WP(MD)/30440/2026 of J.Jerome Vs The State of Tamil Nadu on 23 October 2026

ORDER

Heard the learned counsel appearing for the writ petitioner and learned Government Pleader appearing for the respondents.

2. The petitioner herein joined the Directorate of Public Health and Preventive Medicine as Assistant Surgeon (Paediatrics). He was transferred and appointed as Casualty Medical Officer. He is serving at Aasaripallam, Kanyakumari District. He has been asked to participate in the intra-directorate transfer counselling, which is presently on-going.

3. The Department of Paediatrics has prepared a tentative seniority list. Two lists have been placed before me. In one list, the petitioner is ranked at Serial No.207. In the other list, he is placed at Serial No.210. The petitioner had admittedly served in Kanyakumari Government Medical College Hospital since 26.03.2022. He has served there for 4 years 5 months and 6 days. But persons who have served for lesser periods in their respective stations have been assigned higher station seniority. For instance, one Dr.S.Gomathi who is serving in Thiruvannamalai Medical College and Hospital for hardly 7 months and 26 days has been ranked at Serial No.203/205. The reason for such ranking is that since the petitioner has not been serving in his parent department ie., Department of Paediatrics but serving as Casualty Medical Officer in the Department of Emergency Medicine, the doctors who are serving in the parent department have been placed ahead and above the petitioner. In other words, the period of service in a given station would not determine one’s seniority. Instead, it hinges on whether he is serving in the parent department or not. Such a situation has come about on account of incorporation of clause 6(iii) in the impugned circular dated 16.10.2026 issued by the Director of Medical Education and Research. The said clause reads as follows: “6(iii)The station seniority for the non-parental medical officers irrespective of their Speciality who are occupying Casualty Medical Officers post at present will be calculated from the date of order of present post (i.e.) Casualty Medical Officers post. Since rationalization has not been executed till date, they will be placed in their respective specialty after the parental medical officers for the vacancies in their concerned Specialties.” According to the learned counsel for the petitioner, the aforesaid clause is discriminatory and violative of Article 14 of the Constitution of India.

4. In fact, when the Casualty Medical Officers working in the Department of Emergency Medicine filed W.P.Nos.39359 of 2026 etc., batch contending that station seniority must be reckoned based on their actual period of service in a given station, it was disposed of in the following terms vide order dated 01.10.2026:- “All these batch of writ petitions have been filed seeking an identical relief i.e., to reckon the petitioners station seniority from 26.07.2017, 29.06.2017, 01.11.2019, 06.08.2016, 19.06.2020, 29.07.2016, 13.06.2022, 10.08.2020, 20.06.2018, 05.08.2020 and 20.10.2017 respectively in their parent department and consequently accord due priority to the petitioners in the forthcoming interdepartment transfer counselling by considering the respective petitioners representations.

2. Earlier, when this matter came up for hearing, the learned Additional Government Pleader was directed to get instructions in this regard. Today, when the matter is taken up for consideration, the learned Additional Government Pleader produced a copy of the proceedings dated 21.09.2026 and submitted that the request of the petitioners has been considered and the relevant paragraph of the said proceedings dated 21.09.2026 is extracted as hereunder:- “iii. The non-parental Casualty Medical Officers occupying the posts rationalised under G.O. (Ms) No.19, Health and Family Welfare (E1) Department, dated 24.01.2026, their station seniority may be protected from the date of their previous posting order in the concerned speciality, subject to there being no break in service. The protection of station seniority above may be extended only for the purpose of the 2026 Intra Directorate Transfer Counselling and shall not confer any additional right for future counselling beyond the normal rules.”

3. In view of the above, the grievance of the petitioners has been considered and stood resolved in terms of the proceedings dated 21.09.2026, nothing survives for further adjudication in these writ petitions and accordingly these writ petitions are disposed of directing the respondents to follow the proceedings dated 21.09.2026 while conducting transfer counselling.”

5. The above order passed in the Principal Seat should have given a quietus to the issue. But it has not. Instead, the issue has resurrected by inclusion of the impugned clause in the aforesaid circular.

6. Per Contra, the learned Government Pleader submits that the petitioner cannot take advantage of the proceedings dated 21.09.2026 extracted supra as they cannot be said to occupy the posts rationalized under G.O.(Ms).No.19, Health and Family Welfare (E1) Department, dated 24.01.2026. He further submitted that the counselling process has considerably progressed and that any intervention at this stage would needlessly cause confusion by putting the clock back. He also added that the petitioner voluntarily got transferred as Casualty Medical Officer and that he wants to stick on to the existing station. He further contended that a government servant has no fundamental or statutory right to insist that he would serve only in a given place. He pressed for dismissal of the writ petition.

7. I have carefully considered the rival contentions and perused the materials on record.

8. Vide G.O.(Ms).No.425, Health and Family Welfare Department, dated 22.10.2020, emergency departments were established in all 25 existing Government Medical Colleges. Earlier, as many as 344 posts of Casualty Medical Officers were created. Even though G.O.(Ms).No.425, dated 22.10.2020 made it clear that the Director of Medical Education was permitted to fill up the posts of Casualty Medical Officer by transfer/promotion of medical officers from the departments of General Medicine, General Surgery, Orthopaedics, Anaesthesiology and Respiratory medicine, the fact remains that the Medical Officers from other specialities were also transferred and posted as Casualty Medical Officers. Dr.Jerome, the petitioner herein, who hailed from the Department of Paediatrics was transferred and posted vide order dated 26.02.2022.

9. While the post of Casualty Medical Officer, also called as Emergency Medical Officer was already there to manage the emergency department, four more posts ie., Professor, Associate Professor, Assistant Professor and ED Secretary were created. The Director of Medical Education was permitted to fill-up the said posts by transfer/promotion of Medical Officer from the departments of General medicine/ General surgery/ Anaesthesia/ Orthopaedics/ Respiratory medicine. Thus, only those CMOs/EMOs, who hail from the aforesaid five specialities, namely, General medicine/ General surgery/ Anaesthesia/ Orthopaedics/Respiratory medicine were considered as parental CMOs/EMOs. Casualty Medical Officers from other disciplines were considered as non-parental. Vide G.O.(Ms)No.19 Health and Family Welfare Department, dated 24.01.2026, the post of CMOs/EMOs were rationalised and re-designated. Paragraphs 1 to 3 and 6 of the said GO read as follows:- “1.In the reference seventeenth cited, the Director of Medical Education and Research has stated that 344 Casualty Medical officer posts were sanctioned to Government Medical College and Hospitals under various schemes vide G.O first to 16th cited and during the various field inspections by the state officials to the Emergency Department in Government Medical College and Hospitals, it was observed that unequal numbers of Casualty Medical Officer/Emergency Medical Officer from a single speciality are being posted in various Government Medical College Hospitals and is not according to the need of the Hospitals. Hence, to improve the quality of Trauma care services, instructions were given for rationalisation of Casualty Medical Officer / Emergency Medical Officer posts in Emergency Department at all Government Medical College and Hospitals.

2. The Director of Medical Education and Research has sent the proposal for rationalization of existing 344 Casualty Medical Officer/Emergency Medical Officer posts in Emergency

Department sanctioned to Government Medical College and Hospitals under various schemes. Out of 344 posts of Casualty Medical Officer / Emergency Medical Officer, 30 posts were surrendered for creation of new posts to the newly built 1000- bedded Kalaignar Centenary Super Specialty Hospital, Guindy, Chennai.

3. The Director of Medical Education and Research has requested that along with the rationalization of the 314 posts, the Casualty Medical Officer post may be redesignated as Senior Resident (General Medicine) Senior Resident (General Surgery) Senior Resident (Anesthesia) & Senior Resident (Orthopedics) on roster basis in respect of the Director of Medical Education and Research institutions.

6. The Government after careful examination have decided to rationalize the existing 309 Casualty Medical Officer Emergency Medical posts in Emergency Department sanctioned to 37 Government Medical College and Hospitals vide Government Order first to sixteenth cited and change the nomenclature of the Casualty Medical Officer / Emergency Medical Officer posts as Senior Resident (Level-22-(56100 205700) in respect of 37 Government Medical College and Hospitals and other allied institutions as detailed in Annexure I to this order. The Government also direct that these posts shall be filled up with Senior Residents qualified in Emergency Medicine. If qualified personnel with Emergency Medicine Specialty is not available, such posts be filled up from other Specialties as mentioned in the annexure against each post.”

10. The aforesaid GO has re-designated the CMOs as Senior Resident (General Medicine), Senior Resident (General Surgery), Senior Resident (Anaesthesia) and Senior Resident (Orthopaedics). The petitioner herein was also a CMO. The said post is no longer in existence. It has been re-designated into the four categories mentioned above. But obviously, the petitioner will not fit in any of those four categories. He now goes back to his parent department of Paediatrics. But he is placed below those who are already working there. His station seniority is ranked below those who are already working in the parent department of Paediatrics.

11. The petitioner no doubt opted to go to the department of Emergency Medicine. But then, his coming back to the department of Paediatrics is not on his own volition. It is rather by operation of law. I am therefore of the view that downgrading the petitioner’s station seniority by categorising him as a non-parental CMO is arbitrary and unreasonable.

12. The question as to whether the petitioner can be put to prejudice on account of developments which are not of his own making can be easily resolved from another standpoint also. When this issue was projected for adjudication in W.P.Nos.39359 of 2026 etc., batch, the department took the stand that the grievance no longer survives in view of issuance of letter No.15261507/B1/2026 dated 21.09.2026 issued by the Secretary to Government, Health and Family Welfare Department. Attention of the Court was drawn to Paragraph No.2(iii) of the said letter. The Court felt that the grievance of the writ petitioners stood redressed and closed the petitions. Having done so, the executive will not be justified in once again taking the stand that the period of service put in by the non-parental CMO/EMO will not be taken into account. I am constrained to observe that the department is not playing fair. The department chose to avoid adjudication in the earlier round by claiming that the issue has been resolved. What was buried cannot be given a fresh lease of life in the form of the impugned circular. Lord Jesus Christ can rise from the grave. Not departmental circulars issued by mere mortals. The departmental officials cannot be allowed to over-reach the process of this Court. They cannot be permitted to pull a wool over judicial eyes.

13. The Government had issued G.O.(2D).No.131, Health and Family Welfare (A1) Department, dated 20.11.2007, laying down the guidelines with regard to counselling for transfer and promotion. Clause 10.5 of the said Government Order reads as follows:

“10.5 For transfer within the Directorate, Station Seniority will be the criterion for priority whereas in the case of inter Directorate transfer, service seniority will be criteria for priority.”

14. G.O.(D)No.1355 Health and Family Welfare Department dated 30.12.2024 added the following clause:- “Transfer Counselling: Station seniority shall be calculated from the date of transfer / promotion orders issued by the Government / Directorate of Medical Education & Research. This calculation is applicable only for the purpose of transfer.”

15. Hierarchy of laws is a well-known principle. The Hon’ble Supreme Court in Ispat Industries Ltd. Vs. Commissioner of Customs (2006) 12 SCC 583 held as follows: “… according to the theory of the eminent positivist jurist Kelsen (The Pure Theory of Law) in every legal system there is a hierarchy of laws, and whenever there is conflict between a norm in a higher layer in this hierarchy and a norm in a lower layer the norm in the higher layer will prevail (see Kelsen's `The General Theory of Law and State').

In our country this hierarchy is as follows:

1) The Constitution of India;

2) The Statutory Law, which may be either Parliamentary Law or Law made by the State Legislature;

3) Delegated or subordinate legislation, which may be in the form of rules made under the Act, regulations made under the Act, etc.;

4) Administrative orders or executive instructions without any statutory backing.”

15. In my view, the concept of hierarchy is applicable even to administrative instructions. The letter written by the Secretary to Government would occupy a higher rung. The circular issued by the Director of Medical Education and Research would rank below. It is too obvious that para 2(iii) of Letter No.15261507/B1/2026 dated 21.09.2026 issued by the Secretary to Government, Health and Family Welfare Department and the impugned clause 6(iii) of the circular dated 16.10.2026 issued by the Director of Medical Education and Research do not go together. Since the impugned clause runs counter to the government letter, it has to be necessarily struck down. The impugned circular is also repugnant to the government orders which have been issued under Article 162 of the Constitution of India. The impugned clause fails to pass muster on this score also. We cannot ignore the impugned circular on the ground that it is not law within the meaning of Article 13(3)(a) of the Constitution of India. This is because the petitioner’s service rights are prejudiced only by invoking the impugned circular. Since we have found that the impugned clause in the circular are not in consonance with the government letter dated 21.09.2026 and government orders dated 20.11.2007 and 30.12.2024, the impugned clause is declared as invalid.

16. This writ petition stands allowed. The department will conclude the counselling proceedings, if necessary by redrawing the proceedings on the footing that the offending clause was never there. No costs. Consequently, connected miscellaneous petitions are closed. 23-10-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No Rmk/ias Issue order copy on 28.10.2026. Note: The learned Government Pleader is directed to inform the authorities concerned that this offending clause has been quashed. The authorities shall act on the said information without waiting for the certified copy of the order.

To

1. The Principal Secretary, Department of Health and Family Welfare, Fort St.George, Chennai-600 009

2. The Director of Medical Education Kilpauk, Chennai-600 010

3. The Dean, Government Kanyakumari Medical College Hospital, Asaripallam, Kanyakumari District.

G.R.SWAMINATHAN J. RMK/IAS WP(MD) No.30440 of 2026 23-10-2026 (1/2)