PETITIONER: UNION OF INDIA & ORS. Vs. RESPONDENT: S. B. KOHLI & ANR. DATE OF JUDGMENT20/12/1972 BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. DUA, I.D. VAIDYIALINGAM, C.A. CITATION: 1973 AIR 811 CITATOR INFO : D 1974 SC 1 (40A,46) F 1974 SC1631 (28) R 1978 SC 327 (7,9) R 1980 SC1255 (8,13) D 1988 SC1048 (15,16) RF 1989 SC 307 (9) APR 1989 SC1256 (8) F 1989 SC1308 (7) ACT: Central health Scheme Rules -Qualifications for Specialists Whether the degree of E.R.C.S. is enough for the post of a professor in Orthopaedics. HEADNOTE: Under Central Health Service Rules 1963 as amended, items 2 JUDGMENT:
graduate degree in the concerned speciality mentioned in
Part A of Anuxure 11 or equivalent.”
In the present case, the first Respondent apart from having
a postgraduate degree in General Surgery (F.R.C.S.) had also
a degree of M.C.H. (Arth), Liverpool; whereas the Second
Respondent had a post graduate degree in General Surgery
(F.R.C.S.) only.
The question that arose for decision was whether the
postgraduate qualification which was required in the case of
a direct recruitment to the post in question was also a
necessary qualification for appointment by promotion to that
post, and what was the meaning of the phrase “a post-
graduate degree in the Concerned Speciality.”
HELD : (i) Before the growth of specialised qualifications
Surgeons obtaining the F.R.C.S. in general surgery used to
specialise in orthopaedics and other specialities either by
doing a diploma in Orthopaedics or simply by practice and
experience. The Regulations framed by the Medical Council
require that in addition to the general F.R.C.S., a surgeon
must have a diploma in Orthopaedics before he could be,
appointed a Professor, Reader or Lecturer in Orthopaedics.
That regulation has been accepted by the Government. This
gives an indication of what is considered a post-graduate
degree in the concerned speciality. Therefore, in the
present case, a mere degree of F.R.C.S. as such cannot be
deemed to be a postgraduate qualification in the concerned
speciality of Orthopaedics. To hold otherwise would mean
that a person who has the qualification of F.R.C.S. could be
deemed to be specialised in Tuberculosis and Orthopaedics,
although he is also a specialist in general surgery.
Therefore, the second Respondent does not hold a post-
graduate degree in the concerned speciality, Orthopaedics
and as such, his promotion to the post of a professor in
Orthopaedics was illegal and against the Central Health
Service Rules. Appeal dismissed.
&
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1943 of
1972.
Appeal by special leave from the judgment and order dated
May 18, 1972 of the Delhi High Court at New Delhi in Civil
Writ No. 1319 of 1971.
L.N. Sinha, Solicitor-General of India, G. L. Sanghi and
S. P. Nayar for the appellants.
Respondent No. 1 in person.
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Yogeshwar Prasad, S. K. Bagga and S. Bagga for respondent
No. 2.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J. This is an appeal by special leave against
the judgment of the High Court of Delhi allowing the writ
petition filed by the 1st Respondent questioning the
appointment of the 2nd respondent to the post of Professor
of Orthopaedic Surgery in the Maulana Azad Medical College
and reverting her as Associate Professor.
The question that arises for decision in this case is
whether the post-graduate qualification which is undoubtedly
required,in the case of a direct recruitment to the post in
question is also a necessary qualification for appointment
by promotion to that post, and what is the meaning of the
phrase ‘a post-graduate degree in the concerned speciality’.
The first respondent possesses the following qualifications
: She is M.B.B.S. of the, Bombay University, F.R.C.S. of the
Edinburgh University, M.Ch. (Orth). of the Liverpool
University and also of F.R.C.S. (Eng.) The second respondent
holds an M.B.B.S. degree and in addition the qualification
of F.R.C.S. of the Edinburgh University. Consequent on the
selection made by the Departmental Promotion Committee, the
second respondent was appointed to the post in question, as
already mentioned, and as a consequence the first respondent
was reverted as Associate Professor.
The case raises the question of interpretation of the
Central Health Service Rules, 1963, as amended in the years
1966 and 1968. These rules are made under article 309 of
the Constitute posts in the Central Health Service were
divided, were fairly simple. In 1966 pursuant to
regulations framed by the Indian Medical Council the
Government amended the rules creating the category of
‘Specialists’. In 1968 further amendments were made in
items 2 and 3 of Annexure 1 to the Second Schedule requiring
“a post-graduate degree in the concerned speciality
mentioned in Part A of Annexure II or equivalent” for the
post of a Professor, Reader or Lecturer. The promotion in
question having been made thereafter, the rules as amended
in 1966 and 1968 will govern the qualifications necessary
for this post.
The post in question is one which falls under Super time
Grade 11 in Rule 4 of the Central Health Service Rules.
According to Rule ( 3) fifty per cent of the vacancies in
Supertime Grade II shall be filled by the promotion of (i)
General Duty Officers, Grade I with not less than 10 years’
of service in that category, or (ii) Specialists’ Grade
Officers with not less than 8 years of service in the
category, in the ratio of 2 : 3 on the recommenda-
119
tion of a Departmental Promotion Committee on the basis of
merit and seniority of the officer concerned. Provided that
no person shall be eligible for appointment to any. such
post unless he possesses the qualifications and experience
requisite for appointment to such post. The question then
is : What are the qualifications and experience requisite
for appointment to the post of Professor of Orthopaedics ?
There is no dispute that according to the Second Schedule,
which deals with selection by the Union Public Service
Commission a professor in a medical college or teaching
institution should have a post-graduate degree in the
concerned speciality mentioned in Part A of Annexture II or
equivalent. It is not necessary to refer to the other
qualifications because they do not arise for decision in
this case. In Annexure 11 to that Schedule against Item 7
(Orthopaedics), the qualifications mentioned are M.S.,
M.C.H. (Orthopaedics) (Liverpool), F.R.C.S. The 1st
respondent, as already mentioned, has go the degree of
M.C.H. (Orth.) (Liverpool. The 2nd respondent is a F.R.C.S.
If F.R.C.S. mentioned therein can be considered to be a
postgraduate degree in the concerned speciality,
Orthopaedics, the first respondent’s petition cannot
obviously succeed. It seems to us that the qualification of
F.R.C.S. cannot be deemed to be a post-graduate degree in
Orthopaedics.
Are we to take it that because the Annexure II has the head-
ing ‘List of Post-Graduate Qualifications’ and F.R.C.S. is
found beside the item 7 (Orthopaedics), that for the purpose
of the rules it is deemed to be a qualification in
Orthopaedics though F.R.C.S. is certainly a post-graduate
qualification ? As pointed out by the High Court, F.R.C.S.
(Edin.), which is the qualification the second respondent
possesses, is in General Surgery. The Edinburgh University
awards F.R.C.S. in three specialities but not in
Orthopaedics. F.R.C.S. (Canada) exists in specialities
including Orth opaedics. Before the growth of specialised
qualifications, surgeons obtaining the F.R.C.S. in General
Surgery used to specialise in Orthopaedics and other
specialities either by doing a diploma in Orthopaedics or
simply by practice and experience. The regulations framed
by the Medical Council require that in addition to the
general F.R.C.S. a surgeon must have a diploma in
Orthopaedics before he could be appointed a Professor,
Reader or Lecturer in Orthopaedics. That regulation has
been accepted by the Government. Though the validity of the
appointment to the Central Health Service does not have to
be tested by reference to the regulations framed by the
Indian Medical Council for teaching staff in medical
colleges, those regulations and their acceptance by the
Government give an indication of what is considered to be a
post-graduate degree in the concerned speciality. Before
the High Court on behalf of the Government it seems to have
been contended that the amend-
120
ments made in the Central Health Service Rules give effect
to the regulations framed by the Indian Medical Council.
Part of the difficulty in this case has arisen because
Annexure 11 was not amended when the relevant portion of
Annexure I was amended in 1968. But that does not take away
the force of the argument that F.R.C.S. as such cannot be
deemed to be a post-graduate qualification in the concerned
speciality of Orthopaedics. To hold otherwise would mean
that a person who has the qualification of F.R.C.S. could be
deemed to be a Specialist in Tuberculosis and Orthopaedics,
although he is also a Specialist in General Surgery. The
various entries in Annexure II would have to be interpreted
in a reasonable manner. Otherwise how could M.D., M.R.C.P.,
F.R.C.S, and M.S. all be considered to be specialised
qualifications in Tuberculosis, or a mere M.D. or M.R.C.P.
and F.R.C.S. connote a post-graduate qualification in the
speciality of Paediatries. It stands to reason that these
degree must be in the subject of Paediatrics if the holders
of those degrees are to be considered specialists in
Paediatrics. As mentioned earlier, F.R.C.S. (Canada) has
many specialities. M.D. also can be in many specialities as
indeed Annexure 11 itself shows. So also M.S. We-are,
therefore, in complete agreement with the view of the
learned Judaes of the High Court that F.R,.C.S. by itself
cannot be said to be a post-graduate degree in Orthopaedics.
The mere fact that a degree is mentioned against speciality
of Orthopaedics does not make it a post-graduate degree in
Orthopaedics. Admittedly the second respondent does not
possess the qualification, of F.R.C.S. in Orthopaedics. In
the circumstances the fact that F.R.C.S. is also shown
against the entry “Orthopaedics” in Annexure II is not an
answer to the question whether it is a postgraduate degree
in orthopaedics. It was urged that the F.R.C.S. examination
has an orthopaedic content. In that sense the holder of
every medical degree knows something of every subject in
medicine or surgery. Nobody can contend that a mere
M.B.B.S. is a degree in surgery or opthalmology because it
has a content of surgery or opthalmology. We therefore hold
that the 2nd respondent does not bold a post-graduate degree
in the concerned speciality, Orthopaedies.
It is then necessary to deal with the argument that the
qualification set out in Annexure I and II of the Second
Schedule were not applicable to cases of promotion. One of
the reasons advanced was that it will adversely affect
persons who entered service at a time when the
qualifications mentioned in Annexure IT to Second Schedule
were not requisite qualifications for the various posts
mentioned in Annexure I. This appears to be a wholly
irrelevant consideration unless it could be shown that such
a rule cannot be validly made. It was then argued that Rule
8 (3) does not mention the qualifications in Annexures I and
11 as
121
necessary qualifications for promotion to Supertime Grade
II. We consider this argument without substance because the
proviso thereto just means that. The meaning of that
proviso is that in this case where a specialist grade
officer is sought to be promoted to the post of a Professor
in Orthopaedic Surgery he should have a post-graduate degree
in the concerned sociality mentioned in Part A of Annexure
II or equivalent, which is the qualification, and 12 years’
standing in the profession which is the experience. If this
interpretation was not to be given to this proviso it will
be wholly superfluous. The fact that that proviso does not
refer to the Second Schedule as for instance sub-rule (2A)
of rule 8 does not affect the question.
We also do not understand the argument advanced on behalf of
the appellant that the interpretation placed by the High
Court and accepted by us now on this part of the case would
mean infraction of Article 16 of the Constitution. We do
not agree that the decision of this Court in Roshan Lal v.
Union(1) lays down any such principle. Professors and
Additional Professors in teaching institutions do not stand
in the same position as General Duty Officers. The argument
that it would lead to discrimination in the matter of
promotion of specialist is also without substance. To say
that to be appointed a Professor in Orthopaedics a person
must have a post-graduate degree in Orthopaedics is not to
make a classification without reference to the objectives
sought to be ‘achieved and there can be no question of
discrimination.
Another argument put forward was that the nature of the
qualifications mentioned in Annexure I are not mandatory and
they would become mandatory in cases of promotion if the
proviso to rule 8(3) is held to refer to the qualifications
in Annexures I and If. This argument was based on the
provision in the Annexure I to the Second Schedule which
states that the qualifications are relaxable at Commissions
discretion in the case of candidates otherwise well
qualified. That is no doubt so. But the discretion is
given only to the Union Public Service Commission in cases
of direct recruitment and not to the Departmental Promotion
Committee in cases of promotion. As that is the intent of
the law it has to be given effect to. Moreover, the Union
Public Service Commission when it proceeds to fill up a post
by direct recruitment does so by calling for applications by
extensive advertisements and it is but reasonable that if on
a consideration of all those applications it finds that
persons possessing the prescribed qualifications are not
available but there are persons otherwise well qualified,
they could be selected. But that is not so in the case of
Departmental promotion at least in. this case. The rules
themselves contemplate that if there are no qualified
candidates
(1) [1968] 1 S.C 185.
122
then direct recruitment could be resorted to. That question
does not arise here.
Another strange argument advanced was that the degree was
not the, only criterion of suitability. We must also refer
to the argument advanced by Shri Yogeshwar Prasad on behalf
of the second respondent that what the Departmental
Promotion Committee did was to promote the second respondent
to Supertime Grade 11 and his appointment as Professor of.
Orthopaedics was merely a transfer and this cannot be
questioned. The 2nd respondent was represented by Counsel
before the High Court. This argument was not then put
forward. But that apart, we do not consider that there is
any substance in this argument. The par ties had no doubt
about what was at issue. It was simply the appointment of
the 2nd respondent as Professor of Orthopaedics and the
consequent reversion of the 1st respondent as Associate
Professor, and it was on that basis that the whole case
proceeded. The promotion of the 2nd respondent to Supertime
Grade 11 was directly related to his appointment as
Professor.
In the result the appeal is dismissed with the costs of the
1st respondent to be paid by the appellants.
S.C. Appeals
dismissed.
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