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CASE NO.: Appeal (civil)  2694 of 2007

PETITIONER: Regional Institute of Medical Science & Anr

RESPONDENT: S. Bhagyabati Devi

DATE OF JUDGMENT: 17/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.      2694               2007 [Arising out of S.L.P. (C) No.  22601 of 2005] WITH CIVIL APPEAL NO.      2695               2007 [Arising out of S.L.P. (C) No.  23341 of 2005]

S.B. SINHA, J.

   1.  Leave granted.

  2.   These two appeals being inter-related and arising out of a common  judgment were taken up for hearing together and are being disposed of by  this common judgment.  Regional Institute of Medical Sciences (for short  "RIMS") is a Society registered under the Societies Registration Act.  Dr.  (Mrs.) S. Bhagyabati Devi (for short "Bhagyabati")  and Dr. Taruni  Ngangbam (for short "Taruni") have been working in RIMS.   

  3.   Dr. Taruni was appointed as a Medical Officer (SPM) in the year  1983.  She did her post graduation in the year 1992.  In terms of the rules  framed by the Executive Council of RIMS, she could be considered for  promotion to the post of Assistant Professor on the expiry of 10 years of  working in the post of Medical Officer.  She was promoted with effect from  1.2.1995 in the post of Assistant Professor by an Order dated 8.4.1999.  Dr.  Bhagyabati was appointed as a Medical Officer in the year 1984.  She  completed her post graduation in June, 1996.  On completion of 10 years,  she was appointed as an Assistant Professor with effect from 1.7.1998.  It is  not in dispute, that both Dr. Taruni and Dr. Bhagyabati have since been  appointed as Associate Professors.    

 4.    Dr. Bhagyabati filed a writ petition before the Imphal Bench of the  Gauhati High Court inter alia questioning the seniority assigned to Dr.  Taruni on the plea that she having never held any teaching post while acting  as Medical Officer(SPM) was not entitled to promotion to the post of  Assistant Professor.   

       The learned Single Judge having regard to the fact that both Dr.  Taruni and Dr. Bhagyabati had further promoted to the post of Associate  Professor did not disturb the said appointments, but directed that Dr.  Bhagyabati shall be treated to be senior to Dr. Taruni.              5.  By reason of the impugned judgment, the Division Bench has upheld  the impugned judgment of the learned Single Judge.   

       Both RIMS and Dr. Taruni are, thus, before us.

   6.  We may at the outset notice the relevant rules. As indicated

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hereinbefore, Rules were framed by the Executive Council in exercise of its  power conferred upon it under the Constitutional Bye Laws of the Regional  Institute of Medical Sciences.                  The constitution of the Society was approved in a Special Annual  General Body Meeting held on 4.2.1995.  The Executive Council has been  constituted in terms of clause (9) of the said constitution.  Clause (11)  provides for the powers and functions of the Council.  In exercise of its  power conferred under Rules 17(B) and 31 of the Constitutional bye laws of  the Regional Institute of Medical Sciences, Imphal, the Chairman, Executive  Council framed rules known as Time Scale Promotion Rules, 1991 (The  Rules).  "Registrar Grade" has been defined in Rule 3(d) of the said Rules  inter alia to include Medical Officer (Teaching and Non-Teaching).  Rule  3(g) defines teaching post to mean all posts inter alia in the grade of  Registrar.  Rule 4 provides for Time Scale Promotion in the following  terms:- "The Scheme is in the nature of a flexible  complementing Scheme wherein no additional posts are  created, the existing persons on the basis of critical  assessment are promoted to the next higher level or  scales are upgraded without altering the combined  authorized strength of posts."

    7.         Object of the Rules was to remove frustration due to lack of  opportunity for promotion in normal courses.   

       Rule 6(F) of the Rules reads as under:-

"(F)  Assistant Professor (Non-functional) from Registrar,  Demonstrator, Resident Pathologist, Resident  Anaesthesiologist, Senior Tutor, M.Os (Teaching, Senior  Resident with P.G. Degree holder (Scale Rs. 3000-100- 3500-125-5000/-)

(i)     They must have requisite and recognized Post  Graduate qualification as per M.C.I. norms.

(ii)    They must render 10 years of regular service in the  teaching posts of the same discipline. (iii)   Within 10 years of regular teaching service as the case  may be they should have minimum 1 year of teaching  experience of the same discipline after obtaining P.G.  Degree.  

               ***                       ***                      ***           

   8.  The principal contention of Dr. Bhagyabati before the High Court was  that the post of Medical Officer (SPM) was not a teaching post.   Contention  of RIMS as well as Dr. Taruni on the other hand was that the said post is a  teaching post.

  9.   RIMS recently by a letter dated 2.3.2005 addressed to the Secretary,  Medical Council of India wanted to have a clarification in the matter  stating:- "I am writing this letter soliciting your indulgence to  provide a clarification as to the Post of Medical Officer  (Community Medicine) as a teaching post in Medical  Colleges in the country.   Medical Officers of  Community Medicine of this Institute have been  imparting teaching and training programme to the  undergraduate, post graduate students and interns in  urban and rural health centers and also involving in the  direct delivery of Health care service in Rural and  Urban areas and thus securing the implementation  Reorientation of Medical Education Scheme (ROME).  

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Following the enforcement of regulations of the MCI an  undergraduate Medical Education by the Government  of India, Ministry of Health & Family Welfare vide  their letter No. V-11917/4/77-ME(p) dated 13th  November 1977 our Institute is also treating the said  post of Medical Officer (Community Medicine) as one  of teaching posts in our Service Rule, a controversy  which may create required to be resolved in accordance  with the MCI Regulations.

A positive clarificatory note on the subject will be  highly appreciated."

                                                        Our attention has also been drawn to a letter issued by the Medical  Council of India addressed to the Director, RIMS dated 15.4.2005 in  response to the said letter to show that there must exist four posts of  tutors/demonstrators in each Medical College and one Medical Officer of  Health-cum-Lecturer and one lady Medical Officer in each medical college  in the Department of Community Medicine.             10.  Regulations of the Medical Council of India in this behalf as modified  upto 1979 is as under:- "Regulations of the Medical Council of India on Under- graduate Medical Education under Section 33 of the  Indian Medical Council Act, 1956 by the Government  of India, Ministry of Health & Family Welfare, vide the  letter No. V-11917/4/77-ME(P) dated the 30th  November, 1977.   Incorporating amendments approved  by the Govt. of India Ministry of Health & Family  Welfare vide their letter No. V.11017/4/77- MPT/ME(Policy) dated 15th October, 1979.

As far as teaching of the Community Medicine is  concerned, health medical Officers in the service who  have adequate field experience should be utilized for  teaching of community medicine giving them  appropriate status, if necessary.  Likewise medical  college teachers should by rotation be posted in field  practice areas, with batches of students to introduce  community orientation in training programmes."

       It appears that the Department of Community Medicine of RIMS had  assigned practical epidemiology training to the students of the Medical  College asking Dr. Taruni to impart training on 31.1.1992 alongwith two  others by taking classes from 2 to 4 p.m.

       Our attention has further been drawn to Annual Report for the year  2003-2004 where Community Medicine was said to be consisting of two  lady medical officers.

  16.  Our attention has further been drawn to a Memorandum dated  9.7.1987 which is to the following effect:- "MEMORANDUM The duty roster of VIth semester students posted at S.P.M., Deptt. will  be as follows.  This roster / programme will be followed every month  until further order.

Days of the  week Section Staff 1.  Monday,

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Tuesday &  Wednesday Family       Visit Medico  Social         Work 1.  One  Demonstrator  on rotation for  one month 2. All the  Medical Social  workers 2. Thursday,  Friday &  Saturday National Health  Programmes &  Urban Clinic 1.   Demonstrators  of U.I.P. & rural  Health Centres,  on Rotation

2. For Urban  clinic Urban  doctor will take  the  responsibility

Notes :-  National Health Programme viz :- NMEP, NICPm NTBCP, F.P.  NCP for  Blind and Visual  impairment.  The visit will of  one day only.          Demonstrator on rotation duty:- (a) Dr. Taruni Ng. (b) Dr. Bijoy (c) Dr. Indibor (d) Dr. Russia (e)  Dr. Shyamkanhai

Any one doctor will be with Family visit another and with national  Health programes.  This will take with immediate effect.  Dr. Indibor  will be in the family visit Section & Dr. Taruni in the National Health  Programme Section for the month of July, 1987."

   11. We may furthermore notice that on or about 28.10.2005, Time Scale  Promotion Rules had been amended to include Medical Officers (non- teaching) to Senior Medical Officers in the pay scale of Rs. 10,325-325- 15,200/-)

  12.  The learned Single Judge of the High Court as also the learned  Division Bench categorically held that post held by Dr. Taruni was not a  teaching post and, thus, was not eligible for being considered for promotion  to the post of Assistant Professor.

  13.  It appears that before the High Court submissions were also made on  behalf of the RIMS and Dr. Taruni that all posts specified in the Registrar  Grade are equivalent posts.  The said contention was rejected by the learned  Single Judge and upheld by the Division Bench on the premise that a  declaration therefor was necessary, and as there was no material on record to  show that a decision on the said issue had been taken, no relief could be  granted in that behalf.

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   14. Before us Mr. Jaideep Gupta, learned senior counsel appearing on  behalf of the RIMS and Mr. S.K. Bhattacharya, learned counsel appearing  on behalf of Dr. Taruni submitted that although rendition of service in a  teaching post for 10 years is a condition precedent for becoming eligible for  the purported Time Scale Promotion to the post of Assistant Professor under  the Rules,  Dr. Taruni  must be held to have fulfilled the said criteria as her  posting in the Department of Community Science was treated as regular  teaching service.  In the alternative, it was submitted that the amendment of  the Rules carried out in 2005 is clarificatory in nature.

   15. The Rules provide for creation of teaching posts as well as non- teaching posts.  The Registrar Grade as defined in Rule 2(D) includes  Medical Officer, both teaching and non-teaching.  Before the High Court as  also before us, RIMS has not produced any duty chart for the Medical  Officers (SPM).  From the documents whereupon reliance has been placed,  it only appears that the Medical Officers (SPM) are required to take classes  once in a while.  Dr. Taruni was not, therefore, required to take classes on a  regular basis.  For the purpose of arriving at a conclusion as to what would  be the nature of the post held by the incumbent, the duties attached to the  post would be of seminal importance.  The Rules do not provide for the  nature of duty attached to the Medical Officer (SPM).  No other document in  that behalf has also been brought on record.  Even whether preventive  medicine is taught or not as a subject has not been disclosed.  Performing a  teaching job once in a while or working as a Demonstrator once in a while,  could not render the non-teaching post to a teaching post.   The RIMS might  have thought that the post of Medical Officer (SPM) is a teaching post, but  when a challenge was thrown by Dr. Bhagyabati, it was obligatory on its  part to establish its contentions by placing cogent materials before the High  Court.  It has utterly failed to do so.  The correspondences exchanged by and  between the RIMS and Medical Council of India are also of no assistance.   Clarification was asked for in that behalf only in 2004.  The Medical  Council even in its response to the said letter did not say that Medical  Officer (SPM) would be a teaching post, it merely laid down the norms in  regard to the strength of the cadre.   Even the strength of the cadre was  determined only in 2005.   

  16.  Which post would be a teaching post is a question of fact.  In  Rajasthan Public Service Commission v Kaila Kumar Paliwal & Anr. [2007  (6) SCALE 531], this Court held:-

"We are not oblivious that the question as to whether a  person fulfils the criteria of teaching experience or not  would depend upon the rules operating in the field.  When the rules are clear and explicit, the same has to be  given effect to. Only in a case where the rules are not  clear, the candidate concerned must place adequate  material to show that he fulfils the requisite  qualification. {See State of Bihar and Another etc. etc.  v  Asis Kumar Mukherjee and Others etc. etc. [A.I.R.  1975 SC 192]."              17. The submissions made on behalf of RIMS that the post of Medical  Officer, SPM is equivalent to a teaching post has rightly been rejected by the  High Court  

 18.  in Director, AIIMS and Ors. v Dr. Nikhil Tandon and Ors. [(1996) 7  SCC 741], it was held:- "12. 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  DM. Schedule I to the AIIMS Recruitment Rules  speaks of DM qualification or a qualification

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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  recognised the said research work/training for two  years in the Cambridge University as equivalent to  DM. It is agreed before us that the degrees awarded  by the Cambridge University are not recognised in  India since 1978."      19. Medical Council of India did not recognize the post of Medical  Officer (SPM) to be a teaching post.  No other material was also brought on  record to show otherwise.   

   20. The Rules amended in the year 2005 cannot be held to be a  clarificatory one.  It is a substantive amendment.  Thereby those who are on  the non-teaching side have for the first time been brought within the purview  of the Rules.  The qualification for eligibility for consideration has also been  altered.     21.  We, therefore, are of the opinion that there is no merit in these appeals  which are dismissed accordingly with costs.  Counsel’s fee assessed at Rs.  10,000/- payable by RIMS to respondent No. 1.