Dr. Asim Kumar Bose Vs. Union of India
& Ors [1982] INSC 98 (15 December 1982)
SEN, A.P. (J) SEN, A.P. (J) DESAI, D.A.
CITATION: 1983 AIR 509 1983 SCR (2) 16 1983
SCC (1) 345 1982 SCALE (2)1299
CITATOR INFO :
E&D 1987 SC 424 (19)
ACT:
Central Health Service Rules, 1963 as amended
by the Central Health Service (Amendment) Rules 1966, sub-rules(2) and (2A) of
Rule 8 and paragraphs 2(b) and 3 of Annexure I to the Second Schedule,
construction of-Whether, far a specialist grade II in a teaching hospital belonging
to the Central Health Service to be eligible for appointment or promotion as a
Professor or Associate Professor of the concerned speciality, the condition
prerequisite is actual teaching experience of the Specialist or the capacity in
which such teaching experience is gained-wards and Phrases- Meaning of the word
"as"-Court's role in service Jurisprudence, pertaining to
appointment, explained.
HEADNOTE:
In pursuance of r. 7A(1)(b) of the Central
Health Service Rules, 1963 as amended by the Central Health Service (Amendment)
Rules. 1966 and all other powers enabling in that behalf, the President of
India issued a notification dated. June 8,1967 making the substantive
appointment of the appellant Dr. Asim Kumar Bose as Radiologist, Irwin
Hospital, New Delhi. By virtue of his post as Radiologist- cum-Associate
Professor of Radiology, the appellant was teaching the under-graduate and
post-graduate students as an Associate Professor of Radiology of the Maulana
Azad Medical College for the M.D., M.S., D.M.R.T. And M B.B.S. courses of
studies of the Delhi University. In 1973 the Central Government promoted Dr.
K.P. Mittal, Lecturer in Radiology in the Maulana Azad Medical College as
Associate Professor of Radiotherapy ignoring the claim of the appellant who
thereupon made a representation. The Government of India, Ministry of Health
& family Planning Department of Health by its letter dated February 23,
1974 rejected the representation holding that the appellant could not be
considered for appointment to the post of Associate Professor of Radiotherapy
in the Maulana Azad Medical College inasmuch as he did not possess at least
five years' teaching experience as Reader/Assistant Professor in the concerned
speciality as required under r. 8(2A) and paragraph 3 of Annexure I to the
Second Schedule of the 1966 Rules.
The appellant filed a writ petition in the
Delhi High Court challenging the impugned order, but the High Court rejected
the writ petition holding that the requirement rules required that the
requisite teaching experience must be the experience gained while working in a
medical college or in a teaching institution i.e. as a Teacher in a teaching
department.
Allowing the appeal.
HELD: (1) There was a failure on the part of
the Government of India in the Ministry of Health to draw a distinction between
teaching and non 17 teaching hospitals under the Central Health Service. The
Irwin Hospital and the G.B. Pant Hospital are the two associate hospitals of
the Maulana Azad Medical College and the teaching in the medical college is
undertaken by Professors and Associate Professors as well as by the Specialists
attached to the two hospitals affiliated to the College. Thus the teaching
experience gained by the appellant while holding the post of Radiologist-cum-
Associate Professor of Radiology (ex-officio) had to be taken into
consideration to determine his eligibility for appointment as Professor or
Associate Professor of the concerned speciality. [35 G-H, 36 A-C, 43 F-G] (2)
On a construction of r. 8(2) and paragraph 2(b) of Annexure 1 to the Second
Schedule of the 1966 Rules, it was held that the appellant possessed the
qualifications and experience requisite for appointment to the post of
Professor of Radiotherapy in the Maulana Azad Medical College which is a post
belonging to Specialist Grade I equivalent to Supertime Grade II carrying a
pay-scale of Rs. 1800-2250, which had fallen vacant during the pendency of the
appeal. The Union Public Service Commission must therefore re-advertise the
post of Professor and call the appellant for an interview for being considered
for appointment to the post. [38 C-D, F-H] (3) The action of the Central
Government in the Ministry of Health ignoring the claim of the appellant for
appointment to the post of Associate Professor of Radiotherapy in the Maulana
Azad Medical College in 1973 was based on a misconstruction of r. B(2A) and
paragraph 3 of Annexure I to the Second Schedule. The word "as" in
these provisions must, in the context in which it appears, be interpreted to
mean "in the capacity of". These provisions must be interpreted in a
broad and liberal sense as it would otherwise work great injustice of persons
in Specialists Grade II like the appellant who, while holding a non- clinical
post in a teaching hospital like the Irwin Hospital, has actually been teaching
the students of the Maulana Azad Medical College to which it is affiliated. The
Ministry of Health cannot be heard to say that the appellant had not acquired
the status of an Associate Professor of Radiology with effect from October 9,
1964, particularly when the Central Government have been utilizing his services
as such for teaching the post-graduate and under-graduate students of the
Maulana Azad Medical College for the M.D., M.S., D.M.R.T. and M.B.B.S. courses
of studies for the last 17 years. The arrangement has continued for all these
years with the approval of the Delhi University which has conferred the
designation of Associate Professor of Radiology on the appellant presumably
with the tacit sanction of the Medical Council of India. [37 F-G, 38 A-B, 42
D-F] (4) The recruitment rules nowhere provide that the teaching experience
gained by a Specialist in a teaching hospital in the capacity of an Associate
Professor (ex- officio) shall not count towards the requisite teaching
experience for purposes of sub rs. (2) and (2A) of r. 8 and paragraph 2 (b) and
3 of Annexure I to the Second Schedule of the 1966 Rules. There is no provision
made in the Rules that the teaching experience must be gained on a regular
appointment. There is hardly any difference so far as teaching experience is
concerned whether it is acquired on regular appointment or as a Specialist in a
teaching hospital with the ex-officio designation. As the statutory rules do
not 18 provide that the teaching experience gained in an ex-officio capacity
shall not count towards the requisite teaching experience, the teaching
experience gained by the appellant while holding the post of
Radiologist-cum-Associate Professor of Radiology (ex-officio) in the Irwin
Hospital can not be ignored in determining his eligibility for appointment as
Professor or Associate Professor of the concerned speciality. [35 C-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 598 of 1980.
Appeal by Special leave from the judgment and
order dated the 9th November, 1979 of the Delhi High Court in CWP No.885 of
1974.
N.C. Sikri for the Appellant.
Hardayal Hardy, Girish Chandra and R.N.
Poddar for the Respondents.
The Judgment of the Court was delivered by
SEN, J. This appeal by special leave from a judgment and order of the Delhi
High Court dated January 9, 1979 raises a question of some complexity. The
question is whether a Specialist Grade II in a teaching hospital belonging to
the Central Health Service is eligible for appointment or promotion as a
Professor or Associate Professor of the concerned speciality. The appeal turns
on a construction of sub-rs. (2) and (2A) of r.8 and paragraphs 2(b) and 3 of
Annexure I to the Second Schedule of the Central Health Service (Amendment)
Rules, 1966.
The Central Health Service was formed more
than two decades ago and was intended to replace the Indian Medical Service,
but the recruitment rules were not framed till the year 1963. The Service was
constituted for providing doctors for manning the medical, public health and
medical research and teaching posts in the Central Government hospitals,
dispensaries scientific research institutions and institutions of higher
education. The members of this Service are also meant to man posts in the Union
Territories and the various autonomous bodies.
In exercise of the powers conferred by the
proviso to Art.309 of the Constitution, the President on May 1, 1963 made the
Central Health Service Rules, 1963 which came into force 18 on May 5, 1963. R.3
provided for the constitution of the Central Health Service. Under r.4 the
Service was divided into two classes viz. Class I and Class II. The rules
envisaged categorization of personnel manning the service into five different
categories viz. Categories 'A' to 'E'..
Rule 5 provided for the authorized permanent
and temporary strength of the Service. Under r.5 (3), the controlling authority
had the power to interchange any post included in the junior scale with any
post included in the senior scale without altering the authorized strength in
each category.
R.8 provided for the future maintenance of
the Service. 80% of the vacancies in Category 'B' of the supertime scale were
to be filled by promotion through Departmental Promotion Committee of officers
holding the post in the senior scale who had rendered not less than six years
of service in that scale and 20% of the vacancies thereof were to be filled by
direct recruitment in the manner prescribed in the Second Schedule. By a
notification dated January 1, 1965 the initial appointments were notified. The
essential pre- condition for the inclusion of a post in the Central Health
Service was that a medical qualification recognized under the Indian Medical
Council should be prescribed for it.
By the Central Heath Service (Amendment)
Rules, 1966, the Central Health Service was reorganized with effect from
September 9, 1966 and the concept of General Duty officers and Specialist Grade
Officers was introduced for the first time. R.3 provides that there shall be a Service
constituted to be known as the "Central Health Service" consisting of
(a) persons appointed to the Service under r.7 or r.7A, and (b) persons
appointed to the Service under r.8. R.4 classifies the Service into four
categories viz. Category (1) Supertime Grade, apart from the post of (i)
Director- General of Health Services on a fixed pay scale of Rs.2750/- and (ii)
Additional Director-General of Health Services on a fixed pay of Rs. 2250/-; a
Supertime Grade I carrying a pay- scale of Rs. 1800-2250; Supertime Grade II
with a pay-scale of Rs. 1300-1800; Category (2) Specialists' Grade with a
pay-scale of Rs. 600-1300; Category (3) General Duty Officers Grade I with a
pay-scale of Rs. 450-1250; and Category (4) General Duty Officers Grade II on a
scale of Rs. 350-900. Under r.5 the authorized strength of the various
categories was to be as specified in the First Schedule. R.7 provides for the
initial appointment to the Service. R.7A provides for the appointment of
departmental candidates. R.7A is in two 20 parts. Part A deals with the
departmental candidates who were initially appointed in Categories 'A' and 'B'
of the Service prior to the 1966 Rules. All of them are to be appointed to the
corresponding Supertime Grade I and Supertime Grade II of the new Categories.
Part B provides that every departmental candidate who was initially appointed
to a category "other than Categories 'A' and 'B' shall be appointed to the
newly-formed appropriate Category "After selection". That had to be
so because the new Categories were different and the conditions of eligibility
had also been revised. Accordingly, officers from Category 'C', Category 'D'
and Category 'E' and were selected by the Departmental Promotion Committee for
appointment to the Specialists' Grade-General Duty Officers Grade I and General
Duty officers Grade I and General Duty Officers Grade II- after taking into
account the qualification, experience and conditions of eligibility. Several
Officers who were in former Category 'C' were placed in General Duty Officers
Grade I. R.8. provides for the future maintenance of the Service. After
appointments have been made to the Service under rs. 7 and 7A, future vacancies
have to be filled in the manner provided therein. R.8 (2) provides that every
vacancy in the Specialists' Grade shall be filled by direct recruitment in the
manner provided by the Second Schedule through the Union Public Service
Commission, subject to the exception made in r.8(2A) with regard to Associate
Professors and Assistant Professors. R.8(3) provides for 50% of the vacancies
in Supertime Grade II to be filled by promotion of General Duty Officers Grade
I and Specialists' Grade Officers in the ratio of 2 : 3 on the basis of merit
and seniority and the remaining 50% of the vacancies are to be filled by direct
recruitment in the manner specified in the Second Schedule.
It would therefore appear that there is 50%
direct recruitment in Supertime Grade II which practice is in the public
interest and is essential for the maintenance of efficiency. Further, Supertime
Grade II serves as a promotion avenue to GDOS Grade I also. In view of this,
the Third Pay Commission found it difficult to recommend the merger of the
Specialists' Grade with the Supertime Grade II, but at the same time it
appreciated present difficulties in promotion of Specialists to Supertime Grade
II. It accordingly recommended a structural reorganization of the cadre of
Specialists to get over these difficulties and to ensure that the GDOS Grade I,
Hospital Specialists and Teaching Specialists have reasonable 21 promotional
opportunities in their respective fields. It therefore directed taking of the
following steps;
"The administrative posts in Supertime
Grade II should be reserved for GDOS Grade I except where GDOS Grade I with the
required specialists qualifications are not available. The posts which cannot
be filled by direct recruitment through the Union Public Service Commission and
it would be open to the Specialists' grade officers to compete for such posts.
These posts should not be filled by hospital specialists or teaching
specialists by promotion in the normal course.
The Supertime Grade II will thus consist only
of administrative posts in future for which the revised scale will be Rs.
1500-2000.
The teaching posts (Professors) and hospital
specialist' posts (comprising other than administrative and teaching posts) at
present included in Supertime Grade II should be placed in the revised scale of
Rs.
1800-2250. This new grade may be called
Specialists' Grade I and the existing Specialists' Grade may be called
Specialists' Grade II. 50% of the vacancies in the new grade (i.e., Specialists
Grade I) should be filled by direct recruitment as at present, the remaining
50% being filled by promotion from the new Specialists' Grade II. There could
be interchange between hospital specialists and Professors in the higher grade
subject to the candidates satisfying the prescribed qualifications. We notice
that at present out of 27 clinical specialities only a few have posts in Supertime
Grade II. We would suggest that there should be at least one post in the higher
grade of Rs.
1800-2250 for every speciality. The
proportion of hospital specialists' posts in the new grade should not exceed
20% of the number of hospital specialists' posts in the lower grade
(Specialists Grade II) and additional number of posts as may be necessary to
make up the 20% may be created." (Emphasis supplied) As a result of the
recommendation of the Third Pay Commission, the Specialists' Grade is now bifurcated
into specialists 22 Grade I or Supertime Grade II carrying a pay-scale of Rs. 1800-2250
and Specialists Grade II carrying a pay-scale of Rs. 1100-1800.
As at present constituted, the Central Health
Service has the following grade structure as per the recommendations of the
Third Pay Commission :
________________________________ S. No. Grade
Pay (Rs.) _________________________
1. (a) Supertime Grade I (i) Director-General
Health Services 3500 (ii) Commissioner of Rural Health 3000 (iii) Additional
Director General Health Services 3000 (iv) Other post (a) Level I 2500-2750 (b)
Level II 2250-2500 (b) Supertime Grade II & Specialists Grade I 1800-2250
2. Specialist Grade II 1100-1800
3. General Duty Officers Grade I 1100-1600
General Duty Officers Selection Grade 1500-2000 General Duty Officers Grade II
700-1300 ____________________________________________ The Commission also
recommended a scheme of special merit promotion for the medical services on the
following lines:
"Doctors in Specialists' Grade I in the
revised grade of Rs. 1800-2250 and Supertime Grade II (Rs.
1500-2000) who have outstanding performance
to their credit, deserving the recognition, may be promoted to Supertime Grade
I scale, while continuing in their original posts, without 23 having to wait
until a vacancy arises in the Supertime Grade I. Such upgradations of the post
consequent upon merit promotions will be personal to the individuals concerned.
Eminent specialists and doctors in Supertime
Grade I should be considered for merit promotion to the grade Rs. 3000-3500.
There will be no non-practical allowance in addition." Such being the
infra-structure of the Central Health Service, the question is as to the
promotional prospect of a Specialist Grade II in a teaching hospital to
Specialists Grade I. The whole controversy turns on the question whether such a
person is eligible for appointment as a Professor or Associate Professor of the
concerned speciality, and that depends on whether for purposes of sub-rs. (2)
and (2A) of r. 8 and paragraphs 2 (b) and 3 of Annexure I to the Second
Schedule, the condition prerequisite is actual teaching experience of the
Specialist or the capacity in which such teaching experience is gained.
It is common ground that the appellant has
the requisite essential qualifications for appointment as a Professor or an
Associate Professor of Radiology. After obtaining his M.B.B.S. degree from
Calcutta University in the year 1955, the appellant went for further studies to
the United Kingdom. There he studied Radiotherapy for two years at the
Liverpool Radium Institute and obtained the Diploma in Medical Radiology &
Therapy (D.M.R.T.) from the University of Liverpool in 1958. During the course
of his studies there, he held the appointment of Registrar in Radiotherapy at
the Liverpool Radium Institute from August 1957 to December 1958. Besides
gaining teaching experience in that post which under Indian Medical Council
Rules is a teaching post, he also had the privilege of visiting some important
London hospitals like Mt. Verman and Hammersmith which institutions have a
unique and distinguished position in the area of Cancer-therapy by irradiation.
On his return to India, the appellant worked
as Junior Lecturer and Clinical Assistant in the Department of Radiology at the
Christian Medical College & Hospital, Vellore from February 6, 1959 to
December 26, 1960. This post required the appellant to take up 24 teaching
classes in Radiotherapy for the Master of Surgery (M.S.), Diploma in
Gynaecology & Obstetrics (D.G.O.) and M.B.B.S. courses. During his stay
there he was placed in charge of the Department of Radiotherapy during the
absence of Professor Scudder, and as he had considerable experience in the
United Kingdom in the practical aspect of handling such cases, he proved to be
extremely useful to the institution. The certificate of the renowned
Neuro-Surgeon Dr. Jacob Chandy, Medical College & Hospital, Vellore pays
high encomiums to the services rendered by the appellant and records that his
work there was well appreciated by colleagues and teachers both as a surgeon
and as a teacher.
As a consequence of a successful academic
career as a teacher of post-graduate courses in the Christian Medical College
& Hospital, Vellore, the appellant was appointed as a Lecturer in Radiology
under the West Bengal Health Scheme and held that post from January 2, 1961 to
January 12, 1963.
During this period as a Lecturer in the
Medical College, Calcutta, he had the privilege of teaching post-graduate
classes in Diploma in Medical Radiology & Electrology (D.M.R.E.). While he
was employed in that capacity, he was asked by the authorities of the Christian
Medical College, Vellore, his erstwhile employers, to assist them in organizing
the newly installed Tele-Cobalt Therapy Unit under the Colombo Plan Aid from
Canada in that institution.
The State Government of West Bengal were
pleased to depute him for the task and he apparently performed and fulfilled
his duties to the entire satisfaction of the authorities.
On January 14, 1963 the appellant was
appointed as a Lecturer in Radiology in Maulana Azad Medical College, New
Delhi, a post placed in Category `E' of the Central Health Service and
continued to work in that capacity till October 8, 1964. He was also employed
as a part-time Lecturer in Delhi University with effect from 1963 and even now
continues to be employed as such. On October 9, 1964 he was appointed as a
Radiologist in the Irwin Hospital which was a post in Category `C' of the
Central Health Service. By Letter dated April 6, 1965, the Delhi Administration
informed the Principal, Maulana Azad Medical College in answer to a
communication made by him, that consequent upon the appointment of the
appellant in Category `C' of the Central Health Service, the Administration had
no objection to designating him as Associate Professor of Radiology (ex-
officio) in the Maulana Azad Medical 25 College provided it was not detrimental
to his normal duties as a Radiologist and no financial implications were
involved.
In pursuance of r. 7A (1) (b) of the Central
Health Service Rules, 1963, as amended by the Central Health Service
(Amendment) Rules, 1966 and all other powers enabling him in that behalf, the
President of India issued a notification dated June 8, 1967 making substantive
appointments of 80 officers to the Specialists' Grade with effect from
September 9, 1966. The appellant was listed at Sr. No. 80 and the entry giving
his name and designation reads:
"80. Dr. Asim Kumar Bose Radiologist,
Irwin Hospital, New Delhi." As a result of this, the appellant has
continued to hold the post of Radiologist in the Irwin Hospital which is
attached to the Maulana Azad Medical College and treated as an Associate
Professor of Radiology (ex-officio) both by the University of Delhi as well as
by the Maulana Azad Medical College.
By the early 70s, the appellant had acquired
the requisite teaching experience of an Associate Professor of Radiology as
well as acquired higher academic qualification.
On August 19/20, 1968 the Principal, Maulana
Azad Medical College addressed a letter to the appellant conveying that the
Vice-Chancellor of the Delhi University in exercise of his emergency powers,
had granted him recognition as an Associate Professor of Radiology for teaching
the post- graduate and under-graduate students for the D.M.R.T. and M.B.B.S.
courses of studies. In 1970, the appellant was conferred the degree of Doctor
of Philosophy (Medicine) in Radiotherapy by the Calcutta University. The
Faculty of Medical Sciences, University of Delhi by its letter dated July 10,
1972 informed the appellant that the Board of Research Studies for Medical
Sciences had at its meeting held on January 15, 1972 appointed him as a
Supervisor for the post-graduate students for the M.D. (Radiotherapy) course of
study. It would therefore appear that the appellant was not only holding the
post of Radiologist in the Irwin Hospital, but was also actively associated
with teaching the under-graduate and post-graduate students as an Associate
Professor of Radiology of the Maulana Azad Medical College for the M.D.,
D.M.R.T. and M.B.B.S. courses of studies of the Delhi University.
26 It appears that subsequent to his
substantive appointment by the President to Specialists' Grade with effect from
September 9, 1966, the appellant was called by the Banaras Hindu University for
an interview on August 7, 1972 for the post of Professor of Radiotherapy but
since the post of Associate Professor of Radiotherapy in Maulana Azad Medical
College was falling vacant in 1973, he did not appear for the interview. In
1973, the Government of India promoted and appointed Dr. K.P. Mittal, Lecturer
in Radiology in the Maulana Azad Medical College as Associate Professor of
Radiotherapy ignoring the claim of the appellant.
The appellant accordingly made a
representation to the Government of India but the same was rejected. The
Government of India, Ministry of Health & Family Planning, Department of
Health by its letter dated February 23, 1974 informed the Delhi Administration
that the appellant could not be considered for appointment to the post of
Associate Professor of Radiotherapy in the Maulana Azad Medical College
inasmuch as he did not possess at least five years' teaching experience as
Reader/Assistant Professor in the concerned speciality as required under the
Central Health Service (Amendment) Rules, 1966. The Ministry of Health was of
the view that although the appellant had the essential qualification prescribed
for teaching post the teaching experience gained by him while holding the post
of Radiologist-cum-Associate Professor of Radiology (ex- officio) in the Irwin
Hospital since October 9, 1964 cannot be taken into consideration.
The appellant assailed the impugned order by
filing a writ petition in the Delhi High Court on July 24, 1974 complaining
that the action of the Government of India in the Ministry of Health
disregarding his claim for appointment to the post of Associate Professor of
Radiotherapy was in denial of equal opportunity in matters of employment and
thus violative of Arts. 14 and 16 of the Constitution. The contention upon
which the writ petition was based was that on a true construction of r. 8 (2A)
and paragraph 3 of Annexure I to the Second Schedule, he was clearly eligible
for appointment to the post of Associate Professor as he had the essential
educational qualification and had also the requisite teaching experience while
holding the post of Radiologist-cum-Associate Professor of Radiology
(ex-officio) in the Irwin Hospital which is a teaching hospital attached to the
Maulana Azad Medical College. The respondents Nos. 1 and 2 filed a return
reiterating the stand 27 taken by the Government of India in the Health
Ministry that the experience gained by the appellant as an Associate Professor
of Radiology (ex-officio) by virtue of his holding the post of Radiologist in
the Irwin Hospital cannot be taken into consideration for the purpose of
determining the question of his eligibility for appointment as Associate
Professor. It was pleaded that the impugned order was thus perfectly legal and
valid and had been issued on a correct interpretation of the Central Health
Service Rules, 1963 as amended by the Central Health Service (Amendment) Rules,
1966. In support of the plea, it was averred:
"The teaching experience gained by the
petitioner while holding the post of Radiologist in the Irwin Hospital, New
Delhi by virtue of his having ex-officio status of Associate Professor of
Radiotherapy from the 9th of October, 1964 cannot be counted as requisite
teaching experience under the Central Health Service Rules." It appears
that while the writ petition was pending in the High Court, the appellant was
in 1976 selected by the Haryana Public Service Commission for the post of
Professor of Radiology (Radiotherapy) in the Medical College, Rohtak, but was
not relieved of his duties by the Government of India in the Ministry of Health
& Family Planning. A letter of the Registrar of the Rohtak University dated
December 9, 1976 requesting the Central Government to place his services on
deputation with the Rohtak University for a period of three years in the first
instance as the appellant, having put in 17 years' service, was not inclined to
resign his post as Radiologist in the Irwin Hospital. The Ministry of Health by
its letter dated January 17, 1976 however informed the Secretary (Medical),
Delhi Administration that it was not possible to relieve the appellant of his
duties or place his services on deputation with a lien on his post as
Radiologist in the Irwin Hospital, and if he wanted to join as Professor of
Radiology (Radiotherapy) in the Medical College, Rohtak, he should "give
up all connections with the Central Health Service".
By the judgment under appeal, the High Court,
while observing that the appellant admittedly holds high academic and
professional qualifications and has also good teaching experience to his
credit, 28 rejected his writ petition on its construction of the Rules.
It observed that the recruitment rules required
that the requisite experience must be the experience gained while working in a
medical college or in a teaching institution i.e. as a teacher in a teaching
department. It also observed that "it is a well-known fact that after
acquiring the requisite medical qualifications there are different careers open
to a medical graduate, and in fact it is so in all professional careers."
According to the High Court, "some people opt for a teaching career while
others opt for a regular professional career as Doctors. The medical graduates
who opt for a teaching career, join a cadre different from that of the career
of Doctors." In the words of the High Court, "they tie down their
fate to the teaching career and expect promotions to various posts in their
channel of promotion i.e. in the cadre of teachers." While rejecting the
claim of the appellant, the High Court observed :
"It is a fortuitous circumstance that a
medical graduate regularly working as a doctor is also permitted by the
authorities to take up a teaching assignment. The normal duty of such a doctor
is in the hospital and in the cadre of doctors in hospital. If the person who
is working as a doctor is allowed to compete, with teachers in the teaching
cadre, such teachers are at a disadvantage. Their chances of promotions are
adversely affected by recruitment of people who do not initially opt for a
teaching career.
This being the rationale behind the
respondents' decision, we do not find that there is any illegality or
arbitrariness in the decision of the respondent." It is difficult to
support the reasoning or the conclusion reached by the High Court on a
construction of the Rules.
The appellant has placed on record a number
of documents emanating from the University of Delhi as well as from the Dean,
Maulana Azad Medical College showing that his services were utilized as an
Associate Professor of Radiology (ex-officio) for delivering lectures to the
post- graduate and undergraduate students for the M.D., M.S., D.M.R.T. and
M.B.B.S. courses during the last 17 years.
In response to a query from the Court, the
Ministry of Health prepared a note on the structure of the Central Health
Service 29 drawing our particular attention to r. 8 (2A) and paragraph 3 of
Annexure I to the Second Schedule and Sr. No. 4 of Annexure II to the Second
Schedule and on the basis of these provisions it is asserted that for promotion
to the post of Associate Professor at least five years' experience as
Reader/Associate Professor in the concerned speciality in a medical college/teaching
institution after the requisite post-graduate qualification is absolutely
essential. It is said that in response to an advertisement of the Union Public
Service Commission for the non-teaching post of Radiologist in the former
Category 'C' the appellant who had joined the Central Health Service in
Category 'E' as Lecturer in Maulana Azad Medical College with effect from
January 14, 1963 on selection to that post, switched over from teaching to
non-teaching post of Radiologist. After setting out his teaching experience as
a Lecturer of Radiology in Maulana Azad Medical College from January 14, 1963
to October 8, 1964 and elsewhere, it is said that the appellant was not
eligible for appointment as Associate Professor as he was not holding the post
of Reader/Assistant Professor. In trying to refute the appellant's allegation
that there was denial of equal opportunity, it is asserted :
"In the absence of the particular
advertisement for the post of Associate Professor, it is not possible to
indicate as to when the applications were first called for the appointment to
the post of Associate Professor of Radiology in a teaching institution
participating in the CHS. According to the provisions of the CHS Rules, all
posts of Lecturers, Assistant Professors and Associate Professors were required
to be filled through the UPSC before the rules came to be amended w.e.f.
18.09.1971. After the amendment of the CHS Rules, only Assistant Professors
possessing five years experience were eligible for appointment as Associate
Professor. Since Dr. Bose was holding the clinical post of Radiologist, he was
not in direct line of and eligible for promotion to the post of Associate
Professor." It is somewhat strange that alongwith the aforesaid note, the
Ministry had produced a letter of the Dean, Maulana Azad Medical College dated
January 25, 1982 addressed to the Secretary, Ministry of Health & Family
Welfare which tends to show that 30 the appellant as Radiologist-cum-Associate
Professor of Radiology (ex-officio) was not actually teaching the post-
graduate and undergraduate students of the Maulana Azad Medical College. The
letter is self-explanatory and reads :
"With reference to the telephonic
conversation with Sri R. N. Tewari with respect to the question received from the
Supreme Court regarding Dr. A. K. Bose I have to state that Dr. Bose while
performing his duties as Radiologist was not lecturing to the students as an
Associate Professor is required to do." It is rather difficult to act on
the letter of the Dean particulary when it runs counter to his own affidavit
sworn in February, 1982 the relevant extracts of which are given below :
"That since 1964 the Appellant continues
to be a Radiologist and is not holding any teaching designation assigned by the
Central Health Service and is not is receipt of the teaching allowance of Rs.
200.00 which is admissible in the case of an Associate Professor.
Dr. Bose has never worked as Assistant
Professor/Reader to become eligible for promotion as Associate Professor. He is
working in the Radiology Department.
The Head of the Radiology Department, uses
the services of some of the Radiologists who do not have any teaching
designation to take lectures. Over the years as an internal arrangement the
non-teaching Radiologists such as Dr. I. Sahai, Dr. D.P. Garg, Dr. A.R. Dar,
Dr. B.L. Jain, Dr. S.C. Gupta etc., in addition to Dr. A.K. Bose, have been
assigned lectures to under-graduate students.
Dr. A.K. Bose has been delivering lectures to
post graduates of Delhi University and has guided some thesis. Delhi University
has recognised him as a Supervisor of Thesis and a teacher. However in the
matter of post-graduate teaching the Delhi University also recognises and
utilises the services of Specialists of non-teaching hospitals like Safdarjang
Hospital, Army Hospital and Dr. R.M.L. Hospital (Willingdon).
The Specialist in Safdarjang Hospital and Dr.
R.M.L. Hospital do not have teaching designation assigned by 31 the Central
Health Service. The Army Hospital is not under the Central Health
Service." As regards the documents placed on record by the appellant, the
Dean goes on to aver in the affidavit :
"That the Appellant has produced the
Under- graduate lecture programme, the post-graduate lecture programme,
prospectus of Maulana Azad Medical College for the year 1966-67 and Annual
Report of Maulana Azad Medical College for the year 1980. The Under-graduate
teaching programme is only an internal arrangement of the Radiology Department.
The post-graduate programmes have been drawn up by the Delhi University. The
prospectus and the Annual Report are informative bulletins only. All that they
state is that Dr. A.K. Bose is an ex-officio Associate Professor." The
Ministry has also filed the affidavit of Shri N.S. Bakshi, Deputy Secretary to
the Government of India, Ministry of Health & Family Welfare to the effect
:
"That according to the Central Health
Service (Amendment) Rules, 1966, atleast 5 years experience as Reader/Assistant
Professor in the concerned speciality in a medical college/teaching institution
is after the requisite post-graduate qualification is absolutely essential for
promotion to the post of Associate Professor.
That the appellant does not fulfill the above
mentioned requirement and thus cannot be considered for promotion to the post
of Associate Professor as per CHS Rules.
That according to the provisions of the CHS
Rules, all posts of Lecturers, Assistant Professors and Associated Professors
were required to be filled through the UPSC before the Rules came to be amended
with effect from 18-9-1971. After the amendment of the CHS Rules, only
Assistant Professors possessing five years experience were eligible for
appointment as Associate Professor. Since Dr. Bose was holding the Clinical
post of Radiologist, he was not in direct line of and eligible for promotion to
the 32 post of Associate Professor. As such the question of the Appellant
becoming due for promotion to the post of Associate Professor does not
arise." After the conclusion of the hearing, the Health Ministry at our
behest prepared a note on the pattern of teaching and non-teaching staff as
laid down in the Central Health Service Rules, 1963 amended from time to time.
It would be convenient to re produce the note in its entirety and it reads :
TEACHING POSTS Specialists' Grade (new
Specialist Grade II) Lecturers All vacancies in this Grade are filled by direct
recruitment through the UPSC at the level of Lecturers in the scale of pay of
Rs. 1100-1800 plus NPA at graded rates.
Assistant/Associate Professors All vacancies
in the posts of Assistant Professor and Associate Professor are filled by
promotion through the Departmental Promotion Committee from amongst officers
holding the posts of Lecturers and Assistant Professor respectively. The
officers are required to possess the qualification and experience prescribed
for the post in question. The officers promoted to the posts of Assistant
Professor and Associate Professor are allowed a special pay of Rs. 100/- p.m.
and Rs. 200/- p.m. respectively In case no departmental officer is available
for promotion to the posts of Assistant/Associate Professor, such vacancy is
filled by direct recruitment through the U.P.S.C.
Composite Supertime Grade II (Revised
Specialist Grade I) Professor On the recommendation of the Third Pay
Commission, the Composite Supertime Grade II has been bifurcated into
Specialist Grade I (Rs. 1800-2250) and Supertime Grade II revised (Rs.
1500-2000). Vacancies in the Specialist Grade I posts of Professor are filled
by direct recruitment and promotion in the ratio of 1 : 1.
33 For promotion to the posts of Professor,
Associate Professor/Assistant Professor with 8 years service are eligible.
Supertime Grade I (Level II)-Rs. 2250-2500
All the vacancies in the posts of Principals of Medical College, Heads of
teaching institution, Deans are filled by promotions of Professors.
NON-TEACHING POSTS Specialists' Grade (now
Specialist Grade II) All vacancies in this Grade (Rs. 1100-1800) are filled by
direct recruit through the UPSC.
Composite Supertime Grade II (now Specialist
Grade I Rs.1800-2250) Vacancies in the Specialist Grade I posts of Senior
Specialists are filled by direct recruitment and by promotion to the ratio of 1
: 1. For promotion in the posts of Senior Specialists, Specialist Grade II officers
with eight years of regular service and considered.
Supertime Grade I (Level II) Rs. 2250-2500
Vacancies in Supertime Grade I posts of Consultants etc. are filled by
promotion of officers of composite Supertime Grade II. The officers must,
however, possess the requisite qualifications and experience for appointment to
a particular post in this grade." The aforesaid note is in consonance with
the view that there is no inflexible rule that Specialists in a teaching
hospital cannot be promoted as Associate Professor or Professors of their
concerned speciality. On the contrary, the note clearly brings out that
vacancies in Specialists Grade I posts of Professors are filled by direct
recruitment and by promotion in the ratio of 1 : 1.
The Health Ministry has also submitted a
separate note regarding persons imparting teaching in various disciplines who
are neither Professor, Associate Professor, Assistant Professor or Lecturer.
The note runs as under:
34 "There is no provision in the C.H.S.
Rules, whereby the officers who do not possess the requisite teaching
experience is appointed to a post of Professor in CHS. However, the University
College of Medical Sciences which is under the administrative control of the
University of Delhi has been utilising the services of the Medical officers of
the CHS working in the Safdarjang Hospital, New Delhi, for clinical teaching of
the students of the University College of Medical Sciences. These persons who
are participating in the teaching programme have been recognised by the
University of Delhi as Professors/Readers/Lecturers/Teachers without specific
teaching designation on the condition that such designations will be valid
"for the period till such time the Safdarjang Hospital continues to impart
instructions in clinical subjects to the under-graduate students of University
College of Medical Sciences and the persons continue to take part in the said
teaching". The conferment of teaching designations by the University of
Delhi does not mean that these officers are recognised as teachers for the
purposes of their service conditions in the Central Health Service."
Instances are not uncommon where Specialists have been promoted as Professors
of their concerned speciality. One instance of this as given by the appellant is
of his immediate predecessor Dr. O. P. Bhardwaj, Radiologist-cum- Reader in
Radiology ex-officio) in the Irwin Hospital who was appointed as Professor of
Radiology in the Maulana Azad Medical College; and presently is Dean,
Jawaharlal Institute of Post-Graduate Medical Education & Research,
(JIPMER), Pondicherry. The other instances that we could gather with difficulty
are these. One is that of Dr. (Kum.) P. Nirupma Nayak, Specialist in
Gynaecology, Central Hospital, Dhanbad, promoted as Professor of Obstetrics
& Gynaecology, JIPMER, Pondicherry; later promoted to Supertime Grade I as
Medical Superintendent at JIPMER, Pondicherry. Another is that of Dr. Prakash
Chand Sikand, Specialist Physician, Safdarjang Hospital, promoted as Professor
of Medicine, Medical College, Simla; later transferred as Professor of Medicine
to Lady Hardinge Medical College, New Delhi. The other is that of Dr.
Harinandan Prasad Verma, Specialist in Anaesthesia, promoted as Professor of
Anesthesiology, Maulana Azad Medical College, New Delhi. A 35 further instance
is furnished by the case of Dr. N. C. Shinghal v. Union of India.(1) On the
recommendation of the Medical Superintendent, Willingdon Hospital, the post of
Specialist in Ophthalmology which was an unspecified Specialist Grade post was
upgraded by the Central Government as a specified post in Supertime Grade II,
and Dr. B. S.
Jain, Chief Ophthalmologist-cum-Associate
Professor of Ophthalmology, Medical College, Simla was transferred to that
post. In the vacancy caused thereby, Dr. Shinghal who was Specialist in
Ophthalmology attached to the Willindon Hospital, was offered the post of Chief
Opthalmologist-cum- Associate Professor of Ophthalmology, Medical College,
Simla. There may be other instances as well.
It is necessary to emphasise that the
recruitment rules nowhere provide that the teaching experience gained by a
Specialist in a teaching hospital in the capacity of an Associate Professor
(ex-officio) shall not count towards the requisite teaching experience. There
is no provision made in the Rules that the teaching experience must be gained
on a regular appointment. There is hardly any difference so for as teaching
experience is concerned whether it is acquired on regular appointment or as
Specialist in a teaching hospital with the ex-officio designation. As the
statutory rules do not provide that the teaching experience gained in an
ex-officio capacity shall not count towards the requisite teaching experience,
the teaching experience gained by the appellant while holding the post of
Radiologist-cum- Associate Professor of Radiology (ex-officio) in the Irwin
Hospital cannot be ignored in determining his eligibility for appointment as
Professor or Radiology in Maulana Azad Medical College.
There is a failure on the part of the
Ministry of Health to draw a distinction between teaching and non- teaching
hospitals under the Central Health Service. The two general hospitals under the
Central Health Service are the Willingdon Hospital & Nursing Home, New
Delhi and the Safdarjang Hospital, New Delhi. The Service also runs Central
Hospital, Asansol, Central Hospital, Dhanbad, Goa Medical College &
Hospital, Panaji, G.B. Pant Hospital, Port Blair, and Government Hospital,
Lakshadweep. In contradistinction, the teaching hospitals under the Central
Health 36 Service are : (1) Irwin Hospital, New Delhi and (2) G. B. Pant
Hospital, New Delhi which are both associate hospitals of Maulana Azad Medical
College. The Lady Hardinge Medical College also has a separate hospital
attached to it.
The medical colleges run by the Central
Health Service are : (1) Maulana Azad Medical College, New Delhi; (2) Lady
Hardinge Medical College, New Delhi; and (3) Jawaharlal Institute of
Post-Graduate Medical Education & Research (JIPMER), Pondichery.
Besides the medical colleges, the Central
Health Service also runs several medical institutions, viz.
Hospital for Mental Diseases, Ranchi, Patel
Chest Institute.
Delhi etc. The teaching in these medical
colleges is undertaken by Professors and Associate Professors as well as by
Specialists attached to the hospitals affiliated to the respective colleges.
The modern pattern in medical education
during recent years is the organization of clinical units. As medical education
has developed, the distinctive feature is the thoroughness with which
theoretical and scientific knowledge are fused with what experience teaches in
the practical responsibility of taking care of human beings. The clinical
teacher has an immediate and absolute responsibility, Physicians and surgeons
still go round their wards at stated hours, followed by groups of students to
whom they point out the features of each case, expound the nature of the malady
and explain the reasons for the treatment adopted. But no longer, as formerly,
is the student dependent upon "walking the wards", attending lectures
and reading about the illness of which the cases he has seen are illustrations.
The clinical unit is a far more efficient training centre. The importance of
the clinical years is brought out in the Encyclopaedia Britannica Macropaedia,
15th edn. p. 810 :
"The two or more clinical years of
un-effective curriculum are characterized by active student participation in
small group conferences and discussions, a decrease in the number of formal
lectures, and an increase in the amount of contact with patients in teaching
hospitals and clinics. Through work with patients, under the supervision and
guidance of experienced teachers, students learn methods of obtaining
comprehensive, accurate and meaningful accounts 37 of illness, how to conduct
physical examinations and how to develop judgments in the selection and
utilization of laboratory diagnostic aids. During this period, they learn to
apply the knowledge gained in their pursuit of the basic medical sciences to
the study of general medicine and the medical and surgical specialties."
We must first deal with certain amendments in the Rules prescribing the mode in
which the posts of Professors and Associate Professor can be filled in. By
amendments dated February 21, 1968 and September 18, 1971, paragraphs 2 (b) and
3 of Annexure I to the Second Schedule and sub-r. (2A) of r. 8 were inserted
respectively. These amendments have brought about a change inasmuch as there is
now a vertical channel of promotion to the teaching posts upto the post of
Associate Professor. The Third Pay Commission in its Report at p. 173 observes
:
"While the Specialists on the teaching
side can hold posts of hospital specialists, the latter cannot be promoted to
teaching posts because of lack of teaching experience." On a literal
construction of these Rules, the effect of these amendments appears to be this.
Normally, a Professor or an Additional Professor in a medical college or
teaching institution can be appointed by direct recruitment from amongst
persons holding the post of Associate Professor or Assistant Professor in the
concerned specialty in a medical college or a teaching institution having at
least six years' teaching experience out of 12 years' standing in the Grade
through the Union Public Service Commission. An Associate Professor in the
medical college or a teaching institution can only be promoted from amongst
persons holding the post of Assistant Professor having at least five year's
teaching experience in the concerned specialty by the Departmental Promotion
Committee. We are inclined to the view that the word "as" in the
collocation of the words used "at least six years" experience as
Associate Professor/Assistant Professor/Reader" in paragraph 2 (b) and of
the words "at least five years' experience as Reader/Assistant
Professor" in paragraph 3 and sub-r. (2A) of r. 8 must be interpreted in
its ordinary sense as meaning teaching experience gained "in the capacity
of". In Black's Legal Dictionary, 5th edn., p. 104 the meaning of the word
"as" as given is : "Used as an adverb, etc. means like, similar
to of the same kind, in the same manner, in the 38 manner in which". In
Shorter Oxford Dictionary 3rd edn. p. 111, the word "as" is stated to
mean : "The same as, in the character capacity, role of". In our
view, the Ministry of Health is apparently wrong in assuming that the word
"as" in paragraphs 2 (b) and 3 of Annexure I the Second Schedule and
sub-r. (2A) of r. 8 makes holding of a post in the cadre a condition precedent
to the appointment of a Professor or an Associate Professor.
The question that falls for consideration is
whether the appellant possessed the qualification and experience requisite for
appointment to the post of Associate Professor of Radiotherapy in Maulana Azad
Medical College, New Delhi, and if not, whether the appellant is eligible for
appointment to the post of Professor of Radiotherapy in that College. That
depends on whether he fulfilled the conditions laid down in r. 8 (2) and 2 (A)
and paragraphs 2 (b) and 3 of Annexure I to the Second Schedule. R. 8 provides
that after appointments have been made to the Service under rs. 7 and 7A,
future vacancies shall be filed in the manner provided there-under. R. 8 (2)
provides that every vacancy in the Specialists' Grade shall be filled by direct
recruitment in the manner specified in the Second Schedule.
That is to say, 100% of vacancies in the
Specialists' Grade have to be filled by direct recruitment through the Union
Public Service Commission. The post of Professor of Radiotherapy in the Maulana
Azad Medical College is a post belonging to Specialist Grade I which is
equivalent to Supertime Grade II carrying a pay-scale of Rs. 1800-2250.
Annexure I to the Second Schedule prescribes
the age limit, educational qualifications and experience for direct recruitment
to the various categories of the Service.
Paragraph 2 (b) thereof reads :
"Supertime Grade II 50 years For
Professors/Additional Rs. 1300-1800 and be Professors low re- in medical
colleges laxable /teaching institutions. for Govt.
servant. A post-graduate degree in the
concerned speciality mentioned Govt. in Part A of Annexure II or equiva- lent
servant.
* * * * * * * * For Professors/Additional
Professor, in medical colleges or tea- 39 ching institutions, at least 6 years
experience as Associate Professor/ Assistant Professor/Reader in a medical
college or teaching institution after the requisite post- graduate degree
qualifica- tion out of the aforesaid 12 years' standing.
(Qualifications relaxable at Commission's
discretion in the case of candidates otherwise well- qualified)." R. 8 (3)
provides that 50% of the vacancies in Supertime Grade II to be filled in by
promotion of General Duty officers Grade I and Specialists Grade II officers in
the ratio of 2:3 and the remaining 50% of the vacancies to be filled by direct
recruitment in the manner specified in the Second Schedule. That is to say,
there is certain amount of flexibility and it cannot be that the appellant who
is a Radiologist in the Maulana Azad Medical College which is a post belonging
to Specialists Grade II, cannot be appointed by direct recruitment as Professor
of Radiotherapy under r. 8 (2).
The Ministry of Health seems to quite
oblivious of the fact that during the pendency of appeal, the post of Professor
of Radiotherapy in Maulana Azad Medical College having fallen be vacant, the
vacancy in the post has to be filled up in the manner provided by r. 8 (2) i.
e. by direct recruitment through the Union Public Service Commission. It is not
disputed before us that the Union Public Service Commission has the power to
relax the qualifications prescribed in the case of candidates otherwise well-
qualified. That being so, the appellant who admittedly is a highly qualified
person and has the requisite teaching experience as Radiologist-cum-Associate
Professor of Radiologist (ex-officio) is clearly eligible for appointment as
Professor of Radiotherapy under r. 8 (2). The Union Public Service Commission
while advertising the post of Professor Radiotherapy which has fallen vacant,
must, as it rightly did, invite the appellant for an interview for being
considered for appointment to that post.
That conclusion however does not relieve us
from dealing 40 with the main question viz. whether the appellant possessed the
qualifications and experience requisite for appointment to the post of
Associate Professor of Radiotherapy. The question must turn on a construction
of r. 8 (2 A) and paragraph 3 of Annexure I to the Second Schedule of the
Rules. As stated above, r. 8 (2) provides that every vacancy in the
Specialists' Grade shall be filled by direct recruitment in the manner
specified in the Second Schedule.
R. 8 (2A) however makes an exception in the
case of Associate Professors and Assistant Professors Sub-r. (2A) of r. 8
contains a non-obstante clause and it reads :
"Notwithstanding anything contained in
sub-r. (2) the vacancies in the post of Associate Professor and Assistant
Professor in the medical colleges and teaching institutions shall be filled by
the appointment of Assistant Professors and Lecturer respectively in the
Specialists' Grade, possessing the qualifications and experience prescribed in
Annexure I to the Second Schedule for the respective post, on the
recommendation of a Departmental Promotion Committee.
Provided that if no suitable officer is
available for appointment to the post of Associate Professor or Assistant
Professor in any medical college or teaching institution from the Grades of
Assistant Professor or Lecturer, as the case may be, such vacancy shall be
filled by direct recruitment in the manner specified in the Second
Schedule." Paragraph 3 of Annexure I to the Second Schedule reads as
follows :
"Specialists' Grade 45 years For
Associate (Rs. 600-1300) and below Professers/Readers (relaxable Assistant
Profe- for Govt. ssors/Lecturers.
servants) A post-graduate degree in the
concerned specially mentioned in Part A of Annexure II or equivalent.
For Associate Professors :
At least 5 years' experience as Reader
/Assistant Professor in 41 the concerned speciality in a medical college
/teaching institution after the requisite post- graduate qualifications.
(Qualifications relaxable at Commissions's
discretion in the case of candidates otherwise well- qualified.)" The contention
on behalf of the respondents is that the appellant could not be considered for
appointment to the post of Associate Professor of Radiotherapy in Maulana Azad
Medical College because the teaching experience gained by him while holding the
post of Radiologist-cum Associate Professor of Radiology (ex-officio) in the
Irwin Hospital since October 9, 1964 cannot be taken into consideration. It is
urged that there is a distinction between the two posts of Radiologist and
Associate Professor of Radiology as the post of Radiologist is a clinical post
while that of Associate Professor of Radiology is a teaching post. That being
so, it was urged that the channels of promotion to the two posts are different
and the appellant who had been substantively appointed to the post of
Radiologist in the Irwin Hospital must seek his own channel of promotion in
Supertime Grade II for a non-teaching job. It is further urged that since the
appellant was not holding the post of an Associate Professor, he was not
drawing the teaching allowance of Rs. 200/- p.m. to which he would otherwise be
entitled. It is also urged that the status of Associate Professor of Radiology
(ex-officio) which the appellant holds in the Irwin Hospital is akin to that of
honorary Professor or Associate Professor in the Willing- don Hospital or the
Safdarjang Hospital and the mere designation of the appellant as Associate
Professor of Radiology (ex- officio) by the University of Delhi does not give
him a right to hold the post of Professor of Radiology in Maulana Azad Medical
College. It is pointed out that a similar question arose in connection with the
conferral of honorary teaching designations on certain medical officers in the
Willingdon Hospital and Safdarjang Hospital, New Delhi in the year 1973. It is
said that the President of India was pleased to direct that the conferral of
such teaching designations would not entitle the Specialists to claim seniority
or eligibility for promotion merely by virtue of these honorary designations,
nor would it entitle the incumbent any special benefit with regard to any
teaching 42 allowance which may be given to the teachers in a medical college.
By parity of reasoning, it is urged that the designation of the appellant as a
Radiologist cum-Associate Professor of Radiology (ex-officio) did not make him
eligible for appointment to the post of Associate Professor of Radiotherapy in
Maulana Azad Medical College. We are afraid, we cannot subscribe to this line
of argument.
We find it rather difficult to support the
impugned action of the Government of India in the Health Ministry in holding
that the teaching experience gained by the appellant as Radiologist
cum-Associate Professor or Radiology (ex- officio) with effect from October 9,
1964 cannot be taken into consideration. The view taken by the Health Ministry
appears to proceed, on a misconstruction of r. 8 (2A) and paragraph 3 of
Annexure I to the Second Schedule. As already stated, the word "as"
in these provisions must, in the context in which it appears, be interpreted to
mean "in the capacity of". The Ministry of Health cannot be heard to
say that the appellant has not acquired the status of an Associate Professor of
Radiology with effect from October, 9, 1964, particularly when the Central
Government have been utilizing his services as such for teaching the post-
graduate and under graduate students of the Maulana Azad Medical College for
the M.D., M.S., D.M.R.T. and M.B.B.S. courses of studies for the last 17 years.
The arrangement has continued for all these years with the approval of the
Delhi University and presumably with the tacit sanction of the Medical Council
of India. In our opinion, the provisions contained in r. 8 (2A) and paragraph 3
of Annexure I to the Second Schedule must be interpreted in a broad and liberal
sense as it would otherwise work great injustice to persons in Specialists
Grade II like the appellant who, while holding a non-clinical post in a
teaching hospital like the Irwin Hospital, has been actually teaching the
students of the Maulana Azad Medical College to which it is affiliated.
The contention that the position which the
appellant enjoys as Radiologist-cum-Associate Professor of Radiology (ex-
officio) in the Irwin Hospital is similar to that of honorary Professor or
Associate Professor in the Willingdon Hospital or the Safdarjang Hospital and
the mere designation of the appellant as such does not give him a right to hold
the post of Associate Professor of Radiology, cannot prevail. There is no order
placed before us of the President of India directing that conferral of honorary
teaching designations on Specialists in the Willingdon 43 Hospital and the
Safdarjang Hospital would not entitle such Specialists to claim seniority or
eligibility for promotion.
Even if it were so, that would hardly make
any difference.
The submission overlooks the distinction
between a teaching and a non-teaching hospital. There cannot be a medical
college without a teaching hospital as its integral and inseparable part. The
mere fact that the appellant was not drawing a teaching allowance of Rs. 200/-
p.m. is of no legal consequence because the allowance is attached to the post
of Associate Professor.
We wish to make it clear that it is not for
the Court to give the appellant promotion or make his appointment to the post
of Professor of Radiotherapy. The Court can only on a true construction of r. 8
(2A) and paragraph 3 of Annexure I to the Second Schedule determine the
question of his eligibility for such promotion or appointment. If the appellant
is eligible to hold the post of Professor of Radiotherapy, he can always apply
irrespective of the fact whether or not he is in the line of promotion. It is
for the Union Public Service Commission to advertise the post of Professor of
Radiotherapy and everyone who satisfies the required qualifications can make an
application. That is because the Commission undoubtedly has the power to relax
any of the qualifications.
The result therefore is that the appeal must
succeed and is allowed with costs. The judgment and order of the High Court is
set aside and the impugned order passed by the Government of India, Ministry of
Health & Family Planning, Department of Health New Delhi dated February 23,
1974 is quashed. It is declared that the appellant had acquired the requisite
teaching experience as envisaged by r. 8 (2A) and paragraph 3 of Annexure I to
the Second Schedule of the Central Health Service Rules, 1963, as amended by
the Central Health Service (Amendment) Rules, 1966, and was therefore eligible
to be considered for appointment to the post of Associate Professor of
Radiotherapy in Maulana Azad Medical College which had fallen vacant in 1973.
The second respondent shall give effect to the declaration. As a necessary
consequence, we direct the Union Public Service Commission to re-advertize the
post of Professor of Radiology in Malulana Azad Medical College, New Delhi
which had fallen vacant during the pendency of the appeal and call the
appellant for an interview for being considered appointment to that post.
44 We wish to clarify that the declaration
shall not adversely affect or act to the detriment of any person who was and is
senior to the appellant in the Central Health Service or had already been
appointed as Associate Professor in the concerned speciality.
S.R. Appeal allowed.
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