The appellant, ranked first by the Selection Committee, was preferred by the State Government due to his qualifications and experience. However, Respondent No. 5, who did not meet the same ...
No Acts & Articles mentioned in this case
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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
The Supreme Court's decision in Dr. Arun Kumar Agrawal vs. State of Bihar stands as a landmark service law judgment that clarifies the precedence of super-speciality qualifications in academic appointments. This pivotal case, now authoritatively documented on CaseOn, delves into the nuanced interpretation of recruitment rules, establishing a vital legal principle for specialized public service roles. The ruling addresses a fundamental conflict: whether a candidate with a general post-graduate degree should be preferred over one with a highly specialized super-speciality degree for a teaching position in that very super-speciality.
The central legal issue before the Supreme Court was whether, for an appointment to the post of Assistant Professor in the super-speciality of Neurosurgery, a candidate holding a Master of Chirurgery (M.Ch.) in Neurosurgery should be preferred over a candidate with a Master of Surgery (M.S.) in General Surgery. The core of the dispute rested on the correct interpretation of the eligibility and preference clauses mentioned in the government's recruitment advertisement.
The Supreme Court's decision hinged on the interpretation of specific clauses within the advertisement for the post and established principles of service jurisprudence. The key rules were:
The Supreme Court meticulously dismantled the reasoning of the High Court, which had erroneously favoured the candidate with a general surgery degree based on a mechanical calculation of points.
The High Court had failed to appreciate the qualitative difference between the qualifications of the appellant, Dr. Agrawal (M.Ch. in Neurosurgery), and the respondent, Dr. Jha (M.S. in General Surgery). It treated all post-graduate degrees as equal, ignoring the distinction between a parent speciality and a super speciality which the advertisement itself sought to make.
In contrast, the Supreme Court’s analysis was purposive and logical. It held that the post was for an Assistant Professor of Neurosurgery, a highly specialized field. It was, in the Court's words, "beyond comprehension" how a surgeon with a general degree could be deemed more suitable to teach a super-speciality subject than a candidate holding the highest possible qualification in that very subject. The Court clarified that an M.S. degree is merely a stepping stone for pursuing an M.Ch.
The Supreme Court's meticulous breakdown of the advertisement clauses highlights the need for precise legal interpretation. Legal professionals can master such nuances by using resources like CaseOn.in, whose 2-minute audio briefs provide quick and insightful analysis of complex rulings like this one, saving valuable research time.
Furthermore, the Court interpreted Clause 19 as a clear directive to prioritize super-specialists. Dr. Agrawal, holding an M.Ch. in Neurosurgery and having research and working experience in the field, was the exact candidate this clause was designed to attract. The selection committee, composed of experts in Neurosurgery, had correctly identified him as the most meritorious candidate, and their decision should have been respected.
The Supreme Court allowed the appeal, setting aside the High Court's order and upholding the original selection panel's decision. It affirmed the appointment of Dr. Arun Kumar Agrawal to the post of Assistant Professor. The judgment firmly established that in appointments for specialized roles, particularly in technical or academic fields, a specific super-speciality qualification is inherently superior and must be given preference over a general or parent speciality degree. This ensures that the most qualified individuals are selected for roles that demand deep and specific expertise.
This case involved a dispute over the appointment to a faculty position in Neurosurgery. The High Court had preferred a candidate with an M.S. in General Surgery over one with an M.Ch. in Neurosurgery. The Supreme Court reversed this, holding that for a super-speciality post, the candidate with the corresponding super-speciality degree is unquestionably more qualified. The Court emphasized a purposive interpretation of recruitment rules, giving effect to the clear intent to prefer specialized expertise and upholding the recommendation of the expert selection committee.
Disclaimer: This article is for informational and educational purposes only and does not constitute legal advice. For specific legal issues, please consult with a qualified legal professional.
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