1. By these writ petitions under Art, 226 of the Constitution of India the appointment of Dr. D.G. Ojha and Dr. P.L. Rishi, as Professors of Surgery and Principals of Medical Colleges in Bikaner and Jodhpur respectively, and of Dr. P.D. Mathur as Principal of Medical College at Udaipur have been challenged.
2. Writs Nos. 599 of 1966 and 99 of 1967 have been filed by Dr. Rampal Chaturvedi and Dr. Mohanlal Gupta respectively and are directed against Dr. D.G. Ojha. Similarly Writs Nos. 98 and 100 of 1967 have been filed by Dr. Mohanlal Gupta and Dr. Rampal Chaturvedi respectively and are directed against Dr. P.L. Rishi. Writs Nos. 94 and 97 of 1967 have been filed by Dr. Rampal Chaturvedi and Dr. Mohanlal Gupta respectively and are directed against Dr. P.D. Mathur. Writ No. 1396 of 1966 has been filed by one Kailash Narain, a student of the Jodhpur Medical College, and is directed against Dr. P.L. Rishi. Since all the writs involve common questions, we propose to dispose them of by a single judgment. For the sake of convenience we would take the case against each of the non-petitioners, i.e., Dr. D.G. Ojha, Dr. P.L. Rishi and Dr. P.D. Mathur separately. We may here state that similar two writ petitions were filed questioning the appointment of Dr. S.P. Wanchoo but since Dr. S.P. Wanchoo had retired during the pendency of these writ petitions the cases instituted against him have been withdrawn.
3. Dr. Ojha passed M.B.B.S. examination in 1939 and in 1943 he took his post-graduate degree M.S. He has to his credit total professional experience of about 27 years, out of which he had 17 years' experience as a specialist and 2 1/2 years' administrative experience as Head of Teaching Department. He was appointed as Professor of Surgery and officiating Principal of Sardar Patel Medical College, Bikaner, by the order of the State of Rajasthan dated 2 March 1964 (vide Ex. 9 in Writ Petition No. 599 of 1966). It is alleged that the State Government requested the University of Rajasthan to waive the condition of teaching experience as prescribed in the University Rules in the case of Dr. Ojha for the post of Professor and Head of Department of Surgery but the Syndicate of the University of Rajasthan refused to relax the condition. It is contended that Dr. Ojha's appointment to the post of Professor of Surgery being in derogation of the Statute 30 and Ordinance 65 made by the University of Rajasthan, is illegal and so also his appointment as Principal, as he does not fulfil the requisite qualifications for appointment to the post of Principal prescribed by the University.
4. Dr. P.L. Rishi passed his M.B.B.S. examination in 1942 and obtained the post-graduate qualification of F.R.C.S. in 1949. He has to his credit; professional experience of about 24 years, out of which he had experience as a specialist for 14 1/2 years. He was appointed as Principal, Medical College, Jodhpur, by order dated 23 July 1966 (vide Ex. 9 in Writ Petition No. 100 of 1967), and his appointment as Professor and Principal has also been challenged on identical grounds as in the case of Dr. Ojha.
5. Dr. P.D. Mathur passed his M.B.B.S. examination in the year 1938 and took F.R.C.S. in 1942. After obtaining the concurrence of the Rajasthan Public Service Commission he was appointed as Reader in Experimental Surgery of Sawai Mansingh Medical College, Jaipur, and was later appointed as a part-time and officiating Additional Professor of Surgery with effect from 5 January 1955. From 11 February 1958 the post of Additional Profesor of Surgery was re-designated as Professor of Clinical Surgery. He was appointed as officiating Principal of Ravindranath Tagore Medical College, Udaipur, and Professor of Surgery by the order of the Government of Rajasthan dated 13 and 19 July 1965. This order was subsequently superseded and Dr. Mathur was appointed as Professor of Surgery and Principal, Ravidranath Tagore Medical College, Udaipur, with effect from the date of taking over the charge, i.e., 24 May 1956 (vide Ex. 12 in Writ Petition No. 94 of 1967). So far as Dr. P.D. Mathur is concerned, no challenge has been made to his appointment as Professor of Surgery but his appointment as Principal, Ravindranath Tagore Medical College, Udaipur, has been assailed on the ground that he does not fulfil the qualifications prescribed for a principal by the University.
6. The petitioner Dr. Rampal Chaturvedi passed M.B.B.S. examination from Lucknow University in the year 1949 and obtained M.S. Degree from the same University in the year 1952. He was appointed as a Junior Demonstrator in the Lucknow University and was ultimately promoted as a Lecturer in December 1951 in the said University. On 22 March 1955 he was appointed as a Reader in the Department of Anatomy of Sawai Mansingh Medical College, Jaipur, on probation and was confirmed in this post on 28 May 1956 with effect from 21 April 1956, and was subsequently appointed as Professor of Anatomy by the Government of Rajasthan by its order, dated 11 December 1956, for a period of six months in the first instance but his appointment was ultimately confirmed as Professor of Anatomy by the State Government's order, dated 15 April 1959, with effect from 17 March 1959. The petitioner's case is that on coming into force of the Collegiate Branch Rules he became a member of the service as he was holding substantively the post of Professor on the date when these rules came into force. His contention is that the Government has not yet decided the inter se seniority of the Professors in the Clinical and Non-clinical wings of the service which the Government was bound to do according to the provisions of Rule 31 read with Rule 5 (3) of the Rajasthan Medical service (Collegiate Branch) Rules, 1962. According to him the members of both the wings of the service are equally eligible for appointment to the post's of Principals of Medical Colleges. He further contends that he is fully qualified to be appointed as a Principal of a Medical College but his claim has been ignored while the non-petitioners Dr. Ojha and Dr. Rishi who are not qualified to be appointed as Professors have been appointed not only as Professors but also as Principals and so also Dr. Mathur is not qualified to be appointed as a Principal, yet he has been so appointed.
7. Dr. Mohanlal Gupta passed L.M.P., examination from the Central Provinces Medical Examination Board, Nagpur, in the year 1944 and obtained M.B.B.S. Degree from Madras University in the year 1949. Thereafter he was appointed a teacher in the Sawai Mansingh Medical College, Jaipur, in August 1949. He obtained his M.D. Degree from the Lucknow University in the year 1954. He was appointed as Reader in the Sawai Mansingh Medical College, Jaipur, with effect from 1 July 1954, and on the recommendation of the Public Service Commission he was appointed as Professor in the Department of Physiology in the same college with effect from 15 August 1959 and was later on confirmed on the expiry of the period of one year's probation with effect from 15 August 1960. His case is that he was fully qualified to be appointed as a Principal of a Medical College at the time when the non-petitioners Dr. Ojha, Dr. Rishi and Dr. Mathur were appointed as Principals of Medical Colleges in Rajasthan, but his case was not at all considered for the post of a Principal. He too has prayed for declaring the appointments of the three non-petitioners illegal and void.
8. The petitioner Dr. Rampal Chaturvedi has also prayed that he may be declared as seniormost Professor eligible for appointment to the post, of Principal of a Medical College in Rajasthan and the other petitioner, Dr. Mohan Lal Gupta, has also prayed that he may be declared as seniormost Professor in the service next to Dr. R.P. Chaturvedi only, eligible for appointment to the post of Principal of a Medical College in Rajasthan.
9. Kailash Narain, petitioner in Writ No. 1396 of 1966, as already stated, is a student of the Jodhpur Medical College. His case is that Dr. Rishi, who has been appointed as Principal of the Jodhpur Medical College, does not possess the qualifications prescribed for the post of a Principal in the matter of teaching experience. His grievance is that he has to appear at the M.B.B.S. examination of the University of Rajasthan and the continuance of Dr. Rishi as Principal of the Jodhpur Medical College may jeopardize the affiliation of the Medical College with the University of Rajasthan and this is how he asserts, he has a locus standi to maintain the writ petition.
10. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India the Governor of Rajasthan made the Rajasthan Medical Service (Collegiate Branch) Rule, 1962 (which will hereinafter be referred to as 'the Collegiate Branch Rule ') by a notification dated 2 November 1962 published in the Rajasthan Gazette Extraordinary, dated 5 November 1962. These rules came into force from 5 November 1962. It would be necessary to examine the scheme and provisions of these rules before embarking upon the decision oil the various points raised by the petitioners in these cases.
11. Rules 1 to 4 deal with short title and commencement, supersession of existing rules and orders, definitions and interpretations.
12. Rules 5 and 6 deal with the initial constitution of service and composition and strength of the service. It would be necessary to reproduce rules 5 and 6 in extenso, which run as follows :
5. Initial constitution of service.-(1) In the clinical wing-(i) All doctors already working as Readers and Professors shall be deemed to have been substantively appointed to these posts included in the service except those who are working in a purely temporary or officiating capacity.
(ii) all doctors who have worked as lecturers for a period of three years on 1 October 1961 shall be deemed to have worked substantively appointed to posts of lecturers included in the service, and
(iii) the remaining lecturers and all other doctors who opt for this service and who are qualified under the rules for being appointed as lecturers shall be screened by a committee consisting of a representative of the Commission as Chairman, the Secretary to Government in Medical and Public Health Department, Special Secretary to Government in the Appointments Department or his representative not below the rank of Deputy Secretary, Director of Medical and Health Services and one representative of three State Medical Colleges.
(2) In the non-clinical wing-(i) All persons holding substantively the posts included in the service; and (ii) all persons selected by the Commission for posts included in the service but not appointed by Government till the rules come into force and found otherwise suitable shall be deemed to have been appointed to the corresponding posts.
(3) The seniority of persons referred to in Sub-rules (1) (i), 1 (ii) and (2) shall be determined on an ad hoc basis by the Government. The seniority of persons referred to in Sub-rule (1) (iii) shall be determined by Government on the advice of the committee referred to in Sub-rule 1 (iii).
6. Composition and strength of the service.-(1) The service shall consist of two wings, viz. Clinical and non-clinical. The right of promotion shall be confined to each wing.
(2) The nature of posts included in each wing shall be specified in Col. (2) of the schedule.
(3) The strength of posts in each grade shall be such as may be determined by Government, from time to time, provided that Government may-
(a) create any post, permanent or temporary, from time to time, as may be found necessary, and
(b) leave unfilled or hold in abeyance or abolish any post, permanent or temporary, from time to time, without thereby entitling any person to any compensation.
13. Rules 7 and 8 deal with methods of recruitment out of which Rule 8 speaks of reservation of vacancies for the scheduled castes and scheduled tribes with which we are not concerned in these writ petitions. However, Rule 7 lays down that the recruitment to the service after the commencement of these rules shall be by the following methods;
(a) Direct recruitment (in accordance with Part IV of these rules).
(b) By promotion of substantive members of service (in accordance with Part V of these rules), in proportion indicated in Col. (3) of the schedule.
14. Rules 9 to 22 lay down the procedure for direct recruitment.
15. Rule 12 amongst these rules is relevant for our purposes and is reproduced below :
12. Academic and technical qualifications.-The candidate for direct recruitment to the posts specified in Parts A, B, and C of the schedule shall possess such academic and technical qualifications and experience as is laid down, from time to time, by the Rajasthan University for the teaching staff in Medical Colleges.
16. Rules 23 and 24 lay down the procedure for promotion, Rule 25 provides how the appointments are to be made to senior and selection posts. Rules 26 to 29 deal with the question of probation and confirmation.
17. Rule 30 provides for temporary or officiating appointments. We shall have to deal with this rule in greater detail. The main controversy in these cases centres round this rule and therefore it is necessary to reproduce Rule 30 in extenso :
30. Temporary or officiating appointment,-(1) A temporary vacancy in a senior or selection post, may be filled by Government by appointment thereto in an officiating capacity an officer whose name is included in the list prepared, under Rule 24 (3) or in the lists under Sub-rules (2) and (3) of Rule 23 :
Provided that till the preparation of the first list or in case the list is exhausted a vacant post may be filled by Government by appointing thereto a member of the service eligible for appointment to the post by promotion or by appointing thereto temporarily a person eligible for appointment by direct recruitment to the service under the provisions of these rules. (2) A temporary vacancy in the junior posts may be filled by Government by appointing thereto temporarily a person eligible for appointment by direct recruitment to the service under the provisions of these rules,
(3) No appointment made under Sub-rules (1) and (2) above, shall be continued beyond a period of six months without referring it to the Commission for their concurrence and shall be terminated immediately on their refusal to concur.
(4) Notwithstanding anything contained in Sub-rule (1) or (3) above or any other provisions in the rules, any selection or senior posts falling vacant may be filled in temporarily by appointment of any specialist (junior or senior) in the service of the State, who is a postgraduate, and has teaching experience and practice in the specialty, for such periods as are required by the University Ordinance for the time being in force on the date of such appointment.
Provided that two years of service rendered in the speciality shall be reckoned as equivalent to one-year teaching experience gained in the speciality.
18. Rule 31 lays down how the seniority in each category of the service shall be determined and since the question of seniority has been argued at length we think it necessary to reproduce this rule :
31. Seniority.-Seniority in each category of the service shall be determined by the year of substantive appointment to a post in the particular category;
(1) that the seniority inter se of the persons appointed to the service under Rule 5 shall be determined, modified or altered by Government, on an ad hoc basis;
(2) that if two or more persons are appointed to posts in the same grade in the same year, a person appointed by promotion, shall be senior to a person appointed by direct recruitment;
(3) that the seniority inter se of persons appointed to posts in a particular grade by direct recruitment on the basis of one and the same selection, except those who do not join service when a vacancy is offered to them, shall follow the order in which they have been placed in the list prepared by the commission under Rule 20; and
(4) that the seniority inter se of persons appointed to posts in particular grade by promotion shall follow the order in which their names have been placed in the lists prepared under Sub-rule (5) of Rule 24.
19. Rules 33 and 34 deal with pay and other' provisions with which we are not concerned. However, since reference to the schedule appended to these rules would be necessary, we are reproducing the schedule also :
Post from which
Serial Post Method of recruitment selection to be Remarks
Number with percentage made by
Part A (selection posts)
1 Professor and Additional 100 per cent by promo- Readers.
Part B (senior posts)
1 Readers ... ... ... 50 per cent by promo- Lecturers.
tion ; 50 per cent by
Part C (junior posts)
1 Lecturers... ... ... 100 per cent by direct
Part A (selection posts)
1 Professor and Additional 100 per cent by promo- Reders.
Part B (senior posts)
1 Readers ... ... ... 50 per cent by promo- Lecturers.
tion ; 50 per cent by
Part C (junior posts)
1 Lecturers... ... ... 75 per cent by promotion; Senior demon-
25 per cent by direct strators.
2 Senior demonstrators... ... 100 per cent by direct
20. It may be noticed that during the pendency of these writ petitions the Collegiate Branch Rules, 1962, were amended fey a notification dated 22 August 1966, published in the Rajasthan Gazette, Extraordinary, Part IV-C, dated 22 August 1966, whereby the following Sub-rule (4) was added to Rule 30 :
(4) Notwithstanding anything contained in Sub-rule (1) or (3) above or any other provisions in the rules, any selection or senior posts falling vacant may be filled in temporarily by appointment of any specialist (junior or senior) in the service of the State, who is a post-graduate, and has teaching experience and practice in the speciality, for such periods as are required by the University Ordinance for the time being in force on the date of such appointment :Provided that two years of service rendered in the speciality shall be reckoned as equivalent to one-year teaching experience gained the speciality.
21. As a result of this amendment in the Collegiate Branch Rules, the petitioners in all these writ petitions amended their writ petitions also so as to incorporate a plea that this amendment was mala fide, discriminatory, null and void and cannot validate the appointments of the non-petitioners as Professors of Surgery.
22. The State of Rajasthan has filed an identical reply in all the writ petitions and has contended inter alia that the appointments of all the three non-petitioners, viz., Dr. Ojha, Dr. Rishi and Dr. Mathur, are in order under Rule 30(4) of the Collegiate Branch Rules and further that Rule 30 (4) is neither mala fide nor discriminatory nor invalid in any way. Dr. Ojha has filed a separate reply to the writ petition to which reference will be made hereafter. None of the other non-petitioners has filed any reply to the writ petitions.
23. At this stage we may also refer to the relevant provisions of the University of Rajasthan Act, 1946 (which will hereafter be called the University Act). Section 4 of the University Act enumerates the powers of the University among which the relevant clauses are (4A), (7) and (15). They read as follows :
(4A) To admit colleges and institutions to the privileges of the University and to withdraw such privileges.
To inspect affiliated colleges and approved institutions and to take measures to ensure that proper standards of teaching, instruction and training are maintained in them.
(15) To do all such other acts, whether incidental to the powers aforesaid or not, as may be requisite in order to further the objects of the University as an educational body, and to cultivate and promote the arts, science and other branches of learning.
24. Section 28 provides for making of statutes. The first three clauses of Section 28 read as under:
(1) On the commencement of the Act, the statutes of the University shall be those set out in the schedule.
(2) The statutes may be amended, repealed or added to by statutes made by the senate in the manner hereinafter appearing.
(3) The Syndicate may propose to the senate the draft of any statute to be passed by the senate. Such draft shall be considered by the senate at its next meeting. The senate may pass the statute, or a part of it, in the form in which it has been proposed, or may reject the statute or part of it, or may-return the statute to the Syndicate for reconsideration, either in whole or in part, together with any amendments which the senate may suggest.
25. Section 29 makes provision for making Ordinances. The Syndicate may make Ordinances consistent with the Act and the statutes on the matters provided in the section :
Sub-section (3) of Section 30 provides that :
All Ordinances made by the Syndicate shall be submitted to the Senate, and shall be considered by the Senate at its next meeting. The Senate shall have power, by a resolution passed by a majority of not less than two-thirds of the members voting, to cancel any Ordinance made by the Syndicate and such Ordinance shall from the date of such resolution be void.
26. Sections 31 and 31A provide how and by whom regulations and rules will be made.
27. Section 32 lays down that the affiliated colleges shall be such as may after the commencement of this Act be recognized by the Syndicate in accordance with this Act and statutes but shall include all colleges recognized at the commencement of this Act as colleges of the University so long as such recognition continues.
28. Among the statutes of the University Statute No. 30 (1) which is relevant for our purpose read3 as under:
30. (1) Every college shall satisfy the University that the number and qualifications of its teaching staff in each subject are adequate, and in accordance with the rules prescribed by the University, and that their emoluments and the conditions of their service are as may be approved by the University.
29. In this connexion we may refer to Ordinance No. 65 on which strong reliance has been placed by the learned counsel for the petitioners. Ordinance No. 65 reads as under:
O. 65. The following shall be the minimum qualifications for teachers of various stages of University education in the affiliated colleges :-
VII. Faculty of Medicine, Pharmaceutics and Veterinary Science Post Subject Academic qualifications Teaching experience
(1) (2) (3) (4)
Profesaor/Addi- Surgery M.S/F.R.C.S. As Associate Professor, Reader, tional Professor. Assistant Professor, Lecturer in Sugery for five years in a Medical College after requisite post-graduate qualification, of these five years at least ten years must be as Associate Professor or Reader.
X. Mihimum Qualification fob Principals of the Affiliated Colleges
(3) Post graduate Colleges in the faculties of Medicine, Pharmaceutics, Veterinary Science and in Agriculture.-Master's Degree or equivalent post-graduate qualification or a higher one in one of the branches in which the college is affiliated with a minimum professional experience of twenty years, of which at least ten years must have been spent as a teacher of post-graduate classes and five years in administrative work.
30. It is common ground between the parties that Dr. Ojha, Dr. Rishi and Dr. Mathur do possess the academic qualifications prescribed by the University Ordinance. It is alleged that these non-petitioners do not possess ten years' teaching experience as prescribed by the University for the post of Principal, and Dr. Ojha and Dr. Rishi even do not possess the requisite teaching experience prescribed by the University for Professors of Surgery. At the same time it is not disputed by the petitioners that these non-petitioners had acquired the qualifications prescribed by Rule 30 (4) of the Collegiate Branch Rules for the post of Professor on the day this rule was inserted in the Collegiate Branch Rules, i.e., on 22 August 1966, According to the proviso to this rule, two years of service rendered in the speciality shall be reckoned as equivalent to one year's teaching experience gained in the speciality. According to the chart supplied by the petitioner's counsel Sri Gupta, during the course of arguments, Dr. Ojha had admittedly 17 years' experience as a specialist in surgery on 3 August 1966 and so also Dr. Rishi had 14 1/2 years' experience as a specialist on 3 August 1966 and Dr. Mathur had 16 years and 4 months teaching experience on 3 August 1966. Thus there is no dispute that these three non petitioners were qualified to hold the posts of temporary or officiating Professors according to the qualifications prescribed in the Collegiate Branch Rules on 22 August 1966.
31. The points for determination therefore are :
(1) Whether Dr. Ojha, Dr. Rishi and Dr. Mathur should be considered as not qualified to hold the post of Principal and a writ of quo warranto should be issued against them treating them as usurpers of office, and whether the orders of their appointment as Principals should be quashed.
(2) Whether the orders of appointment of Dr. Ojha and Dr. Rishi as Professors of Surgery should also be set aside.
32. The arguments have been advanced in this case by Sri Gupta and Sri Desai on behalf of Dr. R.P. Chaturvedi and Kailash Narain and on behalf of the State of Rajasthan, the learned Advocate-General has addressed us. We have also heard Sri Raj Narain on behalf of Dr. Ojha.
33. The first contention raised by Sri Gupta is that Dr. Ojha and Dr. Rishi do not possess the requisite teaching experience as prescribed by the University of Rajasthan either for the post of a Principal of a Medical College or for the post of Professor of Surgery. Both of these non-petitioners had neither any teaching experience as a Reader/ Assistant Professor or Lecturer nor they had any administrative experience as the head of a teaching department in a Medical College.
34. Dr. Ojha has in his reply controverted this allegation of fact and has submitted that he entered into service before the petitioner Dr. Chaturvedi. He has asserted that he is the oldest teacher in service in the Medical Colleges amongst the Heads of Departments except Dr. Rishi and Dr. (Miss) E. Peters who have superannuated themselves and are working on extension. He has further submitted that he was associated as Surgeon possessing post-graduate qualifications since 31 December 1943 with the hospitals situated at Bikaner and Jodhpur and both these hospitals were recognized since long by the Royal College of Surgeons of England for teaching purposes of House Surgeons, He has further alleged that he had to his credit teaching experience even when the petitioner Dr. Chaturvedi was appointed as a Professor of Surgery. He has asserted that he has experience of teaching at S.G.S. Medical College and Hospital, Bombay, for about four years (1939-43). In short, his plea is that before he was appointed as Professor of Surgery he has to his credit teaching: experience of thirteen years and, therefore, he was qualified to be appointed as Professor of Surgery even according to the provisions of the University Ordinance, referred to above. In this connexion, Sri Rajnarain, learned counsel for Dr. D.G. Ojha, has referred to the Minutes of the University of Bajputana, Vol. XVII, from July to December 1955. He has drawn our attention to a certificate of Dr. R.G.Dhayagude, Dean, K.B.M Hospital, and Dr. Seth, G.S.M. College, Bombay, wherein it is mentioned that Dr. Ojha was attached to that hospital for a period of about four years and that during that period he had to teach the students working under his supervision. On the basis of this certificate, it was contended that Dr. Ojha acquired teaching experience at G.S.M. College, Bombay, for a period of four years. Our attention has also been invited to an Inspection Report of Jodhpur Hospitals submitted by Sri R.M. Kasliwal, Principal, S.M.S. Medical College and Controller, Attached Hospitals, Jaipur, appearing at p. 303 of the Minutes of the University of Rajputana, and that inspection note has also been reproduced by Dr. Ojha in his reply. From this it appears that Sri Kasliwal inspected the M.G. Hospital, Jodhpur, in connexion with the recognition of the House Surgeon's period for postgraduate students for the M.D. and M.S. of the Rajputana University. It has been mentioned therein that Dr. Ojna possessed requisite post-graduate qualifications and the six months' period of Resident House-Surgeonship carried out under him could therefore be recognized for post-graduate Btudiea in Surgery (M.S.).
35. Sri D.P. Gupta on behalf of the petitioner, has contended that during the period Dr. Ojha worked at K.E.M. Hospital, Bombay, he was pursuing his post-graduate Studies and that could not be counted towards his teaching experience. It is also urged that the M.G. Hospital, Jodhpur, was not recognized as a teaching hospital by the University of Rajasthan before July 1965 when the Medical College was started and that the earlier period of imparting training to House Surgeons by Dr. Ojha could not be counted towards teaching experience for appointment to the post of a Professor or Principal. It may be observed that according to Ordinance 278D appearing at p. 468 of the Handbook of the University of Rajasthan, Part II, a recognized teacher for post-graduate studies is one, who has been approved as such by the University on the recommendation of the Faculty of Medicine, Pharmaceutics and Veterinary Science. Thus, according to this Ordinance, it is in fact the function of the University to give due consideration to the said testimonial and Dr. Ojha's claim about teaching experience with regard to the training he used to impart to the medical students after their graduation. It is neither convenient nor proper for us to enter into a realm which is essentially that of the University. It appears from the perusal of Ex. 10, which is a record about the minutes of the meeting of the Syndicate of the University held on 30 November 1964 that the State Government had recommended to the University that in view of Dr. Ojha's high academic qualifications and long professional experience, the condition of teaching experience as prescribed in the University Rules may be waived in the case of Dr. Ojha for the post of Professor and Head of Department of Surgery in an affiliated medical college. It further appears that the State Government had also forwarded to the University some communication from the Medical Council of India and it was pointed out that the said Council had agreed to relax the condition of teaching experience in his case. After considering the Government's letter, the Syndicate resolved that it could not agree to Dr. Ojha's permanent appointment to the post of Professor of Surgery, but it was further observed that ' he might continue to hold the post of Professor as a temporary measure pending the appointment of a qualified person as Professor of Surgery.' Again, resolution dated 9 October 1965, the Syndicate, while requesting the State Government to appoint a duly qualified person, observed that meanwhile Dr. Ojha may continue, as a special case, to hold the post of Professor of Surgery and Medicines as a temporary measure. It does not appear from these resolutions if the said matter was considered in the light of Dr. Ojha's learned counsel's arguments in this Court. It cannot toe gainsaid that they merit thoughtful consideration of the University. He has only been allowed to function as Professor of Surgery on a temporary measure. We have not been referred to any similar resolution regarding Dr. Rishi. The learned Advocate-General has contended that the Government has appointed both Dr. Ojha and Dr. Rishi under Rule 30 (4) of the Collegiate Branch Rules, that the appointments of both are temporary and, therefore, we will hereafter deal with both the cases together.
36. Sri Gupta has argued that Rule 30 (4) of the Collegiate Branch Rules under which the appointment of these two doctors as Professors of Surgery is sought to be justified by the learned Advocate-General is bad inasmuch as it runs counter to the provisions contained in the University Ordinance which has a binding force. The University Ordinance requires that a doctor in order to be appointed as a Professor in a Medical College must have teaching experience as Assistant Professor, Reader or Lecturer in Surgery for five years in a Medical College after requisite post-graduate qualifications. Of these, at least three years must be as Assistant Professor or Reader. On the other hand, according to Rule 30 (4) the post of a Professor which is a selection post can be filled in temporarily by any specialist in the service of the State, who is a post-graduate and has teaching experience and has been practising in the speciality for such period as required by the University Ordinance provided that two years of service rendered in the speciality shall be reckoned as equivalent to one year's teaching experience gained in the speciality. Rule 30 (4), according to Sri Gupta, being in contravention of the University Ordinance, cannot prevail.
37. It has been argued that an Ordinance under the University Act has the force of law and any appointment made in contravention of the provisions of this Ordinance must be set aside. In support of his argument Sri Gupta has placed strong reliance a recent decision of the Supreme Court: Civil Appeal No. 137 of 1964: Prabhakar Ram-krishan Jodh v. A.L. Pande and Anr. decided on 12 January 1955 (which has not been reported so far in the law reports, but a certified copy of which has been shown to us). The facts of this case were that the appellant Prabhakar was appointed as Lecturer in Sanskrit in the S.B.R. College, Bilaspur, which is affiliated to the University of Saugar under the provisions of the University of Saugar Act, 1946, and is managed by a governing body established under Clause (3) of the College Code which is an Ordinance made under the provisions of the Act. The allegation of Prabhakar was that his services had been terminated by the governing body without holding any enquiry in violation of the provisions of Clause (8) (iv) (a) of the College Code and therefore the order of his termination was ultra vires and illegal. The Madhya Pradesh High Court rejected the writ petition on the ground that the conditions of service of the petitioner were governed not by the College Code by the contract made between the governing body and Prabhakar. Their lordships of the Supreme Court were pleased to hold that the provisions of Ordinance 20, otherwise called the College Code, had the force of law and it conferred legal rights in favour of teachers of the affiliated colleges and the view taken by the High Court was erroneous. In this view of the matter, their lordships set aside the judgment of the High Court and remanded the case to it to investigate the question whether there was a violation of the procedure contained in the College Code and for final determination of the case in accordance with law.
38. It may be pertinent to point out that in Prabhakar case (vide supra) it was held by their lordships of the Supreme Court that the provisions of the College Code related to the pay-scales of teaohers and their security of tenure and that it created legal rights in favour of the teachers of the, affiliated colleges. It cannot be justly argued that the relevant provisions of Ordinance 65 on which the petitioners' learned counsel have based their arguments oreate any legal rights in favour of the petitioners and that their legal rights have been infringed. On the oontrary, the petitioners themselves were appointed under the Rajasthan Medical Service Rules. Their conditions of service are also regulated by the said rules. Thus, Prabhakar case (vide supra) is clearly distinguishable from the present one.
39. It may be further pointed out that Dr. Ojha and Dr. Rishi have not been appointed as Professors by the University and the University is not running the medical colleges or the attached hospitals. If they were to be run by the University and if these respondents were appointed by the University and there were no separate rules regarding recruitment and conditions of service, there could be some justification in challenging the validity of their appointments even on a temporary footing on the basis of the University Act, Statutes and Ordinances. All the medical colleges and attached hospitals are run by the Government of Ra]asthan and both Dr. Ojha and Dr. Rishi have been appointed as Professors not by the University but by the Government of Rajasthan and they are governed by the Rajasthan Medical Service (Collegiate Branch) Rules, 1982, which regulate the recruitment and the conditions of service of persons appointed to this service. It is not disputed that these doctors fulfil the qualifications as prescribed in Rule 30 (4) of the Collegiate Branch Rules for temporary appointment as Professors in the Medical Colleges. The question arises whether in such circumstances it can be urged with any justification that they are usurpers of office and whether Rule 30 (4) should ba struck down on the ground that it contravenes the provisions of Ordinance 65.
40. The question is certainly not free from difficulty, but after due consideration, we are of the view that Rule 30 (4) and Ordinance 65 cover different fields and they will have their sway in their own spheres. While the Collegiate Branch Rules regulate the recruitment to the posts and conditions pf service appointed to the Rajasthan Medical Service, Ordinance 65, which appears in Chap. XX of the Handbook of the University of Rajasthan, referred to above, lays down the norms and standards of the qualifications which the teachers of various stages of university education should possess before the University admits the colleges and institutions to its privileges and grants them recognition or affiliation. Thus, if a certain college or institution is unable to satisfy the University about the number and qualifications of its teaching staff, it is open to the University not to admit it to its privileges and refuse affiliation. Similarly, it is open to the University to withdraw the privileges to which a certain college has been admitted and also its recognition or affiliation. This is the remedy provided in the University Act itself in the case of any contravention of the provisions of the University Act or Rules made thereunder. But in a case like the present one where the teaching staff of colleges is recruited under the rules made by the Governor in exercise of his powers conferred by the proviso to Art, 309 of the Constitution of India and where their conditions of service are regulated by such rules, it cannot be urged rightly, in our opinion, that a person appointed in accordance with such rules is a usurper of office, because he is lacking in some qualifications laid down by the University even though the University suffers him to function and continues the affiliation of the college in which he is working. The University is an autonomous body and we are inclined to think that a third person other than the University cannot take up cudgels on behalf of the University in such a state of affairs. It is University alone which can take action against the Government and it is for that autonomous body not to allow such state of affairs to continue in an affiliated college and to withdraw the affiliation if its Ordinances are not respected without good reasons. In the present case, it appears from the minutes of the Syndicate, referred to above, that the University itself has permitted the Government to continue the appointment of Dr. Ojha as a temporary measure and no objection has been taken by the University in the case of Dr. Rishi either, since it thinks that this is a temporary phase or their performance comes to the requisite standard even though they do not fulfil the technical requirement of teaching experience laid down by the University or it thinks that it is within its competence to relax the rigour of the rules.
41. Another branch of argument of Sri Gupta is that the rules made under the University Act would prevail over the rules made by the Governor in exercise of his powers conferred by the proviso to Article 309 of the Constitution of India. In this connexion, he has referred to M.P. Ramanathan v. Director of Medical Services, Madras, and Anr. : AIR1965Mad323 and Chitralekha v. State of Mysore and Ors. A.I.E. 1964 S.O. 1823.
42. In M .P. Ramanathan v. Director of Medical Services, Madras, and Anr. : AIR1965Mad323 (vide supra), the Director of Medical Services, Madras, issued executive directions setting out the minimum qualifications required of the candidates seeking admission to the Government Medical College in the Madras State. According to those directions the results of the Pre-University examinations were to govern the selection of candidates for interview. It was urged that the candidates who had passed a higher degree examination were entitled to be considered despite the character of their performance at the Pre-University examination and could not be ruled out on the basis of grading they obtained in the Pre-University examination, It was held that
the requirement with regard to the grades in the subjects obtained at the Pre-University examination even in the case of candidates, who have taken a higher examination, is not in any way unreasonable.
It was further held that-
The requirement with regard to the standards for admission is a matter which should normally lie within the exclusive province of the educational authorities and the Court's interference in a matter of that kind would virtually be to intrude in a field of which the Court has not special knowledge.
The petitioner's writ petition was therefore dismissed.
43. In Chitralekha v. State of Mysore : 6SCR368 (vide supra), Subba Rao, J., as he then was, while delivering the majority judgment, observed as follows ;
It is true that under Section 23 of the Mysore University Act, 1956, the Academics Council shall have the power to prescribe the conditions for admission of students to the University and, in exercise of its power, it has prescribed percentage of marks which a student shall obtain for getting admission in medical or engineering colleges. But the orders of the Government do not contravene the minimum qualifications prescribed by the University. The Government runs most of the medical and engineering colleges. Excluding the State aided colleges, the position is as follows : The colleges run by a Government, having regard to financial commitments and other relevant considerations can only admit a specific number of students to the said colleges. They cannot obviously admit all the applicants who have secured the marks prescribed by the University. It has necessarily to screen the applicants on some reasonable basis. The orders of the Government only prescribe criteria for making admission to colleges from amoung students who secured the minimum qualifying marks prescribed by the University. Once it is conceded that the State Government can run medical and engineering colleges, it cannot be denied the power to admit such qualified students as pass the reasonable tests laid down by it. This is a power which every private owner of a college will have, and the Government which runs its own colleges cannot be denied that power. Hence, the order cannot be said to contravene the provisions of Section 23 of the Mysore University Act also.
None of these two authorities help the petitioners. No decision having a direct bearing on the point canvassed before us has been brought to our notice. But we do not see any conflict between Rule 30 (4) of the Collegiate Branch Rules and the University Rules on the point. It is well-established that the rules made by the Governor in exercise of his powers conferred upon him by the proviso to Article 309 of the constitution have statutory force. It is also true that the rules so made under Article 309 are subject to the provisions of the Act in that behalf made by or under an Act of the appropriate legislature under this article. It was therefore, perfectly competent for the.
Governor to make rules regulating the recruitment to the post3 and the conditions of service of persons appointed to the Raja-sthan Medical Service ' Collegiate Branch.' The University of Rajasthan Act is a special law made by the State Legislature in exercise of its powers to legislate under the head ' Education' including the Universities in entry 11 of List II of Sch. VII. The University Act therefore does not regulate the recruitment and the conditions of service of persons appointed to the public services and posts in connexion with the affairs of the State of Rajasthan. These rules therefore do not transgress the field covered by the University Act. It is not obligatory under proviso to Article 309 of the Constitution to make rules of recruitment, etc, before a service can be constituted or a post created or filled. The State Government has executive powers in relation to all matters with respect to which the legislature of the State has power to make laws. It follows from this that the State Government will have executive powers in respect of Sch. VII, List II, entry 41, State Public Service. There is nothing in the terms of Article 309 of the Constitution which abridges the power of the executive to act under Article 162 of the Constitution without a law. Article 162 lays down that subject to the provisions of this Constitution the executive power of a State shall extend to the matters with respect to which the legislature of the State has power to make laws. However, as soon as the rules are made under the proviso to Article 309 of the Constitution, the executive power of the State Government in relation to matters with respect to which the rules have been made will come to an end.
Thus there are distinctly demarcated fields in which the rules made by the Governor in exercise of his powers under the proviso to Article 309 of the Constitution and the University Act would operate, and the provision in Ordinance 65 regarding the minimum qualifications for teachers of various stages of university education in the affiliated colleges contained in Ordinance 65 only governs the relationship 'between the University and the affiliated colleges. A perusal of the various sections in Chap. XX of the Handbook of the University of Rajasthan in Part II would show that it is the duty of every affiliated college to satisfy the University in respect of certain matters and the Syndicate has been given power, subject to the statutes, to inspect and to affiliate, recognise or approve the colleges and hostels or institutions, and to withdraw the affiliation, recognition, or approval from them. If any conditions laid down in the statutes are not satisfied by an affiliated college, it is for the University to take appropriate action against the affiliated college and if necessary to withdraw the affiliation, It is again for the University to admit the colleges to the privileges of the University and to withdraw such privileges, and no third party can claim a legal right that if a certain college is not complying with certain matters laid down by the University in its rules, the college must be stopped from functioning. For aught we know, in a certain set of circumstances the University may enforce certain rules rigorously and in certain circumstances, it may not. In this connexion we may refer to University of Mysore v. C.D. Govind Rao and Anr. : 4SCR575 in which their lordships were pleased to observe as follows : Where one of the qualifications for the appointment to the post of a Reader in the University was that the applicant should possess a First or High Second Class Master's degree of an Indian University or an equivalent qualification of a foreign University, the candidate should possess a First Class Master's degree of an Indian University, or High Second Class Master's Degree of an Indian University or qualification of a foreign University which is equivalent to a First Class or a High Second Class Master's degree of an Indian University. Whether the foreign degree is equivalent to a High Second Class Master's degree of an Indian University is a question relating purely to an academic matter and Courts should naturally hesitate to express a definite opinion, specially when the Selection Board of experts considers a particular foreign University degree as so equivalent.
44. Further on, their lordships have been pleased to observe ;
It would normally be wise and safe for the Courts to leave the decisions of academic matters to experts who are more familiar with the problems they face than the Courts can be. The Board is not in the position of an executive authority, issuing an executive flat, nor does it act like a quasi-judicial tribunal deciding disputes referred to it for its decision. In dealing with complaint made by citizens in regard to appointment made by academic bodies, like the Universities, such an approach would not be reasonable or appropriate. Tests which would legitimately be applied in the case of writs of certiorari cannot be applied. The question of manifest error is a consideration which is more germane and relevant in a procedure for a writ of certiorari.
45. The petitioners have claimed a writ in the nature of quo warranto against the non-petitioners. It would therefore be necessary to indicate the technical nature of the writ of quo warranto and the circumstances under which it should be issued.
46. Halsbury [Halsbury's Laws of England, 3rd Edn., Vol. II, p. 145 has observed as follows:
An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined.
47. Their lordships of the Supreme Court in University of Mysore v. C.D. Govinda Rao : 4SCR575 (vide supra) while discussing the scope of the writ of quo warranto have observed as follows :
Broadly stated, the quo warranto proceedings affords a judicial enquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the enquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office, in other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subjeot to the conditions recognized in that behalf, they tend to protect the public from usurpers of public office ; in some case persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help and in such cases, if the jurisdiction of the Courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the Court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not.
48. Again, Halsbury [Halsbury's Laws of England, 3rd Edn., Vol. II, p. 148] has observed that-
An information in the nature of a quo warranto was not issued, and an injunction in lieu thereof will not be granted, as a matter of course. It is in the discretion of the Court to refuse or grant it according to the facts and circumstances of the case. The Court would inquire into the conduct and motives of the applicant, and the Court might in its discretion decline to grant a quo warranto information where it would be vexatious to do so, or where an information would be futile in its results, or where there was an alternative remedy which was equally appropriate and effective. It is conceived that the Court will follow similar principles in determining whether to grant an injunction in lieu.
The question therefore arises whether the non-petitioners-Dr. Ojha and Dr. Rishi are occupying the office of Professors of Surgery without legal authority and whether their appointments have been made in accordance with law, and lastly whether it is a fit case in which this Court should exercise its discretion by granting a writ of quo warranto.
49. As already observed, these doctors are holding the office of Professors of Surgery in accordance with the Collegiate Branch Rules, and cannot be said to be usurpers of office. The University has no objection to their continuance as Professors of Surgery as a temporary measure.
50. In these circumstances, we do not consider that this is a fit case in which we should issue a writ in the nature of quo warranto.
51. There is another aspect of the case to which we would like to draw attention though none of the parties has touched it, and it is this whether the qualifications regarding teaching experience as prescribed under the University Ordinance are mandatory, non-compliance of which would vitiate the appointments of Dr. Ojha and Dr. Rishi as Professors of Surgery.
52. In a Bench decision of this Court-Shatru-shal Singh v. Noor Mohammad I.L.R. IX Raj. 710, the learned Judges have observed as follows:
The question whether a particular rule of law is mandatory or directory is not easy to answer and cannot be decided safely merely upon drawing analogies from certain provisions of other rules. The mere use of the word 'shall' does not make any difference if the context suggests that the legislature did not intend that any disobedience of minor rules of procedure should defeat its main purpose. The primary consideration is the language of the rule itself, examined in the light of the scheme and purpose of the legislation in the context of which the rule occurs. Secondly, it has to be seen whether, on the face of the rule, there is any penalty provided, in which case the penalty may require to be enforced. Thirdly, one has to interpret the rule having regard to the balance of convenience which may result in case it is held to be directory or mandatory. Lastly, the well-known doctrine of construction should be borne in mind that where the legislature requires a thing to be done by any public authority or person, then, If there is substantial compliance with the rule, it should be held to be sufficient.
53. In this connexion it may be relevant to reproduce the following passage from the Construction of Statutes by Crawford, 1940 Edn., p. 104 :
A statute, or one or more of its provisions, may be either mandatory or directory. While usually in order to ascertain whether a statute is mandatory or directory, one must apply the rules relating to the construction of statutes; yet it may be stated, as a general rule, that those whose provisions relate to the essence of the thing to be performed or to matters of substance, are mandatory, and those which do not relate to the essence and whose compliance is merely a matter of convenience rather than of substance, are directory. So, a mandatory statute may be defined as one whose provisions or requirements, if not complied with, will render the proceedings to which it relates illegal and void. While a directory statute is one where non-compliance will not invalidate the proceedings to which it relates.
In Craies on Statute Law, 6th Edn., by S.G.G. Edgar, it is observed at p. 267, that :
Where a statute does not consist merely of one enactment but contains a number of different provisions regulating the manner in which something is to be done, it often happens that some of these provisions are to be treated as being directory only, while others are to be considered absolute and essential; that is to say, some of the provisions may be disregarded without rendering invalid the thing to be done, but others not, For ' there is a known distinction,' as Lord Mansfield said in R. v. Loxdale, 'between circumstances which are of the essence of a thing required to be done by an Act of Parliament and clauses merely directory.' In, Pearse v. Morrice, Taunton, J., said that he understood ' the distinction to be, that a clause is directory where the provisions contain mere matter of direction and nothing more, but not so, where they are followed by such words as,' that anything done contrary to these provisions shall be null and void to all intents.
54. Again Lord Campbell in Liverpool Borough Bank v. Turner (1861) 30 L.J. Ch. 379 at 380 has said;
No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.
55. In Howard v. Bodington (1877) 2 P.D. 203 at 211 Lord Penzance, after citing this dictum of Lord Campbell, added as follows :
I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or directory.... I have very carefully gone through all the principal cases but upon reading them all, the conclusion at which I am constrained to arrive is this, that you cannot glean a great deal that is very decisive from a perusal of these cases. They are on all sorts of subjects. It is very difficult to group them together, and the tendency of my mind, after reading them, is to come to the conclusion which was expressed by Lord Campbell in the case of Liverpool Borough Bank v. Turner (1861) 30 C.J. Ch. 379 at 380 (vide supra).
56. The opening sentence of Ordinance 65 on which the petitioners' argument about minimum qualifications for a Professor is founded i3 capable of two interpretations. According to one interpretation, the minimum qualifications for teachers of various stages of university education in the affiliated colleges would be both academic qualifications and teaching experience. This is the interpretation placed by the petitioners' learned counsel. Another interpretation which Ordinance 65 is capable of being given, would be that by the term ' qualifications ' the Ordinance-making authorities meant only academic qualifications and teaching experience was besides (that is, in addition to) academic qualifications. Such an interpretation would not be unreasonable because it is only under head 3 that term' qualifications' appears with the word' academic,' and teaching experience has been placed under a separate Head 4. It may as well be argued that under Ordinance 65, the provision about academic qualifications was mandatory while the provision about teaching experience was only directory and, therefore, the Syndicate had, in appropriate cases, an authority to relax its rigour. Unfortunately, the University has not even cared to file a reply nor has it cared to put in its appearance through a counsel and, therefore, we have altogether been deprived of its views and the reasons on account of which it was considered by the University authorities that the requirement about teaching experience could be relaxed. At any rate, it appears as we will show presently, that the requisite qualification in the matter of teaching experience does appear to have been treated by the University as directory in nature and not mandatory. The University seems to have made a distinction between academic qualifications and qualifications relating to teaching experience. We find that so far as academic qualifications are concerned, the University Ordinances have been consistently the same ever since the University was established. So far as qualifications relating to teaching experience are concerned, the same have been changed from time to time. Thus, it appears to have made a distinction between academic qualifications and teaching experience. Teaching experience, it appears, is treated more as desirable and preferential rather than essential. It cannot be controverted that even if a person does not fulfil the qualifications of teaching experience, all the teaching done by him in the capacity of a teacher would not be rendered illegal and void.
57. It was strenuously urged by the petitioners' learned counsel that a Professor in Surgery should not only have five years' teaching experience but three years' teaching experience out of five years, should be that of an associate Professor or Reader. It is true that the language used under the head ' teaching experience' looks as if the provision was mandatory but it appears that it has, up to this time, been treated by the University as only a directory provision. It is interesting to note that according to the averment of petitioner, Dr. R.P. Chaturvedi, in his own writ petition, he was appointed as a Reader on 22 March 1955 on probation for one year. He was confirmed in that post on 21 April 1956 and thereafter appointed as Professor on 11 December 1956. It is obvious that he had worked for only about a year and nine months when he himself was appointed as Professor on 11 December 1956 because he was only a Lecturer before 22 March 1955 when he was appointed as a Reader on probation. Three years' experience as a Reader was not considered unavoidable at that time, otherwise he could not hold the post himself. It is true that at the time when he was appointed as a Professor, the provision about three years' experience as a Reader was not there. If such a provision were existing at that time, his writ application would have been dismissed on that ground because as held in R. v. Cudlipp (1796) 6 Term Rep. 503, the Court will not permit a private relator to file an information in the nature of quo warranto against another for a defect of title which equally applies to his own. In other words, he would not be permitted to point out in another man's case a weakness with which he has himself suffered. We are pointing out this only to show the directory nature of the provision about teaching experience.
58. There is yet another aspect of the case to which we must advert. In Rule 30 (4), the Governor has not framed a rule contrary to the University Rule in respect of teaching experience for a Professor of Surgery, but all that has been done in the Collegiate Branch Rules is that a proviso has been added by virtue of which two years of service rendered in the speciality has been equated with one year's teaching experience gained in the speciality. It has been urged by the learned Advocate-General that all the three non-petitioners, namely, Dr. Ojha, Dr. Rishi and Dr. Mathur had to their credit long experience of practice in the speciality and even though they had no teaching experience in the sense of lecturing to the classes, it was considered by the Government that they were fully competent and qualified to discharge the duties of a Professor in Surgery and therefore looking to the peculiar conditions prevailing in Rajasthan the proviso to Rule 30 (4) was added. In this connexion, he has also drawn our attention to Ordinance 65 of the University as it existed previously :
Medicine, Surgery, Ophthalmology and Gynaecology and Obstetrics-1. Professor or Additional Professor-Postgraduate degree of a recognized University or equivalent post-graduate diploma in the respective subject with experience of teaching the subject for four years to undergraduates and have practised the speciality exclusively for four years. The period spent in exclusive practice of the speciality may be deemed equivalent to teaching experience for half the period.
59. It is noteworthy that according to this provision, the period spent in exclusive practice of speciality was deemed equivalent to teaching experience for half the period by the University itself, and in the proviso to Rule 30 (4) of the rules, this is what has been exactly done, i.e., two years of service rendered in the speciality has been equated with one year's teaching experience. All that the rule-making authority in exercise of its powers conferred by proviso to Article 309 of the Constitution has done in this case is to widen or enlarge the scope of the term ' teaching experience ' so as to include the period of service rendered in the speciality as equivalent to teaching experience for half the period. In these circumstances, it would not be incorrect to say that Rule 30(4) of the Colligiate Branch Rules has not in any way violated the University Rules in this respect. The University has not put in appearance before us and it is not the petitioner's case that the University has at any stage objected to this enlargement of the definition of ' teaching experience ' in the Collegiate Branch Rules. In this view of the matter, we are inclined to think that there is not such a conflict between the University Rules and the Collegiate Branch Rules as may necessitate a decision on the question as to which rule would prevail over the other, and we do not see any force in the contention of the learned counsel for the petitioners that Rule 30 (4) must be struck down as ultra vires.
60. Another attack made against Rule 30 (4) of the Collegiate Branch Rules is that the Governor has not power to give retrospective effect to the rules made under the proviso to Article 309 of the Constitution. It is argued that although the ambit of the rule-making power of the Governor is identical with the power of the legislature as to the subject-matter, the power of the Governor and that of the legislature is not equal as regards the power of making retrospective provisions. It is submitted that the legislature within its allotted sphere is supreme but such power to make retrospective. Legislation cannot be claimed by any authority other than the legislature. In this connexion the learned counsel has placed reliance on Indian Sugars and Refineries, Ltd. v. State of Mysore A.I.R. 1960 Mys. 326; Padmanabhacharya v. State of Mysore and Ors. A.I.R, 1962 Mys. 230; Govindaraju v. State of Mysore A.I.R, 1963 Mys. 265 and Govindappa Tirkappa Hirakeri v. Inspector-General of Registration A.I.R. 1965 Mys. 25. The contention of the learned counsel is that the provision contained in the notification dated 22 August 1966 whereby it has been provided that the new Rule 30 (4) ' shall be deemed always to have been added' is retrospective in its nature and the Governor was not competent to make such a retrospective rule. We may state at once that there is conflict between Mysore High Court and the Allahabad High Court on this point. The Allahabad High Court has taken contrary view in Ram Autar Pandey v. State of Uttar Pradesh and Anr. 1962-1 L.L.J. 148 and Vidya Sagar v. Board of Revenue : AIR1964All356 and the learned Judges of the Allahabad High Court in the Full Bench decision in Ram Autar Pandey v. State of Uttar Pradesh and Anr. 1962-1 L.L.J. 148 (vide supra) have observed at p. 158; that '.... The rule-making power conferred by Article 309 on the Governor or his nominee is, therefore, not confined to prospective rule-making and appears to be wide enough to include the making of rules with retrospective effect . . . The legislature, it is well-settled, can legislate prospectively as well as retrospectively. The powers of the Governor under the proviso to Article 309 being identical with that of the legislation under the main article, the Governor can make rules with similar effect.'
The Mysore case-Padmanabhacharya v. State of Mysore A.I.R. 1962 Mys. 280 (vide supra) went to the Supreme Court and their lordships of the Supreme Court in State of Mysore v. Padmanabhacharya (I.) and Ors. 1966-11 L.L.J. 147 concurred in the result of the case arrived at by the Mysore High Court on the ground that the impugned notification could not be said to be a rule regulating the recruitment and conditions of service of persons appointed to the services and posts in connexion with the affairs of the State. Suoh a rule was not contemplated under the proviso to Article 309 of the Constitution. In this view of the matter their lordships refrained from giving their decision on the question whether the Governor was competent to make rules retrospectively in exercise of his powers under proviso to Article 309 of the Constitution. We also feel that it is not necessary for the decision of these writ applications to decide the question whether the Governor is competent to make rule retrospectively under the proviso to Article 309 of the Constitution for the simple reason that even if Rule 30 (4) is taken to operate only prospectively, the non-petitioners cannot be said to be usurpers of office today and we would in our discretion decline to grant a quo warranto information where it would be vexatious to do so and where an information would be futile in its results.
61. We would, however, observe that Rule 30(4) empowers the State Government to make only a temporary or officiating appointment; and the appointments of Dr. Ojah and Dr. Rishi will be deemed to be temporary or officiating even though these words may not have been used in the orders of their appointment as Professors of Surgery. Learned Advocate-General has also conceded that the Governments cannot make permanent appointments under Rule 30 (4) and the omission of the words ' temporary ' or ' officiating ' in the orders was by mistake. It is, therefore, not necessary to pursue the matter any further as these appointments will be considered only as temporary or officiating.
62. Rule 30 (4) of the Collegiate Branch Rules has also been attacked on the ground that it gives unfettered and arbitrary powers to pick and choose any non-member of the service, and appoint him to any senior or selection post in the service without any rational basis and thus it has been contended that it violates Article 14 of the Constitution. In this connexion it has been contended by the learned counsel for the petitioners that it is illegal and inequitable to make any comparison between teaching experience and practice in a speciality. Proviso to Rule 30 (4) seeks to equate the period of practice in the speciality with half the period of teaching experience. Thus, according to the learned counsel, it has the effect of nullifying the main provision of the rule. It is submitted that there is nothing in common between the specialist's experience and teaching experience and one cannot be considered as a substitute for the other and that there is no reasonable basis for equating the two years' practice in the speciality as one year's teaching experience. We find ourselves unable to accept these submissions and do not consider the provisions of Rule 30 (4) as arbitrary, discriminatory or unreasonable. The Court has no special knowledge with regard to the comparison of teaching experience with practice in speciality and the Court's interference in a matter of that kind would virtually mean to intrude in a field of which the educational and other controlling authorities can only give a considered and firm opinion. However, if we were to venture an opinion on this matter, we think that it would not be a bad standard to give due weight to the period spent in practice in speciality. Be that as it may, the standards so fixed must be, in a matter (sic) of speaking, arbitrary, for anyone can say that different standards would be most suitable for the purpose in view, it would be largely a matter of opinion and unless the standards prescribed are so unrelated to the securing of proper persons for appointment as Professors, no one, least of all, a Court can adjudicate upon the precise measure of the qualifications. We, therefore, overrule this contention.
63. Learned counsel for the petitioners has also argued that according to Rule 30 (3) no appointment made under Sub-rules (1) and (2) of Rule 30 shall be continued beyond a period of six months without referring it to the Commission for their concurrence and shall be terminated immediately on their refusal to concur. It is contended that there is no such provision for obtaining concurrence of the Public Service Commission in the case of an appointment made under Rule 30 (4), and, therefore, Rule 30 (4) is bad and any appointment made thereunder is illegal. The State of Rajasthan in its reply has submitted that it is within the powers of the Governor to limit the functions of the Public Service Commission and if any appointment is taken out of the purview of the Public Service Commission, it is well covered by the provisions of the Constitution. It is further urged that in all matters of appointment consultation of the Public Service Commission is not necessary and the Government can make any appointment even beyond the period of six months without the consultation of the Public Service Commission. The Advocate-General's argument is that if such appointments have been taken out from the purview of the Public Service Commission by enacting a valid rule, the Government is fully empowered to make appointments for any length of period against any post without consulting the Public Service Commission.
64. We have given due consideration to the arguments advanced by the learned counsel for the parties on this point. In this connexion we may refer to the observations of their lordships of the Supreme Court in State of Uttar Pradesh v. Manbodhan Lal Srivastava 1958-11 L.L.J. 273, in which their lordships were pleased to observe as follows (at pp. 279-260):
The provisions of Article 320(3)(c) are not mandatory and non-compliance with those provisions, does not afford a cause of action to civil servant in a Court of law. They are not in the nature of a rider or proviso to Article 311. Article 320(3)(c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation should not afford him a cause of action in a Court of law, or entitle him to relief under the special powers of a High Court under Article 226 of the Constitution or of the Supreme Court under Article 32. It is not a right which could be recognized and enforced by a writ. On the other hand, Article 311 of the Constitution has been construed as conferring a right on a civil servant of the Union or a State, which he can enforce in a Court of law.
65. For the reasons given in the above Supreme Court case, we are also of the view that there is no substance in this contention of the petitioners either.
66. Next we take up the question of validity of the appointments of Dr. Ojha, Dr. Rishi and Dr. Mathur as Principals of Medical Colleges in Rajasthan. Learned counsel for the petitioners has submitted that these petitioners do not possess the necessary qualifications in respect of experience as prescribed by the University of Rajasthan for appointment to the posts of Principals in Medical Colleges of Rajasthan. This position is not disputed by the learned Advocate-General also who has submitted that prior to 31 March 1966 a Professor was assigned the duties of Principal and even now a senior specialist can be assigned such duties on part-time basis. According to the reply filed by the State of Rajasthan the post of Principal is primarily administrative in character and it requires a certain degree of administrative experience. It is stated that it was never made a rule that only the senior Professor and head of the department should have been posted to discharge the duties and responsibilities of the Principal. However, as a matter of practice the head of the department was allowed to function as such and in lieu of the special duties and responsibilities discharged by him as a Principal of the Medical College a special pay was attached under the orders of the Governor dated 25 November 1961, and this order continued in force for some time. It is further contended by the State that the post of a Principal i3 a part-time post and not a promotion post. It has also been submitted that the posts of Principals in Sardar Patel Medical College, Bikaner; Ravindra Nath Tagore Medical College, Udaipur; Medical College, Jodhpur ; and Medical College, Ajmer, are not the posts of purely Principals, but the Principals of these colleges are also the Controllers of Associated Group of Hospitals and they work as the Superintendents of the Main Hospital or the Associated Group of Hospitals. It is stated that the Principal of S.M.S. Medical College, Jaipur, is not only the Principal of the said college but also the Controller of the attached hospitals to the college. It has been contended that a person who is appointed as Principal in these medical colleges, has to discharge in addition to the duties of a Principal the other duties on the clinical side, besides the main duty of looking after day-to-day administration of the hospital.
67. It has been argued that the petitioner has no right to be considered for the post of a Principal as the appointments of Principals are not made by promotion. On the other hand, the duties of Principal, being part-time, are assigned to one of the Professors in the college.
68. A reference to the Collegiate Branch Rules, 1962, would show that a Principal has been denned in Rule 3 as follows :
Rule 3 : 'Principal' means Principal of a State Medical College.
Apart from that, there is no provision in the rules for the method of appointment of a Principal nor the post of a Principal is included in the schedule to the rules. Thus, the position is that there are no rules at all on the subject of appointment of Principal in a Medical College owned by the State of Rajasthan. This, however, does not mean that no appointment can be made to the post of Principal. The State Government has executive power in relation to all matters with respect to which the Legislature of the State has power to make laws. There is nothing in the terms of Article 309 of the Constitution which abridges the power of the executive to act under Article 162 of the Constitution without a law. In these circumstances the appointments of the three non-petitioners as Principals of the Medical Colleges cannot be considered as illegal and void merely because they do not possess the qualifications in respect of teaching experience and administrative experience as prescribed by the University. As observed in the earlier part of this judgment while dealing with the question of validity of appointment of Professor, it is a matter between the University and the State Government whether the University is prepared to continue the recognition of the State Medical Colleges in spite of the fact that the Principals appointed in those colleges do not possess the qualifications prescribed by the University. For the reasons given earlier in connexion with the appointments of Professors we also hold that the teaching qualifications prescilted in respect of appointments of Principals by the University are in the nature of directory previsions and non-compliance with the same does not make the appointments of the non-petitioners as Principals void.
69. Learned counsel for the petitioners has Submitted that the petitioners Dr. Chaturvedi and Dr. Mohanlal Gupta are qualified to be appointed as Principals of the Medical Colleges according to the qualifications prescribed by the University and are senior to Dr. Ojha, Dr. Rishi and Dr. Mathur, still their cases were not considered and thus there has been a violation of Article 16 of the Constitution as they have been denied an opportunity of being considered for promotion to the posts of Principals even though they are eligible and are entitled to be considered.
70. We do not think that the contention of the petitioners is well-founded and for the reasons which we are presently going to state we do not consider that the petitioners are senior to Dr. Ojha, Dr. Rishi and Dr. Mathur and it is not therefore open to them to argue that they have been superseded by promotion of the non-petitioners to the posts of Principals on the ground that they are senior to them. The counsel for the petitioners has relied on A.N. Nagnoor v. State of Mysore A.I.R. 1964 Mys. 229 wherein it was observed as follows :
An order of the Government promoting a junior in supersession of a senior without considering the claim of the senior for promotion when it is due to him has been quashed even though the promotion is a temporary one, as it is in violation of the principle of equality embodied in the article.
71. As already stated above in the Mysore case the petitioner was admittedly senior to the person whose promotion he has challenged but in this case, as we shall presently show, the petitioners Dr. R.P. Chaturvedi and Dr. Gupta are not senior to the non-petitioners, and therefore the rationale of the decision of the Mysore High Court does not apply to the facts and circumstances of the present case.
72. This naturally brings us to the question whether the petitioners Dr. Chaturvedi and Dr. Gupta are senior to Dr. Ojha, Dr. Rishi and Dr. Mathur.
73. The contention of the petitioners is that the Government has not yet decided the inter sa seniority of the Professors in the clinical and non-clinical wings of the service although about four years have elapsed since the initial constitution of the service under Rule 5 and over three years have elapsed since fmalization of the seniority among the members of the non-clinical wing of the service. According to the petitioners, the determination of inter se seniority in each category and cadre of both the wings of service is necessary according to the provisions of Rule 31 read with Rule 5 (3) of the Collegiate Branch Rules. The members of both the wings of the service, it is contended by the petitioners, are equally eligible for appointment to the post of Principal of a Medical College and therefore the determination of inter se seniority amongst the Professors of both the wings of the service is absolutely necessary. It is stated in the writ petitions that final seniority list of the non-clinical wing has been prepared on 19 August 1967 and. a copy of the same has been appended to the Writ Petition No. 599 of 1966 and marked Ex. 6. It is further contended that although the seniority of Readers and Lecturers in the clinical wing has been finalized by the Government notification dated 22 November 1963, yet the seniority of the Professors of clinical wing has not been intentionally and mala fide finalized by the State of Rajasthan even upto this date.
74. In the reply filed by the State it is stated that it is not necessary to determine the inter se seniority of both the wings, viz., clinical and non-clinical, as they are separate and promotions are restricted to each wing. It is admitted that the seniority of Professors of clinical wing has not been finalized so far, but according to the learned Advocate-General, this is of no consequence.
75. The question which arises for our consideration is whether the determination of inter se seniority among the Professors of both the wings of the service is absolutely necessary. There is no prayer in these writ petitions that a writ in the nature of mandamus should fee issued to the Government for determining and preparing an inter se seniority list among the Professors of both the wings in the service. All that has been prayed is that the petitioners should be declared as seniormost Professors in the service for appointment to the posts of Principals of Medical Colleges in the Rajasthan State. In this connexion we may refer to Rule 6 of the Collegiate Branch Rules, which says that the service shall consist of two wings-clinical and non-clinical-and the right of promotion shall be confined to each wing Sub-rule (2) of Rule 6 further provides that the nature of posts included in each wing shall be as specified in Col. (2) of the Schedule. A reference to the schedule appended to the Collegiate Branch Rules would further go to show that there is a clear demarcation of posts under the two wings-clinical and non-clinical. Learned counsel for the petitioners has laid emphasis on the provisions of Rule 5 (3) and Rule 31 in support of his submission that the rules contemplate preparation of inter se seniority list of Professors in clinical wing as well as in the non-clinical wing of the service. Rule 5 (3) lays down that the seniority of persons referred to in Sub-rules (1)(i), (1)(ii) and (2) shall be determined on an ad hoc basis by the Government. The seniority of persons referred to in Sub-rule (1) (iii) shall be determined by the Government on the advice of the committees referred to in Sub-rule (1) (iii). Thus this rule does not envisage preparation of any inter se seniority list of the clinical and non-clinical wings. Rule 5 (1) deals with Readers, Professors and Lecturers appointed in the clinical wing. Rule 5 (2) deals with the appointments made in the non-clinical wing of persons holding substantively the posts included in the service and persons selected by the Commission for posts included in the service. Coming to Rule 31 it envisages that the seniority in each category of the service (meaning thereby the category with reference to selection posts, senior posts and junior posts) shall be determined by the year of substantive appointment to a post in the particular category. There are four provisos under this rule, but a perusal of the whole rule including the provisos as reproduced above gives no indication that the seniority has to be determined inter se amongst the Professors, Readers and Lecturers of both the wings, viz , the clinical and non-clinical. The intention of the rules, as is apparent from their language, is to maintain the distinction between the two wings throughout and to determine the seniority inter se in each category of service under each wing. It is clear to us that the rules do not contemplate inter se combined seniority list of the different categories of service of both the wings-clinical and non-clinical. We are, therefore, unable to accept the petitioners' contention that the determination of inter se seniority list amongst the Professors of both the wings of service is absolutely necessary.
76. In this view of the matter the next contention of the petitioners, that they are entitled to be declared as seniormost Professors in the Rajasthan Medical Service, Collegiate Branch, also fails. It was observed in Gurbachan Singh and Ors. v. State of Pepsu and Ors. A.I.R. 1956 Pepsu 26 that:
So long as any statutory inhibition is not shown to be contravened, the employees cannot complain before a Court or claim any relief on the basis of the Government's failure or refusal to assign them their proper position in the seniority list.
77. The petitioners belong to non-clinical wing of the service and it is admitted by them in their writ petitions that the final seniority list of the non-clinical wing to which they belong has been prepared and they have no grievance against the position assigned to them in that list.
78. There remains only one more contention of the petitioners to be dealt with and it is this-that Rule 30 (4) has been inserted by the Government of Rajasthan during the pendency of these writ petitions mala fide with a view to give preferential treatment to the non-petitioners Dr. Ojha, Dr. Rishi and Dr. Mathur, and Rule 30(4) is thus discriminatory. We are not impressed with this argument. The impugned Rule 30(4) is of general application. The occasion which inspired the enactment of this sub-rule might be the justification for the appointments of Dr. Ojha and Dr. Rishi as Professors of Surgery but that is not a ground for holding that it is discriminatory and contravenes Article 14, when it is, on its terms of general application. In this connexion we may refer to Atlas Cycle Industries, Ltd. v. its workmen 1962-I L.L.J. 250 in which their lordships were pleased to observe as follows at p. 256 :. This Act, it is said, offends Article 14 as its object was to benefit a particular individual Sri A.N. Gujral, and reference was made to a decision of this Court in Ameeroonissa v. Mehboob 1953 S.C.R. 404 as supporting this contention. There is no force in this contention. There the legislation related to the estate of one Nawab Waliuddoula, and it provided that the claims of Mehboob Begum and Kadiran Begum, who claimed as heirs stood dismissed thereby and could not be called in question in any Court of law. And this Court held that it was repugnant to Article 14, as it singled out individuals and denied them the right which other citizens have, of resort to a Court of law. But the impugned Act 8 of 1957 is of general application, the age being raised to sixty-seven with reference to all persons holding the office under that section. The occasion which inspired the enactment of the statute might be the impending retirement of Sri A.N. Gujral. But that is not a ground for holding that it is discriminatory and contravenes Article 14, when it is, on its terms, of general application.
79. The observations made by their lordships in the above case apply to the facts and circumstances of the present case also, and the contention of the learned counsel for the petitioners that Rule 30 (4) is discriminatory as it was made to benefit the non-petitioners does not carry any weight.
80. Before we close, we may refer to the background in which the Collegiate Branch Rules, 1962, were made. As was observed in the case of Dr. (Miss) Joseph v. State and Ors. 1966 R.L.W. 229, up to the year 1959 there was only one Medical College in the State, viz., the Sawai Mansingh Medical College, Jaipur. Two new colleges, viz., the Sardar Patel Medical College, Bikaner, and the Ravindranath Tagore Medical College, Udaipur, were started in 1959 and 1961, respectively. Teaching in the clinical wing was imparted mostly by the members of the Medical Service of Rajasthan in these colleges till the Rajasthan Medical Service (Collegiate Branch) Rules, 1962, came into force with effect from 5 November 1962. These teachers were designated as part-time Professors, Readers and Lecturers. Before Rule 30 (4) was inserted in the Collegiate Branch Rules, there was no provision in these rules under which senior or junior specialists who were members of the Medical Service of Rajasthan could be given any chance of being appointed as Professors and Readers except by direct recruitment and it appears it was with an object to provide an opportunity to the experienced specialists in the service of the State that Sub-rule (4) of Rule 30 was introduced.
81. The petitioners have not alleged that before 5 November 1982 when the Collegiate Rules came into force they were senior in service to the respondents Dr. Rishi, Dr. Ojha and Dr. Mathur. On the contrary, it appears that the respondents were pre-merger entrants in the service of the State of Rajasthan while the petitioner Dr. Chaturvedi entered in service in the State of Rajasthan on 22 March 1955, that is, long after the merger of different States and the formation of the United State of Rajasthan in 1949. The petitioners could not therefore ordinarily be senior to the respondents Dr. Ojha, Dr. Rishi and Dr. Mathur. These respondents possessed in their own subject of surgery as high academic post-graduate qualifications as the petitioners did in their own subjects. The petitioners claim seniority over them mainly because of the Collegiate Rules whereby a special service was constituted and they got into it by virtue of the provisions of Rule 5. It was pointed out by the learned Advocate General that if the respondents were also posted in the medical colleges a few years earlier before the said rules came into force, there could be no room for attacking their appointments, if they were not posted in the colleges, it was not due to any fault of their own. Dr. P.D. Mathur was already Professor at the S.M.S. Medical College while Dr. D.G. Ojha and Dr. P.L. Rishi also held the posts of principal medical officers of the hospitals which have now been attached to the medical colleges. By enacting Rule 30 (4), the State has not shown any favour to them or done any wrong to the petitioners, but it has only shown fairness and imparted even-handed justice to those who were denied equal opportunity in the matter relating to employment or appointments in the colleges on account of Rule 5 of the rules. But for Rule 30 (4),'the resultant position would have been that the erstwhile principal medical officers of these hospitals which are now attached to the medical colleges would have been relegated to the position of heads of second-grade hospitals in spite of their high qualifications and long experience. We think that professional experience has also its own importance in the working of a teacher and if Rule 30(4) has been enacted in the circumstance disclosed above, it cannot be adjudged arbitrary, unjust and discriminatory. Having regard to all the circumstances of the case, we feel that even if there be some weight in technical objections of the petitioners, this is not a fit case in which we should exercise our judicial discretion in granting a writ of quo warranto against the respondents Dr. D.G. Ojha, Dr. P.L. Rishi and Dr. P.D. Mathur,
82. The writ petitions are, therefore, hereby dismissed. In the circumstances of the case, the parties are left to bear their own costs.