http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: DIRECTOR, A.I.I.M.S.ETC.

       Vs.

RESPONDENT: DR.NLKHIL TANDON & ORS.

DATE OF JUDGMENT:       20/02/1996

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) VENKATASWAMI K. (J)

CITATION:  JT 1996 (2)   473        1996 SCALE  (2)362

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T B.P. JEEVAN REDDY,J.      The All India Institute of Medical Sciences [A.I.I.M.S] published  a   notification  calling  for  applications  for appointment to  several posts includinq a posts of Assistant Professor in  Endocrinology. According  to the  notification published in  the newspapers  dated August 20,1992, the last date for  applying was  October 7,  1992. We  are  concerned herein with  the selection  and appointment  to the  post of assistant Professor  [Endocrinology]. Pursuant  to the  said notifications  several   persons  applied  for  these  posts including Dr.Nikhil  Tandon and Dr.Ajay Sood. Qualifications and other  criteria of  eligibility was  as provided  in the Rules and  Regulations prescribed  by the  Institute,  i.e., A.I.I.M.S. the  selection committee met and prepared a panel of two  candidates. Tandon  was placed  at No.1  and Sood at No.2. The  selection committee  recommended that  since both the candidates  are of high merit it would be appropriate if the Institute  creates another post to accommodate Sood. It, however, appears  that the  Institute could  not  create  an additional post  and since  there  was  only  one  posts  it appointed Tandon to it. Sood went to Delhi High Court by way of a writ petition questioning the selection and appointment of Tandon.  Though several  grounds were  raised in the writ petition, only  one point  was urged at the time of hearings Viz.   that Tandon  was not  qualified to hold the said post and, therefore,  his selection  and appointment  is illegal. The Delhi  High Court has upheld the said contention and has set aside the selection and appointment of Tandon. These two Special Leave  Petitions are  preferred by  Tandon  and  the Institute.      Leave granted in both the Special Leave Petitions.      The Institute  was established  and is  governed by the All India Institute of Medical Sciences Acts 1956. Section 5 declares the  Institute to  be an  Institution  of  national importance.  Section  23  provides  that  "(N)otwithstanding

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

anything contained  in the  Indian Medical Council Acts 1933 the medical  degrees and  diplomas granted  by the Institute under this  Act shall  be recognised  medical qualifications for the  purposes of  that Act  and shall  be deemed  to  be included in  the first  Schedule to  that Act."  Section  24 empowers the  Institute to  grant medical  degrees, diplomas and other  academic distinctions  and titles  under the Act. Section 28  confers the  rule-making power  upon the Central Government to  carry out  the purpose  of  the  Act  whereas Section 29  empowers the  Institute to  make regulations  in respect  of  matters  provided  therein  with  the  previous approval of the Central Government.      The All India Institute of Medical Sciences Recruitment Rules, 1981  prescribe the method and mode of recruitment to the posts  in the  Institute. Rule  12 which carries the sub heading  "Qualifications"   says  that   the  academic   and professional qualifications  including experience prescribed for each  post shall be as per Schedule-I to the Rules. Rule 11,   which    carries   the    sub-heading    "Postgraduate Qualifications", reads:  "Postgraduate qualification means a postgraduate qualification  recognised as  per  the  Medical Council of  India Act  and for this purpose the holder of an M.A.M.S.   (Membership of  the Academy  of Medical Sciences) awarded after  an examination  held by the Indian Academy of Medical Sciences  will be  deemed to  possess  a  recognised postgraduate  (degree)  qualification".  Schedule-I  to  the Rules prescribes  the qualifications  for the teaching posts mentioned therein.  SI.No.7 of  the Schedule pertains to the post of Assistant Professor. It reads:      "Assistant Professor  (Medical) Pay      Scale: Rs.3500-125-4500+NPA.      Essential:  1  to  3  same  as  for      Professor (Medical)      EXPERIENCE       (for       qeneral      disciplines): Three  years teaching      and/or   research   experience   in      recognised   Institution   in   the      subject   of    speciality    after      obtaining the  qualifying degree of      MD/MS or  qualification  equivalent      thereto.      EXPERIENCE  (For  Superspecialities      disciplines):  One   year  teachinq      and/or  research  experience  after      obtaining     M.Ch/     D.M.     or      qualification recognised equivalent      thereto."      We are not concerned herein with the experience part of it, but only with the qualifications mentioned as essential. The essential  qualifications for assistant Professor’s post are the  same  as  prescribed  for  the  post  of  Professor (Medical) which  is mentioned  at Sl.No.1  in the  Schedules which reads:      "Professor  (Medical)   Pay   Scale      Rs.5900-200-7300+NPA      Essential Qualifications:      1. A medical qualification included      in the  I or II schedule or part II      of the third schedule to the Indian      Medical   Council   Act   of   1956      (persons possessing  Qualifications      included  in   part  II   or  third      schedule  should  also  fulfil  the      conditions  specified   in  section      13(3) Of  the Act).

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

    2.  A   postgraduate  qualification      e.g.   MD/MS    or   a   recognised      qualification equivalent thereto in      the respective discipline/subject.                       and/or      3.     M.Ch.      for      surgical      superspecialities  and   D.M.   for      Medical    superspecialities     or      qualification recognised equivalent      thereto." Here again,  there  is  no  dispute  that  Tandon  possesses essential qualifications  mentioned under Items 1 and 2. The only dispute  is whether  he  possesses  the  qualifications prescribed under Item No.3. To be more precise, the question is whether  Tandon hold "D.M. for medical superspeciailities or qualification recognised equivalent thereto". Admittedly, Tandon does  not hold the qualification of D.M. The question is whether he holds the qualification which is recognised as equivalent to  D.M.? Tandon  says, he does and the Institute supports him whereas Sood says that Tandon does not.      After obtaining his M.D., Tandon went to United Kingdom and was  working  in  the  Cambridge  University  for  Ph.D. qualification. He joined the Ph.D. course there on April 17, 1990. By  April 17,  1992, he  had completed two years. As a matter of  fact, he  completed his  three years’  course  on April 17,  1993 and  it is stated that he obtained his Ph.D. qualification on  June 22.1993.  Tandon says, his two years’ training at  Cambridge University while working for Ph.D. is the qualification recognised as equivalent to D.M.      According to  the notification calling for applications issued by  the Institute,  the last  date for submitting the applications was October 7, 1992. It, therefore follows that the qualifications  of an  applicant should  be  ascertained with reference  to that  date alone. [So far as "experience" is concerneds  the  notification  issued  by  the  Institute itself  says   that  "the  effective  date  upto  which  the experience must  be completed  will be June 30,1993". But as stated hereinabove, we are not concerned with the experience part of  the qualifications  in this  matter.] By October 7, 1992, Tandon  had put in more than two years’ training while working for  his Ph.D.  in  the  Cambridge  University.  The question to  repeat, is  whether that training for two years can be  treated as  a qualification recognised as equivalent to D.M.?      Sri Arun Jaitley, learned counsel for the Institute and Sri Soli  J.Sorabjee, learned  counsel for Tandon, submitted that  in   the  absence  of  any  orders  by  the  Institute recognising any  particular qualification  as equivalent  to D.M., it  would be legitimate to refer to the qualifications prescribed by  the Indian Medical Council for similar posts. Learned counsel  relied upon  the  Brochure  issued  by  the Medical Council  of India  entitled "Recommendations  on the qualifications required  for Appointment  of persons  to the posts of Teachers in Medical Colleges and attached Hospitals for graduate  and postgraduate  teaching" in the years 1989. The Brochure  mentions the  special academic  qualifications and teaching experience required for several posts mentioned therein. So far as the post of Professor in Endocrinology is concerned, the  academic qualifications prescribed are "D.h. (Endocrinology), M.D.  in medicine  with two  years  special training in Endocrinology". Learned counsel pointed out that in the  said Brochure  wherever  it  is  required  that  the special training  must be  obtained in India, it has been so specified. By  way  of  illustration,  they  rely  upon  the academic qualification  prescribed for the post of Professor

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

in the  Department of  Physical Medicine  and Rehabilitation Cat Page  22]. The  academic qualification mentioned for the said’ post  is "M.S.  in General Surgery/M.S. (Orthopaedics) with two  years’  special  training  in  the  speciality  of Physical   Medicine   and   Rehabilitation   (Rehabilitation Medicine) or  two years  of equivalent  training approved in the subject  in  any  approved  Institution  in  India."  By contrasting the  language of the said qualification with the language employed  in the  academic qualification prescribed for the  post of Professor in Endocrinology, it is contended that two,  years’ special training in Endocrinology need not be in  an Institute  in  India  ors  for  that  matters  any recognised or  approved institution  in India and that it is enough  if   such  special  training  is  obttained  in  any Institution of  repute. Learned  counsel stressed  the  well established reputation  of the  Cambridge  University  where Tandon was  undergoing the  training and  doing research for his Ph.D.  Reliance was  also placed  upon the  letter dated September 16,1993  issued from  the Medical Council of India addressed to Tandon, which reads as follows:                "MEDICAL COUNCIL OF INDIA No.MCI-12(1)/93-Med./14815                  Date: 16.9.93 To Professor P.N.Tandon Deptt. of Neurosurgery, All India Instt. of Medical Sciences, Ansari Nagar, New Delhi - 110 O29. ---------   ------- Sub:-     Teachers’ Eligibility Qualifications - Appointment           of persons  to the  different posts of teachers in           the Deptt. of Endocrinology.                          **   **   ** Sir,           With reference  to your  letter dated  nil on  the subject noted  above, I am to state that the Medical Council of India  in its  recommendations on  Teachers’  Eligibility Qualifications to  the different  post of  teachers  in  the Deptt. of Endocrinology have prescribed as under: Post        Qualification             Teaching Exp. ----        -------------             ------------- Professor   D.M. (Endocrinology)      (a) As   Reader    in             M.D.  in    Medicine          Endocrinology for             with    2      years          4   years  in   a             special     training          medical  college.             in    Endocrinology. Reader           -do-                 (b) As   Lecturer   in                                           Endocrinology  for                                           5   years   in   a                                           medical   college. Lecturer         -do-                 (c) Requisite   recog-                                           nised postgraduate                                           qualification   in                                           the       subject.      It is  clarified  that  a  person  is  eligible  to  be appointed as  teacher  in  the  speciality  either  with  DM (Endocrinology) or  with  M.D.  in  Medicine  with  2  years special training in Endocrinology.                                            Yours faithfully,                                                   sd/                                            (MRS. M.SACHDEVA)                                                SECRETARY"      On  the   question  whether  D.M.  is  a  post-graduate qualification or a superspeciality, learned counsel stressed the language  in qualification  No.2 prescribed for the post

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

of Professor  in Schedule-I  to the  A.I.I.M.S.  Recruitment Rules, 1981  viz.,  "a  post-graduate  qualification,  e.g., H.D./M.S.   or   a   recognised   qualification   equivalent thereto...". Learned  counsel emphasised  the fact  that the Institute  is  an  autonomous  and  statutory  body  and  is entitled  to   decide  for  itself  which  qualificatian  is equivalent to D.M. Inasmuch as the Institute has treated the two years’  special training  of  Tandon  at  the  Cambridge University as  equivalent to  D.M. qualifications  it is not open to  any other  person to  question it. They pointed out that not  only the Institute but the selection committee was also satisfied  that Tandon  did satisfy the requirements of Rules and  that in  such a  case, it was not appropriate for the High  Court to interfere and declare that Tandon was not qualified.      Sri Devendra  Singh, learned  counsel for  Sood, on the other hand,  supported the  reasoning and  conclusion of the High Court.  The learned  counsel submitted  that D.M.  is a post-graduate qualification  as has  been mentioned  in  the prospectus  issued   by  the   Institute  itself  concerning admission to courses conducted by it. Learned counsel relied upon the  Recommendations of the Medical Council of India on Post-graduate Medical Education (revised upto January, 1988) wherein at Page 6, the following statement occurs:      "1.Nomenclature:      The Committee  was of  the  opinion      that  the   following  nomenclature      should be uniformly adopted for all      clinical and non-clinical subjects.      For the  postgraduate  degree,  the      following degree, were recommended:      (c) D.M.M.Ch.  for specialities  in      which a candidate should have taken      prior  to   M.D./M.S.,  i.e.,   for      specialities in Category ’C’."      Counsel placed  reliance on  Rule 11 of the Recruitment Rules which  says that  "post-graduate qualification means a postgraduate qualification  recognised as  per  the  Medical Council of India Act" and contended on that basis that since the qualifications  or the  training in  any Institution  in United Kingdom  is not  recognised by the Medical Council of India, neither  of them  can  be  treated  as  post-graduate qualification. Counsel pointed out that while prior to 1978, the United  Kingdom qualifications were recognised in India, they are  not so  recognised since 1978. If a degree awarded by the  Cambridge  University  is  not  recognised  for  the purpose of  appointment to  any post  in India,  the learned counsel says,  the training  undergone by  a person  in such University cannot  also be  taken into account. The training contemplated by  the First Schedule to the Recruitment Rules is the  training which  is recognised by the Medical Council of India,  i.e., in  an Institute  approved or recognised by Medical Council of India. He submitted that neither is there a general  order nor a special order recognising the alleged training undergone  by Tandon  as a qualification equivalent to D.M. by the Institute or by the Medical Council of India.      We are  of the  opinion that the two years’ training at Cambridge University  undergone by  Tandon while working for his Ph.D. cannot be treated as a qualification recognised as equivalent to Schedule-I to the A.I.I.M.S. Recruitment Rules speaks of  D.M. qualification  or a qualification recognised as equivalent  thereto. It  is not  mere equivalence that is enough. It must also be recognised as equivalent. Recognised evidently means  recognised by  the Institute or at least by the  Medical  Council  of  India.  Admittedly,  neither  has

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

recognised the  said research work/training for two years in the Cambridge  University as equivalent to D.M. It is agreed before  us   that  the  degrees  awarded  by  the  Cambridge University are  not recognised  in India  since  1978.  This means  that   even  if   Tandon  had   obtained  his   Ph.D. qualification from Cambridge University on or before October 7,  1992,   it  could   not  have   been  recognised   as  a qualification   equivalent    to   D.M.   If   so,   it   is ununderstandable how the two years’ research/training put in by Tandon  while working  for the  said qualification can be counted as  a qualification recognised as equivalent to D.M. It may  be equivalent;  it may  be more. But the question is whether it  is recognised - and admittedly it is not. We are not impressed  by the argument of Sri Jaitley that the words "M.D. in  Medicine  with  two  years’  special  training  in Endocrinology" in  the Recommendations of Medical Council of India with respect to the post of Professor in Endocrinology means two  years’ special training in Endocrinology anywhere in the  world. The said words have to be read and understood in the  context of  the A.I.I.M.S  Recruitment Rules and the First  Schedule  thereto.  The  submission  based  upon  the contrast  in   the   language   used   in   describing   the qualifications for  Professor in endocrinology and Professor in the department of Physical Medicine and Rehabilitation is unacceptable. Sri  Jaitely could  not  point  out  any  such requirement against  any other  qualification  in  the  said Recommendations. Based  upon the  use of  the words, "in any approved  Institution   in  India"   in  the  qualifications mentioned  for   one  among   the  several   posts  in   the Recommendations,  it  is  not  possible  to  hold  that  the qualifications  awarded   by  Institutions   which  are  not recognised by  the MedicaI  Council of India or the training undergone in  such Institutions  has become  recognised. The acceptance  of   this   argument   would   mean   that   the qualifications not  recognised by  the Institute  or Medical Council of  India become recognised ln this indirect manner. We cannot countenance such an argument.      It is  also not  possible to  agree  with  the  learned counsel for the appellants that because the Institute was of the opinion that Tandon was qualified according to the Rules and forwarded  his name  for consideration  by the selection committees it  amounts to  "recognition"  of  the  said  two years’ training  as a  recognised equivalent  qualification. Recognition must  be by a general order/proceeding published for the  information of all concerned. It cannot be a matter decided in a given case for the purpose of that case.      In the  written arguments  submitted by  Tandons a  new submission is  urged based upon certain statements contained in the  Special Leave  Petition. It is submitted that though the qualifications  awarded by  the Cambridge University may not be  recognised by  the Medical  Council  of  India,  the qualifications  awarded   by  University   of   London   and University of  Sheffield continue  to be  recognised. It  is submitted that  part of  the training/research undertaken by him while  working for  his  Ph.D.  was  at  Sheffield  and, therefore, it must be treated as a recognised qualification. Firstly, this  submissions which  is factual  in nature, was not urged in the High Court. Secondly, even if it is assumed for the sake of argument that the qualifications and degrees awarded by  the  University  of  Sheffield  continue  to  be recognised, it appears from the averments made and documents filed by  Tandon that  his experience  in the  University of Sheffield is  from October,  1991 to  Aprils  1993.  He  was permitted by the Cambridge University, on November 20, 1990, to shift  to the University of Sheffield. By a communication

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

dated June  6, 1990,  the University  of Sheffield agreed to the transfer  of his  studies for  the degree  of Ph.D  from Cambridge to  Sheffield "for  the period  October,  1991  to April, 1993". It is thus evident that by October 7, 1992, he had not  undergone two  years’ training at Sheffield. If so, the said circumstance cannot also advance his case.      In view of the above, it is not necessary for us to go  into   other  questions  arising  herein  including  the question whether  the D.M.  qualification is a post-graduate qualification for  the purposes  of the  appointment in  the institute.      It is a matter of regret that a selection made by a competent and qualified selection committee has to be set aside on the aforesaid ground but the Court is left with no alternative in the circumstances. It would have been in the fitness of things, if the Institute could create another post  and  accommodate  both  Tandon  and  Sood,  as recommended by  the selection committee. Even now, it is not too late  for the  Institute to consider the said suggestion of the selection committee.      The appeals accordingly fail and are dismissed. No costs.