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PETITIONER: DR. R.K. GOYAL

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT:       05/12/1996

BENCH: S.C. AGRAWAL, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      NANAVATI, J.      This appeal  by special  leave is  directed against the judgment of  the Allahabad  High Court  in Civil  Misc. Writ Petition No. 8914 of 1983.      In February  1981, the  Director of  Medical and Health Services  U.P.,  invited  applications  for  appointment  as lecturers on  ad  hoc  basis  in  different  disciplines  in Medical Colleges  of the State. The appellant and respondent No.4 applied  for the post of lecturer in Orthopaedics. Both of them  were interviewed  by the Selection Board on 3.9.81. The director  of  Medical  Education  prepared  a  panel  of selected candidates  and  recommended  their  names  to  the Government for  appointment. In  February 1982,  the  Public Service  Commission,   U.P.  (PSC   for   short)   gave   an advertisement  inviting   applications  for   the  posts  of lecturers  in   Orthopaedics  and   other  specialities   in different medical  colleges of  the State. A Master’s Degree in the  speciality with  three  years’  teaching  experience including  one   year’s  teaching   experience  after  post- graduation was the minimum required qualification. This time also the  appellant and respondent No.4 applied for the same post.  They   were  interviewed   on  17.5.83.   appellant’s candidature was  cancelled as it was noticed that he did not possess any  teaching experience. The PSC could not give its recommendations  on   account  of  filing  of  several  writ petitions and  court orders.  Under these circumstances, the Government by  an order dated 2.6.83 appointed the appellant as a lecturer in Orthopaedics in the Medical College at Agra for one  year or till the appointment of a properly selected candidate. The  Government terminated his service on 17.4.84 as his  appointment was  ad hoc and for a period of one year only. It  appears that before the order of termination could be served  upon him, he filed writ petition No. 7852 of 1984 in the  Allahabad  High  Court  and  obtained  an  order  of injunction restraining  the authorities from terminating his services. In view of this interim order the State Government passed an  order on  23.6.84 continuing him as lecturer till further  orders.   Later  on   the  appellant   applied  for regularisation of  his  services.  On  30.10.89,  the  State

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Government,  acting  on  the  recommendations  made  by  the Selection Committee  constituted under Rule 4(3) of the U.P. Regularisation of  ad hoc  appointments (on posts within the purview of the PSC) Rules 1979 regularised all those persons who were  appointed on ad hoc basis uptill 1st October, 1986 in various  departments of the State Medical Colleges. Their seniority was  to be fixed later on under Rule 7 of the said rules. The  ad hoc appointment of the appellant thus came to be regularised  and he  was given  seniority from 7.8.89. In view of  these developments  the appellant  allowed his writ petition  to   be  dismissed  on  18.9.91.  Soon  after  the Government had  appointed the  appellant as a lecturer on ad hoc basis  respondent No.4  filed Writ  Petition No.8914  of 1983 in  the Allahabad  High Court  challenging the same. As the  appellant’s   services  were   regularised  during  the pendency of  that  petition,  respondent  No.4  amended  the petition   and   also   challenged   the   said   order   of regularisation passed in 1989.      The High  Court accepted the qualification as stated in the advertisement  given by  the  PSC  as  correct.  As  the appellant did  not possess three years’ teaching experience, the high Court held that the State Government could not have appointed him  as lecturer  even on  ad hoc  basis. The high Court further  held that  as his  initial ad hoc appointment was bad  his services could not have been regularised by the Government even  under the  1978 regularisation  rules.  The High Court  was also  of the  view that as the interim order obtained by him and under which the Government had continued him as  lecturer got  vacated automatically  on dismissal of his  petition,   the  order  passed  by  the  Government  on 17.4.1984 terminating  his services got revived and for that reason also  his appointment could not have been regularised by the  Government under the 1979 rules. The High Court also held that  the conduct  of the  appellant in  obtaining  the interim relief  and then getting the writ petition dismissed was not  bona fide.  The High Court, therefore, declared the ad hoc  appointment of  the appellant  made  on  2.6,83  and regularisation  of   his  services  under  the  order  dated 13.10.89 as  bad and  quashed  the  same.  The  High  Court, however, did  not grant  the prayer  made by respondent No.4 that he should be appointed as lecturer w.e.f. 2.6.83 and be given seniority and consequential benefits from that date.      The decision  of the  High Court  is challenged  on the ground that  the High  Court has erroneously held that there was a  requirement of  three years’  teaching experience for appointment as lecturer. It was also contended that the view taken by  the High  Court  as  regards  the  effect  of  the dismissal of  the  writ  petition  and  termination  of  the interim order  is also  erroneous. On  the other hand it was contended on  behalf of  respondent No.4  that three  years’ teaching experience  was necessary  for the  appointment  in view of the recommendation made to that effect by the Indian Medical Council  and it  was for  that reason  that  in  the advertisement issued by the PSC it was so stated.      Therefore, the  real point  in issue is whether in 1983 when the  appellant was  appointed as  an ad  hoc  lecturer, three years’  teaching experience  was  necessary  for  such appointment. We were told that there were no statutory rules framed by  the Government  and appointments were made on the basis of  executive instructions  issued from  time to time. Neither in 1981 nor in 1983 there was in force any executive order passed  by the Government laying down the condition of three  years’   teaching  experience   for  appointment   of lecturers in Medical Colleges. It was contended on behalf of the State  that for  that reason  the  Director  of  Medical

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Education and  Training, when  he invited  applications  for appointment  as   lecturers  on  ad  hoc  basis  in  medical colleges, had  stated in the advertisement that the required qualification for  the posts was either M.D. or M.S. in that subject. It  was, however, contended on behalf of respondent No.4 that  since the  PSC in  the advertisement dated 2.2.82 given for  regular recruitment  of  lecturers  in  the  said medical   colleges,    had   stated   that   the   essential qualification for  the said posts was a post-graduate degree in the subject and three years’ teaching experience of which one year  should be  after post graduate qualification, this Court should  also proceed  on that basis, in the absence of any other material on record, and uphold the judgment of the High Court.      In view  of this difference in the advertisements given by the Director and the PSC and the contrary assertions made by the parties in this appeal, this Court passed an order on 13.8.96 directing  the Secretary  of the  Medical Council of India to  provide necessary  information with  regard to the qualification prescribed by the Medical Council of India for the post  of lecturer  in Orthopaedics  in 1981. Pursuant to that order the appellant produced along with his affidavit a copy of  the letter  dated 16.8.96  written  by  the  Deputy Secretary of  the council  to the appellant stating that for the post  of lecturer  recommended qualification was a post- graduate degree  in the  subject. As  it was noticed that he qualification mentioned  in that  letter was  different from the qualification  approved by  the Medical  Council in 1974 and as  the said letter did not make it clear as to when the qualification prescribed  in 1974  was modified,  this Court issued a  notice to  the Secretary of the Council on 28.8,96 directing him to let this Court know through an affidavit of a responsible  officer of  the Council  what recommendations were made by the Medical Council from time to time regarding qualifications for  appointment as  a  lecturer  in  medical colleges. By  the said  order the  State Government was also directed to  state on  affidavit  what  qualifications  ware prescribed by  it in  1981 for such appointment. Pursuant to that order  Dr. K.N.  Kapoor officer  on special duty in the office of Director General of Medical Education and Training has filed an affidavit on 16.9.96 wherein he has stated that "The State Government follows the Medical Council of India’s requirement for  the post  and as per the Medical Council of India, the  requisite qualification for the post of lecturer in Orthopaedics on 8.2.81 was as under : (a)  Academic qualifications : MS (Orthopaedics/MCH Ortho) (b)  Teaching/Research  Experience  :  Requisite  recognised post-graduate qualifications  in the  subject." It  is  also state by  him in  that  affidavit  that  the  appellant  did possess the  essential qualifications  when he was appointed on the post.      Dr. K.K. Arora, Deputy Secretary of the Council has now filed an  affidavit stating  what were  the  recommendations made by  the Council  since 1970.  From  that  affidavit  it appears   that    its   recommendations   as   regards   the qualifications required  for  appointment  to  the  post  of teachers in  Medical Colleges  made in  1964 were amended in 1970. They  received the  sanction of the Central Government and thus  became regulations  under Section 33 of the Indian Medical Council  Act. The  qualifications recommended by the Council for  the post  of Assistant  Professor/Lecturer  was M.S. or M.Ch. and three year’s teaching/research experience. The said  recommendations were  revised by  the  Council  in 1974, but  there was  practically no  change with respect to the qualifications  recommended for  appointment on the post

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of Assistant  Professor/Lecturer in  Orthopaedics. The  1974 recommendations were  then revised  in 1980 and this time it modified  the   qualifications  required  for  the  post  of Assistant  Professor/Lecturer   by  doing   away  with   the requirement of teaching experience. The recommendations were again revised in 1981 and 1995, but no modification was made with respect  to teaching  experience with  the result  that since 1980 the qualifications recommended by the Council for appointment on  the post  of  lecturer  in  Orthopaedics  is "requisite recognised  post-graduate  qualification  in  the subject". Thus since 1980 no teaching experience is required for appointment  as a  lecturer in  orthopaedics. Though the Council has forwarded the recommendations made in 1974, 1980 and 1981  to the  Central Government  for its  approval they have not become regulations under the Act, as they are still under the consideration of the Central Government.      It was contended on behalf of respondent No.4 that only the 1970  recommendations can be regarded as binding as they have received the sanction of the Government and have become regulations under  the Indian  Medical Council  Act. As  the subsequent recommendations  of the  Council  have  not  been approved by  the Central  Government they  cannot be said to have replaced  the regulations  of 1971 and, therefore, they have  no  binding  force.  We  find  no  substance  in  this contention  because  even  the  regulations  framed  by  the Medical  Council   with   respect   to   the   qualification recommended for  appointment as teachers in medical colleges are only  directory in  nature as  held by this Court in Dr. Ganga Prasad  Verma and  Ors. Vs.  State of  Bihar and  Ors. reported in  1995 Supp. (1) SCC 192. It is really within the domain of  the State Government to prescribed qualifications for appointment  to various  posts in State Services. Though recruitment to  the State  medical services falls within the purview of the State Government, they are expected to comply with the  regulations  made  by  the  Council  in  order  to maintain high  standard of medical education as held by this Court in Ajay Kumar Singh and Ors. Vs. State of Bihar & Ors. reported in  1994 (4)  SCC  401  and  Government  of  Andhra Pradesh and Anr. etc. Vs. Dr. R. Murali Babu Rao & Anr. etc. reported in  1988 (3)  SCR 173.  Section 19A  of the  Indian Medical Council  Act enables  the Council  to  prescribe  by making regulation  minimum standards  of  medical  education required for  granting recognised  medical qualifications by Universities or medical institutions in India and that would include prescribed minimum qualifications for appointment as teachers of  medical education.  As  State  Governments  are thus expected to comply with the recommendations made by the Medical  Council   from  time  to  time  and  if  the  State Governments comply with such recommendations irrespective of whether they  are approved by the Central Government or not, it  cannot  be  said  that  in  doing  so  they  have  acted arbitrarily or illegally.      As pointed  out by the State Government, no recruitment rules  framed  under  Article  309  were  in  existence  for recruitment for the post of lecturer in the medical colleges in 1981 and appointments were made on the basis of executive orders passed  from time  to time. In 1981 and also when Dr. Goyal was  appointed as  ad hoc  lecturer in  1983,  it  was permissible to  make such  ad hoc  appointments though for a limited period.  At that  time teaching  experience was  not prescribed as  the required qualification for appointment as lecturer in  the State  medical colleges.  It was  for  that reason that  when the  Director issued the advertisement for appointment of  8 ad  hoc lecturers,  it did not contain the condition that  the  candidates  should  have  three  years’

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teaching experience.  It appears  that the  PSC committed  a mistake  when   it  issued  an  advertisement  in  1982  and mentioned therein  that the  minimum qualification  for  the posts of  lecture in  medical college  was  a  post-graduate degree and three years’ teaching experience.      The High  Court failed to examine all these aspects and wrongly proceeded  on the  basis that  three years’ teaching experience  was  also  a  part  of  the  prescribed  minimum qualification for  the post  of  lecturer  in  Orthopaedics. Therefore, the view taken by the High Court that the initial appointment of  the appellant as ad hoc lecturer in 1983 was illegal and  bad has to be regarded as incorrect. As we hold that the  initial appointment  of the  appellant as  ad  hoc lecturer in  1983 was quite proper and legal, the subsequent order passed  by the  Government regularising  his  services will have to be regarded as valid and legal.      We, therefore,  allow this  appeal, set aside the order passed by  the  High  Court  and  dismiss  Civil  Misc  Writ Petition No.  8914 of 1983 filed by respondent No.4 However, in the  facts and  circumstances of the case, there shall be no order as to costs.