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PETITIONER: STATE OF ANDHRA PRADESH

       Vs.

RESPONDENT: DR. N. RAMACHANDRA RAO AND ORS.M. PANDURANGA RAJU AND ORS.

DATE OF JUDGMENT03/05/1990

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) FATHIMA BEEVI, M. (J)

CITATION:  1990 SCR  (3)  55        1990 SCC  (3) 590  JT 1990 (2)   563        1990 SCALE  (1)118

ACT:     Services:  The  Special Rules for the A.P.  Medical  and Health  Services,  1982--Rules 2 and 10--Teaching  and  Non- Teaching Cadres-Promotion to the post of Additional Director of Medical and Health Services and equivalent posts--Senior- ity  determined in order of speciality should not  be  basis for  promotion--Proper amendment of Wordings of  rules  with perspicuity--Need for.     A.P.  Subordinate  Services  Rules--Rule  33(a)--Senior- ity-Determination of.

HEADNOTE:     Under  Rule 2 of the Special Rules for the A.P.  Medical and Health Services, 1982, which provided for the method  of recruitment to different classes and categories in the  A.P. Medical  and Health Services, there were three  requirements for eligibility for consideration for promotion to the Class I,  Category I posts of Additional Director (Medical  Educa- tion) and equivalent posts. These were (i) the person should be in categories 2 and 3 posts of Professors, (ii) he should have a minimum service of two years in the said  categories, and  (iii) he should have a total service of not  less  than three years.     The  respondents were all originally recruited as  Civil Assistant  Surgeons,  upon  selection by  the  State  Public Service  Commission.  In  the Select List  prepared  by  the Commission, respondents No. 1 to 12 were recruited above the other  respondents.  However, they were not  considered  for promotion  to the category of Additional Director and  other equivalent posts. Hence the aggrieved respondents took their grievance to the State Administrative Tribunal. The  dispute before  the  Tribunal was whether the requirement  of  three years service should be only in Class I, Categories 2 and 3, or  it  was inclusive of service in Class II.  The  Tribunal held  that  it  should be on the basis of  total  period  of service  including in the lower categories, subject  to  the condition  that  the person should be holding  the  post  of Professor or equivalent post for at least two years. 56     In the appeal before this Court, on behalf of the State. it  was contended that the seniority for zone of  considera- tion for promotion should always be of the feeding cadre and

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not  from  any other cadre. and that the  minimum  of  three years must be in Class I in any category and can never be in Class II service. Dismissing the appeals, this Court,     HELD:  1.1 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  ap- pointment  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  deter- mined  in order of speciality should not. therefore, be  the basis  for promotion to administrative posts. Any rule  pro- viding  for the contrary may be vulnerable to attack on  the ground of arbitrariness. [62G-H; 63A]     1.2  It would be unreasonable and unjust to exclude  the service and overlook the vertical seniority in the  substan- tive  cadre  to which everyone was selected  by  the  Public Service  Commission. In medical profession, there  are  spe- cialities 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. [62E-G]     1.3  The seniority in the category of professors in  the teaching and non-teaching cadre or in the lower cadre  based on speciality-wise will not be relevant for preparation of a panel for promotion to the cadre of Additional Director  and other  equivalent posts in Category I. Equally. the  service rendered  as Deputy Civil Surgeon in Category 5 cannot  also be  the  basis for preparing the  panel  for  consideration. Further more. Rule 2 does not expressly exclude the  service in Class 11 Cadre for preparing panel for consideration  for promotion to the Category of Additional Director and equiva- lent posts. [62B-E]     2  Imprecise drafting of the Rules has led to  misunder- standing and litigation. It would, therefore. be proper  for the  State  Government  to have the wordings  of  the  Rules properly amended with perspicuity to 57 give effect to the view indicated’ herein. [63B-C]

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3131 and 3132 of 1988.     From the ’Judgment and Order dated 15.4.1987 of the A.P. Administrative Tribunal in R.P. No. 1909 of 1985.     K.  Madhava Reddy, G. Prabhakar and Narasimhu P.S.  (NP) for the Appellant.     S.  Ramachandran, B. Kanta Rao and N. Venkatarayudu  for the Respondents. Ms. Rani Chhabra and B. Rajeshwar Rao for the Interveners. The Judgment of the Court was delivered by     K.  JAGANNATHA  SHETTY, J. These  appeals  are  directed against  the  order  of the  A.P.  Administrative  Tribunal, Hyderabad  dated April 15, 1987 directing the State  Govern- ment to consider the cases of Officers for promotion to  the category of Additional Director of Medical and Health  Serv- ices and equivalent posts on the basis of seniority  includ-

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ing service in their lower cadre.     The appointment in the A.P. Medical and Health  Services is  regulated  by the statutory rules  called  "The  Special Rules  for  the  A.P. Medical  and  Health  Services,  1982" (called shortly as the "Rules").     All  the respondents were originally recruited as  Civil Assistant Surgeons upon selection by the State Public  Serv- ice Commission. The minimum qualification for Civil  Assist- ant Surgeon is M.B.B.S. The post of Civil Assistant  Surgeon is  equivalent to the post of Assistant Professor. They  are inter-transferable  posts  but  a Post  Graduate  Degree  is necessary  for  posting as Assistant  Professor.  The  Civil Assistant  Surgeon is also posted as Tutor in  the  teaching side if he has no Post Graduate Degree qualification. In the select  list  prepared  by the  Public  Service  Commission, respondents 1 to 12 were ranked above the other respondents, but  they were not considered for promotion to the  category of  Additional  Director and other equivalent  posts.  Their juniors in the original cadre were appointed to such  posts, and that was their grievance before the A.P.  Administrative Tribunal. 58     All Civil Assistant Surgeons including Assistant Profes- sors  and Tutors are eligible for promotion as Deputy  Civil Surgeon   on   the   basis   of   seniority   of   Assistant Professors/Civil  Assistant Surgeons and Tutors. It is  said that the post of Deputy Civil Surgeons are not cadre  posts. They  are  just like Selection Grade posts covering  15%  of total cadre strength of Civil Assistant Surgeon posts.  They are common both in teaching cadre as well as in non-teaching cadre.     From  the very beginning after formation of Andhra  Pra- desh  State, the Civil Assistant Surgeons are  appointed  by direct  recruitment  except perhaps in the year  1984,  when there  was direct recruitment of Assistant  Professors  with the  minimum  qualification of Post Graduate degree  in  the concerned speciality.     The  Rules  contain  inter alia two  parts;  Part-I  and Part-II.  We are concerned with Part-I only. It consists  of the following three branches: Branch-I       Teaching cadre Branch-II      Non-teaching cadre Branch-III     Laboratories     Branch-I  Teaching cadre again consists of  Class-I  and Class-II. Under Class-I. there are six categories of  posts. They are as follows: Category-1       Additional Director of Medical and Health                  Services (Medical Education), Principals                  of Medical Colleges, Superintendents of                  Medical Colleges, Superintendents of                  Teaching Hospitals and Principal, Govern-                  ment Dental College. Category-2       Professors--Clinical. Category-3       Professors--Non-Clinical. Category-4       Dental Professors. Category-5        Deputy Civil Surgeons--Clinical  and  non-                   clinical. Category-6       Deputy Civil Surgeon--Dental.     Class-II consists of the following three categories: Category  1        Assistant Professors--Clinical  and  non-                    clinical. 59 Category-2       Assistant Professors-Dental. Category 3       Tutors.     Rule 2 under Branch-I Teaching cadre provides for method

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of  recruitment  to different classes and  categories.  This Rule is important and may be read in full:     "Rule 2 Appointment--Appointment to the various  classes and categories shall be made as follows: Class and Category       Method of Recruitment Class-I  Category-  1     (i) By promotion  from  among  the Additional Director of     holders of the post of Professors Medical & Health Services included in Class-I Categories 2 (Medical Education),      and 3 of this branch with not less Principals of Medical     than three years service of which Colleges,Superintendents   at least two years service in the of Teaching general       said Category on First year in Hospitals and Principal,  which panel is prepared. Government Dental College.                            Provided that the post of princi                            pal, Government Dental College                            shall be filled in by promotion                            from among the holders of the                            posts included in class-I,Cate-                            gory-4.                            (ii) who have completed 45 years                            of age on first January or 1st                            July of the year in which panel                            is prepared. Category-2          (i) By promotion from among the holders                     of the posts of Deputy Civil Surgeons                     (clinical)  included in Class-I,  Catego                     ry-5 of this branch;                    (ii)  By  promotion from the  holders  of                    posts of Assistant Professors  (clinical)                    included in Class-II, Category- 1 of this                    branch  if persons from item (i) are  not                    available." Similar  are  the provisions for promotion to the  posts  of pro- 60 fessors (non-clinical) in Category-3: "Category-3:         (i) By promotion from among the holders                      of the posts of Deputy Civil Surgeons                      (non- clinical) included in Class-I,                      Category-5 of this branch;                      (ii)  By promotion from the holders  of                      posts  of  Assistant  Professors  (Non-                      clinical) included in Class-II, Catego-                      ry-  1 of this branch if  persons  from                      item (i) above are not available."     It  will be convenient, if at this stage, we  also  read the amendment to the foregoing Rules made on March 29, 1988. They are as follows: AMENDMENT  TO SPECIAL RULES FOR THE ANDHRA  PRADESH  MEDICAL AND HEALTH SERVICES (G.O.M.No. 182, Health, Medical and Family Welfare (A- 1) 29 March, 1988) 1. Constitution  ..........       2.  Appointment  to the various  categories  of  posts shall be made as shown in the Table below: Category of Post         Method of Recruitment Category: 1 Additional Director of   By promotion from among the holders Medical & Health Service of the post of professors in Cate- (Medical Education),     gories 2 and 3 with not less than Principals of Medical    three years of service of which at- Colleges,Superintendents least two years shall be in one of Teaching General      the said categories as on first Hospitals and Principals January or 1st July of the year in

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Government Dental        which panel is prepared. College. There are three requirements for eligibility for  considera- tion 61 for  promotion  to the category of Additional  Director  and equivalent posts: (i) He should be in cadre 2 and 3 in Class I; (ii) He should have a minimum service of two years in the said categories; and (iii) He should have a total service of not less than three years.     Two  years service in the category appears to  mean  two years  service  as  Professor and this is not  in  doubt  or dispute.  The dispute, however, is about the requirement  of service of three years. Whether that service should be  only in  Class-I  categories 2 and 3 or inclusive of  service  in Class-II  is  the question for consideration.  The  Tribunal appears  to have accepted the latter view. It has been  held that promotion to the post of Additional Director and equiv- alent  posts is to be made on the basis of total  period  of service in including service in the lower categories subject to the condition that the person should be holding the  post of Professor or equivalent post for at least two years.     Mr.  Madhava Reddy, learned counsel for  the  appellants argued that the view taken by the Tribunal would be contrary to  the  rule of seniority in the cadre of  Professors.  The seniority  for  zone of consideration for  promotion  should always be of the feeding cadre and not from any other cadre. Reference was made to Rule 10 of the Rules and also to  Rule 33(a)  of the Andhra Pradesh State and Subordinate  Services Rules.  Counsel also contended that the minimum three  years of  service  provided under rule 2 in any event must  be  in class-I  in  any category and it can never  be  in  Class-II Service.     We are unable to accept the submission of learned  coun- sel  for  the  appellants, having regard to  the  facts  and circumstances  of this case. Rule 10 of the  Rules  requires determination of seniority on unit wise. It reads: "10. Seniority. For purposes of seniority and appointment as full members the posts included in this branch shall consti- tute separate units as indicated below: Unit  1   Class I  Category- 1, viz. Additional Director  of                   Medical   and  Health  Services   (Medical                   Education),Principals of Medical Colleges,                   Superintendents of Teaching General                   Hospitals. Unit 2    Class I   Category-2 viz. (i) Professors (Clinical and nonclinical). 62 Unit 3    Class I   Dental Professors. provided that Deputy Civil Surgeons and Assistant Professors shall have separate seniority in order of speciality"     Rule  33(a) of the A.P. Subordinate Service  Rules  pro- vides that seniority of a person in service, class, category or  grade shall, unless he has 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.  It seems to us that the seniority in the category of professors in the teaching and non-teaching cadre or in the lower cadre based on speciality wise may not be relevant for preparation of a penal for promotion to the cadre of Additional Director and other equivalent posts in Category. Equally the  service rendered  as Deputy Civil Surgeon in category 5 cannot  also be  the basis for preparing the panel for consideration.  As observed earlier, Deputy Civil Surgeon is a common  category in  all  the Branches; Branch-I  teaching  cadre;  Branch-II

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non-teaching cadre and Branch-III Laboratories. It is a part of  the category of Civil Assistant Surgeons, and not  cadre post.  It is just like selection grade post covering in  all 15% of total cadre strength of Civil Assistant Surgeons. The posts  are distributed in all the three Branches and  promo- tion  to the posts depends upon the available  vacancies  in every branch.     Furthermore,  Rule  2  does not  expressly  exclude  the service in Class-II Cadre for preparing panel for considera- tion for promotion to 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  impor- tant speciality may be fortunate enough to get quick  promo- tion 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  ap- pointment  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 63 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.     We  therefore,  concur with the view  expressed  by  the tribunal and dismiss these appeals with costs.     Before  parting with the case, however, it is  necessary to  point  out that the imprecise drafting  of  the  present Rules  has  led to misunderstanding and  litigation  and  it would  be proper for the State Government to have the  word- ings of the Rules properly amended with perspicuity to  give effect to the view indicated. N.P.V.                                         Appeals  dis- missed. 64