Vinay Tripathi vs Union Of India And 13 Ors.
2015 Latest Caselaw 3856 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. 10
 
Reserved on 20.08.2015
 
Delivered on 04.11.2015
 

 
Civil Misc. Writ Petition No. 4414 of 2015
 
Vinay Tripathi						...... Petitioner
 
Vs
 
State of U.P. and others				...... Respondents
 

 
Hon. Arun Tandon, J.

Hon. Bharat Bhushan, J.

(Delivered by Hon. Arun Tandon, J.)

Heard Sri Vikas Budhwar, Advocate on behalf of the petitioner, Sri G.K. Singh, Senior Advocate on behalf of U.P. Public Service Commission, Sri Ram Gopal Tripathi, Advocate on behalf of the University of Allahabad, Standing Counsel on behalf of the State Respondents, Sri Arvind Srivastava, Advocate on behalf of respondent no. 5, Sri Radha Kant Ojha, Senior Advocate assisted by Sri Ratnakar Upadhyay, Advocate on behalf of respondent no. 14.

Petitioner before this Court, Vinay Tripathi, claims to be working as Lecturer Orthopaedic in Moti Lal Nehru Medical College, Allahabad (hereinafter referred to as 'Medical College'). He is stated to have done his M.S. in Orthopaedic from the same Medical College under guidance of respondent no. 14 i.e. Ajai Kumar Verma posted as Lecturer Orthopaedic in the same Medical College. The petitioner seeks a writ of quo warranto for declaring the appointment of respondent no. 14 as Lecturer Orthopaedics as a nullity and further to restrain him from continuing on the post of Lecturer Orthopaedic. Further prayers for recovery of the salary paid etc. have also been made.

Facts relevant for deciding the present writ petition are as follows:

An advertisement was published by the U.P. Public Service Commission in the employment news, being Advertisement No. 2/2009-10 dated 18.07.2009, for appointment on various posts of lecturers in various subjects in various State Medical Colleges situate in the State of Uttar Pradesh, which amongst other included the post of Lecturer Orthopaedics in medical college at Allahabad.

It is not in dispute that respondent no. 14 made an application in response to the said advertisement. The select panel for the post of Lecturer Orthopaedics was notified on 1st August, 2010, wherein the name of respondent no. 14 finds mention at serial no. 7. On the basis of the selection made by the U.P. Public Service Commission, the State Government appointed respondent no. 14 as Lecturer (Orthopaedics) vide order dated 14th December, 2010 against the vacancy available in the Medical College at Allahabad.

This selection and appointment of respondent no. 14 is questioned by the present petitioner on the ground that he does not possesses the requisite minimum qualifications as prescribed by the Medical Council of India (hereinafter referred to as 'MCI') for the post of Lecturer (Orthopaedics) and therefore his appointment is null and void.

From the records of the present writ petition it is clear that the qualifications for the post of Lecturer (Orthopaedics), as mentioned in the advertisement, were as per Rule 8 of the U.P. State Medical College Teachers Services Rules, 1990 (hereinafter referred to as 'Rules') as amended up to date. It is not in dispute that the said rules regulate the qualifications and the mode and manner of selection on the post of teachers in various State Medical Colleges. Under the advertisement a prospective candidate was required to possess a postgraduate degree in Orthopaedics having due recognition from MCI with three years teaching experience in the subject concerned from a recognized Medical College as Resident/Registrar/Administrator/Tutor.

The prescribed qualifications read as follows:

	(i)	requisite recognized postgraduate qualification in the 	        subject.
 
	(ii)	three years teaching experience in the subject 	concerned from a recognized medical college as 	Resident/Registrar/Administrator/Tutor.
 

According to the petitioner, respondent no. 14 neither has the requisite academic qualification nor he had the required teaching experience of three years to his credit on the last date of submission of the application for the post and therefore not qualified in accordance with the statutory provisions for such appointment.

From the records it is apparent that respondent no. 14, after passing the M.B.B.S. Examination, was admitted to the diploma course in Orthopaedics in Moti Lal Nehru Medical College Allahabad, where he worked as such from June, 2003 to May, 2005. It is stated that thereafter he has obtained the degree of Diplomate National Board (herein after referred to as 'DNB') from the National Board of Examinations. The respondent no. 14 is further stated to have worked as Senior Resident in Bhatacharya Orthopaedics and Related Research Centre (P) Ltd. Narayanpur between 1st July 2007 to February, 2009.

According to the petitioner in terms of Schedule-I of Minimum Qualification for Teachers in Medical Institutions Regulations, 1998 (hereinafter referred to as '1998 Regulations'), for the DNB qualification being treated to be equivalent to MD/MS, there has to be one year research experience and this one year period has to be counted from a date subsequent to date the DNB degree was granted in favour of respondent no. 14 in the facts of the case 28.09.2009. Even prior to the expiry of this one year period after the date of grant of DNB degree, appointment letter had been issued in favour of respondent no. 14. Therefore, he was not possessed of any degree of MD/MS or equivalent thereto as prescribed under the MCI Regulations.

To be specific it is stated that a candidate has to be possessed of prescribed minimum qualification by the last date of submission of the application, which in the facts of the case was 07th August, 2009 and therefore the respondent no. 14 cannot be said to be eligible.

So far as the requirement of teaching experience contemplated by Clause (ii) is concerned, it is emphasized on behalf of the petitioner that from a simple reading of the relevant clause it is apparent that the candidate must have three years teaching experience in the subject from a recognized medical college as Registrar/Resident/Administrator or Tutor during or after the attainment of postgraduate degree or equivalent qualification.

So far as the experience, which the respondent no. 14 claims to have acquired by pursuing his diploma course in Orthopaedics in Moti Lal Nehru Medical College Allahabad is concerned, it is submitted that the diploma in Orthopaedics is not a recognized course by MCI for the Moti Lal Nehru Medical College Allahabad. Therefore, the experience gained while pursuing a course, which has no recognition from the MCI, cannot be said to be an experience to be considered for satisfaction of the statutory qualification, referred to above.

It is further stated before this Court that the MCI in its report dated 23rd September, 2014 had found, after affording opportunity of personal hearing to Dr. Ajai Kumar Verma respondent no. 14, that he was not eligible for the post of Lecturer in Orthopaedics in Moti Lal Nehru Medical College. Therefore also it is submitted that respondent no. 14 must vacate the office which he is illegally occupying.

Counsel for the petitioner in support of his submissions placed reliance upon the judgment of the Apex Court in the cases of Medical Council of India vs. State of Karnataka and others; (1998) 6 SCC 131 (Paras 10, 13, 15, 16 and 17), Chaudhary Navin Hemabai vs. State of Gujarat; 2011 (3) SCC 617 (Para 18), Manohar Lal Sharma vs. Medical Council of India and others; 2013 (10) SCC 60 (Paras 16, 18, 19), Director, A.I.I.M.S. Etc. vs. Dr. Nikhil Tandon & Ors.; JT-1996 (2) SCC 473 (Paras 8, 11, 12, 13 and 14) as also upon the judgment of the Jammu and Kashmir High Court in the case of Dr. Rajiv Gupta and another vs. State (SWP No. 188/2011) dated 07th May, 2013, a copy whereof has been supplied to the Court.

The contentions so raised on behalf of the petitioner have been refuted by the counsel for the U.P. Public Service Commission, by the Standing Counsel as well as by the counsel for respondent no. 14. It is stated on their behalf that the requirement of having one year experience after passing the examination for the Diplomate National Board (DNB) for the same being treated as equivalent to a post graduation degree i.e. MD/MS has been done away with vide notification dated 20.02.2009. It is now provided that the DNB qualification be treated to be equivalent to the MD/MS qualification. It is stated that the teaching experience while pursuing the DNB course has to be treated as the experience required for appointment to the faculty post in medical colleges under the same notification dated 20.02.2009.

It is, therefore, explained that in view of the notification dated 20.02.2009, the DNB qualification possessed by respondent no. 14 has to be treated as equivalent to the post graduation degree in the concerned subject as per the requirement of the statutory provisions. Therefore, it cannot be said that the respondent no.14 lacks the academic qualification as prescribed under the MCI Regulations for the post of Lecturer Orthopaedics.

So far as the issue of respondent no. 14 being not possessed of requisite three years teaching experience, as required under Clause (ii) as essential qualification, quoted above, is concerned, it is stated on behalf of the respondents that two years teaching experience gained by respondent no. 14 while undergoing his DNB course has to be taken as the teaching experience for the purposes of satisfaction of the prescribed number of years of experience required under clause (ii) of the qualification. In addition to this two years period, respondent no. 14 had worked as Resident in Moti Lal Nehru Medical College Allahabad while pursuing his course of Diploma in Orthopaedics. Therefore, he had gained 2 years' teaching experience as Resident. This 2 years' teaching experience has to be added to the aforesaid teaching experience, The total whereof would be more than the required period of teaching experience as prescribed under Clause (ii).

It is explained to the Court on behalf of the respondents that admission was granted to respondent no. 14 to the diploma course in Orthopaedics in Moti Lal Nehru Medical College in pursuance to a combined entrance test held in 2003. He was also appointed as a Resident in the medical college. His appointment as Resident was not dependent upon his admission to the diploma course.

It is, therefore, submitted that even if there may be some doubt with regard to the admission to the Diploma in Orthopaedics course in Moti Lal Nehru Medical College because of the said course having not been recognized by the MCI, the teaching experience gained by respondent no. 14 in his capacity as Resident of 2 years cannot be ignored. It is further stated that although the medical college at Allahabad may not have recognition from the MCI for the diplomat in Orthopaedics but the said Diploma has been duly recognized by the National Board of Examinations, inasmuch as it is only on the basis of the said diploma course done by the respondent no. 14 that he was permitted to undergo 2 years training only for appearance in the DNB examination.

It is also stated that the diploma in Orthopaedics is recognized by the University of Allahabad, which was the examining university for the Moti Lal Nehru Medical College prior to the Allahabad University being declared a Central University.

It is stated that the State Government, after considering the entire material, passed an order dated 22.10.2014 to the effect that the respondent no. 14 was qualified for the post of Lecturer Orthopaedics. Therefore, the earlier objection of the MCI looses all significance.

Lastly it is contended that even if it is held that in absence of the Diploma in Orthopaedics having due recognition from the MCI the medical college at Allahabad could not have admitted any student in the said course, even then on the principle of 'de facto' the experience gained by the petitioner while pursuing the said diploma cannot be ignored, as has been explained by the Division Bench of this Court in the case of Dr. U.S. Sinha vs. State of U.P. and others; 2008 (2) ESC 923. It is, therefore, submitted that the writ petition must fail and be dismissed accordingly.

Sri Vikas Budhwar in rejoinder clarifies that it is not each and every experience which can be taken into consideration for satisfaction of the three years teaching experience as required under Clause (ii) of the statutory qualifications. The use of word 'recognized medical college' would necessarily means recognition of the particular course in the medical college by the MCI, inasmuch as according to the counsel for the petitioner recognition is granted by the MCI subject-wise having regard to the essential requirements. There is no general recognition of postgraduate diplomas/degrees for any medical college by the MCI. If there is no recognition in a particular subject, for a particular college, any admission granted thereunder would be void, being in the teeth of MCI Regulations. Therefore, any experience gained on the basis of such void admission would be of no consequence, as has been explained by the Apex Court in the case of Director, A.I.I.M.S. vs. Dr. Nikhil Tandon (supra). He also explains that two years period spent by the petitioner, while undergoing the diploma course in Orthopaedics in Moti Lal Nehru Medical College Allahabad, may be recognized for the purposes of appearing in the DNB examination, but the said decision of the National Board of Examinations will not bind the MCI in any manner, nor it can be said that the teaching experience gained on that basis would be counted contrary to the regulations framed by the MCI, which are statutory in nature. Support is drawn from the judgment of Jammu and Kashmir High Court in the case of Dr. Rajiv Gupta (supra).

Lastly it is submitted that the order of the State Government dated 22.10.2014 cannot override the decision of the MCI based on the statutory provisions applicable.

We have heard learned counsel for the parties and have gone through the records of the present writ petition.

At the very outset we may record that the Apex Court in the case of Medical Council of India vs. State of Karnataka (supra) has explained in paragraph 27 as follows:

"It is the Medical Council which is primarily responsible for fixing standards of medical education and overseeing that these standards are maintained. It is the Medical Council which is the principal body to lay down conditions for recognition of medical colleges which would include the fixing of intake for admission to a medical college. It is the Medical Council which in fact grant recognition and also withdraw the same."

It has further been emphasized in paragraph 30 of the same judgment that it is the Medical Council which can prescribe the number of students to be admitted in medical course in a medical college or institution.

In the case of Director, A.I.I.M.S. Etc. vs. Dr. Nikhil Tandan (supra) it has been held in paragraph 12 as under:

"Based upon the use of the words,"in any approved institution in India" in the qualifications mentioned for one among the several posts in the Recommendations, it is not possible to hold that the qualifications awarded by Institutions which are not recognised by the Medical Council of India or the training undergone in such Institutions has become recognised. The acceptance of this argument would mean that the qualifications not recognised by the Institute or Medical Council of India become recognised in this indirect manner. We cannot countenance such an argument."

It may also be noticed at this stage itself that the Government of India in 1995 established a National Board of Examinations, an autonomous body under the Ministry of Health and Family Welfare for conducting postgraduate and post medical courses of high and uniform national standard on all India basis. The degree awarded by the Board is named as Diplomat National Board (DNB). However, the equivalence to the degree awarded by the National Board of Examinations has only been provided for by MCI under the notification dated 01st June, 2006 with the conditions mentioned therein. Thereafter, the conditions are stated to be amended vide notification dated 20.02.2009, whereby DNB degree was included within the First Schedule to the Indian Medical Counsel Act, 1956. The notification dated 20.02.2009 reads as follows:

"NOTIFICATION

New Delhi, the 20th Feburary, 2009

S.O. 522(E).- In exercise of the powers conferred by sub-section (2) of the Section 11 of the Indian Medical Council Act, 1956 (Act 102 of 1956), the Central Government, after consulting the Medical Council of India, hereby makes the following further amendments to the First Schedule to the said Act, namely:-

2. In the Medical Council Act, 1956, in First Schedule "National Board of Examination", after the entry "Diplomate National Board (Pharmacology)[Diplomate in N.B. (Pharm)], the following note shall be inserted, namely:-

"Note:-1. The Diplomate National Board (DNB), qualifications included in this Schedule shall be treated as equivalent to M.D., M.S., D.M. And M. Ch. Qualifications of the respective specialty or super specialty, as the case may be, for all purposes including appointment to the teaching posts in the medical institutions.

2. The teaching experience gained while pursuing DNB courses shall be treated as teaching experience for appointment to the teaching posts in the medical institutions."

We may record that the notification dated 20.02.2009 is not under challenge.

In view of the simple language of the notification it has to be held that the degree of DNB possessed by the respondent no. 14 is one of prescribed educational qualification required for appointment on teaching post of medical colleges/institutions.

From note -2 to the aforesaid notification dated 20.02.2009 it is further apparent that the teaching experience gained while pursuing DNB course is to be counted towards the teaching experience for appointment to the teaching post in medical institutions.

From the records we find that the respondent no. 14 had admittedly undergone a 2 years teaching experience while pursuing his DNB course. Therefore, this 2 years period has to be treated as teaching experience as required for the post of Lecturer under the MCI Regulations.

The next question to be examined by us is about the remaining period of one year of teaching experience to be possessed by respondent no. 14 so as to make him eligible for the post of Lecturer in Orthopaedics in terms of the MCI Regulations.

According to the counsel for the respondents, the teaching experience gained while pursuing 2 years diploma in Orthopaedics in Moti Lal Nehru Medical College Allahabad has to be taken into consideration. While according to the counsel for the petitioner, the diploma course in Orthopaedics being not one of the course recognized by the MCI for the medical college at Allahabad, the admission granted thereto as well as the experience gained thereunder would be of no legal consequence and has to be ignored.

As already noticed above, for medical college to offer courses it is but necessary that the college must have due recognition for the course concerned from the MCI, failing which any admission granted would be per se illegal and without any authority of law. The experience gained while pursuing any such course in the medical college, which has no recognition in the course concerned from the MCI, in our opinion would be non est and cannot be taken into account for the purposes of satisfaction of the requisite teaching experience as contemplated by the MCI Regulations.

We draw support from the reasoning of the Apex Court in the case of Director, A.I.I.M.S. Etc. vs. Dr. Nikhil Tandan (supra) wherein it has been explained that if such stand is accepted then result would be that the qualification not recognized by the MCI becomes recognized vide indirect method, which is legally not permissible.

So far as the Division Bench judgment in the case of Dr. U.S. Sinha is concerned, we find that in the said case there was no issue with regard to the recognition of the concerned course by the MCI. The case was only with regard to the mode and manner of selection in question. It is in that background the Court had adopted the principle of de facto. The judgment proceeds on the facts of that case only and does not lay down the universal principle of law whereby teaching experience gained in respect of an admission to a course, which does not have recognition from the MCI, being recognized for the purposes of appointment as faculty member in a medical college. Even otherwise the Division Bench has not taken not of the judgment of the Apex Court in the case of Director, A.I.I.M.S. Etc. vs. Dr. Nikhil Tandan (supra).

We, therefore, agree with the submissions made on behalf of the petitioner to the effect that teaching experience, which has been gained by respondent no. 14 on the basis of his admission to diploma in Orthopaedics at medical college Allahabad, is of no legal consequence and has to be ignored.

The plea raised on behalf of the respondents that respondent no. 14 was admitted on the basis of the combined entrance test to the diploma course in Orthopaedics in medical college at Allahabad is neither here nor there. The mode of selection to the course, which is not recognized by the MCI, will not vest legality of any kind to the admission.

Records of the petition reflect that respondent no. 14 was appointed as Resident only because of his admission to the diploma course in Orthopaedics and not otherwise. No document has been brought on records to suggest that the appointment of respondent no. 14 as Resident was made otherwise than because of his being admitted to the diploma course in Orthopaedics. Therefore, the plea that the teaching experience gained as Resident is irrespective of his admission to the diploma course in Orthopaedics has no legs to stand.

Having arrived at the aforesaid conclusion, one important aspect of matter still remains to be examined by this Court i.e. in the facts of this case the Court should dislodge the petitioner, who has been selected by the U.P. Public Service Commission for the post of Lecturer (Orthopaedics), more so when the petitioner had not concealed any fact while submitting his application before the U.P. Public Service Commission and further in light of the fact that the DNB degree awarded in his favour by the National Board of Examinations has been granted due recognition both by the Government of India and MCI and the said National Board of Examinations had accepted the petitioner's claim of his being possessed of diploma in Orthopaedics from medical college at Allahabad.

We although agree with the contention raised on behalf of the petitioner that the respondent no. 14 may not be strictly said to be possessed of three years teaching experience required for appointment on the post of Lecturer Orthopaedics in a medical college on the date he had made the application, but having due regard to the fact that exercise of jurisdiction under Article 226 of the Constitution of India is equitable, as well as to the effect that the respondent no. 14 has been working as Lecturer for last more than 5 years in the medical college at Allahabad after his selection by U.P. Public Service Commission, we refuse to exercise our jurisdiction for issuing a writ of quo warranto so as to dislodge the respondent no. 14 from the post of Lecturer Orthopaedics in the facts and circumstances on record.

We draw support from the judgment of the Apex Court in the case of Buddhi Nath Chaudhary and others etc. vs. Abahi Kumar and others, reported in AIR 2001 SC 1176, wherein the Apex Court in paragraph 6 had observed that the lack of requisite experience, if any, at the time of recruitment is made good now because of the working of the incumbent on such post for long time.

In view of the aforesaid, writ petition is dismissed.

Date:-04.11.2015

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