Madras High Court
Dr. M.V. Indumathi vs Tamilnadu Generation And Distribution ... on 24 April, 2023
Author: J.Nisha Banu
Bench: J.Nisha Banu
W.P.Nos. 9066 & 15361 of 2013 and 578 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.04.2023
CORAM
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
W.P.Nos. 9066 & 15361 of 2013 and 578 of 2015
W.M.P.Nos. 1 & 2 of 2013 and 1 & 2 of 2015
Dr. M.V. Indumathi ... Petitioner in all the WP's
Vs.
1. Tamilnadu Generation and Distribution Corporation
TANGEDCO
Rep. By its Chairman
No.144, Anna Salai
Chennai-2
2. Tamilnadu Generation and Distribution Corporation
TANGEDCO
Rep.by the Chief Engineer (personnel)
No.144, Anna Salai
Chennai-2. ... Respondents in
W.P.No.9066 of 2013
1. Tamilnadu Generation and Distribution Corporation Ltd.,
Rep. By its chairman
No.144, Anna Salai
Chennai-2
2. The Secretary
Tamilnadu Generation and Distribution Corporation Ltd.,
Secretariat Branch
No.144, Anna Salai
Chennai-2
1/10
https://www.mhc.tn.gov.in/judis
W.P.Nos. 9066 & 15361 of 2013 and 578 of 2015
3. Dr. S.Karkuzhali
Chief Medical Officer
Tamilnadu Generation and Distribution Corporation Ltd.,
No.144, Anna Salai
Chennai-2 ... Respondents in
W.P.No.15361 of 2013
1. Tamilnadu Generation and Distribution Corporation Ltd.,
Rep. By its Chairman
No.144, Anna Salai
Chennai-2
2. The Secretary
Tamilnadu Generation and Distribution Corporation Ltd.,
Secretariat Branch
No.144, Anna Salai
Chennai-2
3. Dr. S. Mahalakshmi
Chief Medical Officer
Tamilnadu Generation and Distribution Corporation Ltd.,
No.144, Anna Salai
Chennai-2 ... Respondents in
W.P.No.578 of 2015
PRAYER in W.P.No. 9066 of 2013: Writ Petition filed under Article 226
of the Constitution of India, to issue a Writ of Mandamus, to direct the
respondents to promote the petitioner as Chief Medical Officer, in the
vacancy arose on 1.1.2013, on considering the representation of the
petitioner dated 22.12.2012.
PRAYER in W.P.No. 15361 of 2013: Writ Petition filed under Article 226
of the Constitution of India, to issue a Writ of Certiorarified Mandamus, to
2/10
https://www.mhc.tn.gov.in/judis
W.P.Nos. 9066 & 15361 of 2013 and 578 of 2015
call for the entire records connected with the impugned order of promotion
of the 3rd respondent as Chief Civil Surgeon (Common) and deputed as
Chief Medical Officer w.e.f. 17.05.2013, passed by the 2 nd respondent in
Letter No.46890/A7/A71/2011-5 dated 20.5.2013 and quash the same and
direct the respondents 1 & 2 to promote the petitioner as Chief Medical
Officer, w.e.f. 1.1.2013 with all consequential benefits.
PRAYER in W.P.No. 578 of 2015: Writ Petition filed under Article 226 of
the Constitution of India, to issue a Writ of Certiorarified Mandamus,
calling for the entire records connected with the impugned order of
promotion, promoting the 3rd respondent as Chief Medical Officer w.e.f.
05.01.2015, passed by the 2nd respondent vide (per.) CMD TANGEDCO
Proceedings No.1 dated 03.01.2015 and quash the same and further direct
the respondents 1 and 2 to promote the petitioner as Chief Medical Officer,
w.e.f. 01.01.2013, with all consequential benefits.
For Petitioner in All W.P's : Mr.S.N.Ravichandran
For Respondents in All W.P's : Mr.K.Rajkumar for R1&R2
No Appearance for R3 in
W.P.Nos.15361 of 2013 and 578 of 2015
COMMON ORDER
Since the issue involved in these Writ Petitions are similar, they are disposed of by a common order :-
3/10
https://www.mhc.tn.gov.in/judis W.P.Nos. 9066 & 15361 of 2013 and 578 of 2015
2. Facts in W.P.No.578 of 2015 as follows:-
The petitioner completed M.B.B.S course in the year 1987 and practiced as private registered Medical Practitioner. Later, she was appointed as Medical Officer through Employment Exchange in the Electricity Board on 30.05.1997 and on undergoing various transfers she was granted with selection grade in the year 2007.
3. In the respondent Board, for the past 15 years, the post of Chief Medical Officer was kept vacant and the Board used the services of Medical officers from other departments on deputation basis, initially for a period of three years. So one Tmt. Thenmozhi was deputed for that post and her tenure expired on 04.04.2011. Thereafter, the petitioner was given the additional charge of the Chief Medical Officer by proceedings dated 01.04.2011.
4. As per the seniority list drawn for the post of Chief Medical Officer the petitioner was placed at serial no.3 whereas the seniors placed before the petitioner are at the verge of superannuation. While so, the 2nd respondent vide letter dated 20.05.2013 promoted one Dr.Karkuzhali as Chief Civil 4/10 https://www.mhc.tn.gov.in/judis W.P.Nos. 9066 & 15361 of 2013 and 578 of 2015 Surgeon (common) and deputed her to the Headquarters dispensary of TANGEDCO, who is junior to the petitioner herein.
5.Aggrieved by an order of the respondent Board in deputing the said Dr.Karkuzhali, the petitioner had filed W.P.No.15361 of 2013, in which this court has granted interim stay. Since the respondent did not comply with the order of stay, the petitioner filed contempt petition and this court directed the 2nd respondent to revert back the said Karkuzhali. Thereafter, again the petitioner was granted with additional charge as Chief Medical Officer instead of granting promotion.
6.While the Writ Petitions in W.P.No.9066 of 2013 & W.P.No.15361 of 2013 were pending to seek promotion to the petitioner, the respondent Board attempted to appoint one Dr. Mahalakshmi, the 3rd respondent in W.P.No.578 of 2015 as Chief Medical Officer. Aggrieved by the action taken by the respondent Board, the present writ petition has been filed. 5/10 https://www.mhc.tn.gov.in/judis W.P.Nos. 9066 & 15361 of 2013 and 578 of 2015
7.When the petitioner questioned the attempt of appointing Dr.Mahalakshmi, the respondent board stated that the 3rd respondent – Dr.Mahalakshmi is senior to the petitioner, as per the communal roaster. In fact the seniority list drawn on the basis of communal roaster was held to be bad in law and void ab-initio by the Hon’ble Division Bench of this court, in the case of N.Santhosh Kumar vs Tamil Nadu public Service Commission, W.A.No.2705 of 2012 dated 31.03.2015 and the same was affirmed by Hon'ble Supreme Court also.
8.Per contra, the learned counsel for the respondents 1 and 2 filed counter and would further submit that, as per Regulation 92 of the TNEB Service Regulation, the method of filling up the post of Chief Medical Officer is done either by direct recruitment or by promotion from Medical Officer of the Board and the said person must have served as Medical Officer in Electricity Board for a period of not less than 10 years. The learned counsel for the respondents 1 and 2 would further submit that as per the above regulation and seniority list, one Dr.V.Lakshmi, Medical Officer was promoted and posted as Chief Medical Officer. On the same analogy, 6/10 https://www.mhc.tn.gov.in/judis W.P.Nos. 9066 & 15361 of 2013 and 578 of 2015 the 3rd respondent – Dr.S.Mahalakshmi also promoted as Chief Medical Officer on 03.01.2015. Further, as per the seniority published in the year 1999, she is the senior most person to be promoted to the post of Chief Medical Officer. Therefore, the petitioner’s claim to promote her to the post of Chief Medical Officer, as per her representation dated 10.06.2014 cannot be accepted and the same is liable to be rejected.
9. Heard both sides and perused the materials available on record.
10.On perusal of records, it is seen that, the petitioner was provisionally selected and appointed as per employment seniority by an order dated 30.05.1997 and joined duty on 23.07.1997. On the other hand, the 3rd respondent – Dr.S.Mahalakshmi joined the Electricity Board only on 01.08.1997. Thus, it is clear that the 3rd respondent/ Dr.S.Mahalakshmi must be junior to the petitioner. It is well settled proposition of law that a right to assert seniority will arise only from the date of joining into the service. The date of passing the order, regularizing the service of the petitioner cannot be construed as the date of entry into regular service. 7/10 https://www.mhc.tn.gov.in/judis W.P.Nos. 9066 & 15361 of 2013 and 578 of 2015
11.Further, the seniority list drawn on the basis of communal roaster was held to be bad in law and void ab initio by the Judgment of the Hon’ble Division Bench of this Court in the case of N.Santhosh Kumar’s case and affirmed by the Hon’ble Supreme Court by declaring that the seniority list should be only on the basis of the rank / merit obtained and not on the basis of the Communal Roaster. Hence, the contention of the respondent board that the 3rd respondent - Dr.S.Mahalakshmi is senior, over and above the petitioner, on the basis of Communal Rotation cannot be sustained and as such, the order dated 03.01.2015 in (per.) CMD TANGEDCO Proceedings No.1 is set aside and W.P.No.578 of 2015 stands allowed. Since, the petitioner retired from service, the respondents 1 and 2 are directed to give notional promotion to the petitioner as Chief Medical Officer, from the date on which the petitioner's junior was appointed as Chief Medical Officer and confer the pensionary benefits of Chief Medical Officer to the petitioner, in accordance with law. The said exercise shall be completed within a period of eight weeks from the date of receipt of a copy of this order.
8/10 https://www.mhc.tn.gov.in/judis W.P.Nos. 9066 & 15361 of 2013 and 578 of 2015
12.In view of the order passed in W.P.No.578 of 2015 dated 24.04.2023, the W.P.Nos.9066 of 2013 and 15361 of 2013 stand closed. No costs. Consequently connected miscellaneous petitions are closed.
24.04.2023 Index:Yes/No Speaking/Non-speaking order Neutral citation:Yes/No Jer To
1. The Chairman Tamilnadu Generation and Distribution Corporation Ltd., No.144, Anna Salai Chennai-2
2. The Chief Engineer (personnel) Tamilnadu Generation and Distribution Corporation Ltd., No.144, Anna Salai Chennai-2
3. The Secretary Tamilnadu Generation and Distribution Corporation Ltd., Secretariat Branch No.144, Anna Salai Chennai-2 9/10 https://www.mhc.tn.gov.in/judis W.P.Nos. 9066 & 15361 of 2013 and 578 of 2015 J.NISHA BANU,J., Jer W.P.Nos. 9066 & 15361 of 2013 and 578 of 2015 24.04.2023 10/10 https://www.mhc.tn.gov.in/judis