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PETITIONER: STATE OF BIHAR AND ANOTHER

       Vs.

RESPONDENT: RAMESH CHANDRA AND ANOTHER

DATE OF JUDGMENT:       20/03/1997

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

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T                 THE 20TH DAY OF MARCH, 1997 Present:               Hon’ble Mr. Justice S.C. Agrawal               Hon’ble Mr. Justice G.T. Nanavati Dr. Shankar  Ghosh, Sr.  Adv. Ratan  Kumar Choudhry and Anil Kumar Jha,  Advs. with  him for  the appellant/in  C.A.  No. 11240/95 and  Respondent in C.A. No. 11241/95 Braj K. Mishra and G.B.  Sathe, <Advs.  for  the  appellant.  in  C.A.  No. 11241/95. and Respondent in C.A. No. 11240/95      The following Judgment of the Court was delivered: NANAVATI, J.      These two  appeals arise  out of the judgment and order passed  by   the  High   Court  of   Patna,  in  Civil  Writ Jurisdiction Case  No.  12274  of  1992.  Civil  Appeal  No. 11240/95 is filed by the State of Bihar and Civil Appeal No. 11241/95 is  filed by Dr. Choudhary, who was respondent No.3 in the  writ petition.  The writ  petition was  filed by Dr. Ramesh  Chandra,   respondent  no.1  in  these  appeals  and hereafter referred to as ‘the respondent’.      The respondent  after obtaining  MBBS degree joined the Prince of  Wales Medical College, Patna as a demonstrator in the department  of Anatomy.  He did  M.S. in General Surgery and thereafter  M.Ch. in  Neuro Surgery  in  1967.  He  then joined the  Christian Medical College, Vellore for some time and then  went to  a foreign country for further studies. He returned to  India in 1973. By that time the Prince of Wales Medical  College,   Patna,  was  taken  over  by  the  State Government. As  leave for  two years  which he  had obtained while working  as a  demonstrator in  the  Prince  of  Wales Medical College had expired and he had not reported for duty his name was not included in the list of employees submitted to the  Government when  the said  Medical College was taken over by  it. Finding  that his  name was not included in the list, he  joined Kurji  Holy Family  Hospital in March 1973. His services  were terminated  by that  hospital in December 1978. Earlier,  on January  18, 1974,  he  had  submitted  a joining report  to the officer incharge of the Patna Medical College who  had forwarded it to the Government. On June 29, 1987, he was permitted to join and was absorbed in the Bihar

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Health Services as a tutor in the department of Anatomy with effect from  May 29, 1971 i.e. from the date the college was taken over  by the Government. The Government then sought an opinion of  the Medical  Council of  India  as  regards  his eligibility for  appointment on  a teaching  post  in  Neuro Surgery. After  receiving concurrence of the Medical Council the Government  Created a post of Associate Professor in the department of  Neuro Surgery and on April 27, 1983 appointed him on  that post  on ad  hoc basis  in anticipation  of the concurrence of the Bihar Public Service Commission.      The  appointment   of  respondent   as  a   tutor  with retrospective effect  and  his  further  appointment  as  an Associate Professor  was challenged  by one Dr. Sinha and by Dr. Chaudhary who were then working as Assistant Professors, by filing  a petition  (C.W.J.C. No.  1815 of  1983) in  the Patna High  Court.  It  was  disposed  of  on  31.5.1983  as infructuous, as the State Government made a statement before the Court  that promotion  of both  the writ  petitioners as Associate Professors  on ad hoc basis was approved by it but a notification to that effect could not be issued because of the stay  order. The  High Court,  while dismissing the writ petition  had   observed  that  it  would  be  open  to  the Government to  issue the  notification. Accordingly, on June 3, 1983, the Government issued a notification cancelling its earlier notification dated 27.4.1983 (whereby the respondent was appointed  as an Associate Professor) and appointing all the three  Doctors as  Associate Professors on ad hoc basis. The order  passed by  the High  Court was  challenged by the respondent by  filing an  appeal in  this Court.  During the pendency of  that appeal (Civil Appeal No. 4023 of 1991) the State Government, on January 24, 1991, issued a notification regularising the  ad  hoc  appointments  of  all  the  three Doctors. Dr.  Sinha’s name  was  mentioned  at  serial  No.1 followed by the name of Dr. Chaudhary at serial No.2 and the respondent’s name  appeared at  serial No.3.  On  22.9.1991, this Court  disposed of  the appeal by passing the following order :           "After hearing learned counsel      for the  parties and  having regard      to the  subsequent events resulting      into   the   appointment   of   the      appellant and respondent Nos. 4 and      5, we  find that  the dispute which      requires determination  relates  to      seniority only. It appears that the      State   government   has   by   its      notification  dated  24th  January,      1991    determined     the    inter      seniority  of   the  appellant  and      respondent Nos.  4 and 5. We are of      the  opinion   that  the   question      relating  to  seniority  should  be      decided  by  the  High  Court.  We,      accordingly, allow  the appeal, set      aside the  order of  the High Court      and remand  the matter  to the High      Court for  determining the question      of seniority  of the  appellant and      respondent Nos. 4 and 5 .........".      Meanwhile, the  post of  Professor of Neuro Surgery had fallen vacant  on May 1, 1990. Dr. Sinha had also retired by that time.  At that  stage, the  respondent  again  filed  a petition in  the Patna  High Court  for a  writ of  mandamus directing the State of Bihar not to appoint Dr. Chaudhary as Professor or  allow him  to assume the office of the Head of

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Neuro Surgery Department. The respondent also filed one more petition  (CWJC  5956  of  1991)  for  getting  quashed  the recommendation  of   Departmental  Promotion   Committee  to appoint  Dr.   Chaudhary  as   Professor  and  Head  of  the Department to appoint him as Professor and Head of the Neuro Surgery Department  in the Patna Medical College. The latter writ petition  was  disposed  of  on  December  6,  1991  as premature.      On April 22, 1992, the writ petition filed by Dr. Sinha and Dr.  Chaudhary in  1983 and  the decision  in which  was challenged before this Court by the respondent and which was remanded to  the High  Court for determining the question of seniority  was   withdrawn  at  the  instance  of  the  writ petitioners. On  August 1, 1992, the Government promoted Dr. Chaudhary to  the post  of Professor  with effect  from  May 1,1990, the  date on  which the  post had fallen vacant. The respondent  challenged  that  appointment  by  amending  his earlier writ  petition viz.  C.W.U.C. No. 3596 of 1990 which was still  pending. It  was allowed  by the  High  Court  on August 19, 1992 as the impugned notification dated August 1, 1992 was  issued upon  an erroneous assumption that CWJC No. 5965 of  1991 was still pending. The High Court remanded the matter to  the State  Government and  directed it  to take a fresh decision.  Accordingly the Government, on November 18, 1992, decided  that all  the three Doctors were eligible for appointment/promotion as  Associate  Professors;  Dr.  Sinha acquired  eligibility  on  September  29,  1981  and  became entitled to  the said post on January 8, 1983; Dr. Chaudhary acquired eligibility on February 5, 1983 and became eligible for promotion  from January  8,  1983  as  the  vacancy  was already existing  on that  date; and  , Dr . Ramesh Chandra, the respondent,  who was  appointed on post created on March 10, 1983,  was not  entitled to  get it  with  retrospective effect as prior to April 27, 1983, he was working as a tutor in another  department, namely,  Anatomy and was, therefore, not having  any teaching experience during March 10, 1983 to April 26,  1983. In  view of this decision Dr. Sinha and Dr. Chaudhary were  given promotion  to the  post  of  Associate Professor and  their  teaching  experience  was  treated  as having started from June 3, 1983. The respondent was treated as appointed  on April  27, 1983 and his teaching experience was to count from that date. termed as ad hoc.      The respondent, therefore, challenged the said decision of the  Government and  the appointments of Dr. Sinha and D. Chaudhary by  filing a  petition  out  of  which  these  two appeals arise  . The High Court held that it was not open to the State Government to describe the promotions/appointments as ad  hoc as  it had  already made their ad hoc promotions/ appointments regular and fixed their seniority. As this fact was noticed  by this fixed their seniority. As this fact was noticed by  this Court  and as  in the order dated September 27, 1991,  it was  observed that "the dispute which requires determination relates of the seniority only", the High Court held  that   there  was   no  justification  for  the  State Government to  convert their  appointment/promotion into and ad  hoc  one.  As  the  challenge  to  the  appointment  and seniority of  Dr. Chaudhary as Associate Professor was given up in view of the order passed by this Court in Civil Appeal No. 4023  of 1991, the only controversy which the High Court was called  upon to  decide was  whether Dr.  Chaudhary  was eligible for appointment as Professor. It was contended that even though  the that  even though  the appointment  of  Dr. Chaudhary as  Associate Professor  is now  to be regarded as valid  and   qualifications  for   the  posts  of  Associate Professor and  Professor are  the same,  his eligibility for

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the post  of Professor  was required to be considered afresh while appointing  him on that post. The High Court held that the regulations framed by the Indian Medical Council in 1971 were the  only  regulations  having  statutory  force,  they having received  the approval  of the Central Government. As the Regulations made by the Medical Council in 1982 and 1989 have not so far been approved by the Central Government they are to  be regarded  as recommendatory  only. Therefore, the question of  eligibility for  appointment according  to  the qualifications recommended  in the  1971 regulations. In the 1971 regulations  the Medical  Council had  recommended  the following qualification  for the post of Professor/Associate Professor in Neurosurgery: "(a) Professor/  M.Ch. in Speciality    (a) As Reader,      Associate   concerned after          Asst. Prof.,      Professor   M.S./F.R.C.S.             in respective                                            subjects for                  M.S./F.R.C.S. or          5 years in a                equivalent Surgery with     medical college                two years special           after requisite                training in the             post-graduate                speciality concerned        qualification.                or speciality Board                (USA) in the speciality                concerned."      Admittedly, Dr.  Chaudhary did  not have  the degree of M.Ch. and,  therefore, the  only  question  required  to  be considered   was    whether   he    possessed    alternative qualification of M.S. with two years special training in the speciality   concerned.    Interpreting   the    eligibility requirement the  High Court  held that  the person concerned should possess  both, the  qualification of special training as well  as the  requisite teaching/research experience when he claims to be covered by the alternative qualification. It further held  that two  expressions ’special  training’  and ’teaching experience’  cannot be  read as  having  the  same meaning. Therefore, the teaching experience of Dr. Chaudhary as Assistant  Professor of  Resident Surgical  Officer could not be regarded as ‘special training’. It also held that the material on  record did  not clearly  disclose the nature of work done  by Dr. Chaudhary. Thus the claim of Dr. Chaudhary that he  had received  ‘special training’  for more than two years was  negatived and it was held that he did not possess the requisite qualification for appointment as Professor. In taking this  view the  High Court  followed the decisions of this Court  in Dr. A.K. Agrawal vs. State of Bihar 1991 Supp (1) SCC  287 and  Dr. Ganga  Prasad Verma vs. State of Bihar 1995 Supp.  (1) SCC  192 and  distinguished the  decision of this Court in the case of State of Andhra Pradesh vs. Dr. R. Murali Babu  Rao 1988  (3) SCR 173. It also held that though the qualifications  for the posts of Associate Professor and Professor are  the same and the appointment of Dr. Chaudhary on the  post of Associate Professor was not under challenge, the respondent  was entitled to challenge the eligibility of Dr. Chaudhary  for the  post of  Professor. The  High  Court distinguished the decision of this Court in A.N. Shastri vs. State of  Punjab 1988  (2) SCR  363, on  the ground that the facts in  that case  were different. Finally, the High Court quashed  the  impugned  decision  of  the  Government  dated November 18,  1992 in  so far as it treated the appointments of the  respondent and  Dr. Chaudhary as Associate Professor as ad  hoc only. It also quashed the decision to appoint Dr. Chaudhary as  Professor in  Neurosurgery  and  directed  the State Government  to consider the matter of promotion to the post of Professor in Neurosurgery afresh.

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    The same  contentions which  were urged before the High Court have  been raised  before us.  We will first deal with the contention  whether, in view of the order passed by this Court on  22.9.1991 in Civil Appeal No. 4023 of 1991 and the concession made before the High court by the respondent that the appointment  of Dr. Chaudhary as Associate Professor was now not challenged, it was open to the respondent to contend that  Dr.   Chaudhary  does   not  possess   the   requisite qualification  for   appointment  as   Professor,  when  the qualifications for  both the  posts are the same. Once it is conceded that  the appointment of Dr. chaudhary as Associate Professor was  valid it would be implied that apart from the required teaching  experience  he  also  possessed  ‘special training’ of  two years  in the  speciality of  Neurosurgery after  obtaining   the  degree  of  MS.  It  is,  therefore, difficult to  appreciate how  it was  open to the respondent thereafter to  challenge that Dr. Chaudhary did not have the special training  requisite for appointment as Professor. It is also difficult to appreciate the reason given by the High Court for  distinguishing and  not applying  the decision of this Court  in A.N. Shastri’s case (supra) and upholding the contention raised  on behalf  of  the  respondent.  In  A.N. Shastri’s  case  the  facts  were  that  Shastri  was  first appointed as  Professor and  then as  Deputy  Director.  His appointment as  Director of  promotion was challenged on the plea that  he did  not possess the prescribed qualification. This Court  noticed that  there was  no  difference  in  the qualifications prescribed  for the  posts of  Professor  and that of  Director. It,  therefore, held  that  while  giving appointment to  him as  Professor the  Government must  have been satisfied  that he  had the requisite qualification. It was  further   held  that   he  did  possess  the  requisite qualification for  appointment as  Director, The  High Court had  distinguished  the  decision  in  A.N.  Shastri’s  case (supra) only on the ground that his appointment as Director, the qualifications for those appointments being the dame. In view of  the order  passed by this Court in Civil Appeal No. 4023 of  1991 and  the concession  made  by  the  respondent before the  High Court,  it ought  to have  proceeded on the ground  that  appointment  of  Dr.  Chaudhary  as  Associate Professor was  not in dispute, and ought not to have allowed itself  o  be  influenced  by  the  fact  that  earlier  his appointment as  Associate Professor  was Challenged.  In our opinion, the  High Court  was not right in not following the ration of  that case that when the prescribed qualifications for the two posts are the same it has to be assumed that the appointing authority  was satisfied  that the person who was already appointed  on one  of those  posts did  possess  the requisite qualification  for appointment  on the other post. It was  not shown  that the  Government was not so satisfied when it  had appointed  Dr. Chaudhary as Professor. The High Court wrongly  placed the  burden on  Dr. Chaudhary  to show that he  had received  the requisite  ‘special training’ for two years  and  erroneously  held  that  he  had  failed  to establish that  he possessed  the  said  qualification.  The decision of  this  Court  in  A.N.  Shastri’s  case  (supra) squarely applied  to the  facts of this case and, therefore, the  challenge  to  the  appointment  of  Dr.  Chaudhary  as Professor should have been rejected.      Even other  wise also  we find  that Dr.  Chaudhary had received more than two years’ training in Neurosurgery after obtaining the  degree  of  M.S.  and  the  High  Court  was, therefore, wrong  in holding  otherwise. May be, because all the supporting  material which  has been placed before us by the Government and Dr. Chaudhary in their respective appeals

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was not placed before the High Court and, therefore the High Court held  that the  material  placed  before  it  was  not sufficient to  establish that Dr. Chaudhary had received two years, special  training in  Neurosurgery.  Apart  from  the assertions made  earlier by Dr. Chaudhary and the Government in that  behalf,  the  material  on  record  discloses  that Neurosurgical Unit  was established in Patna Medical College Hospital in  May, 1975.  One Dr.  Verma was appointed as the Head of  that  Unit  and  Dr.  Chaudhary  was  appointed  as Resident Surgical  Officer in  that Unit  in December, 1976. The certificate  issued by  Dr. Verma further discloses that Dr.  Chaudhary   had  received  intensive,  theoretical  and practical training  during his  tenure  of  three  years  as Resident Surgical Officer and that during that period he had independently dealt  with Neurosurgical  investigations  and performed operations.  The material  also discloses that the Neurosurgical Unit  had  an  independent  Neuro  Out-Patient Department, routine  and emergency  Operation  Theatres  and wards with  facilities for  critical  cases.  The  operation register for  the year  1976 of the Neurosurgical Unit shows that during  that year  as many  as 67  major  and  4  minor operations had been performed. The post of Resident Surgical Officer is  a teaching  post and Dr. Chaudhary had continued on that  post in that Unit till his appointment as Assistant Professor on  5.2.1980. It is, therefore, not correct to say that the  training which  Dr. Chaudhary received as Resident Surgical Officer between 1976 and 1980 cannot be regarded as ‘special training’  in Neurosurgery.  The High Court was not right in  taking the  view that Neurosurgical Department did not exist  in Patna  Medical College  existence  only  after 1980. What  the High  Court had failed to appreciate is that though the  Neurosurgical Department  was not an independent department prior  to 1982  it was an independent Unit having all the  facilities for  dealing with  neurosurgical  cases. Therefore, in  view of  the certificate issued by Dr. Verma, the Head of the Neurosurgical Unit and the other material on record  we   hold  that  Dr.  Chaudhary  did  have  ‘special training’ in Neurosurgery for two years.      Relying upon  the decision  of this  Court in Dr. Ganga Prasad Verma’s  case (supra) it was contended by Mr. Ranjeet Kumar,  learned   counsel  for   the  respondent,  that  for promotion on  the post  of Professor  or Associate Professor the qualification of M.Ch. in the speciality concerned after M.S./F.R.C.S. is  a must.  In that  case  Dr.  Ganga  Prasad Verma, an  Assistant Professor,  was promoted  as  Associate Professor in  Neurosurgery on  17.9.1993. Prior to that date Dr. Basant  Kumar Singh  had filed  a writ petition claiming that he was entitled for promotion as Associate Professor in Neurosurgery. As Dr. Verma was appointed as Professor during the pendency  of  the  petition,  it  was  amended  and  the promotion of  Dr. Verma  was also challenged. The High Court allowed the  writ petition,  set aside  the promotion of Dr. Verma and  directed the Government to consider of this Court in Arun  Kumar Agarwal  (Dr.) vs. State of Bihar, 1991 Supp. (1) SCC  287. The question which arose for consideration was whether  the  High  Court  was  right  in  giving  the  said direction. As  Dr. Verma did not possess the degree of M.Ch. this Court held that the High Court was right in giving such a direction.  It was  contended on  behalf of Dr. Verma that the qualification of M.Ch. was not a condition precedent for promotion to  the post  of Associate Professor from the post of Assistant  Professor and  as he  had put  in more than 25 years’ experience  as Assistant  Professor in the speciality concerned, he was entitled to be considered for promotion as Associate  Professor.   It  appears   that  the  point  that

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’M.S./F.R.C.S.  or  M.S.  or  F.R.C.S.  or  a  qualification equivalent in  Surgery with  two years’  special training in the  speciality   concerned’,  is  an  alternative  academic qualification, was  not specifically  raised, though such an interpretation  was   suggested  on  behalf  of  Dr.  Verma. Therefor,   this    Court   considered    only   the   first qualification, namely,  M.Ch. in  speciality concerned after M.S./F.R.C.S.’ and  held  that  promotion  to  the  post  of Professor or Associate Professor, the qualification of M.Ch. in speciality  concerned after  M.S./F.R.C.S. is  a must. We are of the opinion that if that qualification was considered as  a   must  for  appointment  as  Professor  or  Associate Professor  then  the  relevant  regulation  would  not  have contained the  qualification  in  surgery  with  two  years’ special   training   in   the   speciality   concerned’   as qualification  for   the  post  of  Professor  or  Associate Professor also.  A plain reading of the regulation indicates that it  is an alternative qualification for being appointed as Professor  or Associate  Professor. For  such appointment the person  should have  either of  these qualifications. If the said  regulation is interpreted otherwise and it is held that M.Ch.  in speciality concerned after M.S./F.R.C.S. is a must before  a person  can  be  appointed  as  Professor  or Associate that  would make the latter part of the prescribed academic qualification redundant. M.Ch. is no doubt a higher degree than  M.S. and, therefore, in respect of a person who is not  M.Ch. and  has only  the M.S.  degree it  is further necessary that he should have two years’ special training in the  concerned   speciality  to   make  him   eligible   for appointment  as  Professor  or  Associate  Professor.  These aspects were  not gone into by this Court while deciding the case of  Dr.  Ganga  Prasad  Verma  as  it  had  not  become necessary to  decide whether  M.S. with  two years’ ‘special training’ in  the speciality  concerned was  an  alternative qualification or not.      Our attention  was also drawn by the learned counsel to the subsequent  recommendations made  by the Medical Council of India  in 1982  and 1989. The High Court has not referred to those  recommendations as they have not till now received the approval  of the Central Government and, therefore, have not become regulations under the Indian Medical Council Act. As decided  by even  after they  become  regulations  framed under Section  33 of the Indian Medical Council Act are only recommendatory in nature. The High Court was, therefore, not right in  proceeding on  the bases that the 1971 regulations have statutory  force by  reason of  the approval granted by the Central  Government and  other regulations  of 1982  and 1989  are   only  recommendatory   in  nature   whereas  the regulations  are   expected  to  be  followed  while  making appointments on  teaching posts  in the Medical Colleges, it would be  open to  the appointing authority either to follow or not to follow the recommendations which have not received the approval  of the  Central Government  and have  thus not become regulations. But it would not be improper on the part of the  appointing authority  to follow such recommendations if they are found to be acceptable and the appointments in a better manner.  Both under  the 1982 and 1989 recommendation the  academic   qualification  suggested  for  the  post  of Professor in  Neurosurgery is M.Ch. in Neurosurgery. However the  Medical   Council  made   it  clear   in   both   those recommendations that  teachers holding  posts of the rank of Associate   Professors/Readers    and    above    possessing qualifications and  experience as prescribed can continue in their posts  and also  be eligible  for promotion  to higher posts. Therefore,  even if  we  judge  the  eligibility  for

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appointment as  Professor on  the basis  of  the  subsequent recommendations  the   appointment  of   Dr.  Chaudhary   as Professor cannot be regarded as arbitrary or illegal. In the result, the appeal is allowed, the judgment and order passed by the  High Court are set aside and the writ petition filed by the  respondent stands dismissed. However, in view of the interim relief granted by this Court on 14.7.95 and 24.11.95 the State Government is directed to consider the case of the respondent for  appointment as  Professor on  the post which had fallen vacant. There shall be no order as to costs.