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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.