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PETITIONER: Dr. ARUN KUMAR AGRAWAL AND ORS. ETC

       Vs.

RESPONDENT: STATE OF BIHAR AND ORS.

DATE OF JUDGMENT26/04/1991

BENCH: KASLIWAL, N.M. (J) BENCH: 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.

HEADNOTE:      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

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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].

JUDGMENT:      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.

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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 :

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        "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

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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

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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

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                                             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

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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.                                                        501