M. C. Gupta Vs. A. K. Gupta & Ors
 INSC 262 (15 December 1978)
Indian Medical Council Act, 1956, S. 2(f)
read with General Regulations, R. 4, "Medicine", includes specialist
branch of cardiology -"Research experience", computation, holding of
specified post whether pre-requisite while conducting research-"Teaching
experience" in foreign institutions when can be taken into account.
The appellant Dr. M. C. Gupta and the sixth
respondent Dr. R. N. Tandon, were appointed to the post of 'Professor in
medicine in State Government Medical Colleges. The appointments were made by
the State Government, on the recommendation of U.P. Public Service Commission,
which had earlier with the assistance of four medical experts, selected them
through an interview. The respondents No. 1, 2 and 3 who were also candidates
for the post filed a writ petition in the High Court, challenging the selection
and appointment of Dr. M. C. Gupta and Dr. R. N. Tandon, though no mala fides
were attributed to the Commission. A Single Judge of the High Court issued a
writ quashing the selection, on the ground that neither of the two selected
doctors had the requisite teaching experience and that neither of them was
qualified for selection as Professor of Medicine. In appeal, the appellate
Bench of the High Court confirmed the order quashing the selections, and
further quashed the order of appointment, remitting the matter to the
Commission, directing it to make fresh selection in consonance with the
interpretation put upon the relevant regulation, by the court.
Allowing the three connected appeals, one by
Dr. M. C. Gupta, and two by the State of U.P., the Court
HELD . I. Medicine includes cardiology. The
Medical Council of India, a body composed of experts, has in the regulations
clearly manifested their approach when they said that cardiology is a
specialist branch under medicine. Where general subject such as medicine or
surgery is being dealt with, in a regulation, the specialist branch under it
would be covered, though not vice versa, because if one wants to hold a post in
the specialist branch, he must of necessity have teaching experience in the
specialist branch. [859 G, 860 D, 861 E].
II. If general regulation 4 is properly
analysed for the purpose of computing research experience, the prerequisite is
that the research must be done after obtaining the requisite post-graduate
qualification. It has no reference to the post held by the person engaged in
research at the time of conducting the research, and, to say that holding of
the post specified in the regulation, is a pre-requisite while conducting
research, is to read in regulation 4, what is not prescribed thereunder. [862
III. Teaching experience in foreign teaching
institutions can be taken into account, but, they must be some recognised
institutions of repute and not any institution outside the territory of India.
865 G, 866 C].
854 State of Bihar & Anr. v. Dr. Asis
Kumar Mukherjee & Ors.,  2 SCR 894; followed.
Vade Mecum :
In view of the twilight zone of Court's
interference in appointment to posts requiring technical experience made
consequent upon selection by Public Service Commission, aided and advised by
experts having technical experience and high academic qualifications in the
specialist field, probing teaching/research experience in technical subjects,
within the framework of Regulations framed by the Medical Council of India,
under s. 33 of the Indian Medical Council Act, 1956 and approved by the
Government of India, the courts should be slow to interfere with the opinion
expressed by the experts, unless there are allegations of mala fides against
University of Mysore & Anr. v. C. D.
Govinda Rao & Anr.,  4 SCR 575; applied.
State of BIhar & Anr. v. Dr. Asis Kumar
Mukherjee & Ors.,  2 SCR 894; explained.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 357/77 and 1142-1143/78.
Appeals by Special Leave from the Judgment
and Order dated 28-8-75 and 17-9-75 of the Allahabad High Court in Special
Appeal Nos. 233, 254 and 264 of 1975.
L. N. Sinha, Santosh Chatterjee, Vineet Kumar
and P. P. Singh for the Appellant in CA 357/77.
S. N. Kacker, Sol. General, M. V. Goswami and
Rajiv Dutt for the Appellants in CA 1142-1143/78 and RR 4 and 5 in CA 357/77 A.
K. Sen, S. C. Patel and Bishamber Lal for Respondent No. 1 in All the appeals.
V. M. Tarkunde, S. C. Patel and Bishamber Lal
for R. 2 in all appeals G. L. Sanghi, S. C. Patel and Bishamber Lal for R. 3 in
Rajiv Dutt and P. C. Kapur for R. 6 in CA
Santosh Chatterjee and Vineet Kumar for R. 6
in CA 1142/78.
The Judgment of the Court was delivered by
DESAI, J. Respondents Nos. 1, 2 and 3 in Civil Appeal No. 357/77 filed writ
petition No. 5462/74 challenging the selection by U.P. Public Service
Commission ('Commission' for short) and subsequent appointment by U.P. State
Government of appellant and respondent No. 6 to the post of Professor in
Medicine in State Government Medical Colleges.
A learned single Judge of the High Court
quashed the selections. Four appeals came to be preferred against the judgment
quashing selections. Special Appeal No. 232/75 was filed by Dr. R. N. Tandon,
respondent No. 6; Special Appeal No. 233 of 1975 was preferred by the present
appellant Dr. M. C. Gupta; Special Appeal No. 264 of 1975 was preferred by the
State of U.P.; and Special Appeal No. 256 of 1975 was filed by respondents Nos.
1, 2 and 3 in Civil Appeal No.
357/77 against that part of the judgment of
the learned single Judge by which appointment of appellant Dr. M. C. Gupta and
respondent No. 6, Dr. R. N. Tandon, was not quashed.
The appellate Bench partly allowed the
appeals and while confirming the order quashing the selection of Dr. M. C.
Gupta and Dr. R. N. Tandon, also quashed their appointment and remitted the
matter to the Commission directing it to re-examine the relative merits of all
candidates in the light of the interpretation put upon the relevant regulations
by the Court. Arising from this common judgment, three appeals by special leave
are preferred to this Court. Civil Appeal No. 357/77 is preferred by Dr. M. C.
Gupta and Civil Appeals Nos. 1142 & 1143 of 1978 are preferred by the State
To focus the attention on the contention
raised at the hearing of these appeals, a brief resume of facts would be
advantageous. The Commission invited applications for two posts of Professor of
Medicine in the State Medical Colleges as per its advertisement dated 8th
September 1973, subsequently extending the last date for receipt of
applications to 30th March 1974, Dr. M. C. Gupta and Dr. R. N. Tandon (referred
to as the 'appellants') along with Dr. A. K. Gupta, Dr. Brij Kishore and Dr. S.
N. Aggarwal (referred to as 'respondents 1, 2 and 3), applied for the post. The
advertisement set out the prescribed qualifications for the post under
Regulations made under s.
33 of the Indian Medical Council Act, 1956
('Act' for short). They were in respect of the academic attainments,
teaching/research experience, upper age limit, etc. The Commission was assisted
by four medical experts in the matter of interview, selection and
recommendation of suitable candidates satisfying the requisite qualifications
for the post. The Commission selected Dr. M. C. Gupta and Dr. R. N. Tandon for
the two posts of Professor in Medicine and recommended their names to the State
Government, Respondents 1, 2 and 3 who were also candidates for the post,
presumably came to know about the recommendation and moved the High Court on
13th September 1974 by way of a writ petition questioning the selection. The
petition was admitted and rule nisi was issued. An ex-parte interim stay
restraining the Government from making the appointments was granted but sub-
856 sequently it was vacated. The State Government accepted the recommendations
of the Commission and appointed Dr. M. C. Gupta and Dr. R. N. Tandon as
Professors of Medicine on 30th October 1974. The petition was subsequently
amended questioning the order of appointment. As already stated above, the
learned single Judge held that neither Dr. M. C. Gupta nor Dr. R. N. Tandon had
the requisite teaching experience and that neither of them was qualified for
selection as Professor of Medicine and accordingly allowed the writ petition
and quashed the selection. By a common judgment in the appeals arising from the
judgment of the learned single Judge, the appellate Bench confirmed the order
quashing the selections and further quashed the order of appointment and
remitted the matter to the Commission directing it to make fresh selection in
consonance with the interpretation put upon the relevant regulations by the
Court. Three appeals are before us. These three appeals obviously were heard
together and are being disposed of by this common judgment.
The selection and appointment of Dr. M.C.
Gupta and Dr. R. N. Tandon were questioned only on one ground in that each of
them did not satisfy the requisite teaching/research experience. The
controversy in these appeals centres round the question of teaching/research
experience and the relevant regulation in this behalf may be extracted:
Post Academic Subject Teaching/ Qualification Research experience
___________________________________________________________ (b) Professor/
M.D., M.R.C.P., Medicine (b) As Reader/ Associate F.R.C.P., Asst. Professor
Professor Speciality in Medicine for Board of 5 years in a Internal Medicine
Medical College (USA) or an after requisite equivalent post-graduate
qualification in qualification.
Regulation 4 of General Regulations provides as under:
"4. 50% of the time spent in recognised
research under the Indian Council of Medical Research or a University or a
Medical College, after obtaining the requisite post-graduate qualification be
counted towards teaching experience in the same or an allied subject provided
that 50% of the teaching experience shall be the regular teaching
experience." The teaching/research experience claimed by each of the
appellants may be set out and then the comments of each side in respect of each
item may be examined:
857 Experience of Dr. M. C. Gupta.
I. 25th January 1965 to 19th About 6 years
and July 1971-Lecturer in Cardio- 6 month's teaching logy in the Dept. of
II July 71 upto the date of About 3 years, 2
appointment as Professor- months' teaching Reader in Medicine in S.N.
Medicine College, Agra.
Experience of Dr. R.N. Tandon I. 1st October
1965 to 31st One years' teaching October, 1966-Post doctoral experience.
teaching fellow, Dept. of Medicine, State
University of New York at Buffalo, USA.
II 1st February, 1967 to 31st One year's
teaching 1968-As a Lecturer while experience.
posted as Pool Officer Dept.
of Medicine in GSVM Medical College, Kanpur.
III 5th April 1968 to 4th July 15 Months'
teaching 1969-Post doctoral research experience.
fellow, Dept. of Medical in GVSM Medical
IV 29th July 1969 to 30th October Over 5
years teaching 1974-(date of appointment as experience.
Professor)-Asst. Professor of Medicine, State
University of New York, at Buffalo USA.
Before the rival comments are probed and
analysed, it would be necessary to keep in view the twilight zone of Court's
interference in appointment to posts requiring technical experience made
consequent upon selection by Public Service Commission, aided by experts in the
field, within the framework of Regulations framed by the Medical Council of
India under s. 33 of the Indian Medical Council Act, 1956, and approved by the
Government of India on 5th June 1971. When selection is made by the Commission
aided and advised by experts having technical experience and high academic
qualifications in the specialist field, probing teaching/research experience in
technical subjects, the Courts should be slow to interfere with the opinion
expressed by experts unless there are allegations of mala fides against them.
It would normally be prudent and safe for the Courts to leave the decision of
academic matters to experts who are more familiar with the problems they face
than the Courts generally can be. Undoubtedly, even such a body if it were to
contravene rules and regulations binding upon it in making the selection and
recommending the selectees for appointment, the Court in exercise of
extraordinary jurisdiction to enforce rule of law, may interfere in a writ
petition under Article 226. Even then the Court, while enforcing the rule of
law, should give due weight 858 to the opinions expressed by the experts and
also show due regard to its recommendations on which the State Government
acted. If the recommendations made by the body of experts keeping in view the
relevant rules and regulations manifest due consideration of all the relevant
factors, the Court should be very slow to interfere with such recommendations
(see, The University of Mysore & Anr. v. C. D. Govinda Rao & Anr.,(1).
In a more comparable situation in State of Bihar & Anr. v. Dr. Asis Kumar
Mukherjee, and Ors.,(2) this Court observed as under:
"Shri Jagdish Swaroop rightly stressed
that once the right to appoint belonged to Government the Court could not usurp
it merely because it would have chosen a different person as better qualified
or given a finer gloss or different construction to the regulation on the score
of a set formula that relevant circumstances had been excluded, irrelevant
factors had influenced and such like grounds familiarly invented by parties to
invoke the extraordinary jurisdiction under Art. 226.
True, no speaking order need be made while
appointing a government servant. Speaking in plaintitudinous terms these
propositions may deserve serious reflection. The Administration should not be
thwarted in the usual course of making appointments because somehow it
displeases judicial relish or the Court does not agree with its estimate of the
relative worth of the candidates. Is there violation of a fundamental right,
illegality or a skin error of law which vitiates the appointment".
With these blurred contours of periphery of
jurisdiction under Article 226 to interfere with selections made by an
independent body like Public Service Commission not attributed any mala fides,
assisted by four experts in the field who presumably knew what constituted
teaching/research experience, what institutions are treated prestigious enough,
in which teaching/research experience would be treated valuable, we may examine
the rival contentions.
Two contentions which have found favour with
the High Court must engage our attention: (1) In order to satisfy the
experience qualification for the post of Professor in Medicine, the
teaching/research experience must be in medicine and stricto sensu Cardiology being
a separate branch, experience of teaching/research in Cardiology cannot be
availed of, and (2) any such experience to satisfy the regulation must be
acquire while holding the post of Reader or Assistant Professor (including the
post of Lecturer) in Medicine.
The controversy centres round the connotation
of the expression 859 'medicine'. Does it include Cardiology or Cardiology is a
separate Branch ? Section 2(f) of the Act defines medicine to mean modern
scientific medicine in all its branches and includes surgery and obstetrics,
but does not include veterinary medicine and surgery. This is too wide a
definition to assist us in the problem posed for the decision of the Court. In
the world of medical science there are general subjects and specialities. Medicine
and surgery are general subjects. To wit, Cardiology is a speciality in
medicine and orthopaedics is a speciality in surgery. Even the regulation from
page 8 onwards bears the heading 'Specialist Branch under Medicine and
Surgery'. Cardiology finds its place as a specialist branch under medicine. The
relevant regulation requires teaching/research experience in medicine.
Contention is, if any one who has teaching/research experience in Cardiology,
could he be said to have such experience in medicine ? In this context we must
recall regulation 4 which provides that 50% of the time spent in recognised
research after obtaining the requisite post-graduate qualification shall be
counted towards teaching experience in the same or allied subject provided that
50% of the teaching experience shall be the regular teaching experience. If
research in allied subject can be taken to satisfy the requisite experience,
teaching experience in a speciality under the general head could not be put on
an inferior footing. Undoubtedly, if the post is in a specialist department,
the requisite teaching/research experience will have to be in the speciality.
To illustrate, if one were to qualify for being appointed as Professor/
Associate Professor of Cardiology, his teaching experience must be in
Cardiology though his research experience could as well be in Cardiology or
allied subject. A person having such experience in the general subject medicine
cannot qualify for the speciality. That it what distinguishes the speciality from
the general subject. This becomes clear from the fact that in a number of
hospitals there may not be posts in specialist branches and someone working in
the general department may be assigned to do the work of specialist branches.
If a particular hospital has not got Cardiology as a specialist branch, a
Reader or Assistant Professor in the Department of Medicine may be required to
look after Cardiology cases and teaching of Cardiology as a subject. In that
event he is certainly a Reader/Assistant Professor in Medicine teaching one of
the subjects, viz., Cardiology which again forms part of the general curriculum
of the subject of medicine. Therefore, it is not proper to divorce a specialist
branch subject from the general subject. It cannot be seriously contended that
medicine does not include Cardiology. To be qualified for the specialist branch
of Cardiology, the minimum academic qualification is M.D. (Medicine). This
would clearly show that after acquiring the general qualification one can take
the specialist branch. If any other approach is adopted it would work 860 to
the disadvantage of the person who while being posted in the Department of
Medicine, is asked to teach a subject which is necessary for being taught for
qualifying for M.D.
but which can be styled as speciality. He
would simultaneously be denied the teaching experience in the subject of
Medicine. An extreme argument was urged that in adopting this approach it may
be that somebody may be working in different specialist branches such as Neurology,
Gastroenterology, Psychiatry, etc. and each one would qualify for being
appointed as Professor of Medicine without having even a tickle of experience
on the subject of general medicine. This wild apprehension need not deter us
because it should be first remembered that any one going into specialist branch
under medicine has to be M.D. (Medicine).
Thereafter, if he wants to become a Professor
in the specialist branch such as Cardiology, the academic qualification
required is to hold a degree of D.M. in the Specialist Branch. This becomes
clear from a perusal of the regulations. It is not necessary, therefore, to go
into the dictionary meaning of the expression 'medicine' to determine whether
it includes Cardiology. The Medical Council of India, a body composed of
experts have in the regulations clearly manifested their approach when they
said that Cardiology is a specialist branch under medicine. Ipso facto,
medicine includes Cardiology. It was not disputed that one qualifying for M.D.
(Medicine) has to learn the subject of Cardiology. And it must be remembered
that the four experts aiding and advising the Commission have considered
teaching experience in Cardiology as teaching experience in Medicine. The
counter-affidavit on behalf of the Commission in terms states that medicine is
a wide and general subject and includes Cardiology whereas for the post of
Professor of Cardiology a further two years' special training in Cardiology or
D.M. in Cardiology after M.D. in Medicine has been laid down as a requisite
qualification by the Medical Council. It is further stated that teaching
experience in Cardiology will make the person eligible for the post of
Professor of Medicine. That was the view of the experts who assisted the
Commission. Incidentally it may be mentioned that Mr. V. M. Tarkunde, learned
counsel for respondents 1, 2 and 3 took serious exception to giving any weight
to the counter-affidavit because it has not been sworn to by any expert aiding
or advising the Commission or by any officer or Member of the Commission but by
an Upper Division Assistant whose source of knowledge is the legal advice
tendered to him. In paragraph 1 of the affidavit the deponent says that he has
been deputed by the Commission to file the counter-affidavit on their behalf and
as such he is fully acquainted with the facts deposed to in the affidavit.
It is our sad experience that responsible
authorities avoid filing affidavits in courts when it behoves them to assist
the Court and facilitate the decision of the questions brought before the Court
861 but on this account alone we would not wholly ignore the counter affidavit.
Some documents were brought to our notice
showing that in State University of New York at Buffalo, U.S.A. the Assistant
Professor of Cardiology is designated as Assistant Professor of Medicine.
Further, in the Agra University Calendar, Cardiology is included in the
Department of Medicine. Similarly it was also pointed out that the Department
of Medicine in the University of Manchester includes Lecturer in Cardiology.
Apart from this administrative arrangement, it could not be seriously disputed
that Cardiology is a specialist branch under medicine and it could not be
wholly divorced from medicine.
Under the general head 'medicine' number of
subjects are to be taught, one such being Cardiology. If a teacher is asked to
teach Cardiology as one of the subjects for general medicine, could he be at a
disadvantage by being treated as having not acquired teaching experience in
medicine ? Even under general medicine, apart from medicine as a subject, there
are numerous other subjects and papers and there would be one or more persons
incharge of one or more subjects and papers and indisputably each one would be
gaining experience in general medicine. If general medicine is to be restricted
only to the paper on medicine, it would lead to a startling as result, as
startling as it was sought to be urged when it was said that a person teaching
Neurology could not be said to be gaining teaching experience in medicine. The
matter has to be looked at from this angle, viz., that where general subject
such as medicine or surgery is being dealt with in a regulation, the specialist
branch under it would be covered, though not vice versa, because if one wants
to hold a post in the specialist branch he must be of necessity have teaching
experience in the specialist branch. In reaching this conclusion the seniority
list maintained branch wise would hardly be helpful. Therefore, it is not
possible to agree with the High Court that the subject of medicine under the
regulation is exclusive of the other subjects mentioned therein and, therefore,
does not include Cardiology.
The second contention which found favour with
the High Court was that the requisite teaching or research experience must be
acquired while holding the post set out in the regulation in that subject. In
other words, the view of the High Court is that the teaching/research
experience must be acquired while holding the post of Reader/Assistant
Professor in Medicine for five years in a Medical College.
The High Court placed the emphasis on the
experience acquired while holding the post. The relevant regulation requires
teaching/research experience as Reader/Assistant Professor (which includes
Lecturer) 862 in Medicine for five years in a Medical College. Regulation 4 has
to be read along with specific regulation. Regulation 4 clearly shows that 50%
of the time spent in recognised research in the same or allied subject will be
given credit provided that 50% of the teaching experience shall be regular
teaching experience. The specific regulation prescribing the qualification will
have to be read subject to the general regulation prescribed under regulation 4
because the experience qualification prescribed in specific regulation must be
calculated according to the formula prescribed in general regulation no. 4. The
specific regulation requires 5 years' teaching/research experience.
In calculating the research experience in the
light of regulation 4, 2 1/2 years' experience shall be specifically teaching
experience and credit can be given to the extent of 50% of the time spent in
recognised research as prescribed in the regulation, which experience can be in
the same subject, viz., the subject for which the recruitment is being made or
in allied subject. So far there is no dispute.
The question is: while acquiring research
experience, is it incumbent that the person conducting research must also hold
of necessity designated post in the regulation ? Now, if general regulation 4 is
properly analysed for the purposes of computing research experience, the
pre-requisite is that the research must be done after obtaining requisite post-
graduate qualification. It has no reference to the post held by the person
engaged in research at the time of conducting the research. The heading is
The dichotomy will have to be applied to
teaching and research experience for the purpose of computation. So far as
teaching experience is concerned, it must be acquired while holding the post
specified in the regulation. But to say that holding of the post is a
pre-requisite while conducting research is to read in regulation 4 what is not
prescribed thereunder. The specific regulation prescribing qualification will
have to be read subject to general regulation 4 and not vice versa. This also
becomes manifest from the fact that general regulation 4 also provides that 50%
of the teaching experience shall be regular teaching experience meaning thereby
that if someone is engaged exclusively in research, he cannot claim to satisfy
the teaching experience qualification prescribed in the regulation. Reading
specific regulation with general regulation 4, it emerges that teaching
experience shall be acquired while holding the particular post specified
therein and the research experience can be taken into account if the person is
engaged in research after obtaining post-graduate qualification and it has
nothing to do with the holding of the post. One may be engaged as a research
scholar and holds no teaching post. The research is hardly related to post
though capacity for research is directly related to academic attainment. That
has been 863 taken care of. Teaching it indisputably related to the post
because a higher post may entail greater responsibility for coaching in higher
classes. This conclusion is reinforced by the language of general regulation 4
which permits recognised research under the Indian Council of Medical Research
which body may not have such hierarchical posts of Lecturer or Assistant
Professor or Reader. These three designations are to be found in teaching
institutions and not in research institutions. If it were, therefore, to be
held that even while acquiring research experience one must hold the post of
either Reader or Assistant Professor, it would discourage many persons
conducting research under the Indian Council of Medical Research. It is,
therefore, not possible to agree with the generalisation made by the High Court
that teaching/research experience to qualify for the post of Professor must be
acquired while working as a Reader or Lecturer.
Having cleared the ground about the
interpretation of requisite regulations, we must now turn to examine the two
In re :Dr. M. C. Gupta.
The experience qualification of Dr. M.C.
Gupta has been extracted above. There is no dispute between the parties that he
was appointed and was working as Reader in Medicine in S.N. Medical College,
Agra, from 28th July 1971 till 30th March 1974 which was the last date by which
applications had to be submitted to the Commission. This would give him a
teaching experience of 2 years 8 months and 10 days.
Dr. Gupta also claims teaching experience,
being a Lecturer in Cardiology in the Department of Medicine, S. N. Medical College,
Agra, from 25th January 1965 to 19th July 1971, in the aggregate period of 6
years, 6 months and 24 days. There is a serious dispute between the parties
whether Dr. Gupta is entitled to get credit for teaching experience while
working as Lecturer in Cardiology. On the view that we have taken that
Cardiology is a specialist branch under medicine and, therefore, a Lecturer in
Cardiology could be said to be a Lecturer in one of the subjects under general
medicine and hence he had requisite experience as Lecturer in Medicine.
However, Dr. Gupta has produced a certificate issued by the Principal and Chief
Medical College & Hospital, Agra, dated
19th September 1974 in which it is stated that 'Dr. Gupta joined the Department
of Medicine as Lecturer in Cardiology on 25th January 1965 and continued till
July 19, 1971 when he was appointed as Reader in Medical by Public Service
Commission'. It is further certified by 864 the Principal & Chief
Superintendent that 'Dr. Gupta was actively involved in patient-care, teaching
of undergraduates and post-graduates in general medicine in addition to
conducting Cardiac Out Patient, looking after cardiac beds and taking
Cardiology lectures during his tenure as Lecturer in Cardiology, as Cardiology
forms a part of general medicine in this college and there is no separate
Department of Cardiology here'. There is another certificate issued by Dr. K.
S. Mathur, Professor & Head, Department of Medicine (RD), dated 17th
September 1974, in which it is in terms stated that Dr. Gupta was actively
involved in the patient care and teaching of undergraduates and postgraduates
in General Medicine in addition to Cardiology during this period. Further, Dr.
Gupta used to be the Senior Physician to attend to Emergencies of all medical
cases on a particular day of week and he looked after indoor beds of general
medical units during leave arrangements. He was also in charge of T.B. Clinic
for a period of one month. It was further stated that Dr. Gupta had been
assigned 'Special Clinics' to 5th year and 3rd year and 'Long Clinics' to final
year students from time to time in addition to Cardiac Clinics and Cardiology
lectures. He was also taking regular classes in clinical methods for third year
and has also been called upon to teach them kidney diseases. There are further
references in the certificate which we may ignore for the time being. Dr. Gupta
also produced a certificate issued by Professor of Clinical Medicine, S. N.
Medical College, Agra, which, inter alia, states that Dr. Gupta was associated
from time to time with teaching and patient care in general medicine and he was
also actively associated with teaching of post-graduates in general medicine in
the way of clinical conferences, seminars, etc. He was also in charge of beds
in general medicine in Professors' Unit in the leave vacancy. A notice dated
24th October 1970 issued by the Department of Medicine, S. N. Medical College,
Agra, was also brought to our notice in which it was shown that Dr. Gupta was
to be the Senior Physician on call on every Tuesday. It would thus appear that
even if Dr. Gupta was designated as Lecturer in Cardiology for the period 25th
January to July 19, 1971, undoubtedly he was teaching general medicine to
undergraduate students and to some post-graduate students also and this is
testified by persons under whom he was working. It would be unwise to doubt the
genuineness of these certificates. Therefore, even apart from the fact that
Cardiology is a part of medicine, the teaching experience acquired while
holding the post of Lecturer in Cardiology, was teaching experience in subject
which substantially formed part of general medicine and over and above the
same, he was also working as Lecturer in Cardiology and, therefore, the
Commission was amply justified in reaching the conclusion that Dr. Gupta 865
had the requisite teaching experience qualification and the High Court was in
error in quashing the selection of Dr. M. C. Gupta on this ground.
Mr. L. N. Sinha, learned counsel, also wanted
us to examine the research experience of Dr. M. C. Gupta when he pointed out
that Dr. Gupta had published as many as 40 research papers in leading medical
journals in India during 10 years he worked as Lecturer/Reader and that he had
also been a recognised appraiser for the thesis submitted for the award of
Doctor of Medicine. Mr. Sen seriously objected to our examining this contention
because Dr. Gupta himself never claimed any credit for research experience.
Undoubtedly, the counter-affidavit on behalf
of the Commission refers to having taken into consideration the research
experience of Dr. Gupta but the affidavit is blissfully vague on the question
which research experience was examined by the Commission. Therefore, we would
not take into account the research experience claimed on behalf of Dr. Gupta.
In re: Dr. R. N. Tandon.
We have already extracted above the
teaching/research experience qualification claimed on behalf of Dr. Tandon.
Mr. Kacker, learned Solicitor General
requested us to start examining each item of experience commencing from the
last one as first. Before we proceed to examine each item of experience claimed
by Dr. Tandon, one contention raised on behalf of the respondents must be dealt
with. It was urged that wherever the regulations prescribe teaching or research
experience, it must be one acquired in an institution in India or in any
foreign institution recognised by the Medical Council of India or the
Government of India. It is not necessary to examine this argument in depth
because the point could be said to have been concluded by A. K. Mukherjee's
case, wherein same set of regulations came in for consideration of this Court
and in which it was seriously contended that the teaching experience specified
in regulations in question must be acquired in teaching institutions in India
and, therefore, any teaching experience in a foreign country cannot be taken
into consideration. This contention was in terms negativated simultaneously
negativing the other extreme submission that teaching experience from any
foreign institution is good enough, and after referring to sections 12, 13, and
14, it was held that those which are good enough for the aforementioned
sections, are good enough for the teaching experience gained therefrom being
reckoned as satisfied. The matter undoubtedly was not further pursued by this
Court because the final decision was left to the Commission.
866 Proceeding in the order suggested by Mr.
Kacker it is claimed that Dr. Tandon worked as Assistant Professor of Medicine,
State University of New York at Buffalo from 29th July 1969 to 30th October
1974. This includes some period subsequent to the last date for submitting
application to the Commission and we would exclude that part of the experience
claimed by Dr. Tandon. Therefore, Dr. Tandon claims to be working as Assistant
Professor of Medicine from 29th July 1969 to 30th March 1974 which was the last
date for submitting the application to the Commission. Computing the period, he
would have teaching experience of four years, six months and one day.
It was also said that even if teaching
experience in foreign teaching institution is to be taken into account, they
must be some recognised institutions of repute and not any institution outside
the territory of India. That of course is true. In A. K. Mukherjee's case the
pertinent observation is as under:
"Teaching institutions abroad not being
ruled out, we consider it right to reckon as competent and qualitatively
acceptable those institutions which are linked with, or are recognised as
teaching institutions by the Universities and organisations in Schedule II and
Schedule III and recognised by the Central Government under s. 14. Teaching
institutions as such may be too wide if extended all over the globe but viewed
in the perspective of the Indian Medical Council Act, 1956, certainly they
cover institutions expressly embraced by the provisions of the statute. If
those institutions are good enough for the important purposes of ss. 12, 13 and
14, it is reasonable to infer they are good enough for the teaching experience
gained therefrom being reckoned as satisfactory." But it could hardly be
urged with some confidence that the State University of New York at Buffalo
would not be an institution of repute. An attempt was made to refer to the
Schedules, not upto date, to the Act published by the Medical Council of India
showing recognised institutions. In fact, the Schedules set out recognised
degrees, certificates and diplomas of various Universities and certain
examining Boards of U.S.A. being recognised by the Medical Council of India.
This brochure hardly helps in coming to conclusion one way or the other. It
refers to degrees and the Boards awarding the degrees and diplomas. It does not
refer to teaching institutions. It nowhere shows that the certificates and
diplomas issued by the State University of New York at 867 Buffalo would not be
under one of the American Boards and, therefore, it is not recognised. Such a
contention was not even urged before the High Court or specifically in
affidavits so that factual material could have been more carefully examined.
The experts aiding and advising the Commission must be quite aware of
institutions in which the teaching experience was acquired by Dr. Tandon and
this one is a reputed University.
It was, however, contended that there is no
proof in support of the submission that Dr. Tandon was working as Assistant
Professor of Medicine at State University of New York at Buffalo, commencing
from 29th July 1969. Dr. Tandon has produced a certificate, Annexure CA. 5
issued by Associate Professor of Medicine, Director Angiology Department,
Buffalo General Hospital dated 3rd June 1971, in which it is stated that Dr.
Tandon is an Assistant Professor of Medicine in the Department of Medicine on
the full time staff of the Buffalo General Hospital having an annual salary of
$ 15,000. Mr. Tarkunde urged that this certificate does not show that Dr.
Tandon was appointed effective from 29th July 1969. Further, exception was
taken to the certificate in that it is issued by the Buffalo General Hospital
which the certificate does not show to be a teaching institution. If it was not
a teaching institution, one would fail to understand how it had a post of
Assistant Professor of Medicine. In a nonteaching hospital there could not be a
post of Assistant Professor. Therefore, the very fact that Dr. Tandon was shown
to be an Assistant Professor of Medicine, by necessary implication shows that
Buffalo General Hospital was a teaching institution under State University of
New York. In this connection reference may be made to a certificate dated 12th
September 1974 issued by James P. Nolan, Professor of Medicine and Head,
Department of Medicine, Buffalo General Hospital, in which it is stated that
since July 1969 Dr. Tandon has been a teacher in general medicine at the
Buffalo General Hospital. This removes any doubt about the commencement of
appointment of Dr. Tandon as Assistant Professor at the Buffalo General
Hospital. Mr. Tarkunde however urged that the certificate does not appear to be
genuine in view of the inquiry made by a telegram (p. 257, Vol. II of the
record) from the authorities incharge of the Buffalo General Hospital and the
reply received that Dr. Tandon is in India and, therefore, cannot get any
information as he left instructions not to release it. Who has sent this
telegram is left to mere speculation. And who sent the reply is equally
unknown. It would be improper to reject the certificate on such nebulous ground
and we 868 can do no better than reject the contention of Mr. Tarkunde as
unworthy of consideration as was done in A. K. Mukherjee's case where in it was
observed as under:
"There are 6 certificates now on record
and the 1st respondent is stated to have taken part in teaching work as
Registrar. You cannot expect to produce those surgeons in Patna in proof and
unless serious circumstances militating against veracity exist fair- minded
administrators may, after expert consultations, rely on them".
Therefore, we see no justification for
rejecting the certificates. It would appear that Dr. Tandon had the teaching
experience while holding the post of Assistant Professor of Medicine for a
period of four years, six months and one day. The minimum requirement is five
We would next examine one more item of
experience claimed by Dr. Tandon in that he was post-doctoral teaching fellow,
Department of Medicine, State University of New York at Buffalo from 1st
October 1965 to 31st October 1966. Now, undoubtedly this was teaching
experience in the same University where he was subsequently Assistant
The grievance is that he was a Fellow and
neither a Lecturer nor an Assistant Professor. What does 'Fellow' in the
University connote ? A certificate has been produced, Annexure CA. (page 50,
Vol. IV) by Dr. Tandon issued by Eugine I. Lippasch, Professor &
Administrative Associate Chairman of the Department of Medicine, State
University of New York at Buffalo, dated 13th October 1966, in which it is
stated that Dr. Tandon completed one year teaching fellowship in the Division
of Cardiology of the Department of Medicine at the State University of New York
at Buffalo and the Buffalo General Hospital on October 31, 1966. It is not very
clear what is the equivalent of a Fellow in teaching Hospitals in India but Dr.
Tandon has also claimed teaching experience from 5th April 1968 to 4th July
1969, being posted as post-doctoral research fellow, Department of Medicine in
G. S. V. M. Medical College, Kanpur. In this connection, Annexure R-2, produced
by none other than some of the contesting respondents shows that during the
tenure of Fellowship, Dr. Tandon was expected to take part in the teaching and
research activities of the College though he would not be treated as part of
the regular establishment of the College. Now, if the certificate produced by
Dr. Tandon shows that Fellowship included teaching work, it would be unwise to
doubt it. Even if 50% of the time spent in these two places is given credit,
Dr. Tandon had certainly 869 more than five years' teaching experience. The
Court is not competent to work out figures with mathematical precision.
It can broadly examine the question whether
the requirement is satisfied or not. Therefore, he had the requisite
teaching/research experience and the Commission was fully justified in treating
Dr. Tandon as having requisite teaching/research experience.
It thus clearly appears that both Dr. M. C.
Gupta and Dr. R. N. Tandon had the requisite qualifications, both academic and
experience, and they were eligible for the post for which they had applied and
if they were selected by the Commission and appointed by the Government, no exception
can be taken to the same. The High Court was, therefore, in error in
interfering with the same. Accordingly, all the three appeals are allowed and
the writ petition filed by respondents 1, 2 and 3 in the High Court is
dismissed with no order as to costs in the circumstances of the case.
M.R. Appeals allowed.