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A.P. Vilas Vs. Karnataka Public Service Commission - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 1180 of 1983
Judge
Reported inILR1987KAR1005
ActsKarnataka Health Services (Collegiate Branch) Recruitment Rules, 1967
AppellantA.P. Vilas
RespondentKarnataka Public Service Commission
Appellant AdvocateH. Subrahmanya Jois, Adv.
Respondent AdvocateN. Devadas, HCGP for R-1 and 5 and ;B. M. Gangadhariah, Adv. for R-4
DispositionWrit petition dismissed
Excerpt:
.....is not still satisfied, but, then this overlooks the fact that undisputedly the petitioner has a degree in medicine that too a post-graduate degree in medicine from the university of bangalore which is duly established by law and therefore that m. degree obtained by respondent-4 satisfies the first of the qualifications as well in regard to possession of a degree granted by an indian university. jois contends that that is impermissible in law as well as on facts. one should not fail to note that the medium of instruction apparently in the moscow university is russian and to that extent, every student of medicine in that university must necessarily acquire sufficient knowledge in russian language. i therefore do not see any injustice done to the petitioner when one must also look at the..........in particular subjectwise posts, but mere posts. in some subjects, posts may be more and in some subjects posts may be less as col. 2 of the statement indicates. for instance, for anatomy there are 5 posts vacant. for physiology, there are two posts. again for gynaecology, there are 7 posts vacant. in plastic surgery, there is only one post. if such is the case, the voice of accepting the argument of sri jois is that if for instance, plastic surgery is reserved for scheduled castes, there may be no candidates for plastic surgery. the scheme as emerging from the statement appended to the notification is such that reservations must be of posts and if there are qualified candidates in the reserved groups, they must be appointed to the appropriate vacancies in the subjects and not any.....
Judgment:
ORDER

Chandrakantaraj Urs, J.

1. In this Writ Petition under Article 226 of the Constitution, the petitioner has questioned the legality and correctness of the selection and appointment made of respondents 2, 3 and 4 to the posts of Assistant Professors of Surgery in the Department of Karnataka Government Health and Family Welfare Services (Collegiate Branch).

2. The brief facts may be stated as averred in the petition and also in the statement of objections filed on behalf of respondents 1 and 5 as well as the statement of objections filed by respondent-4. Respondents 2 and 3 have remained exparte.

3. The first respondent Karnataka Public Service Commission published in the Gazette dated May 27, 1982 notification by which they invited applications for 46 posts of Assistant Professors in the Karnataka Government Health and Family Welfare Services (Collegiate Branch) (hereinafter referred to as the Department). The Notification carried with it a statement showing the particulars of posts for which applications were called for. Though 46 posts related to the various disciplines in the Department, we are concerned with posts meant for Surgery, In the statement in Col 2 the subjects are notified. In Col.3 scales of pay as revised are shown. In Col.4, the minimum qualifications prescribed for the posts are set out which are in accordance with the Department's Cadre and Recruitment Rules. In Col.5, the minimum and maximum age limit is prescribed both for candidates general and candidates belonging to Backward Communities, Backward Castes, Scheduled Castes, Scheduled Tribes and Backward Tribes. In Col. 6, vacancies have been classified indicating the reservation made in favour of Scheduled Castes, Scheduled Tribes, Backward Tribes, Backward Castes, Backward Communities, Backward Special Group and General Merit. In Col.7, it is indicated that the posts are permanent and pensionable and the period of probation is two years from the date of taking charge. In Col-8, nature of duties is specified.

4. It is useful at this stage to state that respondents 2 and 3 who are ex parte are Scheduled Caste candidates who have been selected and appointed by respondents 1 and 5. Respondent-4 belongs to General Merit pool. It would be equally useful to mention that for Scheduled Castes, there is a reservation under Col. 6 of the Notification of 6 + 1 and after providing for other reservations, the General Merit Pool has 12 posts available out of 46 posts advertised.

5. In Col.4(b)(1)(2)(3), qualification for Assistant Professors of Surgery is prescribed, but that excludes Pharmacology, Physiology, Microbiology, Plastic Surgery and Neuro Surgery. Under (b) (1), it is indicated that the candidate should be the holder of a Degree in Medicine of any University established by law in India and should have any of the postgraduate qualifications in the concerned subjects specified in Annexure 'A' or 'B' of the Karnataka Health Services (Collegiate Branch) Recruitment Rules, 1967. The candidates should further have teaching experience in the concerned subject of not less than 3 years in the post of a Lecturer or Lecturer-cum-Registrar or Registrar or any higher post. We need not concern ourselves with certain notes appended to that column as they are not in any way attracted to the facts of this case.

6. There is no dispute that the petitioner, respondents 2, 3 and 4 were applicants in response to the Notification. There is also no dispute that they were called for interview and so interviewed. It is thereafter that respondents 2, 3 and 4 have been selected and appointed. Petitioner has missed being appointed by a narrow margin of mark of .01 vis-a-vis respondent-4. It is in that circumstance he has approached this Court for relief, inter alia, contending that selection and appointment of respondents 2, 3 and 4 contrary to the fundamental rights guaranteed to him under Articles 14 and 16 of the Constitution ; that the Public Service Commission erred in selecting respondents 2 and 3 in excess of the number of posts reserved for Scheduled Castes ; that respondent-4 did not have the prescribed qualification and therefore not eligible for selection and as such, his selection and appointment be set aside by this Court and a direction given to select him in place of respondent-4 as he would be candidate next in order of merit having lost only by .01 percentage of marks.

7. As already noticed, respondents 1 and 5 are represented by the learned Government Pleader and have filed their statement of objections. Respondent-4 has also filed his statement of objections and is represented by a Counsel. The sum and substance of the statement of objections is denial of the assertions made by the petitioner in regard to the illegality or unconstitutionality of the selection and appointment.

8. Facts in themselves are not in dispute except in regard to the claim of appointment of respondents 2 and 3 in excess of the reserved posts for Scheduled Caste.

9. Learned Government Pleader has also made the records available for the Court's perusal.

10. It would now be proper to take up the last of the contentions noticed above concerning the selection and appointment of respondent-4 first as both the petitioner and respondent-4 are similarly situated claiming right to selection and appointment under the General Merit pool.

11. Sri Subrahmanya Jois, learned Counsel for the petitioner, asserted that respondent-4 does not have the basic Degree at all as required by the Cadre and Recruitment Rules of the Department. As earlier noticed, the candidate eligible to apply should possess a Degree in Medicine granted by any University established by law in India and that respondent-4 does not possess a Degree but only a Diploma and that too, not granted and given by a University established by law in India, but a Diploma granted by Patrice Lumumba People's Friendship University of Moscow (hereinafter referred to as the Moscow University). As a statement of fact, respondent-4 submits that his Degree in Medicine is the Diploma awarded by the Moscow University. But Sri Jois contends that that Diploma cannot be equated with the Degree and therefore, there is no satisfaction of the qualification prescribed.

12. The crux of the argument is that Diploma is something of a lesser standard than a Degree as is known in this Country and therefore, the Diploma of the Moscow University cannot be equated with a Degree in Medicine granted by one of the Universities established as such by law. The record discloses that this has troubled the mind of respondent--1 as well. In that behalf, respondent-1 has called for several items of information from respondent-4 who has supplied that information. Respondent-4's course in the Moscow University is spread over nearly six years as evidenced by the documents produced by him before respondent-1 Commission. He has undoubtedly studied all the subjects prescribed for an MBBS course in any one of the Indian Universities plus some more. That Diploma Certificate which is at Ext R-1 to the statement of objections filed by respondent-4 clearly demonstrates that he was admitted on June 28, 1972 as a qualified Physician and awarded the title of Doctor of Medicine. It also indicates that he has specialised in General Medicine. Therefore, the question is whether the Certificate which is both in the Russian language and English language side by side should be understood to mean that it is an academic certificate of inferior eminence to the Degree which is acquired by graduates of Allopathic Medicine in India.

13. Apparently, it is the usage of the language which brings about the doubt and not the course or the subjects of studies in the Degree Course of India or Diploma Course of Moscow University. It is obvious that the Moscow University has followed what is common in most of the European countries, particularly, East European countries where Degree and Diploma are used as interchangeable words.

14. However, Mr. Gangadhariah, Learned Counsel for Respondent-4, forcibly argued that the Court need not trouble itself with semantics of the words used, but hold on the basis of the records produced and facts admitted. That Respondents-4 having been admitted to the Master of Surgery Course, a post graduate Course in Bangalore University on the strength of his Diploma from Moscow University, was the conclusive evidence that it was equivalent of Degree given by any Indian University so established by law if not more than equivalent is the simple reply of the Learned Counsel. I think that argument really holds good as that fact is not disputed even by the petitioner that respondent-4 is a holder of a post-graduate degree from the Bangalore University which is duly established by law in India. I therefore must reject the argument of Sri Jois that Diploma is not equal to a Degree.

15. However, Sri Jois was persistent in his argument that even though it may be an equivalent degree, it is not a degree conferred by a University in India and therefore, the first of the qualifications prescribed in the Cadre and Recruitment Rules of the Department is not still satisfied, But, then this overlooks the fact that undisputedly the petitioner has a degree in Medicine that too a post-graduate degree in Medicine from the University of Bangalore which is duly established by law and therefore that M.S. Degree obtained by respondent-4 satisfies the first of the qualifications as well in regard to possession of a degree granted by an Indian University. In the result, the second limb of that argument also must be rejected.

16. It was next argued by Sri Jois that the Public Service Commission erred in including the marks obtained by respondent-4 in Latin and Russian languages which were included as subjects in the Moscow University for the conferment of the Diploma at Annexure R1. The crux of the argument is that those being subjects not associated with Medicine or Surgery cannot be included by the Commission Respondent-1 in assessing the relative merit of respondent-1 and the petitioners as the Commission is required by the Rules to take into account the aggregate of average marks obtained by the candidates at the qualifying examinations in accordance with sub-rule (2) of Rule 5 of the Karnataka State Civil Services (Direct Recruitment & Selection) Rules, 1978.

17. To set out in detail, the force of the argument may be stated. In the aforementioned Recruitment Rules, the qualifying examination means the examination or the examination prescribed as the minimum qualification required for appointment for the particular post concerned. Therefore, the qualifying examinations are in the case of the petitioner, MBBS degree which he has obtained from one of the Indian Universities and Master's Degree which he also possesses which together constituted minimum qualification. In so far as Respondent-4 is concerned, his performance in the course of Moscow University and the M.S. Course of Bangalore University constituted qualifying examinations. Therefore, the mandate of the Rule is that aggregate of the performance at these two examinations in respect of each of the candidates-petitioner and Respondent-4 must be taken into account by the Public Service Commission and thereafter the marks awarded at the interview should be added and average worked out in terms of percentage.

18. Sri Jois by simple subtraction and addition demonstrated that if marks obtained by Respondent-4 in Latin and Russian languages are deducted and average taken, it would be demonstrable with the addition of the interview marks that Respondent-4 would have secured O. 4 marks less than the petitioner and therefore not eligible for selection in preference to the petitioner.

19. From the records, it is seen that the method of evaluation in the Moscow University is different. No marks are awarded which can be added to make the total in a particular subject. Only performance at examination held is assessed and grade given. The Public Service Commission has obtained from the candidate concerned appropriate materials to know the equivalent of the grades in terms of marks. Applying that scale, the total marks obtained by the fourth respondent based on the grades awarded in the various subjects are added up against the maximum marks of 100 in each subject. Thus, in a total of (SIC)000 marks Respondent-4 secured 2730 including the marks obtained in Latin and Russian languages.

20. The question is whether the performance in those two subjects are required to be assessed by the Public Service Commission as performance in obtaining a Degree in Medicine. Mr. Jois contends that that is impermissible in law as well as on facts. I cannot see it as impermissible in law because no such law exists either for the benefit of the petitioner or to the disadvantage of Respondent-4. But, as a matter of fact, it has been included by the Public Service Commission as borne out by the records. The question is whether this Court should adjudicate on the wisdom of adding subjects Latin and Russian languages on the facts of this case.

21. I am of the view that they must be necessarily added. One should not fail to note that the medium of instruction apparently in the Moscow University is Russian and to that extent, every student of Medicine in that University must necessarily acquire sufficient knowledge in Russian Language. Similarly, Latin is an ancient language very much current in Europe and has formed the foundation of most of the European languages on account of the influence of Romans from the earliest of times. The study of law and science had Latin as compulsory subjects, particularly in Europe. If the University of Moscow has decided that Latin shall form one of the subjects to be studied by a student of Medicine, it is a decision which the Academicians of that University have taken and this Court ought not to sit in judgment over that decision. If the Academicians of the Universities decide that certain subjects, are essential for completion of the course, then that decision must become final and this Court must respect it.

22. In assessing the performance of two candidates who have completed the course in Medicine, but under different syllaby in different Universities, the performance in all the subjects which they were required to study must be taken into account and not dichotomised as subjects relating to medical and non-medical. I therefore do not see any injustice done to the petitioner when one must also look at the additional burden that Respondent-4 bore in learning two foreign languages and getting fairly good grades in them. That additional burden cannot be brushed aside in assessing his merit. I therefore hold that the petitioner cannot contend that the Public Service Commission erred in making an assessment of all the subjects and taking the average and by not eliminating Latin and Russian languages.

23. While on this, it would be useful for me to recount that in the course of the argument in order to understand what a degree in Medicine is, we were compelled to refer to number of language dictionaries as well as legal dictionaries. I only now refer to two of them. Webster's Third International while giving meanings of 'Medicine' as a noun does exclude surgery, but invites readers' reference to the term 'medical'. Under 'Medical', the same dictionary gives that it includes both physician or surgeon. In other words, what emanates is that in usage the expression 'Degree in Medicine' includes degree in both the art of healing as a physician and the art of healing as a surgeon. The Concise Oxford Dictionary straight away points out that in usage it is so. But, it would be useful to refer to Corpus Juris Secundum. In Volume L VII at page 1041, the word 'Medical' is noted as follows :

'Of, pertaining to, or dealing with the healing art, or the science of medicine ; especially in the narrower sense.

The word 'medical' is treated in various connections throughout this work, particular reference being made to the indexes to the titles Criminal Law, Food, Evidence and Insurance. For other reference consult the Descriptive-Word Index and see Medicine post.'

From that it is obvious that a Degree in Medicine can conveniently be in ordinary English language equated to a medical Degree. For the above reason, the petitioner must necessarily fail in dislodging the selection and appointment of respondent-4.

24. The question of adding marks obtained in the Master's course for all the candidates does not arise as the University Regulations in regard to evaluation of the performance of a' Master's Degree course student provides only for passing or failing or awarding a class and not assessing in terms of marks awarded. In the result, both the petitioner and respondent-4 having obtained same class they must be presumed to have been awarded equal marks.

25. Now we should turn to the challenge made to the selection and appointment of Respondents-2 and 3 which should not detain me long. The complaint of the petitioner is that the appointment of Respondents-2 and 3 is in excess of the reservation made. As earlier noticed, for Scheduled Castes, the reservation is 6 + 1. In other words, the argument if understood correctly, means that Respondents-2 and 3 are Scheduled Caste candidates appointed at 8 and 9 in the reserved posts. The pleadings are not very clear and precise in that behalf by the petitioner. But, understood in the manner explained by the Counsel for the petitioner, it would be difficult for this Court to decide which of the nine Scheduled Caste candidates selected and appointed would require to be eliminated having regard to their inter-se performance before the Commission as the posts were reserved not subjectwise, but groupwise. In the absence of all the 9 Scheduled Caste candidates, it will be impossible to simply eliminate two of them merely on the assertion of the petitioner without hearing the other Scheduled Caste candidates selected and appointed.

26. But what is more persuasive is that the records disclose that only three Scheduled Caste candidates were selected and appointed pursuant to that notification with which we are concerned. Therefore, there is no reason or foundation whatsoever for the petitioner to assail the selection and appointments of Respondents-2 and 3.

27. Before parting with this case, I must mention other points made by Sri Jois. He argued that the Public Service Commission, as decided by this Court in another case, must provide reservation subjectwise for specialised candidates. That not being done, the selection would have to be invalidated. I do not think that is the correct way of doing it because in the notification itself it is made clear that at Col.6 of the statement appended to the Notification by describing the posts as vacancies and the vacancies as classification of vacancies. What is vacant in the Department calling for recruitment are not in particular subjectwise posts, but mere posts. In some subjects, posts may be more and in some subjects posts may be less as Col. 2 of the statement indicates. For instance, for Anatomy there are 5 posts vacant. For Physiology, there are two posts. Again for Gynaecology, there are 7 posts vacant. In Plastic Surgery, there is only one post. If such is the case, the voice of accepting the argument of Sri Jois is that if for instance, plastic surgery is reserved for Scheduled Castes, there may be no candidates for Plastic Surgery. The scheme as emerging from the statement appended to the Notification is such that reservations must be of posts and if there are qualified candidates in the reserved groups, they must be appointed to the appropriate vacancies in the subjects and not any other way.

28. Lastly, he drew my attention to a decision in the case of Dr. B.I. Asava v. State of Rajasthan, : [1982]3SCR444 . That really does not assist the petitioner or the respondents in this case. The law laid down in that case is that State of Rajasthan has no power to refuse recognition to a medical degree granted by the University of Bihar, obviously having regard to the allocation or distribution of power between States and Union, medical degree of one University of one State if recognised by the Indian Medical Council will be valid throughout the Union of India as Entry 66 of List I of Seventh Schedule vests power in the Union Government to co-ordinate and determine standards of institutions for higher education and research in scientific and technical subjects. In that view of the matter, the Supreme Court has done no more than stating what really exists in the Constitution.

29. For the above reasons, there is no merit in this Writ Petition and the same is dismissed.

30. But, there will be no order as to costs.


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