4.Qualification: No person shall be eligible for appointment to the post unless he possess the following qualifications namely:-
(1)M.D. Degree in Paediatrics; and (2)Degree in Haematology/Training in Pediatric Haematology for a period of not less than one year in a recognised Pediatric Centre in India or abroad and (3)Must have had teaching experience in the speciality of Paediatrics/Paediatric Haematology as follows:
(a) (b) (c) omitted."
9.Even when the respondents called for applications by proceedings dated 11.4.96, these qualifications were reiterated. It is only pursuant to this notification, the petitioner and the third respondent had applied for the said post and their claims were considered.
10.On notice from the Tribunal, the first respondent has filed a counter affidavit, dated 25.7.2001. In the counter, it was averred as follows:
"While filling up of the post of Reader, the claims of both the applicant and the 3rd respondent, their seniority, qualifications and experience prescribed for the post/possessed by the claimants, were duly examined, their qualifications and experiences, at that time, were as follows:
(1)Dr.M.Venkatadesikalu; (Third Respondent) Commenced service on 9.9.71 afternoon and obtained MD., Paediatrics in the year 1978. He has been working as Assistant Surgeon/Assistant Professor of Paediatrics for the past 19 years, out of which 9 years were as Assistant Professor of Paediatrics in the Heamatology Department of Institute of Child Health and Hospital for Children, Chennai. He has been senior enough to hold the post of Reader in Paediatrics Haematology, that since, 1985 he has been taking classes for under graduates and post graduates in Paediatrics Haematology, topics and that he also presented papers in the above speciality at both National and International conferences. The retired Professor of Haematology, Dr.V.Pushpa had also certified that the Medical Officer has been working in Haematology Department of Institute of Child Health and Hospital for Children, Chennai continuously for over ten years, that he has had considerable training and experience in the diagnosis and management of a vide variety of Haematologic problems in infants and children and that he has been teaching under graduates/post graduates and also presented papers at National and International conferences.
(2)Dr.P.John Solomon :(Applicant herein) Commenced service on 31.5.82 and obtained the degree of MD (Paediatrics) in March 1985. He also obtained the degree of Master of Medical science in Haematology of the Queen's University of Belfast in July '92. He has been working as Tutor/Assistant Professor of Paediatrics from 14.11.85 to till date except during the period of his training in United Kingdom in Haematology for two years. He has been working as Assistant Professor of Paediatrics and looking after Paediatrics Haematology and Oncology at Institute of Child Health and Hospital for Children, Chennai from 7.5.92 and also teaching and training MBBS, DCH., and MD., (Paediatrics Student).
Among them the senior Dr.M.Venkatadesikalu has been working in the Pediatric Haematology Department of the Madras Medical College and Research Institute/Institute of Child Health and Hospital for Children, Chennai (after obtaining his Post Graduate degree in Paediatrics) for more than 9 years at that time and has also gained considerable experience in the speciality, though he did not have a degree in Haematology or undergone training in Haematology for one year, in a recognized Paediatrics Centre in India or abroad. The junior, Dr.P.John Solomon was in possession of a degree in Haematology of the University of Belfast. Both of them had the required teaching experience in the speciality of Paediatrics Haematology.
5.It is submitted that though the senior i.e., the 3rd respondent, had not obtained any degree in Haematology (No such degree available in India), he had undergone training in Paediatrics Haematology for more than ten years (the required period not less than one year) in a recognized paediatrics center i.e., in the Chennai Medical College, Chennai in the Institute of Child Health and Hospital for Children, Chennai and thus fully qualified for appointment as Reader in Paeditrics Haematology. The applicant, Dr.P.John Solomon, i.e. the junior was also possessing the qualification and experience prescribed for the post and he also had the training in United Kingdom for 2 years. Since, both the senior and the junior were having the required qualifications and experiences, the senior among them i.e., Dr.M.Venkatadesikalu was appointed as Reader in G.O.(D) No.1147, Health, dt.2.9.96 and had also joined as Reader on 12.9.96 forenoon. Against the above orders, the applicant has now filed the Original Application No.10494 of 97.
7.... it is submitted that, the applicant's qualifications and experience to hold the post of Reader, had not been questioned. He was also qualified to hold the post, his request for appointment as Reader was also examined and he being the junior among the qualified candidates, his request could not be complied with. Accordingly, the senior among the qualified i.e, the 3rd respondent was appointed as Reader and the required certificate issued...."
11.It is shocking to note that in the absence of third respondent not possessing minimum educational qualification prescribed for the post under statutory rules, as to how the respondents can justify his appointment. It is not the case of the respondents that the third respondent had the benefit of any relaxation from the relevant service rules. On the contrary, attempt is being made to justify his appointment on the basis of his training in the institute. But such training will come only after a person possess an academic qualification. Since the petitioner is the only qualified candidate having the academic qualification, the question of his being junior to the third respondent does not arise.
12.In this context, it is necessary to refer to the following decision of the Supreme Court, wherein it was clearly held that if a person does not possess the educational qualification prescribed under the relevant rule, he cannot be considered for any appointment. The said decision in Ram Sarup v. State of Haryana reported in (1979) 1 SCC 168, paragraph 2 reads as follows:
2....But the argument was that by reason of clause (2) of Rule 4 the minimum educational and other qualifications set out in sub-clause (1) were applicable only to a candidate who was appointed by promotion and these qualifications could not possibly apply in case of direct recruitment or transfer. Now it is true that clause (2) of Rule (4) deals with a case of recruitment by promotion and it requires in so many terms that the candidate who is to be promoted must possess the minimum qualifications prescribed for the higher post to which promotion is to be made and the proviso permits the Government to relax these qualifications in case of an official who is of outstanding merit. But we fail to see how this clause which deals with the specific case of recruitment by promotion can possibly be read as cutting into the requirement imposed by sub-clause (1) that every person appointed to the service must possess educational and other qualifications set out in that clause by limiting such requirement only to cases of recruitment by promotion. Clause (2) of Rule 4 does not seek to qualify sub-clause (1) or to restrict its ambit and operation. What it does is merely to deal with specific cases of recruitment by promotion and to confer power on the Government to relax the requirement of qualifications in case of promotion, where the official to be promoted is of outstanding merit. Clause (1) of Rule (4) is absolute in its terms and does not permit appointment of any person as Labour-cum-Conciliation Officer unless he possesses the educational and other qualifications set out in that clause, regardless of whether the appointment is to be made by promotion or by direct recruitment or by transfer. The appellant could not, therefore, be legitimately appointed to the post of Labour-cum-Conciliation Officer unless, amongst other things he possessed five years experience in the working of Labour Laws as Labour Inspector, Deputy Chief Inspector for Shops or Wage Inspector, which he admittedly did not. It is no doubt true that the Government at one time decided that the post of Statistical Officer and Labour-cum-Conciliation Officer should be made inter-changeable but this decision was not implemented by carrying out the necessary amendments in the Punjab Labour Service (Class I and II) Rules, 1955. The result was that the decision of the Government remained what we may call brutum fulman and it could not operate in derogation of the requirement of the statutory rules made in exercise of the power conferred under the proviso to
Article 309 of the Constitution. The appointment of the appellant to the post of Labour-cum-Conciliation Officer was, therefore, clearly in breach of Rule 4, clause (1) of the Rules.
13.Therefore, the order of the Government in G.O.D.No.1147, Health and Family Welfare Dept., dated 2.9.96 holding that the third respondent is fully qualified to hold the post of Reader in Pediatric Haematology under the Tamil Nadu Medical Service is clearly illegal and contrary to the relevant adhoc rules framed for the said purpose. Hence the appointment of the third respondent is hereby set aside. However, it is now stated in the reply affidavit that the third respondent is holding the post with effect from 12.9.96, i.e. nearly for a period of 13 years. Therefore, the contention that the petitioner should be appointed to the said post as he was the only eligible candidate at the time of selection in the year 1996 cannot be accepted. It is open to the respondents to call for fresh application in accordance with the rules and fill up the post in a manner known to law. 14.Hence W.P.No.27288 of 2005 (O.A.10494 of 1997) stands allowed. W.P.No.31998 of 2005 (OA No.86 of 1998) will stand dismissed. However, there will be no order as to costs.
vvk To
1.The Commissioner and Secretary to Government, State of Tamil Nadu, Health and Family Welfare Department, Fort St. George, Chennai-9.
2.The Director of Medical Education, Chepauk, Chennai 5