B. Ananda Rama Rao And Others vs State Of Andhra Pradesh And Others on 27 April, 2001

[Cites 24, Cited by 5]

Andhra HC (Pre-Telangana)

B. Ananda Rama Rao And Others vs State Of Andhra Pradesh And Others on 27 April, 2001

Equivalent citations: 2001(4)ALD289, 2003(3)ALT456

1. In all these writ petitions, the point at issue is what is the method and manner that has to be followed in reckoning the seniority of Civil Assistant Surgeons in A.P. Medical and Health Service. For the purpose of convenience, we may dispose of all the writ petitions together by common order. To point out the controversy, the necessary facts in WP No.13923 of 1999 are referred to.

2. WP No.13923 of 1999 is filed seeking a writ in the nature of writ of mandamus directing the respondents viz., the State of A.P., Director of Medical Education, and Director of Health, to make promotions to the posts of Professor by taking into account the seniority in the category of Civil Assistant Surgeons without reference to the date of posting as Assistant Professor by declaring the order ofthe A.P. Administrative Tribunal (for brevity 'the Tribunal) in OA No.3599 of 1999 and batch, dated 10-3-1998, and the consequential Government Orders issued in G.O. Ms. No.325, Health, Medical and Family Welfare Department, dated 15-6-1999, as illegal, bad and arbitrary, and for such other order or orders as this Court may deem fit in the facts and circumstances of the case.

3. All the petitioners were initially appointed as Civil Assistant Surgeons. While in service, all of them acquired post-graduate (PG) qualifications in their respective specialities. Having regard to their PG qualifications they were also posted in a teaching hospital for a minimum period of five years to enable the petitioners to gain five years teaching experience. Though the method of recruitment to the posts of Assistant Professors is direct recruitment, it was never resorted to except in four specialities, and only qualified Civil Assistant Surgeons were being posted as Assistant Professors. The seniority list of the Civil Assistant Surgeons was being prepared taking into consideration the entire service from the date of appointment as Civil Assistant Surgeons, and in some cases, the service as such prior to the acquiring of PG qualification was also counted for the purpose of reckoning seniority. However, after the judgment of the Tribunal in OA No. 4762 of 1994, which the petitioners say has no application to their cases, respondent Nos.1 to 3 are attempting to give a go by the existing procedure of counting seniority from the date of appointment as Civil Assistant Surgeons, and are trying to prepare a seniority list of Assistant Professors reckoning the seniority as such from the date of posting as Assistant Professor.

They filed OA No.3599 of 1995 and batch, and the Tribunal merely followed its earlier order in OA No.4764 of 1994 and directed the respondents to fix the seniority of the Civil Assistant Surgeons in the redesignated category of Assistant Professors ignoring the entire service as Civil Assistant Surgeons. In furtherance thereto, the Government issued G.O. Ms. No.325, dated 15-6-1999, directing the Head of the Department to prepare a seniority list of Assistant Professors of all specialities, including clinical and non-clinical other than psychiatry speciality taking into consideration the date of appointment as Assistant Professor and finalise the list in the said category and thereafter send necessary proposals for review of promotions to the post of Professor of concerned speciality made on or before 29-3-1988.

4. Some of the writ petitions are filed against the order of the Tribunal as well as G.O. Ms. No.325, dated 15-6-1999 and some of the writ petitions are filed by the Civil Assistant Surgeons and Professors by taking leave of the Court against G.O. Ms. No.325, dated 15-6-1999.

5. Before examining the rule position, we wish to point out that no original application under Section 19 of the A.P. Administrative Tribunals Act, 1985 ('the Act' for brevity) is maintainable before the Tribunal unless there is redressable grievance. As per Section 19 of the Act, a public servant with a specific grievance can only approach for redressal. Mere apprehension with regard to the service conditions cannot give any cause of action to a public servant to approach the Tribunal. In the original application filed, no order of the Government or order of the Director of Medical Services was challenged. There was not even a provisional seniority or final seniority, which could have been challenged. The cause of action was made out in the following terms in OA No.3599 of 1985:

But, however, the judgment of this Hon'ble Tribunal was wrongly interpreted to the effect that promotion to the post of Professor shall be made by taking into account the date of posting as Assistant Professor irrespective of the fact whether he was appointed regularly and continuously working in the same post. As submitted earlier posting as Assistant Professor is only for a limited period of five years to gain teaching experience. Now basing on the above procedure the respondents are going ahead with the promotion to the post of Professors. It is submitted that the above procedure is contrary to the rules, judgment of Hon'ble Supreme Court and Tribunal, and also contrary to the well settled procedure hitherto followed by the respondents and which was not challenged by anybody. Therefore the applicants are approaching this Hon'ble Tribunal for a direction to the respondents to follow the procedure hitherto followed for the purpose of promotions as Professors i.e. the vertical seniority in the category of Civil Assistant Surgeons.

6. In our considered opinion, when there was no decision or an order by the Government as to the seniority of Civil Assistant Surgeons, the Tribunal ought not to have entertained the OAs. It is well settled that the jurisdiction under Article 226 of the Constitution of India is ordinarily not exercised on mere apprehensions. Further, it is only in special circumstances that "quia time?' actions can be brought before the Court of judicial review. The Parliament has taken care of this in so many words as laid down in Section 19 of the Act that a public servant with a specific grievance can only come to the Tribunal. The said section reads as under.

19. Application to Tribunals :--

(1) Subject to the other provisions of this Act a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal may make an application to the Tribunal for the redressal of his grievance.

Explanation :--For the purposes of this sub-section 'order' means an order made :

(a) by the Government or a local or other authority within the territory of India or under the control of the Government of India or by any corporation (or society) owned or controlled by the Government; or

(b) by an officer, committee or other body or agency of the Government or a local or other authority, or Corporation (or society) referred to in clause (a).

(2) Every application under subsection (1) shall be in such form and be accompanied by such documents or other evidence and by such fee (if any, not exceeding one hundred rupees) ("in respect of the filing of such application and by such other fees for the service or execution processes, as may be prescribed by the Central Government".) (3) On receipt of an application under sub-section (I) the Tribunal shall, if satisfied after such inquiry as it may deem necessary, that the application is a fit case for adjudication or trial by it, admit such application; but where the Tribunal is not so satisfied, it may summarily reject the application after recording its reasons.

(4) Where an application has been admitted by a Tribunal under subsection (3) every proceeding under the relevant Service Rules as to redressal of grievance in relation to the subject-matter of such application pending immediately before such admission shall abate and save as otherwise directed by the Tribunal, no appeal or representation in relation to such matter shall thereafter be entertained under such rules."

7. Further, it is well settled that in matters of seniority, the Courts would not ordinarily come into the picture at the stage of provisional seniority list. It is for the reason that after preparation of provisional seniority list, objections are called for from aggrieved parties who may bring the grievance to the notice of the competent authority. These objections are considered and final seniority list is issued. It is only the final seniority list that can be challenged and the provisional seniority list ordinarily cannot be permitted to be challenged.

8. In view of the changed circumstances, whereunder the Government acted upon the impugned judgment of the Tribunal and issued G.O. Ms. No.325, dated 30-6-1999, though we are however inclined to consider the controversy, nevertheless wish to lay down that this Court or the Tribunal in matters of seniority should not ordinarily interfere with the executive function either before the preparation of seniority list or at the stage of provisional seniority list, and it is only the final seniority list that can be said to give rise to any grievance to the public servant.

9. The controversy in these matters, as observed earlier, relates to preparation of seniority list of Civil Assistant Surgeons. The A.P. Medical Service Special Rules issued in G.O. Ms. No.3020, dated 28-8-1964 under the proviso to Article 309 of the Constitution of India initially governed the service.

10. Under the 1964 Rules, Part I consists of Medical Branch and Part II consists of Nursing Branch. Class I consists of 10 categories. The posts of Civil Surgeons in Hospitals and Resident Medical Officers in General Hospitals were included in category I. Assistant Surgeons in general line i.e., Assistant District Medical Officers and Assistant Surgeons attached to Hospital formed category II, whereas Assistant Professors with PG degree in non-clinical speciality or non-clinical teachers or tutors are included in category V. Likewise, Assistant Directors with PG with clinical speciality or clinical teachers or tutors are included in category VI. Further under Rule 2, the cadre of Civil Surgeon and Assistant Surgeon was treated separately, but Assistant Surgeons in general line and Assistant Professors in non-clinical subjects as well as clinical subjects were included in Class I. As per Rule 3, the posts in category I of Class I i.e., Professors both clinical and non-clinical (category 3 and category 4 of class 1) is by way of promotion from Assistant Surgeons as well as Assistant Professors. As per Rule 4, a member who has completed a period of service of not less than six years in the cadre of Assistant Surgeons and passing PG qualification in any speciality is entitled to be promoted to the post of Professor. Rule 5 lays down that members of the service holding the posts of class I categories 1 and 2 may at any time be transferred to different posts i.e., to say Professors or clinical Professors can be posted as District Medical Officer and vice versa, and Assistant Surgeons in general line can be posted as Assistant Professors (clinical or non-clinical or tutor and vice versa). Rule 11 says that for the seniority and appointment as full members of posts in the cadre of Assistant Surgeons shall be deemed to constitute a single category. Annexure I read with Rule 8 prescribes qualifications for appointment to various posts. For the post of Professor, it is mentioned that all teachers in clinical and non-clinical subjects must possess MBBS degree or equivalent qualification as entered in the schedule to the Indian Medical Council Act, 1956 (for brevity 'the Central Act'), in addition to possessing PG qualification like MD/MS/DSE etc.

11. Therefore, all teachers (Assistant Surgeons) in clinical or non-clinical subjects with six years service with teaching experience in medical college for a period of not less than five years after obtaining PG qualification in the speciality concerned are eligible for the post of Professor. It is reasonable to infer that though there is no strict dishotomy between the posts of Assistant Surgeon and Assistant Professor. As per Rule 8 read with annexure I only those Assistant Surgeons working as teachers and with PG qualification and four years teaching experience after obtaining PG qualification were made eligible for being appointed by promotion to the posts of professors.

12. The Rules issued in 1964 were supcrceded by new rules promulgated in exercise of power under the proviso to Article 309 of the Constitution of India. These Special Rules are called A.P. Medical and Health Service Rules, and were issued in G.O. Ms. No.43, dated 16-1-1982. At present those rules govern the posts of Professor and Assistant Professors in the Medical Colleges.

13. Before we notice 1982 Rules, it is necessary to mention that though there was no watertight compartmentalisation between the teaching branch on the one hand and non-teaching category on the other, it is agreed by all before us that the posts in categories 1 and 2 of Class I under 1964 Rules were interchangeable posts, and qualified Assistant Surgeons as well as Tutors for being posted as Professors subject to the fulfilling of qualifications of teaching experience as required under Rule 8 read with annexure I. It is also admitted that only one seniority list of Assistant Surgeons whether working in the administrative side, teaching side or non-teaching side was maintained, which was the basis for considering the incumbents for promotion on the basis of merit and seniority. Be it noted that all the posts in A.P. Medical Service whether teaching or non-teaching are selection posts, and* even as per the A.P. State and Subordinate Service Rules, the promotion is on the basis of merit-cum-seniority. From this point of view, seniority is of not much significance and is relevant only in a situation where all the candidates are found to be equally meritorious in which event senior among the approximately equally meritorious candidate is considered for promotion (See State of Kerala v. N.M. Thomas, and B. V. Sivaiah v. Addanki Baba, ).

14. Coming to 1982 Rules, promulgated vide G.O. Ms. No.43, dated 16-1-1982, for the first time, AP Medical Service was constituted as consisting three branches viz., Teaching cadre (Branch-I), Non-teaching cadre (Branch-II) and Laboratories (Branch-III). The dispute in these cases is with regard to promotion to the post of Professor in teaching cadre and the preparation of seniority list of Assistant Civil Surgeons in non-teaching cadre.

15. Part II of the 1982 Rules consists of Special Branch, and the post of Director of Medical Education constitutes the special branch. Rule 4 provides that one must have minimum service of three years, of which at least two years in the post, included in Class I, Category I of Teaching cadre (Branch-1) for being promoted to the post of Director of Medical Education. We are referring to this rule because the same fell for consideration before the Supreme Court in State of A.P. v. Dr. N. Ramachandra Rao, . There are two classes of officers in teaching cadre. Again there are six categories in Class I posts, and three categories in Class II. The post of Assistant Professors (clinical and non-clinical), and the posts of Assistant Professors (Dental), are included in categories 1 and 2 respectively of Class II. The posts of Professors (clinical) and Professors (non-clinical) are categorised as category II and category III of Class I. Rule 2 provides the method of appointment, and insofar as the same is relevant reads as under:

Appointment: Appointment to the various classes and categories shall be made as follows:

Category Method of Recruitment (2) (3) Class I Category 2 Professors (Clinical)

(i) By promotion from among the holders of the posts of Deputy Civil Surgeons (Clinical) included in Class 1, Category 5 of this branch.

(ii) By promotion from the holders of posts of Assistant Professors (Clinical) included in Class II, Category 1, of the branch if persons from item (i) above are not available.

Category 3 Professors (Non-clinical)

(i) By promotion among the holders of the posts of Deputy Civil Surgeons (Non-clinical) included in Class 1, Category 6 of this branch.

(ii) Promotion from the holders of posts of Assistant Professors (Non-clinical) included in Class II, Category 1 of this branch if persons from item (i) above are not available.

Category 4 Dental Professors

(i) By promotion from among the holders of the posts of Deputy Civil Surgeons included in Category 6 of this branch.

(ii) By promotion from the holders of the posts of Assistant Professors included in this Class-11, Category 2 of this branch, if persons from item (i) above are not available.

Category 5 Deputy Civil Surgeons (Clinical and Non-clinical) By promotion from among the holders of the posts of Assistant Professors included in Class II, Category 1 of this branch.

Category 6 Deputy Civil Surgeons Dental By promotion from the holders of the posts of Assistant Professors included in Class II, Category 2 of this branch.

Class II Category 1 Assistant Professors (Clinical and Non-clinical) By direct recruitment Category 2 Assistant Professors Dental By direct recruitment Provided that initial recruitment at the time of constitution of teaching cadre shall be made by selection from the existing regularly appointed Civil Assistant Surgeons/Dental Assistant Surgeons/Assistant Professors by a Committee constituted by the Government for purpose or by such other method as the Government may notify.

Provided further that the pay of the persons working on regular basis who are not selected for appointment are Assistant Professors at the time of initial selection to the teaching cadre, but selected subsequently by the Public Service Commission for appointment as Asst. Professors by direct recruitment shall be protected.

Category 3 Tutors By direct recruitment.

Note :In the Departments of Anatomy, Physiology, Pharmacology, Bio-Chemistry and Microbiology, non-Medical Tutors may be appointed to the extent of 30% of the total number of posts in the Department.

16. The relevant entry in Rule 2 dealing with Assistant Professors (clinical and non-clinical) provides that the appointment to the said posts shall be by direct recruitment. But the first proviso enables recruitment of Assistant Professors by selection from existing regularly appointed Civil Assistant Surgeons. Rule 3 deals with clinical and non-clinical specialities, and every branch-of medical science, medicine and surgery are treated as specialities. Rule 4 provides that a Deputy Civil Surgeon or an Assistant Professor shall be eligible for promotion as Professor after putting in a total teaching experience of five years in either or both the categories in the concerned specialities. As provided in Rule 5, teaching experience means teaching experience in the speciality concerned in the Medical College or an institute recognized by Medical Council of India after obtaining PG qualification. But as per the first proviso to Rule 5, the teaching experience during the second Post-graduation in a recognised college or institution within the country or abroad in the concerned speciality of those who are holding teaching posts, or holding posts under their charge or doing tutorial work shall also count towards teaching experience for the purpose of the rules. Rule 9 prescribes the qualifications for various posts in various specialities. Rule 10 deals with seniority and provides that for the purpose of seniority and appointment as full members, the posts included in the teaching branch of the medical service shall constitute separate units as indicated therein. The said rule also provides that Deputy Civil Surgeons and Assistant Professors shall have separate seniority in the order of speciality.

17. Non-teaching branch of the service, which includes the posts of Civil Surgeon specialists (Superintendents) in District Headquarters Hospitals and Civil Surgeons (Hospital Administrators) etc., and promotion thereto is dealt with in a separate set of rules which form part of the main rules. Likewise, there are separate sets of rules for Laboratories (Branch-Ill) of the rules. At the end of rules there are general and common provisions, which apply to all holders of posts included in all branches. As per Rule 1 of Part III, promotions to the posts of Professors, clinical and non-clinical shall be made on the ground of merit and ability, seniority being considered only where merit and ability are approximately equal. It is interesting to note that the posts of Civil Assistant Surgeons though form category 1 of Class II of non-teaching branch, the same is not included in any of the categories mentioned under Rule 1 of Part III, The rules were subsequently amended, including the posts of Civil Assistant Surgeons/Assistant Professors (clinical and non-clinical) as category VII in teaching branch under Rule 1 of Part III. Be it also noted that as per Rule 2, Branch II (non-teaching), Civil Assistant Surgeons are appointed by direct recruitment.

18. Even after coming into force of 1982 Rules, it appears that except in four specialities, the Government did not recruit Assistant Professors by direct recruitment. Civil Assistant Surgeons are being recruited by direct recruitment either through agency of APPSC or otherwise, and those Civil Assistant Surgeons with PG qualification are being posted as Assistant Professors in teaching branch. Under 1964 Rules, there was no difference between teaching and non-teaching posts, but though under 1982 Rules there is a watertight division, de facto, however, there has been no difference in the teaching and non-teaching posts as it is admitted by all that all the Civil Assistant Surgeons with PG qualification are being posted as Assistant Professors. Indeed, Rule 1 of Part III of 1988 Rules has included Civil Assistant Surgeons and Assistant Professors in category VII teaching them as equal cadre.

19. The learned Counsel for the petitioners submit that under 1982 Rules, there was no channel of appointment from teaching cadre and non-teaching cadre. Under the new rules, the posts of Assistant Professors in the teaching branch have not been filled up by direct recruitment except in four specialities, including psychiatry. Therefore, the Government posted Civil Assistant Surgeons working in the non-teaching cadre as Assistant Professors subject to those Civil Assistant Surgeons having PG qualifications. On completion of five years of service as Assistant Professors, those Civil Assistant Surgeons are being posted as Tutors or being posted as Civil Assistant Surgeons in non-teaching branch. No uniform procedure was adopted while posting Civil Assistant Surgeons as Assistant-Professors.

20. Further, in applying Rule 11, which makes rural service compulsory, some Civil Assistant Surgeons with PG qualification were posted as Assistant Professors only after completion of two years of rural service, whereas some Civil Assistant Surgeons with PG qualification were directly posted as Assistant Professors without rural service. In yester years, the seniority in the category of Civil Assistant Surgeons was considered while promoting to the posts of Professors, and therefore, even when Civil Assistant Surgeons, who were junior as Assistant Professors were promoted as Professors, no serious objection was ever taken as there was a legitimate practice of considering the seniority in the category of Civil Assistant Surgeons from the date of appointment as such, and taking five years of teaching experience as only eligibility criteria not related to the seniority as Civil Assistant Surgeons. The learned Counsel further submit after the judgment and order of the Tribunal in OA No.4762 of 1974, the Government wanted to consider ihe seniority as Assistant Professor as criteria for the purpose of promotion as Professors, ignoring the entire service as Civil Assistant Surgeons before acquiring PG qualification as well as after completion of five years in teaching assignment with PG qualification which is contrary to the General Rules and Special Rules.

21. It is nextly contended that all the petitioners and contesting respondents were initially appointed as Civil Assistant Surgeons, None of them was ever appointed as Assistant Professor. Therefore, the question of counting the seniority in the category of Assistant Professor does not arise and the seniority of all Civil Assistant Surgeons shall have to be determined from the date of initial appointment to such service class or category. The Tribunal, it is contended, did not consider the issue independently and merely placed reliance on the order passed in the earlier OA. It is lastly contended by the learned Counsel that when a Civil Assistant Surgeon with PG qualification is posted in a teaching hospital for a period of five years to work as Assistant Professor, the same cannot be held to be an appointment as Assistant Professor in accordance with the rules, and therefore, counting the seniority from the date of appointment as Assistant Professor only would violate the General Rules as well as the Special Rules.

22. The learned Additional Advocate-General and other Counsel appearing for the contesting respondents submitted that the writ petition is not maintainable as the Government has already acted upon and issued G.O. Ms. No.325, dated 15-6-1999, and the remedy of the petitioners in accordance with the judgment of the Apex Court in L. Chandra Kumar v. Union of India, , lies elsewhere. It is also submitted that having regard to the rules, the teaching experience after obtaining PG qualifications can only be counted for the purpose of seniority in the category of Assistant Professors as Civil Assistant Surgeon without PG qualification, cannot be appointed as Assistant Professor. The learned Additional Advocate-General placed reliance on the proviso to Rule 2 and submits that it was permissible for the Government to appoint Civil Assistant Surgeons with PG qualification by transfer to the posts of Assistant Professor, and therefore, there is justification for counting the seniority of Assistant Professors only from the date of appointment to the said posts.

23. The pleadings on record and the submissions made by the learned Counsel require the following point to be considered in this case.

24. While preparing the seniority list of Civil Assistant Surgeons falling in category I, Class II of non-teaching (Branch-11) of AP Medical Service, whether the seniority from the date of appointment as Civil Assistant Surgeon should not be considered?

25. All the posts in A.P. Medical Service are governed by A.P. State and Subordinate Service Rules, 1996 in regard to general conditions of service. The posts are also governed by the Special Rules. In the event of repugnancy between the General Rules and the Special Rules, either general or in regard to any specific matter, the Special Rules in respect of medical service prevail over the provisions of Genera! Rules. Seniority is a condition of service, and the relevant rules concerning seniority find place in General Rules.

26. For proper appreciation of the contentions of the Counsel for the respective parties, it is necessary to notice some of the rules forming part of General Rules.

Rule 2(8) defines cadre to mean the posts in various classes, categories and grades in service. A person is said to be "appointed to a service" (Rule 2(2)) when such person is appointed in accordance with the General Rules and in accordance with the Special Rules or ad hoc Rules if applicable to such service, and he/she discharges for the first time the duties of the post bom with the said cadre and such service. Explanation to Rule 2(2) is important and it reads thus:

Explanation :--The appointment of a person holding a post borne on the cadre of one service to hold additional charge of a post borne on the cadre of another service or same service or to discharge the current duties thereof does not amount appointment to the latter service or post in the same service, as the case may be.

27. An approved candidate as per Rule 2(3) means a candidate whose name appears in the authoritative list of candidates approved for appointment to in service class or category. Rule 2(5) defines 'appointment or recruitment by transfer'. It lays down inter alia that a candidate is said to be appointed or recruited by transfer to service in case at the time of his first appointment thereof he is holder of a post which has been included in another service, but for which no probation has been prescribed, for he has to put in that post satisfactory service for a total period of two years on duty for continuous period of three years. A person is said to be approved probationer in service, class or category, who has satisfactorily completed his probation in such service, class or category. Rule 2(14) of General Rules lays down that a person is said to be 'on duty1 as a member of the service when he is performing the duties of a post bom on the cadre of such service or is undergoing probation, instruction or training prescribed for such service. As per Rule 21(5) a candidate is said to be recruited direct to a post, class or category in a service in case his first appointment thereof is made otherwise than by the following methods:

(i) by promotion from a lower post, category or class in that service or from a lower grade of any such post, category or class, or

(ii) by transfer from any other class of that service, or

(iii) by appointment by transfer from any other service, or

(iv) by re-employment of a person in case he had retired from service of Government prior to such appointment, or

(v) by appointment by agreement or contract

28. Another important sub-rule is Rule 2(18), which defines member of service to mean a person who has been appointed to that service and who has not been removed or discharged and such member may be a probationer, and approved probationer or member of that service.

29. A reference to definition clause of General Rules shows that a person who is posted by transfer from another class to a particular service shall not be deemed to be a direct recruitee, and that all the posts in various classes, categories and grades are treated as cadre, and person who is performing the duties of a post born under the cadre i.e., the holder of a class of post in the cadre is said to be on duty. All the persons appointed to service are treated whether they belong to class, category or grade, as forming one homogenous group and a distinction cannot be made merely because one or a few of the members of a class are assigned a post in the same cadre, but belonging to a different class.

30. Rule 5 is to the effect that all appointments to a State service and of promotions/appointments by transfer in that service shall be on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal, and a panel of approved candidates is to be prepared by the appointing authority in consultation with the DPC as prescribed under Rule 6, Rule 33 deals with seniority.

31. Be it noted that though seniority is not a vested right and it is a civil right as held by the Division Bench of this Court in K.R. Raghavan Nair v. Union of India, 2001 (1) LS 344. Therefore, the seniority is not only an important condition of service, but a civil right, and the same cannot be denied to any member of service on the grounds of administrative practices. Rule 33 to the extent relevant reads thus:

Seniority :--(a) The seniority of a person in a service, class, category or grade, shall unless he had been reduced to a lower rank as a punishment, be determined by the date of his first appointment to such service, class, category or grade.

(b) The appointing authority may, at the time of passing an order appointing two or more persons simultaneously to a service, fix either for the purpose of satisfying the rule of reservation of appointments or for any other reason the order of preference amount them; and where such order has been fixed, seniority shall be determined in accordance with it;

Provided further that the order of merit or order of preference indicated in a list of selected candidates prepared by the Public Service Commission or other selecting authority, shall not be disturbed inter se with reference to the candidates position in such list or panel while determining the seniority in accordance with this rule and notional dates of commencement of probation to the extent necessary, shall be assigned to the persons concerned, with reference to the order of merit or order of preference assigned to them in the said list.

(d) The transfer of a person from one class or category of a service to another class or category of the same service carrying the same pay or scale of pay shall not be treated as first appointment to the latter class or category for purpose of seniority and the seniority of a person so transferred shall be determined with reference to the date of his regular appointment in the class or category from which he was transferred. Where any difficulty arises in applying this sub-rule, seniority shall be determined by the Government, if they are the appointing authority and in other cases, the authority next higher to the appointing authority shall determine the seniority.

32. The plain language of Rule 33 leads to the following principles of fixing seniority (I) the seniority of a person in service, class, category or grade shall be determined by the date of first appointment to service. Class, category or grade from the day when the incumbent discharges for the first time the duties of a post bom in that service or commences probation, instruction or training prescribed for the members thereof; (2) in the case of simultaneous appointment, the appointing authority may fix the order of seniority which shall be the basis for reckoning the seniority; (3) the transfer of a person at a later stage from one post to another in same class or category of service to another class or category of the same service carrying the same scale and scale of pay shall not be treated as first appointment to the latter class or category for the purpose of seniority.

The seniority of a person so transferred shall be determined with reference to the duty of his regular appointment in a class or category from which he was transferred. Rules 36 and 37 deal with inter se seniority where the duties and commencement of probation are the same and in regard to candidates allotted under Rule 4(2) by Public Service Commission. We need to refer to Rule 10 of teaching branch which says that Assistant Professors shall have separate seniority in the order of specialty.

33. After noticing the relevant rules, it is appropriate to refer to some of the important decisions of the Supreme Court on the subject. In State of Punjab v. Joginder Singh, , a Constitution Bench of the Supreme Court considered the question as to whether the teachers of Government schools forming a separate cadre and the Board school teachers who later became employees of Government could be treated similarly for the purpose of seniority, and whether dissimilarity in their treatment would amount to denying equal opportunity to Board school, teachers. In the context, the majority judgment laid down as under:

.....the two services started as independent services. The qualifications prescribed for entry into each were different, the method of recruitment and the machinery for the same were also different and the general qualifications possessed by and large by the members of each class being different, they started as two distinct classes. If the Government Order of September 27, 1957 did not integrate them into a single service, it would follow that the two remained as they started as two distinct services. If they were distinct services, there was no question of inter se seniority between members of the two services, nor of any comparison between the two in the matter of promotion for founding an argument based upon Article 14 or Article 16(1). They started dissimilarly and they continued dissimilarly and any dissimilarity in their treatment would not be a denial of equal opportunity, for it is common ground that within each group there is no denial of that freedom guaranteed by the two Articles.....

34. While observing thus, the Supreme Court reversed the finding of the High Court of Punjab that Punjab Educational Service (Provincial Cadre) Class 3 Rules, 1961 and introduced element of discrimination between two similarly situated categories of employees. The tests applied by the Supreme Court are whether the qualifications prescribed by two services are similar, whether method of recruitment and machinery for the same is different, whether both the services started similarly and continued similarly. These tests should be kept in mind in applying the A.P. State and Subordinate Service Rules, Special Rules and the principles laid down by the Supreme Court in the above judgment.

35. In Jaisinghani v. Union of India, , the question before the Supreme Court was whether the seniority rule in regard to income tax service Class I, Grade II infringes the guarantees of Articles 14 and 16 of the Constitution of India. It was contended that Rule 1(f)(iii) of 1952 Rules was based upon unjustifiable classification between direct recruits and promotees after they had entered into Class I, Grade II. The Supreme Court found that the said rule is unconstitutional. It was observed in para 9 as follows:

.....Article 16 of the Constitution is only an incident of the application of the concept of equality enshrined in Article 14 thereof. It gives effect to the doctrine of equality in the matter of appointment and promotion. It follows that there can be a reasonable classification of the employees for the purpose of appointment or promotion. The concept of equality in the matter of promotion can be predicated only when the promotees are drawn from the same source. If the preferential treatment of one source in relation to the other is based on the differences between the said two reasonable relation to the nature of the office or offices to which recruitment is made, the said recruitment can legitimately be sustained on the basis of a valid classification......

36. In Delhi Water Supply and Sewerage Disposal Committee v. R.K. Kashyap, , the question was whether the inter se seniority in the category of executive engineers in the water supply undertaking should reflect the corresponding rankings in the feeder category of Assistant Engineers or continuous officiation on ad hoc basis in the post should be the basis. Having regard to the earlier law on the subject, the Court came to the conclusion that the rule of seniority has to satisfy the test of equality of opportunity in public service, and when juniors are appointed on ad hoc basis without considering the claims of seniors in the cadre, the service rendered by juniors in an officiating capacity should not be counted for seniority. The observations made in para 26 are as under:

.....The principle of counting service in favour of one should not be violative of equality of opportunity enshrined in Articles 14 and 16 of the Constitution. If ad hoc appointment or temporary appointment is made without considering the claims of seniors in the cadre, the service rendered in such appointment should not be counted for seniority in the cadre. The length of service in ad hoc appointment or stop gap arrangement made in the exigencies of service without considering the claims of all the eligible and suitable persons in the cadre ought not be reckoned for the purpose of determining the seniority in the promotional cadre. To give the benefit of such service to a favoured few would be contrary to the equality of opportunity enshrined in Articles 14 and 16 of the Constitution. But if the claims of all eligible candidates were considered at the time of ad hoc appointments and such appointments continued uninterruptedly till the regularisation of services by the Departmental Promotion Committee or the Public Service Commission there is no reason to exclude such service for determining the seniority. Of course, if any statutory rule or executive order provides to the contrary, the rule or order will have supremacy. In the absence of any rule or order the length of service should be the basis to determine the seniority.

37. In Direct Recruit Class-II Engg. Officers' Association v. State of Maharashtra, , the Constitution Bench of the Supreme Court reviewed the case law on the question of seniority, and laid down the following principles:

(a) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.

(b) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted.

(c) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.

(d) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down.

38. The conspectus of various judgments dealing with the rule of seniority is as follows:

(a) Any rule of seniority should adhere to the doctrine of equality of opportunity and should not infringe Articles 14 and 16(1) of the Constitution of India.

(b) The posts held by permanent incumbent as well as officiating incumbents belonging to a single cadre should be treated as similar unless there is a clear distinction.

(c) If the rules permit the posting of incumbent belonging to similar class in the same cadre, the entire service in both the classes of posts shall be treated for the purpose of common seniority, and there cannot be any distinction between the persons who are holding one class of posts and others who are holding different class of posts in the same category/cadre. The length of service in ad hoc appointment made due to exigencies of service without considering the claims of all seniors and suitable persons in the cadre/class or category, ought not to be reckoned for the purpose of determining seniority while considering the promotion to the next higher category.

(d) If the claims of all eligible candidates were considered on the principle of equality of opportunity before posting/ sending to a better class of posts in Ihe same cadre, and if the rule or executive order permitting the service in the ad hoc appointment cannot be ignored.

39. Keeping in mind these rules, we may now consider the controversy in these cases.

40. In 1962 Rules as well as Special Rules, there was no watertight compartmentalisation between the posts ofCivil Assistant Surgeons and Assistant Civil Surgeons among the posts of Professors, District Superintendents of Hospital, Deputy Directors etc. They were all interchangeable posts. A Civil Assistant Surgeon could be posted as Assistant Professor and Assistant Professor could be posted as Civil Assistant Surgeon. It is agreed by all that except in four branches of specialities, direct recruitment has not been made for the post of Assistant Professor. Except in the four branches/specialities, in all other branches Civil Assistant Surgeons are being posted as Assistant Professors. The only difference is that when a Civil Assistant Surgeon is appointed through Public Service Commission or through A.P. Vaidya Vidhana Parishad, agency of the Government or through the Director of Medical Health Services, the persons with PG qualifications were only posted as Assistant Professors subject to availability of vacancies. In the case of Civil Assistant Surgeons, who joined medical service without PG qualifications, they were posted as Assistant Professors for a period of five years after they obtained PG qualification. In posting the Civil Assistant Surgeons as Assistant Professors, it is submitted by the learned Counsel for the petitioner, no rule of seniority was followed. Therefore, the Civil Assistant Surgeon getting posted as Assistant Professor in a teaching hospital is a fortuitous circumstance depending on no rule or executive instruction. Further as per Rule 5 of Branch I every Assistant Professor/ Civil Assistant Surgeon was required to put in two years of rural practice. Even in this area, there are no specific discernible guidelines followed. Some times, even without rural practice they were posted as Assistant Professors and in some other cases even after completing rural practice they were not given the posting as Assistant Professors. In other words, all the Civil Assistant Surgeons depending upon the vacancy position in teaching hospitals were posted for a period of five years in teaching hospitals. This was done to enable all the Civil Assistant Surgeons belonging to the same cadre/category or class to get teaching experience which is a required essential qualification for being considered for promotion to the post of Professors.

41. In the given factual matrix, is it permissible for the respondents to prepare seniority list of Civil Assistant Surgeons with reference to their date of appointment as Civil Assistant Surgeons and then resort to consideration of horizontal seniority among those Civil Assistant Surgeons who earlier worked as Assistant Professors by mere chance or fortuitous circumstances? In our considered opinion, given the rule position and the law laid down by the Supreme Court, such course of action is not permissible. The Supreme Court in Joginder's case (supra), laid down the test to treat two classes of posts similarly. The method of recruitment and the qualifications should be the same. In this case, nor rule or executive instructions is brought to my notice to agree with the contention of the respondents that those Civil Assistant Surgeons who were appointed as Assistant Professors earlier to the petitioners should be treated as seniors in the category of Assistant Professors. We, therefore, hold that any attempt to prepare the seniority list of Civil Assistant Surgeons, ignoring the initial date of appointment to the service and resorting to horizontal seniority of Civil Assistant Surgeons working as Professors would violate the principle of equality of opportunity adumbrated in Articles 14 and 16(1) of the Constitution of India.

42. In this context, we may refer to a recent judgment of the Supreme Court in S.N. Dhingra v. Union of India, , wherein it was held that appointment to a service and appointment to a post in the same service are two different concepts and while calculating seniority it is only the appointment to service which is to be reckoned with and not appointment to a post. The relevant observations of the Supreme Court are as under:

.....appointment to service and posting thereafter are two different concepts. Once the appointment is made to the higher judicial service, as in the case in hand, then the subsequent posting against some posts born in the higher judicial service will not deprive the appointees of the benefits of continuous appointment against the post merely because as a given point of time against their order an appeal lay to the District and Sessions Judge, which might have been occupied by the petitioners on being directly recruited in the year 1988. It is in this context, the very recruitment of the petitioners and the terms and conditions mentioned therein are of great significance as pointed out by Mr. Goburdhan appearing for some of the respondents. It has been unequivocally stated that the question of their seniority would be subject to and in accordance with the decision of the Supreme Court in the pending cases. In view of the Constitution Bench judgment in Rudra Kumar and in view of the earlier directions contained in O.P. Singla and in view of our conclusion already arrived at, the ultimate conclusion is inescapable that the continuous length of service of these respondents right from their appointment to the higher judicial service to be determined.....

43. Indian Medical Council Act, 1956 (for short 'MC Act') is an Act referable to Entry 66 of List I of Schedule VII to the Constitution of India. In exercise of the powers conferred by Section 33 of the said Act, the Medical Council of India with the previous sanction of the Central Government made "Minimum Qualifications for Teachers in Medical Institutions Regulations, 1988 (for short 'the MC Regulations'). Regulation 2 declares that appointment of medical teachers with minimum qualifications and experience in various departments of Medical Colleges and Institutions imparting graduate and post-graduate medical education is a necessary requirement to maintain the standards of education. As per Regulation 3, the minimum qualification for appointment as teacher in various Departments of Medical Colleges and institutions imparting Graduate and Post-graduate education shall be specified in Schedule I and Schedule II annexed to the Regulations. Schedule I stipulates that every appointing authority before making appointment to teaching post in Medical College shall observe norms laid thereunder. Para 6 of Schedule I reads thus:

The teachers in a Medical College or institution have a total of eight years' teaching experience out of which atleast five years teaching experience as Lecturer or Asst. Professor gained after obtaining post-graduate degree shall be recognised as post-graduate teachers in broad specialities, In the case of super-specialities only those teachers who possess eight years' teaching experience out of which at least five years' teaching experience as Lecturer or Asst. Professor gained after obtaining the higher speciality degree shall be recognised as postgraduate teachers:

Provided that in the case of super-speciality courses which are being newly instituted, matter regarding relaxation of qualification and experience of postgraduate teachers may be taken up by the appointing authority with the Medical Council of India.

44. Table I and Table II of Schedule I describe the names of the teaching posts, academic qualifications and teaching and research experience required for each teaching post in respect of graduate and post-graduate courses respectively. Para 9 of Schedule I lays down that the requirement of four research papers for the post of Associate Professor and eight research papers for Professor, is a desirable qualification. Column 3 of Table I prescribes teaching/ research experience for the post of Professors in various teaching posts, both clinical and non-clinical. There are as many as 43 specialities for which academic qualifications and teaching experience is prescribed. For the sake of better appreciation, we would like to notice these qualifications for the post of Professor, Reader, Assistant Professor/Tutor in the speciality of general medicine and general surgery, which are as under:

Post Academic qualifications Teaching/Research Experience General Medicine Professor M.D. (Medicine)

(i) As Reader/Associate Professor in General Medicine/ Medicine for four years in a recognised Medical college.

Desirable

(ii) Minimum of four Research, publications Indexed in Index Medicus/National journal and one Research publication in International journal.

Reader/-Associate Professor

-do-

(i) As Assistant Professor/ Lectures in General Medicine/ Medicine for five years in a recognised Medical College. Desirable

(ii) Minimum of four research publications indexed in Index Medicus National journals.

Assistant Professor

-do-

(i) Requisite recognised postgraduate qualification in the subject.

(ii) Three years teaching experience in a subject recognissed medical college as Resident/ Registrar/ Deons- trator/ Tutor.

Tutor/ Demonstrator Resident/ Registrar MBBS General Surgery Professor M.S. (Surgery) M.S. (General Surgery)

i) As Reader/Associate Professor in General Surgery for four years in a recognised Medical College.

Desirable

(i) Minimum of four Research publications Indexed In Index Medicus/National journal and one Research publication in International journal.

Reader/ -Associate Lecturer

-do-

(i) As Assistant Professor/ Lecturer in General Surgery for five years in a recognised Medical College.

Desirable

(i) Minimum of four research publications indexed in index Medicus/National journals.

Assistant Professor Lecturer

-do-

(i) Requisite recognised postgraduate qualification in the subject.

(ii) Three years teaching experience in the subject in a recognised medical college as Resident/Registrar; Demonstrator/Tutor.

Tutor/ Demonstrator/ Resident/ Registrar MBBS

45. Having regard to Entry 66 of List I of Schedule VII which relates to coordination and determination of standards in institutions of higher education or research and scientific and technical educational institutions and various judgments of the Supreme Court dealing with the legislation referable to Entry 66 of List I, we must hold that while appointing Professors in medical and health service, the MC Regulations, framed by the Medical Council of India have to be strictly adhered to. This principle is well settled.

46. In Vinay Shankar v. Director General of Health Services, , Kumar Agarwal v. State of Bihar, AIR 1994 SC 15l4, Ambesh Kumar v. Principal, L.L.R.M. Medical College, Meerut, and Dr. Preethi Srivastava v. State of Madhya Pradesh, , the Supreme Court categorically held that norms prescribed by the Medical Council of India have a direct impact on the standard of medical education, and any plenary law or delegated legislation by the State, which is inconsistent with the standards of Medical Education prescribed by the Union have no effect. In Madanapalli Institute of Technology and Science v. State of Andhra Pradesh, , one of us (VVSR, J.) considered various decisions of the Supreme Court, and inter alia among others laid down the following principles:

B. The use of the expression 'subject to' in Entry 25 of List III clearly indicates that the legislation in respect of education including Technical Education, Medical Education and University Education, to the extent it is entrusted to the Union Parliament whether such power is exercised or not shall be deemed to be restricted. In other words, if a subject of legislation is covered by Entries 63 to 66 of List I, even if it falls otherwise with the larger field of 'education including Technical Education, Medical Education and University Education', the power to legislate on that subject must lie with the Parliament.

C. The expression 'co-ordination' used in Entry 66 of Union List includes power to do all things in matters of Higher Education including Technical Education. The power is absolute and unconditional and in the absence of valid compelling reasons, it must be given its full effect according to its plain and express intention.

D. If the State Legislation is in conflict with the Central Legislation and any of its legislation, including the subordinate legislation made by the Centre to give effect to Entry 66, the State action would be void and inoperative.

E. The co-ordination and determination of standards in institutions for Higher Education or Technical Education exclusively vests with the Parliament. The power to legislate in respect of all matters insofar it has direct bearing and impact on the legislative head of co-ordination and determination of standards in institutions of Higher Education and Technical Education must be deemed by Entry 66 of List I to be vested in the Union.

F. The All India statutory body established under Central Legislation and entrusted with the duty of maintaining standards of higher education and technical education alone is competent to lay down the standards of education. The norms for admission have direct impact on the standards of education. Therefore, the norms for admission can only be laid down by or under the Union legislation. If the norms of admission are laid down either by or under the State legislation, insofar as they do not adversely affect the standards of education or are not inconsistent with the norms of admission laid down by or under the Union legislation, the State is empowered to lay down qualifications in addition to those prescribed under Entry 66 of List I. Such a course of action is intended to permit higher standards for admission to higher educational courses.

47. This aspect of the matter has a direct bearing on the issue involved in the present cases. Though for the purpose of preparation of seniority the respondents cannot resort to maintaining horizontal seniority of those Assistant Professors who by fortuitous circumstances continued to be Assistant Professors, having regard to Rule 1 of Part HI (General Provisions) to the effect that promotion shall be made on the ground of merit and ability, it is always open to the competent authority to prefer Assistant Professors with more teaching experience and research papers to their credit in preference to those Civil Assistant Surgeons who had put up only 5 years teaching experience, which only make them eligible for consideration. So to say, while preparation of seniority of Civil Assistant Surgeons, the date of appointment is only relevant consideration, but in the matter of selection on the basis of merit and ability to the post of Professor, the MC Regulations shall always be given effect to. It is for this purpose, in our considered view, the respondents have to evolve rational methodology for comparative assessment of merit to hold the post of Professor by resorting to allotment of marks for PG qualifications, teaching experience before and after acquiring PG qualifications, and the length of teaching experience. Such action would minimize or reduce arbitrariness in the selection process to the post of Professor.

48. From 1964 to 1982, all the Civil Assistant Surgeons were recruited in District Hospitals, and they were posted in teaching hospitals to enable them to gain five years teaching experience. We have noticed the General Rules. As per the General Rules, all the Civil Assistant Surgeons are deemed to have been appointed to a 'service', and therefore under Rule 33 of the rules, the seniority of all the Civil Assistant Surgeons recruited between 1964 to 1982 shall be determined by the date of first appointment to such service, class, category or grade. This position is not seriously disputed by the learned Counsel for the respondents. However, they submit that the qualified Civil Assistant Surgeons worked continuously as Assistant Professors, and therefore, ignoring their service from the date of appointment as Assistant Professors and allowing a Civil Assistant Surgeon who obtained PG qualification at a later point of time to march over senior Assistant Professors would amount to arbitrariness and violates Article 14 of the Constitution of India. We are afraid, we cannot agree with the same. As already noticed, the Supreme Court in R.K. Kashyap's case (supra) dealt with similar situation and observed that in the absence of any definite rules or administrative guidelines to post juniors on ad hoc basis in higher post without considering the claims of seniors would not by itself allow the juniors on ad hoc promotion to take advantage of the situation. Therefore, the submission of the learned Counsel that the date of acquiring PG qualification should be taken as the criteria for the purpose of reckoning the seniority ignoring the unqualified service of Civil Assistant Surgeons, cannot be accepted. Any such exercise would violate Articles 14 and 16 of the Constitution of India. It is well settled that no provision of taw or Rule or executive instructions can be interpreted so as to defeat the constitutional provisions especially fundamental rights under Articles 14 and 16 of the Constitution of India. All the Civil Assistants Surgeons were appointed by the same method of recruitment, and therefore, mere posting as Assistant Professors or posting in a rural area, cannot be treated as the criteria for fixing the seniority de hors the provisions of Rule 33 of the Rules.

49. At this stage, it is appropriate to notice the reasoning of the Tribunal in the impugned judgment. As rightly contended by the learned Counsel for the petitioner, the Tribunal has not independently given any reasoning. The Tribunal merely agreed with the findings and reasons given by it in its earlier judgment dated 21-3-1995 in OA No.4762 of 1994. Be it noted that the Tribunal in OA No.4762 of 1994 held that only persons appointed by direct recruitment as Civil Assistant Surgeons and those who have been posted in teaching posts as Assistant Professors prior to 1988 after having obtained requisite qualifications should be treated as Assistant Professors in their respective subject, and that the seniority in the teaching cadre will be with reference to the date of appointment as Assistant Professor and not Civil Assistant Surgeon. This judgment was followed by the Tribunal in OA No.55IO of 1995 and batch, dated 10-3-1998. Challenging the said judgment, a batch of writ petitions, one such being WP No.1102 of 1998 were filed. A Division Bench of this Court by judgment dated 23-7-1999 agreed with the view of the Tribunal. In view of this, the learned Counsel for the respondents submits that the view of the Tribunal that seniority of teaching cadre should be reckoned with from the date of appointment in the teaching cadre alone ignoring the service of Civil Assistant Surgeon is correct.

50. Having regard to the rival contentions, we wish to examine the judgment of the Tribunal. In OA No.4762 of 1994, two applicants, who were at the relevant point of time working as Assistant Professors of Cardiothorasic Surgery in Osmania Medical College, when the competent authority initiated selection process to fill up three vacancies of Professors of Cardiothorasic Surgery, contended that they would become eligible for the panels of 1 st July, 1994 and 1 st July, 1995 respectively, while the unofficial respondent Nos.3 and 4 are not eligible for being considered for the post of Professor. At the relevant time, the post of Professor in Cardiothorasic Surgery was not included in the list of specialities and super-specialities contained in the Table referred to in Annexure I of the Special Rules. Noticing this, the Tribunal framed the following three points for consideration:

1. What are the qualifications for appointment to the post of a Professor or Cardiothorasic Surgery, a super-specialty in the teaching hospitals in our State?

2. Are the parties holding the post of Assistant Professor which is a feeder category for appointment by promotion to this post?

3. Is experience during study in M.Ch. to be treated as teaching experience required by Rule 4 in view of the 1st proviso to Rule 57?

51. The crucial question before the Tribunal was whether the study period in the second post-graduation i.e., M.Ch. should also be counted as teaching experience for the purpose of Rule 4 of the Special Rules. Relying on the unamended proviso to Rule 5 as also the amended proviso to Rule 5, the Tribunal came to the conclusion that the unofficial respondents were holding teaching posts when they were deputed for acquiring second post-graduation qualification, and therefore, the said period cannot be counted for teaching experience. On the first question, it was held that in the absence of any rules or executive instructions made in consultation with the Medical Council of India, no appointment either to the post of Assistant Professor or to the post of Professor should be made in Cardiothorasic Surgery. To our mind, in the said judgment, the Tribunal was basically concerned with the interpretation of the proviso to Rule 5 of the Special Rules as well as the question whether the Government is competent to appoint Professors in Cardiothorasic Surgery in the absence of rules or executive instructions. The same cannot be treated as the period for laying down the proposition, which appealed to the Tribunal in the impugned judgment.

52. Coming to the judgment of the Tribunal in OA No.5510 of 1995, dated 10-3-1998, which is subject-matter in WP No.1102 of 1998 and batch, be it noted that the case deals with promotion to the post of Professor in Psychiatry Branch of A.P. Medical and Health Service. It is not denied that the dispute before the Tribunal was between the direct recruit Assistant Professors (Psychiatry), and those Civil Assistant Surgeons who were later appointed as Assistant Professors on acquiring PG qualifications in Psychiatry. In the context of the facts, the Tribunal as well as this Court held that the seniority in the teaching cadre will have to be determined by reckoning the dates when the Civil Assistant Surgeons are posted in the teaching posts prior to 1988. This Court, further held as under:

"The promotion to the post of Professor is a selection post on merit, and merit is the criteria, and the eligibility for consideration as mentioned supra i.e., being an Assistant Professor in seniority either by direct recruitment or by designation prior to 1988. After scanning through the rules governing the recruitment and promotion, and particularly Rule 10, as amended by the 1988 Rules, and those rules having been validly framed, we do not see any error either in the decision or the decision making process of the Tribunal. Hence, we dismiss the writ petitions....."

53. A.P. Medical and Health Service Rules, 1982 were amended in 1988 vide G.O. Ms. No. 182, dated 29-3-1988. After amendment, the rules enable to appoint a Civil Assistant Surgeon as Assistant Professor by selection on regular basis by a duly constituted Committee. The interpretation placed by the Tribunal in the earlier OA., which was followed in OA No.4762 of 1994, and the interpretation placed on the rules by this Court in WP No. 1102 of 1998, in our considered opinion, is mainly based on the amendment introduced to the Special Rules by G.O. Ms. No.182, dated 29-3-1988, and cannot be treated as an authority for the proposition that the service as Civil Assistant Surgeon, both qualified and unqualified, prior to the appointment as Assistant Professor should be ignored for the post of reckoning seniority of Civil Assistant Surgeons to be considered for the post of Professors. Therefore, we have to necessarily see whether the Civil Assistant Surgeons appointed between 1964 and 1982 stand to lose their service rendered prior to their appointment as Assistant Professors. A similar issue came up before the Supreme Court in Dr. N. Ramachandra Rao 's case (supra). Rule 2 of the Special Rules after amendment by G.O. Ms. No.182, fell for consideration before the Apex Court. The said rule provided that the post of Additional Director of Medical and Health Services, Principals of Medical Colleges, Superintendents of Teaching General Hospitals etc., shall be filled up by promotion from among the holders of posts of Professors in category II and III with not less than three years of service, of which at least two years shall be in one of the said categories of the year in which the panel is prepared. A contention was raised that seniority for zone of consideration should be of the feeder cadre, and not any other cadre. So to say, it was contended that the service rendered prior to the appointment as Professor in category II and III should be ignored, and only the service rendered after the appointment to the said feeder cadre should be considered for promotion to the post of Additional Director of Medical and Health Services etc. The Supreme Court rejected the same and held thus:

"Rule 2 does not expressly exclude the service in Class II Cadre for preparing panel for consideration for promotion to the posts with which we are concerned. We also consider that it would be unreasonable and unjust to exclude the service and overlook the vertical seniority in the substantive cadre to which everyone was selected by the Public Service Commission. In medical profession there are specialities and specialities, but it is generally accepted that they are not of equal importance or utility. However, the promotions are allowed on the basis of the respective specialities and the availability of promotional vacancies in such specialities. A junior with relatively less important speciality may be fortunate enough to get quick promotion than his senior with a different speciality. We are of the opinion that the juniors who get accelerated promotion on account of fortuitous circumstances depending upon their speciality and availability of vacancies in such speciality should not be allowed to march over their seniors for appointment to administrative posts. Any advantage gained by juniors on such fortuitous circumstances of having some speciality and promotion should not impair the rights of their seniors for promotion to posts where speciality or teaching experience is not called for. The seniority determined in order of speciality should not therefore be the basis for promotion to administrative posts. Any rule providing for the contrary may be vulnerable to attack on the ground of arbitrariness".

54. In our opinion, the reasoning of the Apex Court in Dr. N. Ramachandra Rao's case (supra) applies equally to the case on hand. The post of Assistant Professor is a direct recruitment post, but such direct recruitment was resorted to only in 1984, that too in respect of four specialities. In all other posts the qualified Civil Assistant Surgeons are being posted in teaching posts designating them as Assistant Professors. Therefore, when the seniority list of Civil Assistant Surgeons is prepared, which is also the basis for considering for promotion to the post of Professors, those Civil Assistant Surgeons should also be considered as they worked as Assistant Professors, in which event, the entire seniority in the post of Civil Assistant Surgeons from the date of appointment, including the period spent as Assistant Professors in teaching hospitals should be considered, as otherwise, the principle of equality in service matters, as explained by the Supreme Court in Joginder Singh's case (supra) as well as Dr. N. Ramachandra Rao 's case (supra) would be violated.

55. As already seen, the post of Professors is a selection post and is to be filled in accordance with the rules on the basis of merit-cum-seniority, seniority being considered only when merit is equal. Mere seniority in the post of Civil Assistant Surgeon or Assistant Professor is not everything. The duly constituted Departmental Promotion Committee has to be consulted by the State Government before preparing panel or panels, and the Departmental Promotion Committee and the State Government cannot ignore the regulations made by the Medical Council of India, to which reference is made supra.

56. In the result, for the reasons aforementioned, we allow WP No.I3923 of 1999, and set aside the impugned order dated 10-3-1999 in OA No.3599 of 1999 and batch. Consequently, G.O. Ms. No.325, dated 15-6-1999, also stand set aside.

57. All other writ petitions stand disposed of in terms of the afore-mentioned judgment. No costs.

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