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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: S. B. KOHLI & ANR.

DATE OF JUDGMENT20/12/1972

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. DUA, I.D. VAIDYIALINGAM, C.A.

CITATION:  1973 AIR  811  CITATOR INFO :  D          1974 SC   1  (40A,46)  F          1974 SC1631  (28)  R          1978 SC 327  (7,9)  R          1980 SC1255  (8,13)  D          1988 SC1048  (15,16)  RF         1989 SC 307  (9)  APR        1989 SC1256  (8)  F          1989 SC1308  (7)

ACT: Central health Scheme Rules -Qualifications for  Specialists Whether  the degree of E.R.C.S. is enough for the post of  a professor in Orthopaedics.

HEADNOTE: Under Central Health Service Rules 1963 as amended, items  2 JUDGMENT: graduate  degree  in the concerned speciality  mentioned  in Part A of Anuxure 11 or equivalent." In the present case, the first Respondent apart from  having a postgraduate degree in General Surgery (F.R.C.S.) had also a  degree  of M.C.H. (Arth), Liverpool; whereas  the  Second Respondent  had  a post graduate degree in  General  Surgery (F.R.C.S.) only. The  question  that  arose  for  decision  was  whether  the postgraduate qualification which was required in the case of a  direct  recruitment to the post in question  was  also  a necessary qualification for appointment by promotion to that post,  and  what  was the meaning of  the  phrase  "a  post- graduate degree in the Concerned Speciality." HELD  : (i) Before the growth of specialised  qualifications Surgeons  obtaining the F.R.C.S. in general surgery used  to specialise in orthopaedics and other specialities either  by doing  a diploma in Orthopaedics or simply by  practice  and experience.   The Regulations framed by the Medical  Council require that in addition to the general F.R.C.S., a  surgeon must  have  a diploma in Orthopaedics before  he  could  be, appointed  a Professor, Reader or Lecturer in  Orthopaedics. That  regulation has been accepted by the Government.   This gives  an indication of what is considered  a  post-graduate degree  in  the  concerned speciality.   Therefore,  in  the present  case, a mere degree of F.R.C.S. as such  cannot  be

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deemed  to be a postgraduate qualification in the  concerned speciality  of Orthopaedics.  To hold otherwise  would  mean that a person who has the qualification of F.R.C.S. could be deemed  to be specialised in Tuberculosis and  Orthopaedics, although  he  is  also  a  specialist  in  general  surgery. Therefore,  the  second  Respondent does not  hold  a  post- graduate  degree in the concerned  speciality,  Orthopaedics and  as  such, his promotion to the post of a  professor  in Orthopaedics  was  illegal and against the  Central  Health Service Rules.  Appeal dismissed.

& CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1943 of 1972. Appeal  by special leave from the judgment and  order  dated May  18, 1972 of the Delhi High Court at New Delhi in  Civil Writ No. 1319 of 1971. L.N. Sinha, Solicitor-General of India, G. L. Sanghi  and S. P. Nayar for the appellants. Respondent No. 1 in person. 118 Yogeshwar  Prasad, S. K. Bagga and S. Bagga  for  respondent No. 2. The Judgment of the Court was delivered by ALAGIRISWAMI, J. This is an appeal by special leave  against the  judgment of the High Court of Delhi allowing  the  writ petition  filed  by  the  1st  Respondent  questioning   the appointment  of the 2nd respondent to the post of  Professor of  Orthopaedic Surgery in the Maulana Azad Medical  College and reverting her as Associate Professor. The  question  that  arises for decision  in  this  case  is whether the post-graduate qualification which is undoubtedly required,in the case of a direct recruitment to the post  in question  is also a necessary qualification for  appointment by  promotion to that post, and what is the meaning  of  the phrase ’a post-graduate degree in the concerned speciality’. The first respondent possesses the following  qualifications : She is M.B.B.S. of the, Bombay University, F.R.C.S. of the Edinburgh   University,  M.Ch.  (Orth).  of  the   Liverpool University and also of F.R.C.S. (Eng.) The second respondent holds  an M.B.B.S. degree and in addition the  qualification of F.R.C.S. of the Edinburgh University.  Consequent on  the selection made by the Departmental Promotion Committee,  the second respondent was appointed to the post in question,  as already mentioned, and as a consequence the first respondent was reverted as Associate Professor. The  case  raises  the question  of  interpretation  of  the Central Health Service Rules, 1963, as amended in the  years 1966  and 1968.  These rules are made under article  309  of the  Constitute  posts in the Central  Health  Service  were divided, were fairly simple. In     1966    pursuant     to regulations  framed  by  the  Indian  Medical  Council   the Government  amended  the  rules  creating  the  category  of ’Specialists’.   In  1968 further amendments  were  made  in items 2 and 3 of Annexure 1 to the Second Schedule requiring "a   post-graduate  degree  in  the   concerned   speciality mentioned  in Part A of Annexure II or equivalent"  for  the post  of a Professor, Reader or Lecturer.  The promotion  in question  having been made thereafter, the rules as  amended in  1966 and 1968 will govern the  qualifications  necessary for this post. The  post  in question is one which falls under  Super  time Grade  11  in Rule 4 of the Central  Health  Service  Rules.

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According  to Rule ( 3) fifty per cent of the  vacancies  in Supertime  Grade II shall be filled by the promotion of  (i) General Duty Officers, Grade I with not less than 10  years’ of  service  in that category, or  (ii)  Specialists’  Grade Officers  with  not  less than 8 years  of  service  in  the category, in the ratio of 2 : 3 on the recommenda- 119 tion  of a Departmental Promotion Committee on the basis  of merit and seniority of the officer concerned.  Provided that no  person  shall be eligible for appointment to  any.  such post  unless he possesses the qualifications and  experience requisite  for appointment to such post.  The question  then is  : What are the qualifications and  experience  requisite for  appointment to the post of Professor of Orthopaedics  ? There  is no dispute that according to the Second  Schedule, which  deals  with  selection by the  Union  Public  Service Commission  a  professor in a medical  college  or  teaching institution  should  have  a  post-graduate  degree  in  the concerned speciality mentioned in Part A of Annexture II  or equivalent.   It  is  not necessary to refer  to  the  other qualifications  because  they do not arise for  decision  in this  case.  In Annexure 11 to that Schedule against Item  7 (Orthopaedics),  the  qualifications  mentioned  are   M.S., M.C.H.   (Orthopaedics)   (Liverpool),  F.R.C.S.   The   1st respondent,  as  already  mentioned, has go  the  degree  of M.C.H. (Orth.) (Liverpool. The 2nd respondent is a  F.R.C.S. If  F.R.C.S.  mentioned therein can be considered  to  be  a postgraduate    degree   in   the   concerned    speciality, Orthopaedics,   the  first  respondent’s   petition   cannot obviously succeed.  It seems to us that the qualification of F.R.C.S.  cannot be deemed to be a post-graduate  degree  in Orthopaedics. Are we to take it that because the Annexure II has the head- ing  ’List of Post-Graduate Qualifications’ and F.R.C.S.  is found beside the item 7 (Orthopaedics), that for the purpose of  the  rules  it  is  deemed  to  be  a  qualification  in Orthopaedics  though F.R.C.S. is certainly  a  post-graduate qualification  ? As pointed out by the High Court,  F.R.C.S. (Edin.),  which is the qualification the  second  respondent possesses, is in General Surgery.  The Edinburgh  University awards   F.R.C.S.   in  three  specialities   but   not   in Orthopaedics.   F.R.C.S.  (Canada)  exists  in  specialities including  Orth opaedics.  Before the growth of  specialised qualifications,  surgeons obtaining the F.R.C.S. in  General Surgery  used  to  specialise  in  Orthopaedics  and   other specialities  either by doing a diploma in  Orthopaedics  or simply  by practice and experience.  The regulations  framed by  the  Medical  Council require that in  addition  to  the general   F.R.C.S.  a  surgeon  must  have  a   diploma   in Orthopaedics  before  he  could be  appointed  a  Professor, Reader  or  Lecturer in Orthopaedics.  That  regulation  has been accepted by the Government.  Though the validity of the appointment  to the Central Health Service does not have  to be  tested  by reference to the regulations  framed  by  the Indian  Medical  Council  for  teaching  staff  in   medical colleges,  those  regulations and their  acceptance  by  the Government give an indication of what is considered to be  a post-graduate  degree in the concerned speciality.   Before the High Court on behalf of the Government it seems to have been contended that the amend- 120 ments  made in the Central Health Service Rules give  effect to  the  regulations framed by the Indian  Medical  Council. Part  of  the  difficulty in this case  has  arisen  because Annexure  11  was not amended when the relevant  portion  of

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Annexure I was amended in 1968.  But that does not take away the  force of the argument that F.R.C.S. as such  cannot  be deemed to be a post-graduate qualification in the  concerned speciality  of Orthopaedics.  To hold otherwise  would  mean that a person who has the qualification of F.R.C.S. could be deemed to be a Specialist in Tuberculosis and  Orthopaedics, although  he is also a Specialist in General  Surgery.   The various entries in Annexure II would have to be  interpreted in a reasonable manner.  Otherwise how could M.D., M.R.C.P., F.R.C.S,  and  M.S.  all be  considered  to  be  specialised qualifications  in Tuberculosis, or a mere M.D. or  M.R.C.P. and  F.R.C.S. connote a post-graduate qualification  in  the speciality  of Paediatries.  It stands to reason that  these degree must be in the subject of Paediatrics if the  holders of  those  degrees  are  to  be  considered  specialists  in Paediatrics.   As mentioned earlier, F.R.C.S.  (Canada)  has many specialities.  M.D. also can be in many specialities as indeed  Annexure  11  itself shows.  So  also  M.S.  We-are, therefore,  in  complete  agreement with  the  view  of  the learned  Judaes of the High Court that F.R,.C.S.  by  itself cannot be said to be a post-graduate degree in Orthopaedics. The mere fact that a degree is mentioned against  speciality of  Orthopaedics does not make it a post-graduate degree  in Orthopaedics.   Admittedly  the second respondent  does  not possess the qualification, of F.R.C.S. in Orthopaedics.   In the  circumstances  the  fact that F.R.C.S.  is  also  shown against  the entry "Orthopaedics" in Annexure II is  not  an answer  to the question whether it is a postgraduate  degree in orthopaedics.  It was urged that the F.R.C.S. examination has  an  orthopaedic content.  In that sense the  holder  of every  medical  degree knows something of every  subject  in medicine  or  surgery.   Nobody  can  contend  that  a  mere M.B.B.S.  is a degree in surgery or opthalmology because  it has a content of surgery or opthalmology.  We therefore hold that the 2nd respondent does not bold a post-graduate degree in the concerned speciality, Orthopaedies. It  is  then necessary to deal with the  argument  that  the qualification   set out in Annexure I and II of  the  Second Schedule were not applicable to cases of promotion.  One  of the  reasons  advanced  was that it  will  adversely  affect persons   who   entered   service  at  a   time   when   the qualifications  mentioned in Annexure IT to Second  Schedule were  not  requisite qualifications for  the  various  posts mentioned  in  Annexure  I.  This appears  to  be  a  wholly irrelevant consideration unless it could be shown that  such a rule cannot be validly made.  It was then argued that Rule 8 (3) does not mention the qualifications in Annexures I and 11 as 121 necessary  qualifications for promotion to  Supertime  Grade II. We consider this argument without substance because  the proviso  thereto  just  means that.   The  meaning  of  that proviso  is  that  in this case  where  a  specialist  grade officer is sought to be promoted to the post of a  Professor in Orthopaedic Surgery he should have a post-graduate degree in  the concerned sociality mentioned in Part A of  Annexure II or equivalent, which is the qualification, and 12  years’ standing in the profession which is the experience.  If this interpretation  was not to be given to this proviso it  will be wholly superfluous.  The fact that that proviso does  not refer  to the Second Schedule as for instance sub-rule  (2A) of rule 8 does not affect the question. We also do not understand the argument advanced on behalf of the  appellant  that the interpretation placed by  the  High Court and accepted by us now on this part of the case  would

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mean  infraction of Article 16 of the Constitution.   We  do not  agree that the decision of this Court in Roshan Lal  v. Union(1)  lays  down  any such  principle.   Professors  and Additional Professors in teaching institutions do not  stand in the same position as General Duty Officers.  The argument that  it  would  lead to discrimination  in  the  matter  of promotion  of specialist is also without substance.  To  say that  to be appointed a Professor in Orthopaedics  a  person must  have a post-graduate degree in Orthopaedics is not  to make  a classification without reference to  the  objectives sought  to  be  ’achieved and there can be  no  question  of discrimination. Another  argument  put forward was that the  nature  of  the qualifications mentioned in Annexure I are not mandatory and they  would  become mandatory in cases of promotion  if  the proviso to rule 8(3) is held to refer to the  qualifications in  Annexures  I  and If.  This argument was  based  on  the provision  in  the Annexure I to the Second  Schedule  which states that the qualifications are relaxable at  Commissions discretion   in  the  case  of  candidates  otherwise   well qualified.   That  is no doubt so.  But  the  discretion  is given  only to the Union Public Service Commission in  cases of direct recruitment and not to the Departmental  Promotion Committee  in cases of promotion.  As that is the intent  of the  law it has to be given effect to.  Moreover, the  Union Public Service Commission when it proceeds to fill up a post by direct recruitment does so by calling for applications by extensive advertisements and it is but reasonable that if on a  consideration  of all those applications  it  finds  that persons  possessing  the prescribed qualifications  are  not available  but there are persons otherwise  well  qualified, they  could be selected.  But that is not so in the case  of Departmental  promotion at least in. this case.   The  rules themselves  contemplate  that  if  there  are  no  qualified candidates (1)  [1968] 1 S.C 185. 122 then direct recruitment could be resorted to.  That question does not arise here. Another  strange argument advanced was that the  degree  was not the, only criterion of suitability.  We must also  refer to the argument advanced by Shri Yogeshwar Prasad on  behalf of   the  second  respondent  that  what  the   Departmental Promotion Committee did was to promote the second respondent to  Supertime Grade 11 and his appointment as Professor  of. Orthopaedics  was  merely  a transfer  and  this  cannot  be questioned.   The 2nd respondent was represented by  Counsel before  the  High  Court.  This argument was  not  then  put forward.   But that apart, we do not consider that there  is any substance in this argument. The par ties had no  doubt about  what was at issue.  It was simply the appointment  of the  2nd  respondent as Professor of  Orthopaedics  and  the consequent  reversion  of the 1st  respondent  as  Associate Professor,  and  it was on that basis that  the  whole  case proceeded.  The promotion of the 2nd respondent to Supertime Grade  11  was  directly  related  to  his  appointment   as Professor. In the result the appeal is dismissed with the costs of  the 1st respondent to be paid by the appellants. S.C.                                                 Appeals dismissed. 123