REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.5579-5586 OF 2001

CHALLA JAYA BHASKAR & ORS.         … APPELLANTS

VS. THUNGATHURTHI SURENDER & ORS.     … RESPONDENTS

WITH CIVIL APPEAL NOS.5588-5592, 5587 & 8498  OF 2001  AND WRIT PETITION (C)NO.566 OF 2003

J U D G M E N T

ALTAMAS KABIR, J.

1. This batch of Civil Appeals arises out of a  

common judgment passed by the Andhra Pradesh High

Court in a batch of Writ Petitions allowing the  

same and setting aside an order dated 10th March,  

1998, passed by the Andhra Pradesh Administrative  

Tribunal  in  O.A.  No.3599  of  1995  and  other  

connected  matters  and  consequently  setting  aside  

G.O.Ms. No.325 dated 15th June, 1999.  In that view  

of the matter, these Civil Appeals have been taken  

up for hearing together along with Writ Petition  

(Civil) No.566 of 2003.

2. The  question  to  be  decided  in  all  the  writ  

petitions  was  in  regard  to  the  procedure  to  be  

adopted  in  determining  the  seniority  of  Civil  

Assistant Surgeons in the Andhra Pradesh Medical &  

Health Services.  

3. In order to appreciate the aforesaid question,  

it is necessary to set out the background in which  

the said question arose.  

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4. The Appellants and the Respondents are members  

of the Medical and Health Department in the State  

of  Andhra  Pradesh.  The  Appellants  herein  were  

promoted to the post of Associate Professors and  

Professors  by  virtue  of  an  order  passed  by  the  

Tribunal, which was approved by the High Court and  

thereby  attained  finality.  The  present  dispute  

concerns the methodology which has been adopted by  

the State Government for determining the seniority  

of those who were functioning as Civil Assistant  

Surgeons and, thereafter, opted for teaching and  

were appointed as Assistant Professors, which was  

the feeder post for further promotion to the post  

of  Associate  Professors  and  Professors  in  the  

Medical Services.  

5. The Medical and Health Department in the State  

of  Andhra  Pradesh  is  governed  by  Special  Rules  

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framed  under  the  proviso  to  Article  309  of  the  

Constitution, which, as indicated hereinabove, are  

known  as  the  A.P.  Medical  and  Health  Services  

Rules,  hereinafter  referred  to  as  “the  Health  

Services Rules”.   Without going into details of  

the  said  Rules,  it  will  be  sufficient  for  our  

purpose to consider the impact of the said Rules  

and Government Orders on the question of seniority  

of  Civil  Assistant  Surgeons  in  the  State  Health  

Services.   

6. As early as in 1976, the Government of Andhra  

Pradesh  felt  the  need  for  separation  of  the  

teaching cadre in medical education.  Accordingly,  

G.O.M. No.1170 dated 16th December, 1976, was issued  

separating the teaching cadre from the non-teaching  

cadre  and  issuing  executive  instructions  to  

implement  the  same.  This  was  also  felt  to  be  

necessary on account of the advice of the Medical  

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Council  of  India,  which  otherwise  threatened  to  

de-recognize  the  medical  certificates  which  had  

been  granted  to  the  students.   Accordingly,  the  

Special Rules were issued as mentioned hereinabove,  

by G.O.M. No.43 dated 16th January, 1982.   

7. Originally, there were no posts of Assistant  

Professors and   only the post of Civil Assistant  

Surgeons (CAS) was used for teaching in the medical  

colleges.   Among  them,  those  Civil  Assistant  

Surgeons  who  had  acquired  Post-Graduate  

qualifications were given the task of teaching in  

the teaching colleges.  According to the Appellants  

herein, there was no watertight compartment between  

the  teaching  stream  and  non-teaching  stream  and  

whoever  either  had  or  subsequently  acquired  the  

Post-Graduate  qualification  was  shifted  to  the  

teaching stream from the non-teaching stream.  As  

this  method  was  contrary  to  its  Rules  and  

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Regulations,  the  Medical  Council  of  India  

threatened to withdraw recognition to the medical  

colleges and subsequently the Rules were amended  

vide  G.O.M.  No.182  dated  29th March,  1988.   By  

virtue  of  such  amendment,  the  said  Rules  were  

divided into three parts, of which the first part  

consists of only one Rule which provides that the  

service  was  to  be  divided  into  three  branches,  

viz.,  Teaching  cadre,  Non-teaching  cadre  and  

Laboratories.   Part  II  of  the  Special  Rules  

prescribes  separate  rules  for  each  of  the  three  

branches and Part III contains general and common  

provisions for all the three branches.  One of the  

more important aspects of the amendment was that  

Rules 7 and 8 were deleted.  Rule 7 provided for  

special training as an Assistant Professor for the  

purpose of promotion to higher post.  Rule 8 dealt  

with the preparation of half-yearly panels.  While  

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in  the  earlier  Rules,  the  post  of  Assistant  

Professor in each specialty was to be filled up  

only  by  direct  recruitment  with  persons  having  

requisite  qualifications,  there  was  no  provision  

for  appointment  by  transfer  from  persons  in  the  

non-teaching  cadre.  Under  the  new  Rules,  the  

teaching  and  non-teaching  cadres  were  separated.  

The  posts  of  the  teaching  cadre  were  separately  

brought out in a new cadre strength designated as  

Assistant  Professors,  whereas  non-teaching  posts  

such  as  Civil  Assistant  Surgeons,  Deputy  Civil  

Surgeons  and  Civil  Surgeons  were  separately  

categorized and the qualifications for these posts  

were  also  different  and  distinct.   What  is  of  

significance is that no channel was provided for  

interchangeability between these two cadres.    

8.  It is in this background that vacancies arose  

to  the  posts  of  Associate  Professors  and  

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Professors.  As the Department was not implementing  

the Rules, various Original Applications were filed  

before the Andhra Pradesh Administrative Tribunal,  

which were disposed of on 28th April, 2003, with  

directions to the Departments to strictly follow  

the Rules issued under G.O.M. No.154 dated 4th May,  

2002.  However, there were certain deviations which  

resulted  in  Civil  Assistant  Surgeons  also  being  

made  part  of  the  teaching  cadre,  thereby  making  

such persons eligible to be promoted as Associate  

Professors  and,  thereafter,  to  the  post  of  

Professors.   It  is  this  issue  which  is  at  the  

centre  of  controversy  in  all  these  matters  and  

which has given rise to various questions relating  

to the main issue as to whether persons who had  

joined  earlier  as  CAS,  with  only  M.B.B.S.  

qualifications,  and  could  not  be  appointed  as  

Assistant Professors since they did not have Post-

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Graduate  qualifications,  and  were  subsequently  

appointed as Assistant Professors after attaining  

such qualifications, would be entitled to seniority  

over  others  who  had  already  been  appointed  as  

Assistant Professors earlier. In other words, would  

those CAS with only M.B.B.S. qualification be given  

seniority  over  those  appointed  as  Assistant  

Professors from CAS, who already had Post-Graduate  

qualification, but were appointed after those CAS  

with only M.B.B.S. qualification?

9. It  is  the  case  of  the  Appellants  that  the  

teaching cadre constitutes a separate category for  

the  purpose  of  appointment,  seniority  and  

promotion. It consists of an administrative post in  

Category I, such as Additional Director of Medical  

and Health Services and non-administrative post in  

Category II, such as Professors, Clinical and Non-

clinical.  According to the Appellants, the feeder  

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category for the post of Professor is Deputy Civil  

Surgeon,  since  re-designated  as  Associate  

Professor, and in case Associate Professors were  

not  available,  Assistant  Professors  belonging  to  

Category  VII.   The  minimum  qualification  for  

appointment to the cadre of Assistant Professor is  

a Post-Graduate degree. The Appellants when they  

were appointed as Assistant Professors already had  

a Post-Graduate qualification and in view of the  

existing practice, those Civil Assistant Surgeons,  

who had Post-Graduate qualification were selected  

and appointed as Assistant Professors.  It is the  

further case of the Appellants that they had all  

been appointed as Assistant Professors on various  

dates ranging between 1982 and 1995. It is during  

this period only that some of the Civil Assistant  

Surgeons,  who  did  not  have  Post-Graduate  

qualification, got admission in the Post-Graduate  

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classes and completed their Post-Graduate courses  

during the years 1989 to 1995.  The Appellants have  

mentioned that many of these CAS were students of  

the Appellants in the Post-Graduate degree course.  

After acquiring the Post-Graduate degree, the said  

Respondents  became  qualified  and  eligible  to  be  

appointed  as  Assistant  Professors.   Accordingly,  

they  were  appointed  as  Assistant  Professors  on  

different dates between 1989 and 1995.    

10. It is also the case of the Appellants that in  

accordance with the Rules, after having completed  

five years of teaching as an Assistant Professor, a  

candidate  who  acquired  the  Post-Graduate  

qualification after his appointment as CAS, would  

become  eligible  for  a  further  five  years  of  

teaching  experience  in  the  next  category  of  

Associate  Professor,  which  would  then  make  them  

eligible  for  higher  promotion  to  the  post  of  

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Professor. The Appellants have also tried to make  

out  a  case  that  according  to  the  Rules,  Deputy  

Civil  Surgeons,  presently  re-designated  as  

Associate  Professors,  and  Assistant  Professors,  

would  have  separate  seniority  in  order  of  

specialty. Accordingly, it is only the seniority in  

the category of Assistant Professors alone which is  

relevant for the purpose of promotion to the post  

of Professor.   

11. In addition to the above, it has been contended  

that the said issue is no longer  res integra and  

that  it  has  been  held  by  the  Tribunal  that  in  

computing  seniority  in  the  category  of  Civil  

Assistant Surgeons, the period during which Civil  

Assistant  Surgeons  did  not  have  a  Post-Graduate  

degree, could not be taken into consideration for  

promotion  to  the  post  of  Professor,  since  Civil  

Assistant  Surgeons  could  not  be  appointed  as  

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Assistant Professors till they acquired the Post-

Graduate  qualification.  Accordingly,  not  having  

functioned  as  Assistant  Professor  or  Associate  

Professor after their appointment as CAS, the said  

period, prior to their acquisition of Post-Graduate  

qualification, could not be counted for the purpose  

of promotion to the post of Professor.   

12. According  to  the  Appellants,  the  High  Court  

erred  in  counting  the  previous  service  of  those  

Civil Assistant Surgeons, who had acquired their  

Post-Graduate degree subsequent to their entry into  

service as Civil Assistant Surgeons.  Since for the  

purpose  of  promotion  to  the  post  of  Associate  

Professor  or  Professor,  a  post-Graduate  

qualification  was  necessary,  the  period  during  

which  they  had  functioned  as  Civil  Assistant  

Surgeons, without having obtained a Post-Graduate  

degree,  could  not  logically  be  taken  into  

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consideration for computing seniority for elevation  

to the post of Professor.   

13. Another point which has been taken on behalf of  

the  Appellants  is  that  without  going  before  the  

Central Administrative Tribunal, the Petitioners in  

the  Writ  Petition  could  not  have  challenged  the  

Government Order by filing a Writ Petition directly  

in the High Court.  It has been canvassed that, in  

any  event,  without  any  formal  order  having  been  

challenged, the proceedings before the Writ Court  

were not maintainable.   

14. In support of the first contention regarding  

the  counting  of  the  period  of  service  as  Civil  

Assistant  Surgeons  prior  to  having  obtained  the  

Post-Graduate  degree  for  computing  seniority,  

reliance was placed on a decision of this Court in  

N. Suresh Nathan v.  Union of India [(1992) Supp.  

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(1) SCC 584], wherein, in similar circumstances,  

this  Court  held  that  diploma  holder  Junior  

Engineers,  who  had  obtained  degrees  while  in  

service, were not entitled to count their service  

prior  to  obtaining  the  degree  for  computing  the  

period of three years for the purpose of promotion.  

It was also laid down that in interpreting Service  

Rules, a construction which is in keeping with long  

standing  practice  prevailing  in  the  concerned  

Department is to be preferred.   The same view was  

taken  by  a  three-Judge  Bench  of  this  Court  in  

Shailendra Dania v. S.P. Dubey [(2007) 5 SCC 535],  

wherein  it  was  reiterated  that  the  reckoning  of  

three years’ experience required for promotion in  

the quota of Graduate Engineers, would be from the  

period when such degree was acquired irrespective  

of the number of years of service rendered as a  

diploma holder.  The Appellants have, therefore,  

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prayed  for  setting  aside  the  said  judgment  and  

order of the High Court on the ground that the same  

had been delivered in contravention of the Medical  

Service Rules.

15. Mr. H.S. Gururaja Rao, learned Senior Advocate,  

who appeared for some of the respondents, submitted  

that the entire procedure adopted for recruitment  

to the post of Assistant Professors was contrary to  

the 1982 Rules which were promulgated under G.O.Ms.  

No.43  dated  16.1.1982.   Mr.  Rao  urged  that  no  

appointment had been made in the post of Assistant  

Professors,  but  an  option  was  given  to  Civil  

Assistant Surgeons who had acquired Post-Graduate  

qualification to go over to the teaching cadre on  

an  ad-hoc  basis.   The  selected  candidates  were  

chosen for the purpose of providing them with five  

years’ teaching experience, but such selection was  

not done according to the Rules which only provided  

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for  direct  recruitment.   Mr.  Rao  submitted  that  

there  were  neither  any  Rules  nor  guidelines  

providing  for  transfer  from  non-teaching  to  

teaching posts.  Mr. Rao denied the case of the  

Appellants that there was no watertight compartment  

between Teaching and Non-Teaching disciplines and  

that whoever acquired Post-Graduate qualifications  

was  deputed  to  the  Teaching  side  from  the  Non-

Teaching side.  Mr. Rao submitted that even under  

the 1988 Rules appointment of Assistant Professors  

was to be by way of direct recruitment.

16. Mr. Rao then contended that, in any event, as  

had been held by this Court in  State of Andhra  

Pradesh Vs. Dr. N. Ramachandra Rao & Ors. [(1990) 3  

SCC  590],  in  the  medical  world  there  are  

specialities and specialities and it is generally  

accepted that they are not of equal importance or  

utility.  But  promotions  are  allowed  in  the  

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specialized  disciplines  and  a  junior  with  a  

relatively  less  important  speciality  may  be  

fortunate enough to get faster seniority than his  

senior in a different speciality.  However, juniors  

who get accelerated promotion on account of such  

fortuitous circumstances should not be allowed to  

steal a march over their seniors for appointment to  

administrative posts.   

17. Mr. Rao urged that “posting” and “appointment”  

are  two  different  concepts  and  often  one  is  

mistaken for the other.  Referring to the decision  

of this Court in S.N. Dhingra & Ors. vs. Union of  

India & Ors. [(2001) 3 SCC 125], Mr. Rao submitted  

that in the said case this Court had, inter alia,  

held that seniority would have to be counted on the  

basis of continuous length of service from their  

initial appointment.  Mr. Rao submitted that those  

candidates  from  amongst  Civil  Assistant  Surgeons  

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who had acquired the Post Graduate qualifications  

and  had  been  permitted  to  opt  for  the  Teaching  

line,  could  claim  seniority  in  the  cadre  of  

Assistant Professor only from their entry into the  

teaching stream, and their previous service as CAS  

would not count in reckoning their service in the  

post  of  Assistant  Professor,  for  the  purpose  of  

future promotion.

18. Mr.  A.D.N.  Rao,  learned  Advocate  for  the  

Respondent  Nos.14  to  17  in  C.A.No.5589  of  2001,  

denied  the  submissions  made  on  behalf  of  the  

Appellants that the transfers from the Non-Teaching  

to the Teaching line were initiated by the method  

of  pick  and  choose  adopted  for  selection  of  

candidates for appointment as Assistant Professors.  

Learned counsel also urged that these points had  

not even been urged before the Tribunal or the High  

Court.   Mr.  A.D.N.  Rao  reiterated  Mr.  Gururaja  

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Rao’s submissions that a person posted for gaining  

experience for several years, may not be entitled  

to the benefit of the said period for counting his  

seniority  until  he  is  actually  appointed  to  the  

cadre.

19. Mr. Anoop Chaudhari, learned Senior Advocate,  

appearing  for  the  State  of  Andhra  Pradesh,  

submitted that the decision to allow teachers from  

the Non-Teaching line to cross over to the Teaching  

line  after  they  acquired  Post-Graduate  

qualification, was a matter of policy of the State  

Government  and  the  Court  should  not  normally  

interfere  with  such  policy  matters,  unless  some  

grave injustice or mala fide intention was proved.  

20. Mr. Chaudhari submitted that seniority list in  

the teaching stream had been prepared on the basis  

of  appointment  of  the  candidates  as  Assistant  

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Professors  and  the  Respondents  could  not,  

therefore,  claim  that  their  service  as  Civil  

Surgeons be counted for seniority though they had  

not acquired the Post-Graduate degree and were not,  

therefore,  entitled  to  be  appointed  against  a  

teaching  post  prior  thereto.  Mr.  Chaudhari  

submitted that the decision in  Dr. N. Ramachandra  

Rao’s case (supra) cited by Mr. Gururaja Rao had no  

application  to  the  facts  of  this  case  since  it  

dealt with the 1982 Rules and a person who did not  

have  the  requisite  qualification  for  being  

transferred to the teaching cadre could not claim  

the benefit of seniority over those who had already  

been transferred to the teaching cadre since they  

had the requisite qualifications.  Mr. Chaudhari  

urged  that  this  was  not  a  case  of  vertical  

upgradation  in  the  same  category  but  a  lateral  

transfer from the non-teaching line to the teaching  

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line after the candidate in the non-teaching line  

had acquired the requisite qualifications for such  

transfer, as would be evident from Rule 14 of the  

1988 Rules.   

21. From  the  submissions  made  on  behalf  of  

respective parties what emerges is that the Medical  

Service under the Medical and Health Department in  

the  State  of  Andhra  Pradesh  is  governed  by  the  

Special Rules framed under the proviso to Article  

309 of the Constitution and issued under G.O.Ms.  

No.43  dated  16th January,  1982.  Under  the  said  

Rules, there was no post of Assistant Professor and  

provision  had  been  made  only  for  appointment  of  

Civil  Assistant  Surgeons,  both  for  teaching  and  

non-teaching purposes in the medical colleges. The  

Medical  Council  of  India  threatened  to  withdraw  

recognition to the medical colleges unless separate  

provision was made to separate the teaching and the  

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non-teaching  cadre  by  appointment  of  Assistant  

Professors, which resulted in the amendment of the  

Rules vide G.O.Ms. No.182 dated 29th March, 1988.  

The said Rules provided for the division of the  

medical services into teaching cadre, non-teaching  

cadre and laboratories.   Under the new Rules, the  

teaching cadre was separately constituted into a  

new  cadre  strength  designated  as  Assistant  

Professors,  whereas  non-teaching  posts  such  as  

Civil Assistant Surgeons, Deputy Civil Surgeons and  

Civil Surgeons were separately categorized and the  

qualifications for these posts were also different.  

As vacancies arose in either of the cadres, several  

applications were filed before the Andhra Pradesh  

Administrative  Tribunal,  which  were  disposed  of  

with  directions  to  the  Department  to  strictly  

follow the Rules issued under G.O.Ms. No.154 dated  

4th May, 2002.

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22. In this state of facts, those Civil Assistant  

Surgeons, who had acquired the Post-Graduate degree  

and  were  subsequently  included  in  the  teaching  

cadre, claimed that for reckoning seniority, their  

past service as non-teaching staff should also be  

taken  into  consideration.  According  to  the  

Respondents, the doctrine of eclipse would apply in  

a case like this.  According to the Respondents,  

the date of reckoning of seniority in the teaching  

and non-teaching posts which formerly formed one  

cadre, the period during which candidates from the  

non-teaching line did not have the Post-Graduate  

qualifications, would be the period of eclipse and  

upon acquisition of such qualification, the right  

to  seniority  would  stand  revived  and  would  get  

precedence  over  those  who  may  have  already  been  

appointed as Assistant Professors since they had  

the requisite qualification.  

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23. We are unable to accept such a proposition on  

behalf of the Respondents since although there was  

no  formal  separation  between  teaching  and  non-

teaching staff, there was this existing distinction  

that those belonging to the non-teaching line could  

not be appointed in the teaching line till they had  

acquired the Post-Graduate degree. This distinction  

always remained till the 1988 Rules when teaching  

and non-teaching posts were treated as different  

cadres and the seniority in the teaching cadre was  

calculated from the date of their appointment as  

Assistant Professors.  Even if the feeder post for  

appointment  of  Assistant  Professors  was  Civil  

Assistant Surgeons at the initial stage, the said  

situation stood altered with the amendment of the  

Rules  whereunder  Assistant  Professors  could  be  

recruited only by way of direct recruitment.  We do  

not, therefore, agree with the submissions made on  

25

behalf of the Respondents that such candidates, who  

had obtained lateral transfer from the non-teaching  

to the teaching line, would be entitled to carry  

their period of service as non-teaching staff for  

the  purpose  of  computing  their  seniority  in  the  

cadre  of  Assistant  Professors,  since  the  basic  

qualification  for  being  appointed  as  Assistant  

Professors in the teaching line was a Post-Graduate  

degree, which the Respondents acquired during the  

course of their service as Civil Assistant Surgeons  

and  were  thereafter  transferred  to  the  teaching  

line.  The view of the Tribunal to the contrary  

cannot be supported having particular regard to the  

view expressed by this Court in N. Suresh Nathan’s  

case  (supra)  and  in  Shailendra  Dania’s  case  

(supra), wherein the same view which we have taken,  

was taken by this Court upon holding that those  

diploma holder Junior Engineers who had obtained  

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degrees while in service were not entitled to count  

their  service  prior  to  obtaining  the  degree  for  

computing the required period for the purpose of  

promotion.

24. The other decisions cited by Mr. Gururaja Rao  

in Dr. N. Ramachandra Rao’s case (supra), as stated  

hereinbefore,  would  not  have  application  to  the  

facts of this case since in the instant case it is  

a case of lateral transfer from one discipline to  

another where seniority would have to be reckoned  

from the date of joining the teaching line.  Even  

the decision of this Court in S.N. Dhingra’s case  

(supra), cited by Mr. H.S. Gururaja Rao, cannot be  

of any application for the same reason.

25. The Appeals and the Writ Petition No.566 of  

2003,  must,  therefore,  succeed  and  are  allowed.  

The  judgments  and  orders  of  the  Andhra  Pradesh  

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Administrative Tribunal dated 10th March, 1998 in  

O.A.  No.3599  of  1995  are,  therefore,  set  aside  

along  with  G.O.Ms.  No.502  dated  13th September,  

2003, and G.O.Ms. No.325 dated 15th June, 1999, is  

restored  together  with  all  consequences  arising  

therefrom.

26. In the circumstances of the case, the parties  

will bear their own costs.

     …………………………………………………………J.                       (ALTAMAS KABIR)

…………………………………………………………J. (DR. MUKUNDAKAM SHARMA)

New Delhi Dated: 19.10.2010

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