Dr. Arun
Kumar Agrawal & Ors Etc Vs. State of Bihar & Ors [1991] INSC 118 (26 April 1991)
Kasliwal, N.M. (J) Kasliwal, N.M. (J) Punchhi, M.M.
CITATION:
1991 AIR 1514 1991 SCR (2) 491 1991 SCC Supl. (1) 287 JT 1991 (2) 352 1991
SCALE (1)812
ACT:
Civil
Services-Bihar Medical Service-Post of Assistant Professor of
Neurosurgery-Appointment-Panel prepared by Selection Committee approved by
Government-Special, Parent speciality and super speciality-Distinction
of-Selection of appellant-Justification of.
HEAD NOTE:
An
advertisement was made for an appointment to the post of Assistant Professor in
Neurosurgery in the Patna Medical College and Hospital. In the panel prepared
by the Selection Committee, which was approved by the State Government, the
appellant was placed at No. 1 and the Respondent No.5 was placed at No.4.
The
Respondent No.5 filed a Writ Petition in the High Court challenging the panel,
contending that he alone was eligible for being appointed as Assistant
Professor Neurosurgery in terms of the advertisement.
The
State Government stated in its counter that the appellant had post-graduate
qualification of M.Ch. in Neurosurgery and research work and working experience
in Neurosurgery and he got preference vide clause 19 of the advertisement; whereas
Respondent No. 5 neither had post- graduate degree nor three years teaching
experience.
The alegation
of Respondent No. 5 that the degree of M.Ch. in Neurosurgery obtained by the
appellant was not recognised, was not accepted by the State Government.
Construing
the clauses of the advertisement, the High Court found the appellant eligible
for the post of Assistant Professor, however, it held that the appellant
secured 14 points while the Respondent No. 5, 28 points and as such the
appellant was not entitled to any preference and allowed the Writ Petition of
Respondent No.5, against which the appeal has been filed.
The
controversy before this court is limited between the appellant and the
Respondent No. 5.
492
Allowing the appeals, this Court,
HELD
:1. The appellant is holding a degree of M.Ch. in the super speciality of
Neurosurgery itself as well as research work and working experience in the
super speciality. Respondent No. 5 is M.S.(General Surgery). None of the
persons is having more than three years teaching experience in order to get an
over-riding preference. [499B- C]
2. The
Selection Committee consisting of experts in Neurosurgery considered the
appellant more meritorious and he was placed at No. 1 in the panel and the
State Government also approved the same. [499C-D].
3. The
post of Assistant Professor is a teaching post in the subject of Neurosurgery
and it is beyond comprehension as to how the Respondent No. 5 who is only M. S.(General
Surgery), can teach candidates for the degree of M.Ch. (Neuro Surgery), which
is much higher degree than M.S for even a person having M.S degree has to
further pass M.Ch. Part II and Part III examinations before obtaining M.Ch.
degree in Neuro Surgery [499A-B].
4.
While the MBBS is a basic degree, its classification in different branches can
be labelled as parent specialities like Orthopaedics, General Surgery, Medicine
etc. The parent specialities are manned by those who are recipients of post
graduate degree in that particular speciality like M.S (General Surgery), M.S.
(Orthopaedics) M.D. (Medicine).
Further
growth of medical sciences resulted into more and more super specialities, as
for example, Neuro Surgery , Paediatrics, Surgery, Plastic Surgery , Neurology,
Cardiology etc. The candidate who complete the course of super specialities are
conferred with the degree of M.Ch.
(Master
of Chirurgery )in case the super specialities relate to surgery, and the degree
of D.M. (Doctor of Medicine) if the same relates to Medicine. [497A-C].
CIVIL
APPELLATE JURISDICTION (Civil Appeal Nos. 2069- 2070 of 1991).
From
the Judgement and Order dated 20.12.1990 of the Patna High court in C.W.J.C No.
7789 of 1988.
Kapil Sibal,
Ranjit Kumar, B.B. Singh, Harish N. Salve and L.R. Singh for the appearing
parties.
The Judgement
of the Court was delivered by 493 KASLIWAL, J. Special Leave granted.
These
appeals by Dr. Arun Kumar Agrawal (appellant) and the State of Bihar are directed against the Judgement
of the Patna High Court dated 20th December, 1990. The dispute relates for an appointment on the post of Assistant
Professor in Neurosurgery in the Patna Medical College and hospital, Patna in pursuance to an advertisement dated 19.12.1987. The Selection
Committee prepared a panel on 4.7.1988 which was approved by the State Government
on 26.9.88. In the aforesaid panel the appellant was placed at No.1 Dr. Chandra
Shekhar Kashyap No.2, Dr. Shankar Bhuwan Prasad at No.3 and Dr. Chandra Mohan Jha
at No.4. Dr. Chandra Mohan Jha filed a writ petition in the High Court
challenging the above panel on grounds inter alia that Dr. Agrawal, Dr. Chandra
Shekhar and Dr. Shankar Bhuwan Prasad placed above him in the panel did not fulfil
the minimum eligibility criteria laid down in the advertisement for the
appointment to the post of Assistant Professor, Neurosurgery. His contention
was that he ought to have been placed at No.1 and he alone was eligible for
being appointed as Assistant Professor, Neurosurgery in terms of the
advertisement. It may be mentioned at this stage that the controversy before us
is between the appellant and Dr. Chandra Mohan Jha. Respondent No. 5 . In order
to appreciate the controversy it would be proper to reproduce the relevant
provisions of the advertisement as translated in English and extracted in the Judgement
of the high Court:
Clause
2(C) :
"For
the post of Assistant Professor and Registrar it will be essential for the
candidate to have obtained in the same speciality for which the application is
being made, M.D., M.S., F.R.C.S. (U.K.), M.R.C.O.G, (U.K.) or American Board of
speciality or any other post graduate qualification, considered by the Medical
Council of India as equivalent to the aforesaid degrees. Post graduate
qualification obtained from the U.K.
after November 11, 1976 shall not be granted recognition".
Clause
3 "For Assistant Professor:
(a)
Resident/Registrar in the same speciality or officers having worked on the two
posts in an educational hospital, having worked on the two posts in an
educational hospital, having obtained recognition 494 from the Medical Council
of India for conducting M.B.B.S course, alone can apply.
(b)
Service on any other accepted/acknowledged teaching post (Jr. Surgeon/Jr.
Physician) in the same subject for which the application is being made shall be
considered equivalent to Registrar/Resident.
(c) In
addition to the other conditions Resident/Registrar in the concerned subject or
medical officers having a minimum of three years experience on the two posts
shall alone be eligible to apply. This, however, shall not be essential for
Radiology, Skin & V.D. , Anaesthesia, Neurology, Neurosurgery, Plastic
Surgery or any speciality to be constituted in future, nor shall it be
essential to obtain the prescribed minimum of 15 points for being posted in
these subjects. In these subjects, however, in case one or more than one such
candidates are available who have obtained three years teaching experience in
the concerned speciality, than in that situation, the Medical Officers having
such experience shall be entitled to foremost consideration for appointment and
they shall be appointed although they might have obtained less points than
those candidates who do not possess three years teaching experience.
Clause
3(f) (Cha) :
"It
is essential to obtain 15 points for appointment to the post of Assistant
Professor, however, for the specialities enumerated in the aforesaid clause 3
the minimum point shall be 6. In case, candidates obtaining the aforesaid
points are not available in the desired number then the Government, in order to
fill up the vacancies, shall have the right to relax the minimum points".
Clause
18 :
"For
the post of Registrar and Resident Doctor in the units (specialities) of
Cardiology, Cardiothoracic Surgery, Neuro Surgery, Gastro Entrology, Paediatric
Surgery and Kidney in addition to the necessity of fulfilling the conditions,
contained in clauses 4 and 6 respectively, preference shall be given for
working experience in the concerned subject." Clause 19 :
"For
appointment to the post of Assistant Professor in the aforesaid major super specialities,
the 495 degree and the teaching experience in the related basic (parent)
subject as enumerated in clause 3 will be essential. However, those having
degrees, research work or working experience shall be given preference."
The appellant passed his M.B.B.S. in 1977, did his internship in all subjects
in 1977-78, one year's housemanship in general surgery in 1978-79 and another
term of one year paid housemanship in Neurosurgery. The appellant opted for
M.Ch. five years degree course in 1980. He passed M.Ch. Part-I University
examination in General Surgery in 1982, M.Ch. Part-II University Examination in
Basic Neuro Science in 1984 and M.Ch. Part-III University Examination in
Clinical Neurosurgery in 1985. He entered the State Health Services in 1983 and
was posted on study reserve post in the department of Neurosurgery at Ranchi Medical College. He was posted at Hilsa Block in
1985 and deputed to do full work as Resident Casaulty Neuro Surgeon in
September, 1987.
Dr.
Chandra Mohan Jha passed his M.B.B.S. in 1974 and M.S. (General Surgery) in
1979. He joined Bihar Health Services through Public Service Comission on 20th April 1978 and remained in rural services upto
1983. He worked as Resident Surgical Officer (General Surgery) including
Neurosurgery at DMCH Lahera Sarai from 23.8.83 to 26.9.86.
He was
then posted as Resident Surgical Officer (Neuro surgery) at Patna Medical College Hospital, Patna from 27.9.86 till the last date of
making application i.e. 31.1.1988 . It is not necessary to mention further
postings as we are concerned only upto the date of making application.
The
State Government in its counter affidavit filed in the High Court inter alia
stated that the appellant had post graduate qualification of M.Ch. in Neurosurgery
and research work and working experience in Neurosurgery and , therefore, he
got preference vide clause 19 of the advertisement. Dr. Chandra Mohan Jha ,
Respondent No. 5 neither had post graduate degree, nor three years teaching
experience in the subject, i.e. Neurosurgery and, therefore, he was placed at Sl.No.
4 of the merit list. It was also stated that the course of M.Ch. in
Neurosurgery was being run only in the Rajendra Medical College, Ranchi, which the State Government recognised,
and, therefore, the allegations of the writ petitioner (Respondent No. 5) that
the degree obtained by the appellant was not recognised, was baseless and
incorrect.
496
The High Court held that according to the various clauses of the advertisement
the requirements for the post of Assistant Professor in Neurosurgery could be
broadly classified under three heads. The first related to the group to which
the applicant must belong and that was confined to the cadre of the Medical
Officers of the State Health Service and Junior Teachers and Medical Officers
working in the erstwhile private medical colleges. The second condition related
to the academic qualification required and according to that the candidate must
have a post graduate degree in the same clinical subject, in which he had
applied for the post of Assistant Professor. The High Court illustrated that a
candidate for Assistant Professorship in Medicine must have a M.D. Degree in
Medicine; a candidate for Assistant Professorship in general surgery must have
a M.S. degree in general surgery and a candidate for Assistant Professorship in
Neuro Surgery must have in Neurosurgery a post graduate degree. The third
condition related to experience and called for a careful consideration. The
High Court came to the conclusion as per sub clause (c) of Clause 3 that with
the exception of Neuro Surgery and six other clinical subjects, a candidate in
all other subjects had to have three years minimum teaching experience in the
same clinical subject. Further, in the clinical subject of Neurosurgery and six
other subjects, there was no minimum period of time attached to it but the only
condition was that he ought to have working as a Resident/Registrar in the
subject of Neurosurgery or the other six, as the case may be. While construing
the two provisos of sub clause (c) of clause 3, the High Court found that a
candidate for Neurosurgery having teaching experience for three years would
receive the foremost consideration and shall be offered appointment. The High
Court further held that clauses 2 & 3 of the advertisement were to be
understood without involving any distinction of speciality, parent speciality
and super speciality. The said clauses treated all the clinical subjects at par
and the requirements contained therein applied to each subject. The High Court
found the appellant eligible for the post of Assistant Professor in terms of
the advertisement. However, it held that the appellant secured 14 points while
the Respondent No. 5, 28 points and as such the appellant was not entitled to
any preference.
In
order to appreciate the controversy, it would be proper to explain the courses
of M.Ch. degree possesed by the appellant and the M.S. (General Surgery) degree
possessed by Respondent No. 5 M.Ch. course was initiated in the Rajdenra
Medical College, Ranchi by the State Government M.Ch. Part I examination
consists of General Surgery and it is held after a period of two years. Part II
and 497 III courses of the M.Ch. degree consists of specialisation in Neuro Surgery
. During the course of examination for Neuro Surgery in Parts II and III a
candidate has to undergo viva voce test by experts in Neurosurgery. While the
MBBS is a basic degree, its classification in different branches can be labelled
as parent specialities like Orthopaedics, General Surgery, Medicine etc. The
parent specialities are manned by those who are recipients of post graduate
degree in that particular speciality like M.S. (General Surgery), M.S (Orthopaedics).
M.D (Medicine). Further growth of medical sciences resulted into more and more
super specialities as for example Neuro Surgery, Paediatrics, Surgery, Plastic
Surgery, Neurology, Cardiology, etc. The candidates who complete the course of
super specialities are conferred with the degree of M.Ch. (Master of Chirurgery)
in case the super specialities relate to Surgery, and the degree of D.M.
(Doctor of Medicine) if the same relates to Medicine. Now so far as the post
graduate degree courses in parent specialities called M.S. or M.D. are
concerned are of two years duration, whereas those for super specialities
conferring degrees like M.Ch. and D.M. are of five years duration after
internship. In many universities for obtaining degree of M.Ch. in the
particular super speciality, one has to be M.S. in the related parent speciality
and the course is of three years for such post graduate degree holders.
The Ranchi
University kept the duration of M.Ch. course of five years and it was provided
that if a person having basic degree of M.B.B.S. joined such course, he would
have to pass M.Ch.Part I examination after devoting two years to General
Surgery and only after passing the said M.Ch. Part I examination in General Surgery
, he would be promoted to M.Ch Part II and then M.Ch. part III course, to be
completed in three years. This includes specialisation and research in basic Neuro
Sciences and Clinical Neuro Surgery, to qualify for appearing at the university
examination of M.Ch. Part II and Part III. The University, however, also kept
the doors open for M.Ch. ( Neuro Surgery) course, having a span of three years
for those who were already holders of M.S. degree in General Surgery/Orthopaedics
Surgery and they were directly admitted for M.Ch. Part II course and they had
to study only for three years for M.Ch. Part II and Part III course. Initially
M.Ch courses were started by All India Institute of Medical Sciences only but
later on other universities also followed the same. The Government of Bihar
started M.Ch. (Neurosurgery) five years degree course in Rajendra Medical College, Ranchi in the year 1980 and only one seat was confined for this
course every year in the whole state of Bihar.
Since admission to M.Ch. Course in Neuro 498 Surgery was made only after
completion of one full year as house surgeon in Neuro Surgery, the course
remained of four years duration thereafter.
The
controversy has been raised before us that the M.Ch. degree course in
Neurosurgery awarded by Rajendra Medical College, Ranchi University is not yet recognised for the
purposes of Indian Medical Act, 1956 and a letter of Medical Council of India
dated 27.2.1991 has been placed on record in this regard. Learned counsel for
the respondent No. 5 has tried to contend that M.Ch. degree obtained by the
appellant was of no value as the same has not been recognised so far by the
Medical Council of India . We find no force in this contention, as this course
was started by the Ranchi University in 1980 with the consent of Medical Council of India and
the State of Bihar has recognised such degree imparted
by the Ranchi University and even before this Court learned council appearing for
the State of Bihar has admitted this position. We are
not concerned in this case about the value of such degree for places outside
State of Bihar , but so far as the present case is concerned which relates to
the post of Assistant Professor in Patna Medical College and Hospital, Patna
which post is under the Bihar Government, no such objection can be maintained
by the respondent No. 5.
Before
advertisement to the various clauses of advertisement it would be worth
mentioning that the Medical Council of India in its recommendations published
in 1983 for the posts in the department of Neuro Surgery has laid down as under
:
____________________________________________________________
Post Academic Teaching /Research Qualification Experience
____________________________________________________________ a) Professor M.Ch.
Neurosurgery i) As reader in Neurosurgery for 5 years in medical college b)
Reader -do- ii) As Lecturer in Neurosurgery for 5 years in a medical college c)
Lecturer -do- iii) Requisite recognised postgraduate qualification in the
subject.
d)
Tutor/Registrar/ Resident
____________________________________________________________ 499 Thus for the
post of Lecturer in Neuro Surgery a degree of M.Ch. in Neuro Surgery is
necessary. Admittedly, the post of Assistant Professor in question before us is
a teaching post in the subject of Neurosurgery and it is beyond our
comprehension as to how the respondent No. 5 who is only M.S. (General
Surgery), can teach candidates for the degree of M.Ch. (Neurosurgery) which is
a much higher degree than M.S. and even a person having M.S degree has to
further pass M.Ch. Part II and Part III examination before obtaining M.Ch.
degree in Neurosurgery.
The
appellant is holding a degree of M.Ch in the super speciality of Neuro Surgery
itself as well as research work and working experience in the super speciality.
Respondent No. 5 is M.S (General Surgery) . None of these persons is having
more than three years teaching experience in order to get an over riding
preference. It is not in dispute that the Selection Committee consisting of
experts in Neurosurgery considered the appellant more meritorious and he was
placed at No. 1 in the panel and the State Government also approved the same.
A
reading of exceptions in sub-clause (c) goes to show that for a person having a
super speciality in the subjects mentioned therein which included Neurosurgery,
it was not necessary to have experience but if there was a candidate available
with such super speciality and three years experience, then he would be given
preference. Sub clause (f) of Clause 3 provided that for appointment to the
post of Assistant Professor the minimum number of points required was 15 but
for super speciality, as aforesaid, the minimum required points were six only.
The Government of Bihar who issued the advertisement has also put the same interpretaion
to the Clauses of the advertisement. Though the High Court at one stage held
that a candidate for Assistant Professorship in Neurosurgery must have a post
graduate degree in Neurosurgery and having held that the degree of Neurosurgery
of the appellant was recognised and valid, yet committed a serious error in
giving preference to respondent No. 5, who was having a degree of M.S. in
General Surgery over the appellant who was holding much higher degree of M. Ch
in the super speciality of Neurosurgery itself. The High Court further
committed an error in holding that clause 2 and 3 of the advertisement did not
evolve any distinction of speciality, parent speciality and super speciality. A
mere perusal of the said clauses would show that clause 2(c) and 3(c) does talk
of parent speciality and super speciality and the finding of the High Court in
this regard was clearly errorneous. Clause 3(c) carved 500 out an exception in favour
of super speciality vis a vis experience and, therefore, Clause 3 clearly
speaks about super speciality. The High Court in our view committed a further
error in not appreciating Clause 19 in its correct perspective. Clause 19
envisaged that preference would be given to a person who had a degree in super speciality
along with research or working experience. Thus the appellant having a degree
in super speciality and also having research work or working experience has
been rightly given preference in the matter of appointment to the post of
Assistant Professor in Neurosurgery over respondent No. 5 who did not have a
degree in super speciality.
The
State Government has also taken a clear stand that there was an acute shortage
of qualified Neuro Surgeons in the State and therefore in order to induct
qualified Neuro Surgeons, the Government had provided certain relaxation and
priorities in the criteria for appointment to junior teaching posts in various
medical colleges of Bihar, so that such candidates could be appointed. The
appellant had been given preference by virtue of his having M.Ch degree in
Neurosurgery with research work and working experience. The State Government
has further stated that appellant is qualified Neuro Surgeon and has been
rightly appointed as Assistant Professor of Neuro Surgery vide notification no.
1144 (17) dated 28.12.1990 and the appellant joined the said post on 28.12.90
itself.
Thus
taking in view the entire scheme of the degree of M.Ch. and the relevant
clauses of the advertisement, we are clearly of the view that the appellant was
rightly put in the Select Panel at No. 1 and the Government of Bihar rightly
appointed him on the post of Assistant Professor of Neurosurgery.
In the
result, we allow the appeals, set aside the order of High Court of Patna dated
20.12.90 and dismiss the writ petition filed by Dr. Chandra Mohan Jha
respondent No. 5.
In the
facts and circumstances of the case, there would be no order as to costs.
V.P.R.
Appeals allowed.
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