Madras High Court
Dr.P.Sankar vs The State Of Tamilnadu on 9 June, 2022
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
W.P. No.22906 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.06.2022
CORAM
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P. No.22906 of 2019
and
W.M.P.No.22541 of 2019
Dr.P.Sankar ... Petitioner
-vs-
1.The State of Tamilnadu,
Represented by the Secretary to Govt.,
Health & Family Welfare Department,
Fort St. George, Chennai – 600 009.
2.The Director of Medical Education,
Poonamallee High Road, Kilpauk,
Chennai – 600 010.
3.Dr.S.Lalitha
4.Dr.N.Thilakavathi ... Respondents
PRAYER : Writ Petition filed Under Article 226 of the Constitution of
India, praying for issuance of a Writ of Certiorarified Mandamus calling for
the records of the 1st respondent relating to the impugned order in G.O.(Rt)
No.713 dated 08.07.2019 issued by the 1st respondent and quash the same in
so far as it relates to giving promotional transfers to the two medical officers
junior to the petitioner, viz., Dr.S.Lalitha and Dr.N.Thilakavathi and
consequently promote the petitioner to the post of Professor in
Microbiology in Government Theni Medical College.
1/10
https://www.mhc.tn.gov.in/judis
W.P. No.22906 of 2019
For Petitioner : M/s.R.Maheswari
For R1 & R2 : Mr.U.M.Ravichandran
Special Government Pleader
For R3 : Mr.S.Nedunchezhian
for Mr.G.Sankaran
ORDER
The prayer sought for herein is for a Writ of Certiorarified Mandamus to call for the records of the 1st respondent relating to the impugned order in G.O.(Rt) No.713 dated 08.07.2019 issued by the 1st respondent and quash the same in so far as it relates to giving promotional transfers to the two medical officers junior to the petitioner, viz., Dr.S.Lalitha and Dr.N.Thilakavathi and consequently promote the petitioner to the post of Professor in Microbiology in Government Theni Medical College.
2. The petitioner was working as Associate Professor in Microbiology Department. The next promotion avenue for this person is Professor, for which, the petitioner's name also is found in the seniority list at S.No.137 issued by the Director of Medical Education dated 22.02.2019. From S.No.134 till 151, the Associate Professors of Microbiology Department have found the place in the list, wherein, the petitioner name is in S.No.137. 2/10 https://www.mhc.tn.gov.in/judis W.P. No.22906 of 2019
3. Therefore, from S.Nos.134 to 136 i.e., three persons were seniors to the petitioner. So far as the private respondents namely, the third and fourth respondents are concerned, the third respondent is at S.No.140 and the fourth respondent is in S.No.143. Therefore, certainly these private respondents are juniors to the petitioner.
4. When that being the position, when promotion was considered to be given, there were six vacancies arose in March, 2019, for which, counselling was conducted for giving promotion, the six vacancies arose in the following medical colleges :
S.No. Vacancy Places
1. Govt. Mohan Kumaramangalam Medical College, Salem
2. Govt. Thiruvannamalai Medical College
3. Govt. Villupuram Medical College
4. Govt. Pudukottai Medical College
5. Govt. Thiruvarur Medical College
6. Govt. Medical College & ESI Hospital
5. When this vacancy position was shown to the candidates including 3/10 https://www.mhc.tn.gov.in/judis W.P. No.22906 of 2019 the petitioner, the Senior one Sabeetha, who was in S.No.135, senior to the petitioner, had taken one post at Thiruvannamalai Medical College as the candidate namely, P.Gnanaguru, who stood in S.No.134 also happened to be the senior to the petitioner become ineligible. And the third candidate namely, M.Lucy Nirmal Medona, who stood at S.No.136, has taken Government Medical College and ESI Hospital. Therefore, after taking these two candidates at Thiruvannamalai Medical College and ESI Hospital, the remaining four vacancies are at the following places.
S.No. Vacancy Places
1. Govt. Mohan Kumaramangalam Medical College, Salem
2. Govt. Villupuram Medical College
3. Govt. Pudukottai Medical College
4. Govt. Thiruvarur Medical College
6. Out of these four places, any one of the places could have been chosen by the petitioner, had he chosen any one, definitely he would have been given the promotion and posted there.
7. However, the petitioner did not want to be promoted in any one of 4/10 https://www.mhc.tn.gov.in/judis W.P. No.22906 of 2019 the said four places, therefore, he had given relinquishment of chance of promotion to the post of Professor and posting.
8. The Tamil Nadu Government Servants (Conditions of Service) Act, 2016 (in short, 'the Act') is currently governing the service conditions of Government servants of Tamil Nadu at various categories. Section 57 of the Act says as to how the relinquishment of rights of the members of the service can be dealt with. For the sake of convenience, Section 57 of the said Act is extracted hereunder :
"57. Relinquishment of rights by members :
(1) Any person may, in writing, relinquish any right or privilege to which he may be entitled under this Act or the special rules if, in the opinion of the appointing authority, such relinquishment is not opposed to public interest; and nothing contained in this Act or the special rules shall be deemed to require the recognition of any right or privilege to the extent to which it has been so relinquished.
(2) Relinquishment of a right or privilege for a temporary period shall be accepted if it is made for a period of not less than three years, subject to the condition that after the expiry of the said period, the claim of the right or privilege relinquished will be with reference to the state of affairs that exist on the date of expiry of the period of relinquishment and without restoration of original seniority. If relinquishment of right or privilege is made permanently and is accepted, 5/10 https://www.mhc.tn.gov.in/judis W.P. No.22906 of 2019 subsequent claim of the relinquished rights or privileges shall not be entertained."
9. As per this Section, especially sub-section (2) of Section 57 says that relinquishing of a right or privilege for a temporary period shall be accepted if it is made for a period of not less than three years, subject to the condition that after the expiry of the said period, the claim of the right or privilege relinquished will be with reference to the state of affairs that exist on the date of expiry of period of relinquishment and without restoration of original seniority.
10. That means, once relinquishment even on temporary basis is given that will last for three years and after the end of the three years, if at all the candidate or member of the service, who have given the relinquishment, wants to get the privilege or right that shall be considered and granted only on the basis of the prevailing situation at the end of the three years and in this regard, the original seniority at the time of relinquishment i.e., prior to three years cannot be restored.
11. When that being the legal position, since the petitioner has 6/10 https://www.mhc.tn.gov.in/judis W.P. No.22906 of 2019 relinquished his right admittedly in the year 2019, inspite of the fact that, there were four vacancies, which were offered to the petitioner, at the end of the three years period i.e., in 2022 current year, if at all any vacancy arises once again, it is for the petitioner to opt for the chance provided if vacancy arises and in that regard only the prevailing condition as of now that after completion of three years alone will be taken into account and based on the original seniority that stood at the time of relinquishment i.e., in the year 2019 insofar as the petitioner is concerned it cannot be restored and based on such original seniority, the petitioner cannot seek any claim of seniority or promotion or any other benefits.
12. When that being the legal and factual position, the challenge now made is against the Government Order in G.O.(Rt).No.713 dated 08.07.2019 issued by the first respondent, under which, the contesting respondents, i.e., third and fourth respondents had been given promotion and posting based on the relinquishment given by the petitioner and therefore, the challenge made against the said Government Order in G.O.(Rt).No.713 dated 08.07.2019 issued by the first respondent giving promotion and 7/10 https://www.mhc.tn.gov.in/judis W.P. No.22906 of 2019 appointment to the private respondents cannot be successfully challenged by the petitioner.
13. In view of the aforestated factual as well as the legal position, where, admittedly the petitioner has relinquished his right of promotion to the post of Professor hence she cannot turn around after three years now and challenge the Government Order in G.O.(Rt).No.713 dated 08.07.2019, under which, the private respondents though who were juniors to the petitioner had been given promotion because of the relinquishment given by the petitioner.
14. In that view of the matter, there is no substance in the challenge made by the petitioner against the Government Order in G.O.(Rt).No.713 dated 08.07.2019. Hence, the writ petition fails, accordingly, it is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
09.06.2022 Index : Yes Speaking Order : Yes sp/sgl 8/10 https://www.mhc.tn.gov.in/judis W.P. No.22906 of 2019 To
1.The Secretary to Government, Health & Family Welfare Department, Fort St. George, Chennai – 600 009.
2.The Director of Medical Education, Poonamallee High Road, Kilpauk, Chennai – 600 010.
9/10 https://www.mhc.tn.gov.in/judis W.P. No.22906 of 2019 R.SURESH KUMAR, J.
sp/sgl W.P. No.22906 of 2019 09.06.2022 10/10 https://www.mhc.tn.gov.in/judis