23.10.2009.
(ii)Rule 8(b)(iv) of the Special Rules for Tamil Nadu Medical Services was relaxed in favour of Dr.R.Vimala with mala fide intention so as to project Dr.A.Edwin Joe as senior-most Dean than Dr.S.Revwathy.
(iii)The State has committed grave injustice to Dr.S.Revwathy, who is fully qualified to hold the post of Director of Medical Education after the retirement of Dr.S.Geethalakshmi on 31.01.2016. But to deny her the appointment, relaxation of the Rule was granted to Dr.R.Vimala, who had no one year of remaining service and she was promoted and subsequently, by the impugned orders, Dr.A.Edwin Joe has been promoted, who is much junior to Dr.S.Revwathy. The State failed to consider the representations given by Dr.S.Revwathy, prior to the appointment of Dr.A.Edwin Joe and much prior to the appointment of Dr.R.Viamala, i.e., from 04.03.2016.
(iv)The State has failed to consider the claim of Dr.S.Revwathy, before considering the claim of Dr.A.Edwin Joe, whose seniority in the Civil Medical List is 4821. Apart from the fact that Dr.A.Edwin Joe was appointed as Medical Officer, through Tamil Nadu Public Service Commission during 1986, whereas Dr.S.Revwathy was appointed as Medical Officer, in the year 1984 and in the Civil Medical List, her number is 4081. Dr.S.Geethalakshmi was appointed as Director of Medical Education only on the basis of Civil Medical List seniority and not as per the date of joining. The Government passed the impugned Government Orders based on the very same panel, which was already set aside by the Division Bench and promoted Dr.A.Edwin Joe, is untenable in the eye of law. The directions issued by the Division Bench in its Judgment dated 12.12.2017, have not been complied with, except for incorporating the words contained in the Judgment in the impugned Government Order.
(v)There has not been qualitative and quantitative assessment of the candidates and no tangible reasons have been assigned for evaluating the comparative merits and ability. Dr.A.L.Meenakshi Sundaram is a more meritorious candidate than Dr.A.Edwin Joe and his services have been appreciated, while he was working in various medical institutions and certificate of appreciation has been received by him and the Chief Secretary to the Government of Tamil Nadu, has appreciated his services and the District Collector has issued certificates six times continuously, which have not been taken into consideration.
27.The official respondents/State while justifying their action, has filed a counter affidavit, dated 23.02.2018, in W.P(MD)No.2907 of 2018 [filed by Dr.S.Revwathy] and submitted that the Government have taken action to prepare the regular panel for the post of Director of Medical Education for the year 2016-2017 and considered five senior most Medical Officers in the cadre of Dean for the post of Director of Medical Education as per Special Rules 4(a) and 8(b) of the Tamil Nadu Medical Service and after examining the qualifications, merit and ability of the five Medical Officers, as per Special Rule 4(1) found that Dr.A.Edwin Joe is the most meritorious candidate in the cadre of Dean and accordingly, issued G.O.(D)No.948 and G.O.(D)No.950 and appointed him as Director of Medical Education. These Government Orders were set aside by order dated 20.09.2017, against which, the State and Dr.A.Edwin Joe, preferred appeals, which were disposed of, by Judgment, dated 12.12.2017. It is reiterated that after the Judgment of the Division Bench, immediate action was taken to prepare the panel afresh for promotion to the post of Director of Medical Education and proper assessment was made as per the directions and observations of the Division Bench and the impugned Government Orders have been passed. It is further submitted that the panel has been prepared in accordance with Special Rule 4(1) and 8(b) of the Special Rules for Tamil Nadu Medical Service and invoking the relevant provisions in the Tamil Nadu Government Servants (Condition of Service) Act, 2016 [Tamil Nadu Act 14 of 2016]. It is further submitted that the post of Director of Medical Education being a selection post, selection was conducted based on merit and ability of the five Medical Officers and therefore, the contention of Dr.S.Revwathy that her seniority in the Civil Medical List should be considered, is liable to be rejected.
28.To test the correctness of the impugned Government Orders, it would be necessary to refer the relevant rules, which govern the appointment. Prior to the framing of the Special Rules, G.O.(Ms)No.368, Personnel and Administrative Reforms Department, dated 18.10.1993, had set out the guidelines. Subsequently, G.O.(Ms)No.124, Health and Family Welfare (A1) Department, dated 10.06.2003, was issued by amending the Special Rule with regard to eligibility for being appointed to the post of Director of Medical Education and the said amended Rule 8 reads as follows:
"NOTIFICATION In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Tamil Nadu hereby makes the following amendment (to the Special Rules for the Tamil Nadu Medical Service, Section 21 in Volume II of the Tamil Nadu Services Manual, 1969).
3.The amendment hereby made shall come into force on and from 15th day of March 2003.
AMENDMENT
(a)In the said Special Rules, in Part II, in 'Branch I Medical', in rule 8, for sub-rule (b), the following shall be substituted, namely:-
(b)No person shall be eligible for appointment to the post of Director of Medical Education, unless:-
(i)he possess a Post Graduate degree in a Medical faculty or any other qualification approved by Medical Council of India to be treated on par with MD/MS awarded by Indian University.
(ii)he has served for a period of not less than ten years after completing the required Post Graduate Degree mentioned in clause (i) above, in one or more of the following posts, namely:-
Tutor/Assistant Professor/Professor/Reader in a Clinical or Non- clinical Department in a Government teaching medical institution, out of which four years of teaching experience as Reader/Professor.
(iii)he has administrative experience for a period of not less than two years in one or more of the following posts, namely Director of Upgraded Institute or Director Institute of thoracic Medicine, Director of King Institute, Guindy / Dean / Principal / Superintendent of a Medical College / Medical College Hospital out of which one year must be as a Dean of a Medical College.
(iv)he has a minimum of one year left over service prior to date of retirement".
29.Subsequently, a Committee was constituted to look into the grievances of the Tamil Nadu Government Doctors Association and based upon the recommendations of the Committee, the Government issued G.O.(Ms)No.354, Health and Family Welfare Department, dated 23.10.2009, with regard to promotion in various categories in the Director of Medical Education side. Paragraph (v) and (vii) of the said Government Order, reads as follows:
"(v)For higher level posts and posts in common pool, the Civil Medical List seniority will be the basis for promotion.
... ... ...
(vii)Once a person joins any speciality under Director of Medical Education, his inter-se seniority in the speciality would depend on the person's seniority in the Civil Medical List. The Civil Medical List would continue to decide the speciality specific seniority, till the Associate Professor level. However, any person getting promoted under any speciality would not entitle other persons in other specialities to be promoted similarly, if they are senior in the Civil Medical List to such a person.
Similarly, any person in any speciality would not be entitled to get a promotion, based on a junior in the same speciality having got such a promotion in the Director of Medical and Rural Health Services/Director of Medical and Rural Health Services, (ESI) and Director of Public Health and Preventive Medicine side".
30.The Government after preparing a panel, appointed Dr.R.Vimala as Director of Medical Education, by G.O(D)No.447, dated 18.03.2016, consequent upon the retirement of Dr.S.Geethalakshmi. Though, the learned counsel appearing for the petitioners made elaborate submissions pertaining to the appointment of Dr.R.Vimala, the same will not be germane for consideration of the present controversy as the Hon'ble Division Bench, while disposing of W.A(MD)No.1304 of 2016, vide Judgment, dated 09.11.2016, pointed out that challenge to the promotion and appointment of Dr.R.Vimala, no longer survives, as she retired from service on 31.10.2016. The question that would remain to be considered is as to whether the Judgment and direction issued by the Division Bench has been complied with or not.
31.Mr.S.Alagarsamy, learned counsel for the petitioner-Dr.S.Revwathy vehemently contended that seniority in the Civil Medical List of Dr.S.Revwathy has been totally ignored and cited various instances, as to how the Government had acted in the past and therefore, submitted that the entire proceedings done by the respondents/State is vitiated and the appointment of Dr.A.Edwin Joe, as Director of Medical Education is liable to be set aside.
32.Though, the argument advanced by Mr.S.Alagarsamy, learned counsel appearing for the petitioner-Dr.S.Revwathy, appears to be convincing at the first blush, on a close scrutiny, we find that the argument deserves to be rejected as the very same argument was placed before the Division Bench in W.A(MD)Nos.1300 and 1301 of 2017 and in Paragraph No.10.20 of the Judgment, dated 12.12.2017, the Division Bench, has rejected the same. At this juncture, it is useful to refer Paragraph No.10.20 of the Judgment, which reads as follows:
"10.20. In regard to the aspect of 'Civil Medical List Seniority' is concerned, a clarificatory Government Order in G.O.Ms.No.245, Health and Family Welfare (A2) Department, dated 30.10.2013, was issued by the State Government in respect of Tamil Nadu Medical Service and Rule 4 (a) of the said clarificatoy Government Order, in a crystalline fashion, points out that the Civil Medical List Seniority will be taken into account, as and when preparing the panel for the post of Senior Assistant Surgeon/Civil Surgeon/Senior Civil Surgeon/Chief Civil Surgeon, in the Director of Medical and Rural Health Services side and Associate Professor/Professor in the Director of Medical Education side and as such, one cannot press into service the ingredients of G.O.Ms.No.354, Health and Family Welfare (B2) Department, dated 23.10.2009, in the considered opinion of this Court. Moreover, even as per Clause 7 of G.O.Ms.No.354, Health and Family Welfare (B2) Department, dated 23.10.2009, the Civil Medical List number has no sanctity beyond the post of 'Associate Professor Level'".
Thus, the seniority in the Civil Medical List or in other words, the number assigned in the Civil Medical List, has no sanctity beyond the post of Associate Professor Level. This finding has become final and the same has not been questioned by the petitioners and therefore, it binds them and settles the issue and the petitioners, cannot re-argue the matter once again. Thus, the contention advanced based on seniority in the Civil Medical List, deserves to be rejected.
33.If such being the position, then the respondents are required to follow the procedure, under the Special Rules and in particular, Section 21 of the said Rules. Rule 3 of the Special Rules, deals with appointment to the various classes and sub-rule (3) deals with Director of Medical Education and it is by promotion from among the officers, holding the posts of Deans of Medical Colleges, Director, King Institute, Guindy and Directors of Upgraded Institute. Only if no qualified and suitable officer is available for promotion, from the above categories, promotion can be made from among Civil Surgeons holding the posts of Clinical Professors/ Associate Professors and Non-Clinical Professors/Associate Professors. Rule 4 deals with promotion and the primordial requirement in terms of Rule 4, is merit and ability and seniority being considered only where merit and ability are approximately equal. Under Rule 8, special qualifications have been prescribed and it would be beneficial to refer the said Rule:
"8.Special Qualifications:- (a) No person shall be eligible for appointment to the post of Director of Medical and Rural Health Services, unless he has worked for a period of not less than five years in a post in the cadre of Civil Surgeon under the control of the Director of Medical and Rural Health Services:
Provided that, other things being equal, preference shall be given to those who possess post-graduate degree in one of the medical subjects in the case of appointment by promotion from among the Civil Surgeons in general line.
(b)No person shall be eligible for appointment to the post of Director of Medical Education, unless-
(i)he possesses a post graduate degree in a Medical faculty or any other qualification approved by Medical Council of India to be treated on par with MD/MS awarded by Indian University.
(ii)he has served for a period of not less than ten years after completing the required post graduate degree mentioned in clause (i) above, in one or more of the following posts, namely:-
Tutor / Assistant Professor / Professor / Reader in a Clinical or Non- clinical department in a Government teaching medical institution, out of which four years must be of teaching experience as Reader / Professor.
(iii)he has administrative experience for a period of not less than two years in one or more of the following posts, namely, Director of Upgraded Institute or Director Institute of Thoracic Medicine, Director of King Institute, Guindy / Dean / Principal / Superintendent of a Medical College / Medical College Hospital out of which one year must be as a Dean of Medical College.
(iv)he has a minimum of one year left over service prior to date of retirement.
(c)No person shall be eligible for appointment to the post specified in column (1) of the Annexure unless he possesses the qualifications specified in the corresponding entry in column (2) thereof:;
Provided that, other things being equal, preference shall be given to those who possess post-graduate degree in one of the medical subjects in the case of appointment by promotion from among the Civil Surgeons in general line.
(d)A person not possessing the diploma of the D.M.R. (Chennai), who has been selected for appointment in the category of Assistant Surgeons in the General Line in the Radiological Department of Government Medical Institutions in the State by direct recruitment shall not be appointed as a probationer in the said category unless he undergoes training the Radiological Department for a period of not less than nine months and obtains the diploma of D.M.R.(Chennai) at one of the first two examinations held after he has completed such training. There shall be paid to every such person while undergoing such training a subsistence allowance fixed by the Government from time to time and no such person shall be required to pay either the tuition fee for the training or the examination fee.
(e)The crucial date for possession of the prescribed qualification for appointment to the post by recruitment by transfer or promotion shall be the 15th March of the year in which the selection for appointment is made".
34.Sub Rule (e) of Rule 8 deals with appointment to the post of Director of Medical Education. The crucial date for possessing the prescribed qualification for appointment to the post of Director of Medical Education by recruitment by transfer or promotion shall be the 15th March of the year in which the selection for appointment is made. Thus, we find that Rule 8 is a special requirement prescribed for appointment to the post of Director of Medical and Rural Health Services and Director of Medical Education. Thus, this Rule is a code to be followed by the Government, while considering the suitability and eligibility of a candidate to be appointed as Director of Medical Education. G.O.(Ms)No.368, dated 18.10.1993, which stood amended from time to time, prescribed procedure for preparation of panel for appointment, by promotion, by direct recruitment or by transfer. In terms of the said guidelines, while filling up the post of Head of Department, that too, a single vacancy, the names of first five qualified candidates in the seniority list, should be considered and a panel of atleast two names should got approved in order to meet any contingency. However, the Health and Family Welfare Department, issued G.O.(Ms)No.245, dated 30.10.2013, by which, the Civil Medical List seniority could be reckoned only for preparing panel for the post of Senior Assistant Surgeon/Civil Surgeon/Senior Civil Surgeon/ Chief Civil Surgeon in the Director of Medical and Rural Health Services side and Associate Professor/Professor in the Director of Medical Education side. Therefore, the petitioner cannot claim that the Civil Medical List seniority should be reckoned, while considering the candidate for promotion and appointment to the post of Director of Medical Education.
35.More recently, the Tamil Nadu Government enacted the Tamil Nadu Government Servants (Condition of Service) Act, 2016 [Tamil Nadu Act 14 of 2016]. In terms of Section 7(1) of the said Act, in respect of filling up of vacancies in the post of Head of Department, the number of names of qualified candidates to be considered shall be fixed as twice the number of vacancies plus three in the seniority list in a class, category or service. The Division Bench in its Judgment, dated 12.12.2017, issued directions to the State as to in what manner exercise should be done afresh. The directions are contained in paragraph No.11 of the Judgment, which has been quoted above. The Court perused the note file and expressed an opinion that the notings therein, do not inspire confidence in the minds of the Court and there has been scoring out of a few words and there are interpolations/insertions. Therefore, the Division Bench set aside G.O.(D)No.948 and G.O.(D).No.950 and directed the State to re-consider the case of Dr.S.Revwathy, Dr.A.L.Meenakshi Sundaram and Dr.A.Edwin Joe, afresh for promotion to the post of Director of Medical Education in a fair and impartial manner, by evaluating the comparative merit, ability and seniority and of course, in accordance with law/rules and regulations, within a time frame. The Division Bench set aside the positive direction issued by the Writ Court, in its order, dated 20.09.2017, by which, Dr.S.Revwathy was directed to be promoted and posted as Director of Medical Education. Thus, the entire exercise was required to be done afresh in accordance with law/rules and regulations.
36.In the preceding paragraph, we have referred to the relevant Rules as well as Tamil Nadu Act 14 of 2016. As mentioned above, the petitioners cannot harp upon her Civil Medical List seniority, as no benefit thereof accrues to the petitioner beyond the stage of Associate Professor level and this has been clearly upheld by the Division Bench in paragraph No.10.20 of the Judgment. As noted above, the said finding has not been put to challenge by Dr.S.Revwathy and therefore, she is estopped from raising any contention contrary to the said finding. That apart, the Court cannot re-write the Rules, which clearly states upto what level, the Civil Medical List seniority can be counted. That apart, special qualifications have been prescribed for the posts of Director of Medical Education as well as Director of Medical Sciences, which we have referred in the preceding paragraph. Therefore, any selection to the said post, has to be in accordance with these rules and regulations and not otherwise. Be it noted that the Division Bench issued directions to consider the case of only three incumbents, namely, Dr.S.Revwathy, Dr.A.L.Meenakshi Sundaram and Dr.A.Edwin Joe. However, it added that the selection should be done afresh in accordance with law and the rules and regulations. Thus, it has to be seen as to whether relevant rules were adhered to by the respondents.
37.The materials placed before this Court would show that the panel was prepared containing five names, namely, two of the writ petitioners and Dr.A.Edwin Joe, which were directed to be included by the Division Bench. Apart from that, the names of two other candidates, namely, Dr.V.Shanthakumar and Dr.R.Shanthimalar, were included. This is required to be done as in terms of fifth proviso to Section 7(1) of the Tamil Nadu Act 14 of 2016, while filling up the post of Head of Department, the number of names of qualified candidates to be considered, should be fixed as twice the number of vacancies plus three in the seniority list in a class, category or service. The post of Director of Medical Education being a single post, the statute provides that twice the number of vacancies plus three have to be considered. Thus, we find that the panel drawn with five names is in consonance with the statutory provision.
38.Mr.S.Alagarsamy, learned counsel appearing for the petitioner- Dr.S.Revwathy, vehemently contended that the panel, which was prepared, is the very same panel, which was set aside by the Writ Court, in the earlier Judgment. Unfortunately, the petitioners have missed to note, when the Division Bench in its Judgment directed the selection process to be reckoned by including the names of three candidates, who were before the Court. Necessarily, the names of 3+2 candidates were required to be included in the panel, as it would otherwise attend the Rule. Therefore, the argument that it is the very same panel, which was set aside, was again approved, is an incorrect statement. Thus, we are satisfied that the panel of five names, which has been drawn, is in consonance with the directions issued by the Division Bench, as it complies with the statutory Rule and provisions of the Tamil Nadu Act 14 of 2016.
39.This leaves us with only one issue to be decided, namely, whether there has been a consideration of comparative merit and ability. When we heard the contempt petition, we directed the learned Additional Advocate General to produce the original files, to satisfy ourselves, as to whether there has been comparative analysis of the merit and ability of all the five candidates. The Division Bench in its Judgment dated 12.12.2017 directed that assessment should be qualitative and quantitative. The Note File reveals that the details of the respective candidates as culled out from the relevant files/sectional notes have been mentioned in a tabulated format. So far as the qualitative points are concerned, the respondent/ State has taken into consideration as to what are the steps taken by the concerned candidate, while they were holding the post of Dean. With regard to quantitative assessment, the qualification obtained by the candidate, the various decisions taken by the candidate and the nature of administrative experience, have also been mentioned. With regard to qualitative assessment, any adverse entry in respect of a candidate, has also been noted.
40.Before, we dwell into the subject any further, we wish to point out that the Court will be examining as to whether there has been fair procedure adopted, comparative merits and demerits and abilities were considered and the decision making process was fair and equitable. Unless there is perversity or palpable illegality in the decision making process or in the decision and if it is found that no reasonable person could have come to such conclusion, the Court will not step into the realm of administration. Thus, the Court will not substitute its opinion to that of the opinion recorded by an expert. For the Court to step in, there should be perversity, arbitrariness, capriciousness in the decision making process or violation of statutory rule or regulations. Thus, for a person to succeed in a challenge to a decision making process, particularly, in a service matter, should establish any one of the factors mentioned. On going through the documents placed before the Court as well as the original file, we find that the decision of the Hon'ble Division Bench has been complied with and there is no error in the decision making process.
41.Next, we are required to see whether there is any perversity or manifest illegality in the decision taken by the expert. As pointed out earlier, the qualitative and quantitative points of each of the candidates, which are said to have been culled out from the sectional notes and service particulars have been tabulated and the Secretary, on considering and evaluating the comparative merits and abilities, has recorded that Dr.A.Edwin Joe as the best suited person, for the post of Director of Medical Education and noting that he is the senior most person in the cadre of Dean. Further, the noting in the Confidential Report of Dr.A.Edwin Joe, has been taken into consideration, where he has been awarded ?very good?, when compared to others, who were categorised as "good". So far as Dr.S.Revwathy is concerned, there is a reference to an order passed in H.C.P(MD)No.836 of 2013. However, the Confidential Report of Dr.S.Revwathy, states that it is ?good?. With regard to Dr.A.L.Meenakshi Sundaram, various posts held by him have been mentioned and on evaluating comparative merit, it was held that he falls short of Dr.A.Edwin Joe, who has been rated best on merit. With regard to Dr.B.Shanthakumar, it has been stated that he falls short on evaluation of merit and even though he was part of original proposal for the post of Director of Medical Education, the same is being considered and he has subsequently retired. Similarly, there is an observation with regard to Dr.R.Shanthimalar. Thus, we find that there has been evaluation of the comparative merit and ability and the procedure adopted, has been shown to be fair and as observed by us earlier, we cannot substitute our opinion to that of the opinion recorded by the expert.
42.Thus, for all the above reasons, we find that the directions issued by the Division Bench, have been scrupulously followed and the grounds raised by the petitioners, challenging the impugned Government Orders do not merit consideration and consequently, W.P(MD)Nos.2907 and 4044 of 2018, are dismissed. No costs. Consequently, connected Miscellaneous Petitions are dismissed.
To
1.The Principal Secretary, Health and Family Welfare Department, Government of Tamil Nadu, Fort. St. George, Chennai - 600 009.
2.The Director of Medical Education, Kilpauk, Chennai - 600 010.
.