Ajay Sood vs Union Of India And Ors.
1995 Latest Caselaw 699 Del

JUDGMENT

P.K. Bahri, J.

(1) The challenge in this writ petition is to the appointment of respondent No. 3 to the post of Assistant Professor (Endocrinology and Metabolism) and for directions to respondents 1 & 2 to appoint the petitioner to the said post.

(2) Facts, in brief, are that there was only one post available in that category which was advertised and both, petitioner and respondent No. 3, amongst others had applied for that post and the Selection Committee had prepared the panel for the said post and had placed respondent No. 3 at No. I and petitioner at No. 2 with the recommendation that both the candidates are of high merit and, if possible, another post may be created to which the petitioner may also be appointed. But, unfortunately, the authorities could not possibly create any post in which the petitioner could be accommodated. The petitioner and respondent No. 3 undoubtedly possess brilliant academic record and it is not necessary to give details of the academic careers of both of them in any detail. Fortunately, during the course of the arguments. Counsel for the petitioner raised only one ground out of the various grounds urged in the petition that in fact respondent No. 3. did not fulfill the requisite minimum qualifications for being appointed to the said post and thus, his appointment is totally illegal and arbitrary whereas the petitioner fulfillled all the requisite qualifications and should have been appointed to that post. There were allegations of mala fide also raised in the petition that father of respondent No. 3, being an Ex-Faculty Member of respondent No. 1, had exercised some undue influence in bringing about the appointment of his son but those allegations were not pressed before us during the course of the arguments.

(3) Admittedly, following qualifications are required to be fulfillled by the candidates applying for the said post:- Academic Qualification (For Medical Candidates) Essential : 1. A medical qualification, included in Schedule I & Ii of the third Schedule of the Indian Medical Council Act of 1956 (candidates possessing the qualifications included in Part Ii Of the third Schedule should also fulfill the conditions specified in Section 13(3) of the Act). 2. A post graduate qualification e.g. M.D/M.S. or a recognised qualification equivalent thereto in the respective discipline/subject.

(4) M.CH. for Surgical super specialty, viz. Urology, C.T.V.S, NeuroSurgery and D.M. for medical super specialty of Endocrinology, Cardiology, Nephrology and Gastro-enterology or qualification recognised equivalent thereto."

(5) Respondent No. 3 admittedly fulfillled the (I ) & (2) minimum qualifications as he has M.B.B.S. as well as M.D. degree from a recognised University. As far as qualification No. 3, enumerated above, is concerned, for this post, it was required that candidate should be D.M. (Doctor of Medicines) for medical super specialty of Endocrinology or qualification recognised equivalent thereto.

(6) It is not again disputed before us that respondent No. 3 had not acquire the degree of D.M. The qualification recognised equivalent to the degree of D.M. admittedly is that candidate should have undergone two years training in discipline of Endocrinology in a recognised institute followed by an examination and thereafter ought to have one year teaching and/or research experience in Endocrinology in a recognised institute.

(7) It is also not disputed before us that Indian Medical Council constituted under the Indian Medical Council Act after 1978 had not given any recognition to the degrees being awarded by Colleges and Institutions of United Kingdom. Respondent No. 3, however, had taken up Ph.D. course in the Cambridge University and his field of research was to be "the immune regulation of autoimmune thyroid disease" with effect from 17th April, 1990 and was declared successful for grant of Ph.D. Degree in the said subject. So, he is stated to have completed two years training in clinical Endocrinology with. effect from April 17, 1990 and thereafter had continued his research for one year. It is evident that if it is to be held that the University of Cambridge is a recognised University for the purposes of this training and research, then respondent No. 3 would be deemed to have possessed the essential qualifications for being appointed to said post. In case the finding was to be that the training undergone by the respondent No. 3 in the University of Cambridge while doing the course of Ph.D. in the aforesaid field is not to be counted as a training of two years in discipline of Endocrinology as required then obviously, he cannot be deemed to be eligible for the said post. The candidates were required to possess the necessary requisite qualification as well as experience up to June 30, 1993 and the respondent No. 3 did in that manner had such qualifications if they are to be upheld up to the said date.

(8) The All India Institute of Medical Sciences, respondent No. I, is constituted under the provisions of All India Institute of Medical Sciences Act, 1956. Section 23 of the Act lays down that the recognition of medical qualifications granted by the Institute notwithstanding anything contained in the Indian Medical Council Act, 1933, the medical degrees and diplomas granted by the Institute under this Act shall be recognised medical qualifications for the purposes of that Act and shall be deemed to be included in the first Schedule to that Act. We do not understand how this statutory provision is of any help in deciding the present case because we have not been referred to any particular order of the Institute under Section 23 of the Act with regard to recognition of any particular degree which could be considered good degree as per Indian Medical Council Act, 1933. Then reference is made to Regulation 24 framed under the said Statute which reads as follows:- "Qualifications for Appointment:-Age, experience and other qualifications for appointment to a post under the Institute shall be prescribed by the Appointing Authority keeping in view the qualifications and experience prescribed by the Central Government for similar post before applications of candidates are called for subject to the condition that non-medical personnel shall not be appointed to the post of Director."

(9) Under this Regulation, the Institute was well within its power to prescribe the qualifications and experience and while doing so, it was only supposed to keep in view similar qualifications and experience prescribed by the Central Government. The Central Government has laid down the qualifications and experience of similar type of post under the Indian Medical Council Act. However, the Institute, respondent No. I, had issued the recruitment rules 1981 obviously under Regulation 24 and the Rule Ii reads as follows:- "Post-Graduate Qualifications:-Post graduate qualifications means a post graduate qualification recognised as per the Medical-Council of India Act and for this purpose, the holder of a M.A.M.S. (Membership of the Academy of Medical Sciences) awarded after an examination held by the Indian Academy of Medical Sciences will be deemed to possess a recognised post-graduate (degree) qualification."

(10) Admittedly, the Cambridge University in which respondent No. 3 has undergone the training for two years in Endocrinology is not one of the Universities recognised even by respondent No. 1. In the affidavits filed before us on behalf of respondents 1 & 2 and by respondent No. 3, it was sought to be urged that similar training being undertaken in reputed foreign institutes and universities have been taken as a requisite qualification by this Institute all along and this practice should be deemed to have been laid down under Regulation 24 mentioned above. It is to be emphasised that D.M. degree is a post-graduate degree and in view of recruitment rules of respondents 1 & 2, the post graduate qualification has to be recognised as per the Medical Council of India Act and admittedly, if respondent No. 3 had obtained any D.M. degree from the Cambridge University, the same would not have been in consonance with the recruitment rules of respondents I & 2 because that is not the recognised university by Medical Council of India.

(11) If so, the equivalent qualification to this degree of having two years experience in the clinical field of Endocrinology should be in a recognised Institute or University. We have not been able to accept the contention of learned Counsel for respondents that this super specialty of D.M. and equivalent qualification of two years training in the said subject of Endocrinology is not a post graduate qualification. According to the meaning of the word "post-graduate" given in Oxford English Dictionary, Second Edition Volume Xii page 196, it means a student who takes a post-graduate course or continues his studies after graduation and as 506 an adjective, it means pertaining or relating to a course of study carried on after graduation, especially with reference to a second or a further degree.

(12) If this is the meaning of the word "post-graduate", it is evident that not only the actual degree of D.M. but the equivalent qualification of two years training in the field of Endocrinology would also be a post-graduate qualification and that qualification has to be such which is recognised by the Medical Council of India Act and it is not disputed before us that neither the degree of D.M. nor the equivalent qualification of two years training in the subject of Endocrinology obtained in any University or College in U.K. is recognised by the Medical Council of India.

(13) Mere fact that respondents 1 & 2 have been in practice giving appointments to the candidates who have such qualifications acquired from reputed Universities of England would not mean that the recruitment rule mentioned above stands modified. Respondents 1 & 2 had ample power to modify the recruitment rules under Regulation 24 but they appear to have not taken any such steps to modify Rule 11 appearing in the recruitment rules. So, it cannot be held that respondent No. 3 fulfillled the minimum requisite qualifications of D.M. degree or equivalent two years training in the subject in question from a recognised Institute or University.

(14) In the various affidavits filed by the petitioner, the petitioner had also sought to show that the field of training of respondent No. 3 was confined only to a part of the subject of Endocrinology but in arguments, no such point was urged, so we need not further give any finding on this point.

(15) In view of the discussion, we hold that appointment of respondent No. 3 to the post in question was illegal. We, hence, make the Rule absolute and quash the appointment of respondent No. 3 to the said post and require respondents 1 & 2 to consider the question of appointment of the petitioner to the said post in view of the recommendations of the Selection Committee. We, however, leave the parties to bear their own costs.