PETITIONER:
M. C. GUPTA ETC.
Vs.
RESPONDENT:
A. K. GUPTA & ORS. ETC.
DATE OF JUDGMENT15/12/1978
BENCH:
ACT:
Indian Medical Council Act, 1956, S. 2(f) read with
General Regulations, R. 4, "Medicine", includes specialist
branch of cardiology -"Research experience", computation,
holding of specified post whether pre-requisite while
conducting research-"Teaching experience" in foreign
institutions when can be taken into account.
HEADNOTE:
The appellant Dr. M. C. Gupta and the sixth respondent
Dr. R. N. Tandon, were appointed to the post of 'Professor
in medicine in State Government Medical Colleges. The
appointments were made by the State Government, on the
recommendation of U.P. Public Service Commission, which had
earlier with the assistance of four medical experts,
selected them through an interview. The respondents No. 1, 2
and 3 who were also candidates for the post filed a writ
petition in the High Court, challenging the selection and
appointment of Dr. M. C. Gupta and Dr. R. N. Tandon, though
no mala fides were attributed to the Commission. A Single
Judge of the High Court issued a writ quashing the
selection, on the ground that neither of the two selected
doctors had the requisite teaching experience and that
neither of them was qualified for selection as Professor of
Medicine. In appeal, the appellate Bench of the High Court
confirmed the order quashing the selections, and further
quashed the order of appointment, remitting the matter to
the Commission, directing it to make fresh selection in
consonance with the interpretation put upon the relevant
regulation, by the court.
Allowing the three connected appeals, one by Dr. M. C.
Gupta, and two by the State of U.P., the Court
^
HELD . I. Medicine includes cardiology. The Medical
Council of India, a body composed of experts, have in the
regulations clearly manifested their approach when they said
that cardiology is a specialist branch under medicine. Where
general subject such as medicine or surgery is being dealt
with, in a regulation, the specialist branch under it would
be covered, though not vice versa, because if one wants to
hold a post in the specialist branch, he must of necessity
have teaching experience in the specialist branch. [859 G,
860 D, 861 E].
II. If general regulation 4 is properly analysed for
the purpose of computing research experience, the
prerequisite is that the research must be done after
obtaining the requisite post-graduate qualification. It has
no reference to the post held by the person engaged in
research at the time of conducting the research, and, to say
that holding of the post specified in the regulation, is a
pre-requisite while conducting research, is to read in
regulation 4, what is not prescribed thereunder. [862 D-F].
III. Teaching experience in foreign teaching
institutions can be taken into account, but, they must be
some recognised institutions of repute and not any
institution outside the territory of India. 865 G, 866 C].
854
State of Bihar & Anr. v. Dr. Asis Kumar Mukherjee &
Ors., [1975] 2 SCR 894; followed.
Vade Mecum :
In view of the twilight zone of Court's interference in
appointment to posts requiring technical experience made
consequent upon selection by Public Service Commission,
aided and advised by experts having technical experience and
high academic qualifications in the specialist field,
probing teaching/research experience in technical subjects,
within the framework of Regulations framed by the Medical
Council of India, under s. 33 of the Indian Medical Council
Act, 1956 and approved by the Government of India, the
courts should be slow to interfere with the opinion
expressed by the experts, unless there are allegations of
mala fides against them. [857E-G].
University of Mysore & Anr. v. C. D. Govinda Rao &
Anr., [1964] 4 SCR 575; applied.
State of BIhar & Anr. v. Dr. Asis Kumar Mukherjee &
Ors., [1975] 2 SCR 894; explained.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 357/77
and 1142-1143/78.
Appeals by Special Leave from the Judgment and Order
dated 28-8-75 and 17-9-75 of the Allahabad High Court in
Special Appeal Nos. 233, 254 and 264 of 1975.
L. N. Sinha, Santosh Chatterjee, Vineet Kumar and P. P.
Singh for the Appellant in CA 357/77.
S. N. Kacker, Sol. General, M. V. Goswami and Rajiv
Dutt for the Appellants in CA 1142-1143/78 and RR 4 and 5 in
CA 357/77
A. K. Sen, S. C. Patel and Bishamber Lal for Respondent
No. 1 in All the appeals.
V. M. Tarkunde, S. C. Patel and Bishamber Lal for R. 2
in all appeals
G. L. Sanghi, S. C. Patel and Bishamber Lal for R. 3 in
all appeals.
Rajiv Dutt and P. C. Kapur for R. 6 in CA 357/77.
Santosh Chatterjee and Vineet Kumar for R. 6 in CA
1142/78.
The Judgment of the Court was delivered by
DESAI, J. Respondents Nos. 1, 2 and 3 in Civil Appeal
No. 357/77 filed writ petition No. 5462/74 challenging the
selection by U.P. Public Service Commission (‘Commission’
for short) and subsequent appointment by U.P. State
Government of appellant and respondent No. 6 to the post of
Professor in Medicine in State Government Medical Colleges.
A learned single Judge of the High Court quashed the selec-
855
tions. Four appeals came to be preferred against the
judgment quashing selections. Special Appeal No. 232/75 was
filed by Dr. R. N. Tandon, respondent No. 6; Special Appeal
No. 233 of 1975 was preferred by the present appellant Dr.
M. C. Gupta; Special Appeal No. 264 of 1975 was preferred by
the State of U.P.; and Special Appeal No. 256 of 1975 was
filed by respondents Nos. 1, 2 and 3 in Civil Appeal No.
357/77 against that part of the judgment of the learned
single Judge by which appointment of appellant Dr. M. C.
Gupta and respondent No. 6, Dr. R. N. Tandon, was not
quashed.
The appellate Bench partly allowed the appeals and
while confirming the order quashing the selection of Dr. M.
C. Gupta and Dr. R. N. Tandon, also quashed their
appointment and remitted the matter to the Commission
directing it to re-examine the relative merits of all
candidates in the light of the interpretation put upon the
relevant regulations by the Court. Arising from this common
judgment, three appeals by special leave are preferred to
this Court. Civil Appeal No. 357/77 is preferred by Dr. M.
C. Gupta and Civil Appeals Nos. 1142 & 1143 of 1978 are
preferred by the State of U.P.
To focus the attention on the contention raised at the
hearing of these appeals, a brief resume of facts would be
advantageous. The Commission invited applications for two
posts of Professor of Medicine in the State Medical Colleges
as per its advertisement dated 8th September 1973,
subsequently extending the last date for receipt of
applications to 30th March 1974, Dr. M. C. Gupta and Dr. R.
N. Tandon (referred to as the ‘appellants’) along with Dr.
A. K. Gupta, Dr. Brij Kishore and Dr. S. N. Aggarwal
(referred to as ‘respondents 1, 2 and 3), applied for the
post. The advertisement set out the prescribed
qualifications for the post under Regulations made under s.
33 of the Indian Medical Council Act, 1956 (‘Act’ for
short). They were in respect of the academic attainments,
teaching/research experience, upper age limit, etc. The
Commission was assisted by four medical experts in the
matter of interview, selection and recommendation of
suitable candidates satisfying the requisite qualifications
for the post. The Commission selected Dr. M. C. Gupta and
Dr. R. N. Tandon for the two posts of Professor in Medicine
and recommended their names to the State Government,
Respondents 1, 2 and 3 who were also candidates for the
post, presumably came to know about the recommendation and
moved the High Court on 13th September 1974 by way of a writ
petition questioning the selection. The petition was
admitted and rule nisi was issued. An ex-parte interim stay
restraining the Government from making the appointments was
granted but sub-
856
sequently it was vacated. The State Government accepted the
recommendations of the Commission and appointed Dr. M. C.
Gupta and Dr. R. N. Tandon as Professors of Medicine on 30th
October 1974. The petition was subsequently amended
questioning the order of appointment. As already stated
above, the learned single Judge held that neither Dr. M. C.
Gupta nor Dr. R. N. Tandon had the requisite teaching
experience and that neither of them was qualified for
selection as Professor of Medicine and accordingly allowed
the writ petition and quashed the selection. By a common
judgment in the appeals arising from the judgment of the
learned single Judge, the appellate Bench confirmed the
order quashing the selections and further quashed the order
of appointment and remitted the matter to the Commission
directing it to make fresh selection in consonance with the
interpretation put upon the relevant regulations by the
Court. Three appeals are before us. These three appeals
obviously were heard together and are being disposed of by
this common judgment.
The selection and appointment of Dr. M.C. Gupta and Dr.
R. N. Tandon were questioned only on one ground in that each
of them did not satisfy the requisite teaching/research
experience. The controversy in these appeals centres round
the question of teaching/research experience and the
relevant regulation in this behalf may be extracted:
___________________________________________________________
Post Academic Subject Teaching/
Qualification Research
experience
___________________________________________________________
(b) Professor/ M.D., M.R.C.P., Medicine (b) As Reader/
Associate F.R.C.P., Asst. Professor
Professor Speciality in Medicine for
Board of 5 years in a
Internal Medicine Medical College
(USA) or an after requisite
equivalent post-graduate
qualification in qualification.
the subject.
___________________________________________________________
Regulation 4 of General Regulations provides as under:
“4. 50% of the time spent in recognised research
under the Indian Council of Medical Research or a
University or a Medical College, after obtaining the
requisite post-graduate qualification be counted
towards teaching experience in the same or an allied
subject provided that 50% of the teaching experience
shall be the regular teaching experience.”
The teaching/research experience claimed by each of the
appellants may be set out and then the comments of each side
in respect of each item may be examined:
857
Experience of Dr. M. C. Gupta.
I. 25th January 1965 to 19th About 6 years and
July 1971-Lecturer in Cardio- 6 month’s teaching
logy in the Dept. of Medicine experience.
II July 71 upto the date of About 3 years, 2
appointment as Professor- months' teaching
Reader in Medicine in S.N. experience.
Medicine College, Agra.
Experience of Dr. R.N. Tandon
I. 1st October 1965 to 31st One years' teaching
October, 1966-Post doctoral experience.
teaching fellow, Dept. of
Medicine, State University
of New York at Buffalo, USA.
II 1st February, 1967 to 31st One year's teaching
1968-As a Lecturer while experience.
posted as Pool Officer Dept.
of Medicine in GSVM Medical
College, Kanpur.
III 5th April 1968 to 4th July 15 Months' teaching
1969-Post doctoral research experience.
fellow, Dept. of Medical in
GVSM Medical College, Kanpur.
IV 29th July 1969 to 30th October Over 5 years teaching
1974-(date of appointment as experience.
Professor)-Asst. Professor
of Medicine, State University
of New York, at Buffalo USA.
Before the rival comments are probed and analysed, it
would be necessary to keep in view the twilight zone of
Court’s interference in appointment to posts requiring
technical experience made consequent upon selection by
Public Service Commission, aided by experts in the field,
within the framework of Regulations framed by the Medical
Council of India under s. 33 of the Indian Medical Council
Act, 1956, and approved by the Government of India on 5th
June 1971. When selection is made by the Commission aided
and advised by experts having technical experience and high
academic qualifications in the specialist field, probing
teaching/research experience in technical subjects, the
Courts should be slow to interfere with the opinion
expressed by experts unless there are allegations of mala
fides against them. It would normally be prudent and safe
for the Courts to leave the decision of academic matters to
experts who are more familiar with the problems they face
than the Courts generally can be. Undoubtedly, even such a
body if it were to contravene rules and regulations binding
upon it in making the selection and recommending the
selectees for appointment, the Court in exercise of
extraordinary jurisdiction to enforce rule of law, may
interfere in a writ petition under Article 226. Even then
the Court, while enforcing the rule of law, should give due
weight
858
to the opinions expressed by the experts and also show due
regard to its recommendations on which the State Government
acted. If the recommendations made by the body of experts
keeping in view the relevant rules and regulations manifest
due consideration of all the relevant factors, the Court
should be very slow to interfere with such recommendations
(see, The University of Mysore & Anr. v. C. D. Govinda Rao &
Anr.,(1). In a more comparable situation in State of Bihar &
Anr. v. Dr. Asis Kumar Mukherjee, and Ors.,(2) this Court
observed as under:
“Shri Jagdish Swaroop rightly stressed that once
the right to appoint belonged to Government the Court
could not usurp it merely because it would have chosen
a different person as better qualified or given a finer
gloss or different construction to the regulation on
the score of a set formula that relevant circumstances
had been excluded, irrelevant factors had influenced
and such like grounds familiarly invented by parties to
invoke the extraordinary jurisdiction under Art. 226.
True, no speaking order need be made while appointing a
government servant. Speaking in plaintitudinous terms
these propositions may deserve serious reflection. The
Administration should not be thwarted in the usual
course of making appointments because somehow it
displeases judicial relish or the Court does not agree
with its estimate of the relative worth of the
candidates. Is there violation of a fundamental right,
illegality or a skin error of law which vitiates the
appointment”.
With these blurred contours of periphery of
jurisdiction under Article 226 to interfere with selections
made by an independent body like Public Service Commission
not attributed any mala fides, assisted by four experts in
the field who presumably knew what constituted
teaching/research experience, what institutions are treated
prestigious enough, in which teaching/research experience
would be treated valuable, we may examine the rival
contentions.
Two contentions which have found favour with the High
Court must engage our attention: (1) In order to satisfy the
experience qualification for the post of Professor in
Medicine, the teaching/research experience must be in
medicine and stricto sensu Cardiology being a separate
branch, experience of teaching/research in Cardiology cannot
be availed of, and (2) any such experience to satisfy the
regulation must be acquire while holding the post of Reader
or Assistant Professor (including the post of Lecturer) in
Medicine.
The controversy centres round the connotation of the
expression
859
‘medicine’. Does it include Cardiology or Cardiology is a
separate Branch ? Section 2(f) of the Act defines medicine
to mean modern scientific medicine in all its branches and
includes surgery and obstetrics, but does not include
veterinary medicine and surgery. This is too wide a
definition to assist us in the problem posed for the
decision of the Court. In the world of medical science there
are general subjects and specialities. Medicine and surgery
are general subjects. To wit, Cardiology is a speciality in
medicine and orthopaedics is a speciality in surgery. Even
the regulation from page 8 onwards bears the heading
‘Specialist Branch under Medicine and Surgery’. Cardiology
finds its place as a specialist branch under medicine. The
relevant regulation requires teaching/research experience in
medicine. Contention is, if any one who has
teaching/research experience in Cardiology, could he be said
to have such experience in medicine ? In this context we
must recall regulation 4 which provides that 50% of the time
spent in recognised research after obtaining the requisite
post-graduate qualification shall be counted towards
teaching experience in the same or allied subject provided
that 50% of the teaching experience shall be the regular
teaching experience. If research in allied subject can be
taken to satisfy the requisite experience, teaching
experience in a speciality under the general head could not
be put on an inferior footing. Undoubtedly, if the post is
in a specialist department, the requisite teaching/research
experience will have to be in the speciality. To illustrate,
if one were to qualify for being appointed as Professor/
Associate Professor of Cardiology, his teaching experience
must be in Cardiology though his research experience could
as well be in Cardiology or allied subject. A person having
such experience in the general subject medicine cannot
qualify for the speciality. That it what distinguishes the
speciality from the general subject. This becomes clear from
the fact that in a number of hospitals there may not be
posts in specialist branches and someone working in the
general department may be assigned to do the work of
specialist branches. If a particular hospital has not got
Cardiology as a specialist branch, a Reader or Assistant
Professor in the Department of Medicine may be required to
look after Cardiology cases and teaching of Cardiology as a
subject. In that event he is certainly a Reader/Assistant
Professor in Medicine teaching one of the subjects, viz.,
Cardiology which again forms part of the general curriculum
of the subject of medicine. Therefore, it is not proper to
divorce a specialist branch subject from the general
subject. It cannot be seriously contended that medicine does
not include Cardiology. To be qualified for the specialist
branch of Cardiology, the minimum academic qualification is
M.D. (Medicine). This would clearly show that after
acquiring the general qualification one can take the
specialist branch. If any other approach is adopted it would
work
860
to the disadvantage of the person who while being posted in
the Department of Medicine, is asked to teach a subject
which is necessary for being taught for qualifying for M.D.
but which can be styled as speciality. He would
simultaneously be denied the teaching experience in the
subject of Medicine. An extreme argument was urged that in
adopting this approach it may be that somebody may be
working in different specialist branches such as Neurology,
Gastroenterology, Psychiatry, etc. and each one would
qualify for being appointed as Professor of Medicine without
having even a tickle of experience on the subject of general
medicine. This wild apprehension need not deter us because
it should be first remembered that any one going into
specialist branch under medicine has to be M.D. (Medicine).
Thereafter, if he wants to become a Professor in the
specialist branch such as Cardiology, the academic
qualification required is to hold a degree of D.M. in the
Specialist Branch. This becomes clear from a perusal of the
regulations. It is not necessary, therefore, to go into the
dictionary meaning of the expression ‘medicine’ to determine
whether it includes Cardiology. The Medical Council of
India, a body composed of experts have in the regulations
clearly manifested their approach when they said that
Cardiology is a specialist branch under medicine. Ipso
facto, medicine includes Cardiology. It was not disputed
that one qualifying for M.D. (Medicine) has to learn the
subject of Cardiology. And it must be remembered that the
four experts aiding and advising the Commission have
considered teaching experience in Cardiology as teaching
experience in Medicine. The counter-affidavit on behalf of
the Commission in terms states that medicine is a wide and
general subject and includes Cardiology whereas for the post
of Professor of Cardiology a further two years’ special
training in Cardiology or D.M. in Cardiology after M.D. in
Medicine has been laid down as a requisite qualification by
the Medical Council. It is further stated that teaching
experience in Cardiology will make the person eligible for
the post of Professor of Medicine. That was the view of the
experts who assisted the Commission. Incidentally it may be
mentioned that Mr. V. M. Tarkunde, learned counsel for
respondents 1, 2 and 3 took serious exception to giving any
weight to the counter-affidavit because it has not been
sworn to by any expert aiding or advising the Commission or
by any officer or Member of the Commission but by an Upper
Division Assistant whose source of knowledge is the legal
advice tendered to him. In paragraph 1 of the affidavit the
deponent says that he has been deputed by the Commission to
file the counter-affidavit on their behalf and as such he is
fully acquainted with the facts deposed to in the affidavit.
It is our sad experience that responsible authorities avoid
filing affidavits in courts when it behoves them to assist
the Court and facilitate the decision of the questions
brought before the Court
861
but on this account alone we would not wholly ignore the
counter affidavit.
Some documents were brought to our notice showing that
in State University of New York at Buffalo, U.S.A. the
Assistant Professor of Cardiology is designated as Assistant
Professor of Medicine. Further, in the Agra University
Calendar, Cardiology is included in the Department of
Medicine. Similarly it was also pointed out that the
Department of Medicine in the University of Manchester
includes Lecturer in Cardiology. Apart from this
administrative arrangement, it could not be seriously
disputed that Cardiology is a specialist branch under
medicine and it could not be wholly divorced from medicine.
Under the general head ‘medicine’ number of subjects are to
be taught, one such being Cardiology. If a teacher is asked
to teach Cardiology as one of the subjects for general
medicine, could he be at a disadvantage by being treated as
having not acquired teaching experience in medicine ? Even
under general medicine, apart from medicine as a subject,
there are numerous other subjects and papers and there would
be one or more persons incharge of one or more subjects and
papers and indisputably each one would be gaining experience
in general medicine. If general medicine is to be restricted
only to the paper on medicine, it would lead to a startling
as result, as startling as it was sought to be urged when it
was said that a person teaching Neurology could not be said
to be gaining teaching experience in medicine. The matter
has to be looked at from this angle, viz., that where
general subject such as medicine or surgery is being dealt
with in a regulation, the specialist branch under it would
be covered, though not vice versa, because if one wants to
hold a post in the specialist branch he must be of necessity
have teaching experience in the specialist branch. In
reaching this conclusion the seniority list maintained
branch wise would hardly be helpful. Therefore, it is not
possible to agree with the High Court that the subject of
medicine under the regulation is exclusive of the other
subjects mentioned therein and, therefore, does not include
Cardiology.
The second contention which found favour with the High
Court was that the requisite teaching or research experience
must be acquired while holding the post set out in the
regulation in that subject. In other words, the view of the
High Court is that the teaching/research experience must be
acquired while holding the post of Reader/Assistant
Professor in Medicine for five years in a Medical College.
The High Court placed the emphasis on the experience
acquired while holding the post. The relevant regulation
requires teaching/research experience as Reader/Assistant
Professor (which includes Lecturer)
862
in Medicine for five years in a Medical College. Regulation
4 has to be read along with specific regulation. Regulation
4 clearly shows that 50% of the time spent in recognised
research in the same or allied subject will be given credit
provided that 50% of the teaching experience shall be
regular teaching experience. The specific regulation
prescribing the qualification will have to be read subject
to the general regulation prescribed under regulation 4
because the experience qualification prescribed in specific
regulation must be calculated according to the formula
prescribed in general regulation no. 4. The specific
regulation requires 5 years’ teaching/research experience.
In calculating the research experience in the light of
regulation 4, 2 1/2 years’ experience shall be specifically
teaching experience and credit can be given to the extent of
50% of the time spent in recognised research as prescribed
in the regulation, which experience can be in the same
subject, viz., the subject for which the recruitment is
being made or in allied subject. So far there is no dispute.
The question is: while acquiring research experience, is it
incumbent that the person conducting research must also hold
of necessity designated post in the regulation ? Now, if
general regulation 4 is properly analysed for the purposes
of computing research experience, the pre-requisite is that
the research must be done after obtaining requisite post-
graduate qualification. It has no reference to the post held
by the person engaged in research at the time of conducting
the research. The heading is ‘teaching/research experience’.
The dichotomy will have to be applied to teaching and
research experience for the purpose of computation. So far
as teaching experience is concerned, it must be acquired
while holding the post specified in the regulation. But to
say that holding of the post is a pre-requisite while
conducting research is to read in regulation 4 what is not
prescribed thereunder. The specific regulation prescribing
qualification will have to be read subject to general
regulation 4 and not vice versa. This also becomes manifest
from the fact that general regulation 4 also provides that
50% of the teaching experience shall be regular teaching
experience meaning thereby that if someone is engaged
exclusively in research, he cannot claim to satisfy the
teaching experience qualification prescribed in the
regulation. Reading specific regulation with general
regulation 4, it emerges that teaching experience shall be
acquired while holding the particular post specified therein
and the research experience can be taken into account if the
person is engaged in research after obtaining post-graduate
qualification and it has nothing to do with the holding of
the post. One may be engaged as a research scholar and holds
no teaching post. The research is hardly related to post
though capacity for research is directly related to academic
attainment. That has been
863
taken care of. Teaching it indisputably related to the post
because a higher post may entail greater responsibility for
coaching in higher classes. This conclusion is reinforced by
the language of general regulation 4 which permits
recognised research under the Indian Council of Medical
Research which body may not have such hierarchical posts of
Lecturer or Assistant Professor or Reader. These three
designations are to be found in teaching institutions and
not in research institutions. If it were, therefore, to be
held that even while acquiring research experience one must
hold the post of either Reader or Assistant Professor, it
would discourage many persons conducting research under the
Indian Council of Medical Research. It is, therefore, not
possible to agree with the generalisation made by the High
Court that teaching/research experience to qualify for the
post of Professor must be acquired while working as a Reader
or Lecturer.
Having cleared the ground about the interpretation of
requisite regulations, we must now turn to examine the two
individual cases.
In re :Dr. M. C. Gupta.
The experience qualification of Dr. M.C. Gupta has been
extracted above. There is no dispute between the parties
that he was appointed and was working as Reader in Medicine
in S.N. Medical College, Agra, from 28th July 1971 till 30th
March 1974 which was the last date by which applications had
to be submitted to the Commission. This would give him a
teaching experience of 2 years 8 months and 10 days.
Dr. Gupta also claims teaching experience, being a
Lecturer in Cardiology in the Department of Medicine, S. N.
Medical College, Agra, from 25th January 1965 to 19th July
1971, in the aggregate period of 6 years, 6 months and 24
days. There is a serious dispute between the parties whether
Dr. Gupta is entitled to get credit for teaching experience
while working as Lecturer in Cardiology. On the view that we
have taken that Cardiology is a specialist branch under
medicine and, therefore, a Lecturer in Cardiology could be
said to be a Lecturer in one of the subjects under general
medicine and hence he had requisite experience as Lecturer
in Medicine. However, Dr. Gupta has produced a certificate
issued by the Principal and Chief Superintendent, S.N.
Medical College & Hospital, Agra, dated 19th September 1974
in which it is stated that ‘Dr. Gupta joined the Department
of Medicine as Lecturer in Cardiology on 25th January 1965
and continued till July 19, 1971 when he was appointed as
Reader in Medical by Public Service Commission’. It is
further certified by
864
the Principal & Chief Superintendent that ‘Dr. Gupta was
actively involved in patient-care, teaching of
undergraduates and post-graduates in general medicine in
addition to conducting Cardiac Out Patient, looking after
cardiac beds and taking Cardiology lectures during his
tenure as Lecturer in Cardiology, as Cardiology forms a part
of general medicine in this college and there is no separate
Department of Cardiology here’. There is another certificate
issued by Dr. K. S. Mathur, Professor & Head, Department of
Medicine (RD), dated 17th September 1974, in which it is in
terms stated that Dr. Gupta was actively involved in the
patient care and teaching of undergraduates and
postgraduates in General Medicine in addition to Cardiology
during this period. Further, Dr. Gupta used to be the Senior
Physician to attend to Emergencies of all medical cases on a
particular day of week and he looked after indoor beds of
general medical units during leave arrangements. He was also
incharge of T.B. Clinic for a period of one month. It was
further stated that Dr. Gupta had been assigned ‘Special
Clinics’ to 5th year and 3rd year and ‘Long Clinics’ to
final year students from time to time in addition to Cardiac
Clinics and Cardiology lectures. He was also taking regular
classes in clinical methods for third year and has also been
called upon to teach them kidney diseases. There are further
references in the certificate which we may ignore for the
time being. Dr. Gupta also produced a certificate issued by
Professor of Clinical Medicine, S. N. Medical College, Agra,
which, inter alia, states that Dr. Gupta was associated from
time to time with teaching and patient care in general
medicine and he was also actively associated with teaching
of post-graduates in general medicine in the way of clinical
conferences, seminars, etc. He was also incharge of beds in
general medicine in Professors’ Unit in the leave vacancy. A
notice dated 24th October 1970 issued by the Department of
Medicine, S. N. Medical College, Agra, was also brought to
our notice in which it was shown that Dr. Gupta was to be
the Senior Physician on call on every Tuesday. It would thus
appear that even if Dr. Gupta was designated as Lecturer in
Cardiology for the period 25th January to July 19, 1971,
undoubtedly he was teaching general medicine to
undergraduate students and to some post-graduate students
also and this is testified by persons under whom he was
working. It would be unwise to doubt the genuineness of
these certificates. Therefore, even apart from the fact that
Cardiology is a part of medicine, the teaching experience
acquired while holding the post of Lecturer in Cardiology,
was teaching experience in subject which substantially
formed part of general medicine and over and above the same,
he was also working as Lecturer in Cardiology and,
therefore, the Commission was amply justified in reaching
the conclusion that Dr. Gupta
865
had the requisite teaching experience qualification and the
High Court was in error in quashing the selection of Dr. M.
C. Gupta on this ground.
Mr. L. N. Sinha, learned counsel, also wanted us to
examine the research experience of Dr. M. C. Gupta when he
pointed out that Dr. Gupta had published as many as 40
research papers in leading medical journals in India during
10 years he worked as Lecturer/Reader and that he had also
been a recognised appraiser for the thesis submitted for the
award of Doctor of Medicine. Mr. Sen seriously objected to
our examining this contention because Dr. Gupta himself
never claimed any credit for research experience.
Undoubtedly, the counter-affidavit on behalf of the
Commission refers to having taken into consideration the
research experience of Dr. Gupta but the affidavit is
blissfully vague on the question which research experience
was examined by the Commission. Therefore, we would not take
into account the research experience claimed on behalf of
Dr. Gupta.
In re: Dr. R. N. Tandon.
We have already extracted above the teaching/research
experience qualification claimed on behalf of Dr. Tandon.
Mr. Kacker, learned Solicitor General requested us to start
examining each item of experience commencing from the last
one as first. Before we proceed to examine each item of
experience claimed by Dr. Tandon, one contention raised on
behalf of the respondents must be dealt with. It was urged
that wherever the regulations prescribe teaching or research
experience, it must be one acquired in an institution in
India or in any foreign institution recognised by the
Medical Council of India or the Government of India. It is
not necessary to examine this argument in depth because the
point could be said to have been concluded by A. K.
Mukherjee’s case, wherein same set of regulations came in
for consideration of this Court and in which it was
seriously contended that the teaching experience specified
in regulations in question must be acquired in teaching
institutions in India and, therefore, any teaching
experience in a foreign country cannot be taken into
consideration. This contention was in terms negativated
simultaneously negativing the other extreme submission that
teaching experience from any foreign institution is good
enough, and after referring to sections 12, 13, and 14, it
was held that those which are good enough for the
aforementioned sections, are good enough for the teaching
experience gained therefrom being reckoned as satisfied. The
matter undoubtedly was not further pursued by this Court
because the final decision was left to the Commission.
866
Proceeding in the order suggested by Mr. Kacker it is
claimed that Dr. Tandon worked as Assistant Professor of
Medicine, State University of New York at Buffalo from 29th
July 1969 to 30th October 1974. This includes some period
subsequent to the last date for submitting application to
the Commission and we would exclude that part of the
experience claimed by Dr. Tandon. Therefore, Dr. Tandon
claims to be working as Assistant Professor of Medicine from
29th July 1969 to 30th March 1974 which was the last date
for submitting the application to the Commission. Computing
the period, he would have teaching experience of four years,
six months and one day.
It was also said that even if teaching experience in
foreign teaching institution is to be taken into account,
they must be some recognised institutions of repute and not
any institution outside the territory of India. That of
course is true. In A. K. Mukherjee’s case the pertinent
observation is as under:
“Teaching institutions abroad not being ruled out,
we consider it right to reckon as competent and
qualitatively acceptable those institutions which are
linked with, or are recognised as teaching institutions
by the Universities and organisations in Schedule II
and Schedule III and recognised by the Central
Government under s. 14. Teaching institutions as such
may be too wide if extended all over the globe but
viewed in the perspective of the Indian Medical Council
Act, 1956, certainly they cover institutions expressly
embraced by the provisions of the statute. If those
institutions are good enough for the important purposes
of ss. 12, 13 and 14, it is reasonable to infer they
are good enough for the teaching experience gained
therefrom being reckoned as satisfactory.”
But it could hardly be urged with some confidence that the
State University of New York at Buffalo would not be an
institution of repute. An attempt was made to refer to the
Schedules, not upto date, to the Act published by the
Medical Council of India showing recognised institutions. In
fact, the Schedules set out recognised degrees, certificates
and diplomas of various Universities and certain examining
Boards of U.S.A. being recognised by the Medical Council of
India. This brochure hardly helps in coming to conclusion
one way or the other. It refers to degrees and the Boards
awarding the degrees and diplomas. It does not refer to
teaching institutions. It nowhere shows that the
certificates and diplomas issued by the State University of
New York at
867
Buffalo would not be under one of the American Boards and,
therefore, it is not recognised. Such a contention was not
even urged before the High Court or specifically in
affidavits so that factual material could have been more
carefully examined. The experts aiding and advising the
Commission must be quite aware of institutions in which the
teaching experience was acquired by Dr. Tandon and this one
is a reputed University.
It was, however, contended that there is no proof in
support of the submission that Dr. Tandon was working as
Assistant Professor of Medicine at State University of New
York at Buffalo, commencing from 29th July 1969. Dr. Tandon
has produced a certificate, Annexure CA. 5 issued by
Associate Professor of Medicine, Director Angiology
Department, Buffalo General Hospital dated 3rd June 1971, in
which it is stated that Dr. Tandon is an Assistant Professor
of Medicine in the Department of Medicine on the full time
staff of the Buffalo General Hospital having an annual
salary of $ 15,000. Mr. Tarkunde urged that this certificate
does not show that Dr. Tandon was appointed effective from
29th July 1969. Further, exception was taken to the
certificate in that it is issued by the Buffalo General
Hospital which the certificate does not show to be a
teaching institution. If it was not a teaching institution,
one would fail to understand how it had a post of Assistant
Professor of Medicine. In a nonteaching hospital there could
not be a post of Assistant Professor. Therefore, the very
fact that Dr. Tandon was shown to be an Assistant Professor
of Medicine, by necessary implication shows that Buffalo
General Hospital was a teaching institution under State
University of New York. In this connection reference may be
made to a certificate dated 12th September 1974 issued by
James P. Nolan, Professor of Medicine and Head, Department
of Medicine, Buffalo General Hospital, in which it is stated
that since July 1969 Dr. Tandon has been a teacher in
general medicine at the Buffalo General Hospital. This
removes any doubt about the commencement of appointment of
Dr. Tandon as Assistant Professor at the Buffalo General
Hospital. Mr. Tarkunde however urged that the certificate
does not appear to be genuine in view of the inquiry made by
a telegram (p. 257, Vol. II of the record) from the
authorities incharge of the Buffalo General Hospital and the
reply received that Dr. Tandon is in India and, therefore,
cannot get any information as he left instructions not to
release it. Who has sent this telegram is left to mere
speculation. And who sent the reply is equally unknown. It
would be improper to reject the certificate on such nebulous
ground and we
868
can do no better than reject the contention of Mr. Tarkunde
as unworthy of consideration as was done in A. K.
Mukherjee’s case where in it was observed as under:
“There are 6 certificates now on record and the
1st respondent is stated to have taken part in teaching
work as Registrar. You cannot expect to produce those
surgeons in Patna in proof and unless serious
circumstances militating against veracity exist fair-
minded administrators may, after expert consultations,
rely on them”.
Therefore, we see no justification for rejecting the
certificates. It would appear that Dr. Tandon had the
teaching experience while holding the post of Assistant
Professor of Medicine for a period of four years, six months
and one day. The minimum requirement is five years.
We would next examine one more item of experience
claimed by Dr. Tandon in that he was post-doctoral teaching
fellow, Department of Medicine, State University of New York
at Buffalo from 1st October 1965 to 31st October 1966. Now,
undoubtedly this was teaching experience in the same
University where he was subsequently Assistant Professor.
The grievance is that he was a Fellow and neither a Lecturer
nor an Assistant Professor. What does ‘Fellow’ in the
University connote ? A certificate has been produced,
Annexure CA. (page 50, Vol. IV) by Dr. Tandon issued by
Eugine I. Lippasch, Professor & Administrative Associate
Chairman of the Department of Medicine, State University of
New York at Buffalo, dated 13th October 1966, in which it is
stated that Dr. Tandon completed one year teaching
fellowship in the Division of Cardiology of the Department
of Medicine at the State University of New York at Buffalo
and the Buffalo General Hospital on October 31, 1966. It is
not very clear what is the equivalent of a Fellow in
teaching Hospitals in India but Dr. Tandon has also claimed
teaching experience from 5th April 1968 to 4th July 1969,
being posted as post-doctoral research fellow, Department of
Medicine in G. S. V. M. Medical College, Kanpur. In this
connection, Annexure R-2, produced by none other than some
of the contesting respondents shows that during the tenure
of Fellowship, Dr. Tandon was expected to take part in the
teaching and research activities of the College though he
would not be treated as part of the regular establishment of
the College. Now, if the certificate produced by Dr. Tandon
shows that Fellowship included teaching work, it would be
unwise to doubt it. Even if 50% of the time spent in these
two places is given credit, Dr. Tandon had certainly
869
more than five years’ teaching experience. The Court is not
competent to work out figures with mathematical precision.
It can broadly examine the question whether the requirement
is satisfied or not. Therefore, he had the requisite
teaching/research experience and the Commission was fully
justified in treating Dr. Tandon as having requisite
teaching/research experience.
It thus clearly appears that both Dr. M. C. Gupta and
Dr. R. N. Tandon had the requisite qualifications, both
academic and experience, and they were eligible for the post
for which they had applied and if they were selected by the
Commission and appointed by the Government, no exception can
be taken to the same. The High Court was, therefore, in
error in interfering with the same. Accordingly, all the
three appeals are allowed and the writ petition filed by
respondents 1, 2 and 3 in the High Court is dismissed with
no order as to costs in the circumstances of the case.
M.R. Appeals allowed.
870