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Shah (Dr. D.R.) Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtRajasthan High Court
Decided On
Judge
Reported in(1969)IILLJ261Raj
AppellantShah (Dr. D.R.)
RespondentState of Rajasthan and anr.
Cases ReferredDr. (Miss) B. Joseph v. State of Rajasthan
Excerpt:
- - as well as m. 20. formal order incorporating the above directions shall be issued by the deputy registrar (judicial) within seven days and shall be served on the secretary, medical and health department, as well as on the chief secretary to the government of rajasthan......the appointment of dr. b.p. jain as junior specialist under the rajasthan medical and health service rules, 1963, and for certain other reliefs. the writ petition has been contested on behalf of the state of rajasthan and dr. b.p. jain.2. the relevant facts as appear from the material on record are these. both dr. d.r. shah and dr. b.p. jain were civil assistant surgeons, class i, when dr. jain was temporarily appointed for a period of six months as junior specialist (physician) under an order of the government dated 17 october 1962 (annexure 3). this appointment has been continued in a temporary capacity until today. the position of dr. jain on the seniority list of civil assistant surgeons, class i, was at no. 97 and that of dr. shah was at no. 198. two temporary posts of junior.....
Judgment:
ORDER

Jagat Narayan, J.

1. This is a petition under Article 226 of the Constitution by Dr. D.R Shah at present Lecturer in Medicine, Ravindra Nath Tagore Medical College, Udaipur, challenging the appointment of Dr. B.P. Jain as Junior Specialist under the Rajasthan Medical and Health Service Rules, 1963, and for certain other reliefs. The writ petition has been contested on behalf of the State of Rajasthan and Dr. B.P. Jain.

2. The relevant facts as appear from the material on record are these. Both Dr. D.R. Shah and Dr. B.P. Jain were Civil Assistant Surgeons, Class I, when Dr. Jain was temporarily appointed for a period of six months as Junior Specialist (Physician) under an order of the Government dated 17 October 1962 (annexure 3). This appointment has been continued in a temporary capacity until today. The position of Dr. Jain on the seniority list of Civil Assistant Surgeons, Class I, was at No. 97 and that of Dr. Shah was at No. 198. Two temporary posts of Junior Specialists were advertised by the Rajasthan Public Service Commission under advertisement No. 3 of 1960-61 on 10 June 1960 (annexure 18.) The qualifications prescribed for this post were as follows:

(a) M.B.B.S. with post graduate degree in Medicine of a recognized Indian University or M.R.C.P. (Edinburgh or London) or two years' study in Medicine in Europe, U.K., U.S.A. or Canada.

(b) Must have practised independently for five years in Medicine as independent incharge of a ward at least in a big hospital of grade I or II or incharge of grade II hospital including beds pertaining to this speciality.

Pay and the age same as for posts Nos. 3 and 5, respectively. House job or residentship shall not count towards experience.

3. Dr. Jain did not possess a post-graduate degree in Medicine of a recognized Indian University. He took the Fellowship in Medicine from the College of Physicians and Surgeons, Bombay, after passing an examination in March 1959. The duration of this course Is three years and only those possessing the degree of M.B.B.S. or holding the membership of the College of Physicians and Surgeons, Bombay, or other basic qualification recognized by the Medical Council of India were eligible for admission to this course. The following four doctors who were junior to Dr. Jain were promoted as Junior Specialists (Physicians) before him:

(1) Dr. S.N. Mathur on 16 January 1962.

(2) Dr. M.S. Mathur on 16 January 1962.

(3) Dr. R.A. Sharma on 16 January 1962.

(4) Dr. Kushal Banerjee on 7 January 1962.

4. This was in all probability done because Dr. Jain did not possess a post-graduate degree from a recognized Indian University. He was however promoted temporarily as a Junior Specialist by the order dated 17 October 1962.

5. Under the same order Dr. V.M. Bhandari was also promoted as Junior Specialist (Physician). The petitioner was the next eligible doctor in order of seniority who held a post-graduate degree in Medicine from the Rajasthan University. His case is that Dr. Jain was not eligible for appointment to the temporary post of the Junior Specialist on 17 October 1962, when he was so appointed, and that he should have been appointed in place of Dr. Jain.

6. In June 1963, the Rajasthan Medical and Health Service Rules, 1963, came into force. Both the petitioner and Dr. Jain who held the posts of Civil Assistant Surgeons, Class I, became members of this service. Under the proviso to Rule 26 a vacant post could be filled temporarily by appointing thereto a member of the service eligible for appointment to the post by promotion or by direct recruitment. The academic and technical qualifications of a Junior Specialist for direct recruitment are given under Rule 11 as follows:

(a) He must hold a degree in Medicine and Surgery of a university established by law in India, or a qualification recognized as equivalent thereto by the Government.

(b) He must hold a post-graduate degree or diploma of a university established by law in India in the specified branch of medicine or surgery or a qualification of a foreign country recognized as equivalent thereto by the Government.

Under Rule 23 the persons enumerated in Col. (3) of the schedule are eligible for promotion to posts specified in Col. (1) subject to their possessing the minimum qualifications and experience specified in Col. (4). The qualifications and experience for promotion to the post of Junior Specialist as prescribed in this schedule run as follows:

Three years' service after post-graduation in the speciality or eight years' service, as C.M.S. with necessary postgraduate qualification.

Note (1).--Necessary post-graduate qualification means a post-graduate degree or any other qualification recognized as equivalent by Medical Council of India.

Note (2).--Post-graduate diploma will be equal to a post graduate degree in such subjects in which such a degree is not awarded by any university.

Note (3).--Public Service Commission may relax the prescribed number of years of experience in case candidates with required experience are not available.

7. The contention of the petitioner is that Dr. Jain did not possess the qualification prescribed for direct recruitment under Rule 11 as he did not hold a post-graduate degree or diploma of a university established by law in India or a qualification of a foreign country recognized as equivalent thereto by the Government.

8. His further contention is that Dr. Jain did not possess the qualification prescribed for promotion to the post of Junior Specialist under Rule 23 read with corresponding item of the schedule as the Fellowship of the College of Physicians and Surgeons, Bombay, is not recognized as equivalent to a postgraduate degree by the Medical Council of India. In support of this he has filed a copy of letter from the Secretary, Medical Council of India, dated 29 February 1964 (annexure 12), which runs as follows:

[Reference.--Your letter dated

13 February 1964.]

You may please mention the subjects of the qualifications granted by the College of Physicians and Surgeons of Bombay are not considered by the Council as equivalent to the M.S. and M.D. degrees of the Indian universities.

9. He has also filed another letter from the Secretary, Medical Council of India, dated 17 October 1963 (annexure 14), which runs as follows:

With reference to your letter No. BMA 65/62-63, dated 14 September 1963, on the subject mentioned above, I am to state the F.C.P.S (Med.) (Bom.) granted by the College of Physicians and Surgeons, Bombay, is included in the First Schedule to the Indian Medical Council Act, 1956, and recognized by this Council. The question of its equivalency to the postgraduate degree does not arise.

The Council at its meeting held on 27 March 1955 noted the opinion of the Executive Committee that these F.C.P.S. qualifications shall not be accepted as equivalent to post-graduate qualification (M.S., M.D., etc.) of the universities and other equivalent fellowships for purpose of teaching appointments.

The respondents relied on yet another letter of the Secretary, Medical Council (annexure 83), which runs as follows:

Please refer to your demi-official letter No. 1(9) R.P.C/66, dated 6 October 1966. I am to state that the Medical Council of India at its meeting held on 27 March 1965 noted the opinion of its Executive Committee that the F.C.P.S. qualification shall not be accepted as equivalent to post-graduate qualifications (M.S, M.D., etc.) of the universities and other equivalent fellowship for purposes of teaching appointments. As regards the equivalency of these qualifications for non-teaching appointments, I am to state that the matter is outside the purview of the Medical Council of India.

10. The above three letters were written by the Secretary to three different persons in reply to the queries made by them. In my opinion, there is no difference in what is stated in these three letters. The Medical Council of India has laid down the minimum qualification for teaching appointments. That qualification is a post-graduate degree of an Indian university or an equivalent qualification. For the purpose of these appointments only the Medical Council passes resolutions from time to time holding some postgraduate diplomas to be equivalent to post-graduate degrees of Indian universities. So far as the F.C.P.S. of the Bombay College of Physicians and Surgeons is concerned, the Medical Council does not recognize it as equivalent to a post-graduate degree of an Indian university for teaching appointments. For non-teaching appointments the minimum qualification prescribed is an M.B.B.S degree of an Indian university or equivalent qualifications which are given in the schedule to the Indian Medical Council Act. F.C.P.S. as well as M.C.P.S. of the Bombay College of Physicians and Surgeons are recognized as qualifications entitling one to practise as a medical practitioner and therefore to hold a non-teaching job. It is not within the purview of the Medical Council of India to equate post-graduate qualification for purposes of non-teaching appointments.

11. It is thus quite clear that the qualification of F.C.P.S. (Medicine) held by Dr. Jain is not considered as equivalent to a postgraduate degree of an Indian university by the Medical Council of India.

12. The contention on behalf of the respondents is that the note to the schedule referred to above is only applicable to the alternative qualification mentioned in the schedule for the post of Junior Specialist, namely--

eight years' service as Civil Assistant Surgeon with necessary post-graduate qualification

and is not applicable to the first qualification, namely--

three years' service after post-graduation in the speciality.

I am unable to accept this contention. If it were to be accepted, then it would mean that any diploma whatever its duration and whatever its merit which is obtained after graduation qualifies a doctor for holding the post of Junior Specialist provided he has put in three years' service after obtaining this qualification. But a similar qualification is not sufficient if it is obtained after eight years' service as Civil Assistant Surgeon. I have no doubt that the note is equally applicable to the qualification of post-graduation in both clauses. Only such post graduate qualification makes one eligible for appointment as a Junior Specialist as is considered equivalent to the postgraduate degree of a university by the Medical Council of India.

13. On 21 December 1965 the Government passed an order recognizing the F.C.P.S. qualification of the College of Physicians and Surgeons, Bombay, as equivalent to a postgraduate qualification for non-teaching appointments in Rajasthan. This recognition, however, cannot help Dr. Jain as the Rajasthan Medical and Health Service Rules, 1963, do not give power to the Government to recognize any qualification of an Indian institution as equivalent to a postgraduate degree or diploma of an Indian university under Rule 11(a)(i) Government have power to recognize a qualification as equivalent to a degree in Medicine and Surgery of an Indian university. Under Rule 11(a)(ii), the Government have power to recognize a qualification of a foreign country as equivalent to a post-graduate degree or diploma of an Indian university. But under Rule 23 read with the schedule and the note appended thereto the Government have no power to recognize any post graduate qualification acquired in India as equivalent to a postgraduate degree of an Indian university. There can be no doubt that the qualification of F.C.P.S. Is a post-graduate qualification. Further, the Bombay Government recognizes It as equivalent to a post graduate degree of an Indian university. But under the Rajasthan Medical and Health Service Rules, 1963, this qualification cannot be regarded as equivalent to a post-graduate degree of an Indian university for reasons which have been given above.

14. Another contention on behalf of the respondents is that Dr. Jain was appointed before the Rajasthan Medical and Health Service Rules, 1963, came into force and his appointment is saved by Rule 36 which runs as follows:

Repeal and saving.--All rules and orders in relation to matters covered by these rules and in force immediately before the commencement of these rules are hereby repealed:Provided that any order made or action taken under the rules and orders so repealed shall be deemed to have been made or taken under the provisions of these rules.

15. A similar rule contained in the Rajasthan Medical Service (Collegiate Branch) Rules, 1962, came up for interpretation in Dr. (Miss) B. Joseph v. State of Rajasthan 1961 R.L.W. 229, It was held that this rule is only applicable to an appointment made under some rule. When Dr. Jain was first appointed, there was no rule relating to the appointment of Junior Specialists. Moreover the appointment was made in a temporary capacity for a period of six months. It was extended from time to time. After the Rajasthan Medical and Health Service Rules, 1963 came into force, the temporary appointment could not be continued as Dr. Jain did not possess the necessary academic qualifications laid down in them for the post of a Junior Specialist. Thus no question of his appointment being saved from the operation of the rules arises. He was not appointed substantively as a Junior Specialist before the rules came into force.

16. The petitioner became a member of the Rajasthan Medical Service (Collegiate Branch) when he filed the present writ petition. It was contended on behalf of the respondents that he had no right to maintain the present writ petition. The appointment held by Dr. Jain is a public appointment. It was held in Dr. (Miss) Joseph case 1961 R.L.W. 229 (vide supra) that a private person may apply for quo warranto in the matter of a public office without having a personal interest in the appointment. The petitioner is thus entitled to maintain the present petition. He has of course claimed some other reliefs also which will be dealt with here presently.

17. Another contention was that the petition was belated. As Dr. Jain is still holding the appointment of Junior Specialist without having the requisite qualification prescribed under the rules, the petition cannot be considered to be belated so far as the relief of quashing his appointment is concerned.

18. The petitioner is not entitled to any other relief claimed in the petition. The notification dated 21 December 1965 issued by the Government of Rajasthan has not the effect of making Dr. Jain eligible for appointment as Junior Specialist under the Rajasthan Medical and Health Service Rules, 1963, as has already been held above. Dr. Jain's appointment as Junior Specialist with effect from 17 October 1962 cannot be quashed as when it was made, the Rajasthan Medical and Health Service Rules, 1963, had not come into force. No other rule was in force under which the appointment was illegal. The appointment became illegal when the Rajasthan Medical and Health Service Rules, 1963, came into force. But the appointment cannot be quashed with effect from the date of coming into force of those rules, because no writ petition was filed within a reasonable time of the coming into force of those rules. Nor can the petitioner be considered for promotion as a Junior Specialist, in the Rajasthan Medical and Health Service with effect from the date of coming into force of the rules.

19. For reasons given above I hold that the continuance of Dr. B.P. Jain as a Junior Specialist is illegal in view of the Rajasthan Medical and Health Service Rules, 1963, and issue a direction to the State Government to revert him from the post of Junior Specialist within three months of the date of this order unless the rules are in the meantime suitably amended.

20. Formal order incorporating the above directions shall be issued by the Deputy Registrar (Judicial) within seven days and shall be served on the Secretary, Medical and Health Department, as well as on the Chief Secretary to the Government of Rajasthan.

21. The writ petition is decided as indicated above. In the circumstances of the case, I leave the parties to bear their own costs of this writ petition.


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