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Surendra Kumar Pande (Dr.) Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtRajasthan High Court
Decided On
Judge
Reported in(1970)ILLJ199Raj; 1969()WLN123
AppellantSurendra Kumar Pande (Dr.)
RespondentState of Rajasthan and anr.
Cases ReferredCourt In Dr. M.C. Mehta v. State of Rajasthan and Ors. S.B. Civil Writ Petition No.
Excerpt:
(a) interpretation - rule of construction--ordinary meaning be given to words and phrases.;the problem of interpretation more often than not arises because the tools with which the law making authority has to work are the words and words and words are not always tools of precision. where, however, the words are quire clear there is hardly a problem of interpretation. the various principles of interpretation evolved by courts command attention only when words are not clear enough or they suffer from ambiguity and then the court is faced with the problem of interpreting the words used as best as it can with a view again to getting at the true legislative intent.;(b) interpretation - object of--to get at the legislature intent.;the primary object, as observed above, of interpreting a statute.....orderkan singh, j.1. the writ petition before me raises a question of interpretation of rule 6(1)(11) of the rajasthan medical service (collegiate branch) rules, 1963, hereinafter to be referred as the 'rules.' petitioner dr. surendra kumar pande, who is officiating reader in surgery, s.m.s. madical college, jaipur, questions the validity of an order of the government no. f. 13 (1)(21) mph/56, dated 3 march 1967, appointing dr. kailash chander gangwal, respondent 2, as substantive lecturer under rule 5(1)(11) of the rules. the petitioner has also prayed for an appropriate writ, direction or order quashing the subsequent consequential orders of dr. gangwal's appointment as substantive reader and then later on his being appointed as professor by the state government. the relevant facts.....
Judgment:
ORDER

Kan Singh, J.

1. The writ petition before me raises a question of interpretation of Rule 6(1)(11) of the Rajasthan Medical Service (Collegiate Branch) Rules, 1963, hereinafter to be referred as the 'rules.' Petitioner Dr. Surendra Kumar Pande, who is officiating Reader in Surgery, S.M.S. Madical College, Jaipur, questions the validity of an order of the Government No. F. 13 (1)(21) MPH/56, dated 3 March 1967, appointing Dr. Kailash Chander Gangwal, respondent 2, as substantive lecturer under Rule 5(1)(11) of the rules. The petitioner has also prayed for an appropriate writ, direction or order quashing the subsequent consequential orders of Dr. Gangwal's appointment as substantive Reader and then later on his being appointed as Professor by the State Government. The relevant facts emerging from the writpetition are briefly these.

2. Petitioner Dr. Pande passed his M.B.B.S. In 1952 and M.S. in 1957. On 6 August 1957 he Joined the service of the Rajasthan State as Civil Assistant Surgeon, class I. He was appointed at a clinical tutor in Surgery on 27 May 1958 and promoted as part-time lecturer in the subject on 30 September 1961 and came to be appointed as Reader on 7 August 1965. As regards Dr. Gangwal, the petitioner proceeds to say that Dr. Gangwal passed his M.B.B.S. in 1953 and took his M.S. in General Surgery in 1957. According to the petitioner, Dr. Gangwal joined as a demonstrator in Anatomy in 1955 in the medical college and came to be appointed as a lecturer in Anatomy on 1 July 1957. Dr. Gangwal was appointed as Civil Assistant Surgeon, class I, on 22 November 1953 and was concurrently appointed as a part time lecturer in Surgery and thus he joined the clinical side of the S.M S. Medical College. Petitioner proceeds to say that at the time the petitioner or Dr. Gangwal were teachers in the medical college there were no statutory rules. Civil Assistant Surgeon, class I doctors belonging to the Rajasthan Medical and Public Health Service, were appointed as teachers in the medical colleges on the clinical side and the work of teaching was an additional assignment for the officers who were Civil Assistant surgeons, class I, and they were called part-time lecturers and were allowed a certain special pay. According to the petitioner, on 5 November 1962, both the petitioner and respondent 2, Dr. Gangwal, were substantive Civil Assistant Surgeons, class I officers, and were holding part-time posts of lecturers in Surgery.

3. The Governor, in exercise of his powers under Article 309 of the Constitution, made the rules and they were first published in the Rajasthan Gazette on 5 November 1962 and came into force from that date. In order to appreciate the case set up by the petitioner in his writ petition I may read Rule 5 of the rules which provides for initial constitution of the service:

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 been 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 the Government in the Appointments Department, or his representative not below the rank of Deputy Secretary. Director of Medical and Health Service, 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)(1), (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).

4. In terms of the above rule a screening: committee was appointed for fixation of the doctors falling under Rule 5(1)(iii), that is, such doctors as were not covered by the first two sub-clauses of the rule were to be dealt with by the screening committee. According to the petitioner, both he and respondent 2 were amongst those who were screened by the screening committee and as a result of such screening the petitioner as well as respondent 2 were appointed as lecturers. Petitioner has placed on record the list of lecturers so fixed and it is Ex. 3. According to this list, petitioner Dr. Pande's name is shown at No. 14 and that of respondent 2, Dr. Gangwal at No. 18. I may digress a little to say as to what had happened to this fixation. It appears that one Dr. (Miss) B. Joseph challenged certain appointments of lecturers including those covered by Ex. 3 by a writ petition in this Court which was Writ Petition No. 7 of 1964. That writ petition was allowed by a Bench of this Court by its judgment dated 23 February 1968 since reported as Dr.(Miss) B. Joseph v. State and Ors. 1966 R.L.W. 229. As a result of this judgment the appointments of the petitioner and respondent 2 as also of some others were quashed and the Court directed the prescreening of the persons concerned.

5. To resume the narration, on being faced with Ex. 3, respondent 2, Dr. Gangwal, made a representation before the State Government that his case fell under Rule 5(1)(ii) and he claimed that he had worked as lecturer in Anatomy from 1 July 1957 to 21 November 1958 and that period was to be added to the period he worked as a lecturer in Surgery and if that period were so added, he had completed the requisite period of three years and even more on 1 October 1961 so that he was entitled to the benefit of that rule and was to be fixed up as such without undergoing the process of screening. I will come to the details of the representation, if necessary, at a later stage. The second screening committee then met for prescreening of the concerned personnel in accordance with the directions of this Court in Dr. (Miss) B. Joseph v. State and Ors. 1966 R.L.W. 229 (vide supra). The petitioner proceeds to say that he as well as Dr. Gangwal again appeared before the second screening committee and according to the reliable information of the petitioner the name of Dr. Gangwal was kept below that of the petitioner by the second screening committee. However, when the appointments of lecturers came to be made in accordance with the recommendations of the second screening committee and such order of appointment was published, it was known that while the name of the petitioner appeared in the order, the name of respondent 2, Dr.Gangwal did not so appear in that order, contrary to the petitioner's expectations. A copy of that order has been placed on record as Ex. P. 16 and the name of the petitioner Dr. Pande appears at No. 10; that order contains in all 15 names. Then a separate order was issued by the Government on the same date and that was Ex. 7 on record. As it is the validity of this order that is assailed in the writ petition I may read that order as well-

Order

In partial modification of this department notification No. F. 17 (7) MPH/63-Gr. I, dated 19 August 1963, the Governor has base pleased to appoint Dr. K.C. Gangwal Substantively as lecturer in Surgery under Rule 5(1)(ii) of the Rajasthan Medical Service (Collegiate Branch) Rules, 1962.

Tae inter se seniority of Dr. Gangwal in the general seniority list of lecturers appointed under Rule 5(1)(1 1) of Rajasthan Madical Service (Collegiate Branch) Ruled, 1932, will stand under Dr. K.N. Bhargava, lecturer in Surgery, as per provision of Rule 5(3) of the said rules.

Against this order Ex. 7, the petitioner made a representation to the State Government questioning the validity of the same on a number of gronnde, 16 was inter alia urged therein that the experience of Dr. Gangwal as a lecturer in Anatomy could not be counted as equivalent to the experience as a lecturer in Surgery. As this representation was not heeded, the petitionerhas filed the present writ petition. On 11 March 1969, in the course of the arguments, the learned Counsel for the petitioner pat in an application seeking permission to add a prayer thereby questioning the validity of the subsequent appointment of Dr. Gangwal first as substantive Reader and then as a substantive Professor. As this application was not opposed both by Sri Bhargava, learned special counsel for the State as well as Sri Datt appear-lag for Dr. Gangwal, the petitioner was permitted to add the prayer as per his application dated 10 March 1969 and the arguments were allowed to continue.

6. The validity of Ex. 7 is assailed on a Lumber of grounds. In the first instance, it was contended that the State was not justified in taking a decision in departure from its earlier decision dated 30 May 1964 (Ex. 5) when Dr. Gangwal's claim for automatic absorption as a lecturer in terms of Rule 5(1)(11) of the rules was turned down, in the second place, it is contended that the term ' lecturer ' occurring in Rule 6(1)(11) means the lecturer in the subject of Surgery and not in any other subject like Anatomy with the result that any period spent as lecturer in Anatomy could not be counted towards the period of three years within the meaning of Rule 5(1)(ii) of the rules. In elaboration of the second contention It was submitted that Dr. Gangwal had been lecturer in Anatomy which was a non-clinical subject and the service rendered as a lecturer in any non-clinical subject like Anatomy could not rightly have been counted as experience as a lecturer in Surgery which was a clinical subject. Then, besides this, it was urged that the certificates or testimonials given by Dr. Talwar, Dr. G.C. Sharma or Dr. B.N. Sharma on the basis of which the State Government had taken the experience of Dr. Gangwal in Anatomy as equivalent to that of lecturer were of no value whatsoever and the State Government should not have acted on these certificates. It was further pointed cut that at least in the Case of four doctors, namely, Dr. Amarohand, Dr. S.C. Sharma, Dr. G.G. Sharma and Dr. R.K Sogani their experience on the non-clinical side had not been considered for counting of service on the surgical side. Beside? this it was also urged that respondent 2 was estopped from taking a different position before the Government in his later representations. It was urged that in the previous writ petition flied by Dr. (Miss) B Joseph, the respondent 2, had not taken the position that he was entitled to an automatic fixation as a lecturer in terms of Rule 5(1)(11) and, therefore, the respondent should not have been heard in the matter and even the plea of constructive res judicata was sought to be raised. Then it was also urged in the writ petition that the State Government had acted mala fide in passing the impugned order Ex. 7 and the Government was, according to the petitioner, moved by extraneous considerations wish the purpose of helping respondent 2.

7. The writ petition teas been opposed both by the State of Rajasthan and Dr. Gangwal. It is denied by the respondents that order Ex. 7 or the subsequent orders of appointment of Dr. Gangwal first as substantive Reader and then as Professor were on any account invalid on the grounds mentioned by the petitioner. It is pointed out that though the representation made by Dr. Gangwal immediately after the result of the first screening committtee was not accepted by the State Government, on the second representation the StateGovernment made the enquiries and it found that Dr. Gangwal, while he was working as a lecturer in Anatomy in the S.MS. Medical College, Jaipur, hadbeen giving lectures in Applied Surgical Anatomy to the fifth year class ofM.B.B.S. and he was also giving lectures on ' Introduction to Surgery ' to second year M.B.B.S classes since 1 July 1957. Thus, according to the facts found by the State Government, respondent 2 had been working as a lecturer in Surgery as well. The respondent. State proceeds to say that this position was verified by Dr. Talwar who was the head of the department of Surgery in the S.M.S. Medical College and they have placed on record the verification made by Dr. Talwar and that is document No. 6 on record. The State further submits that even subsequent to the issuance of the impugned order, a further enquiry was made from Dr. R.P. Chaturvadi who is the Professor and head of the department of Anatomy in the S.M.S. Medical College, Jaipur, and he too wrote to say-vide his letter dated 22 July 1967 (document No. 7)-that Dr. Gangwal had been working aslecturer in Applied Surgical Anatomy. The State then takes the stand that the previous decision when the representation of Dr. Gangwal was not accepted was erroneous in view of the detailed enquiry subsequently made the State Government was eatisned that Dr. Gangwal was entitled to an automatic fixation as a lacturer in terms of Rule 5(1)(ii) of the rules. The State has also entered caveat on other points ralised by the petitioner.

8. The reply of Dr. Gangwal is in line with the defence taken by the State Government and he has almost reiterated the stand that he has taken in his various representations before the State Government.

9. It will foe evident from the above narration that two principal questions arise for my consideration. The first is as to what is the correct interpretation of Rule 5(1)(ii) of the rules and whether for a lecturer qualifying for automatic fixation and without the screening as contemplated by Rule 5(1)(iii) the service rendered by a lecturer in Anatomy could be counted or that it has to be left out of account. The second point is whether as a matter of fact Dr. Gaagwal could be said to have worked act a lecturer in Surgery before he came to be appointed as a lecturer in Surgery as such, I will come to the other points canvassed before me, if necessary, after I have dealt with the above two points.

10. The learned Counsel have addressed a very elaborated argument regarding ths true scope of Rule 5(1)(ii) of the rules. Learned counsel for the petitioner has, on the one hand, vehemently argued that according to the scheme of the rules the period spent by a person as a lecturer in Anatomy, a non-clinical subject, could not be considered at all for acquiring the qualification prescribed for automatic fixation as by doing so the very purpose of imparting efficiency on the teaching side would be frustrated. Learned counsel maintained that for the purposes of automatic fixation in that particular specialty alone has to be counted and the service rendered in the other specialty cannot be counted at all. Learned counsel in this connexion relied on a number of passages to which I propose to call attention in the course of discussion that follows. On the other hand, learned Counsel for the respondent with equal vehemence contended the other way. It was argued that the language of the rule is quite clear and it does not suffer from any ambiguity whatsoever with the result that the Court has to take the rule only in its plain meaning and in the circumstances it is not permissible to add anything or to subtract anything from this rule and if the rule is so construed, then the term 'lecturer' used in the rule will mean the lecturer in the medical college and one may be a lecturer in one subject or the other but he will be entitled to count the entire period spent as a lecturer, provided on the date of the coining into force of these rules he was working as a lecturer in the clinical wing. I propose to refer to the various cases and passages relied on by learned Counsel for the respondent hereinafter.

11. The purpose of interpretation is to get at the legislative intent and it is accepted on all hands that for getting at the legislative intent one has primarily to go by the words employed by the legislature. The problem of interpretation more often than not arises because the tools with which the law-making authority has to work are the words and words are not always tools of precision. Where, however, the words are quite clear, there is hardly a problem of interpretation. The various principles of interpretation evolved by Courts command attention only when words are not dear enough or they suffer from ambiguity and then the Court is faced with the problem of interpreting the words used as boat as it can with a view again to getting at the true legislative intent.

12. To begin with, I may quote the passage from Halsbury's Laws of England relied on by learned Counsel for the petitioner. Learnedcounsel has placed reliance on two paragraphs, namely, Paras. 593 and 591 in Halsbury'a Laws of England, Vol. 36, Lord Simonds edition:

593. Meaning controlled by context.--Although the words of a statute are normally to be construed is their ordinary meaning, due regard must be had to their subject matter and object, and to the occasion on which and the circumstances with reference to which they are used, and they should be construed in the light of their context rather than in what may be either their strict etymological sense or their popular meaning apart from that context. If the sense of a word can be determined, then recourse need not be had to its use in other sections of the statute or in other statutes.

594. Statute to be construed as a whole.-

For the purposes of construction, the context of words which are to be construed includes not only the particular phrase or section in which they occur, but also the other parts of the statute.

Thus a statute should be construed as a whole so as, so far as possible, to avoid any inconsistency or repugnancy either within the section to be construed or as between that section and other parts of the statute. The literal meaning of a particular section may in this way be extended or restricted by reference to other sections and to the general purview of the statute. Where the meaning of sweeping general words is in dispute, and it is found that similar expressions in other parts of the statute have all to be subjected to a particular limitation or qualification, it is a strong argument for subjecting the expression in dispute to the same limitation or qualification.

It is sometimes said that where there is an irreconcilable in consistency between two provisions in the same statute, the later prevails, bat this is doubtful, and the better view appears to be that the Courts must determine which is the leading provision and which is the subordinate provision, and which must give way to the other.

13. On the other hand, learned Counsel for the respondents copiously quoted from two books ' Legislation and Interpretation ' by Jagdish Swarup, and 'Principles of Statutory interpretation ' by G.P. Singh. Jagdish Swarup has observed at p 129, that:

It is a fundamental principle of construction that ordinarily words should not be added to a statute. It is also a fundamental principle that ordinarily the words used by the legislature are not to be ignored. Thus the duty of the Court is neither to add words to a statute nor to subtract any words from it. The plain duty of the Court is to gather the intention of the legislature from the words used in the statute taking its plain and ordinary meaning. Words should not be edded by implication into a statute unless it is necessary to do so to give the language sense and meaning in its context. It is against the rules of interpretation to add words to a provision, when the provision, as it stands, is capable of a reasonable meaning which will give effect to the intention of the legislature even on the words as they stand, or where the language used is clear and unambiguous and is capable of only one interpretation. In the words of Lord Bramwell, the words of a Statute never should in Interpretation be added to or subtracted from, without almost a necessity. Redundancy in a legislative enactment should be avoided and it is only when there is a manifest absurdity orlnconsistency that the paste and scissor method is to be applied.

G.P. Singh has said at p. 32:

As stated by the Privy Council,' we cannot aid the legislature's defective phrasing of an Act, we cannot add or mend and, by construction make up deficiencies which are left there. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do be '.

The author has plased reliance on certain decisions of the Privy council and the Supreme Court which were cited before me by learned Counsel for the respondent?. In Kumar Kamalaranjan Roy v. Secretary of State A.I.R. 1938 P.C. 281 their lordships observed that:

the Court cannot put into an Act words which are not expressed and which cannot reasonably be Implied on anyrecognized principle of construction. That would be a work of legislation, not of construction and outside the provolone of the Court.

14. In State of Uttar Pradesh v. Vijay Anand : [1962]45ITR414(SC) their lordships observed as follows:

But It is said, relying upon certain passages In Maxwell on the Interpretation of Statutes, at p. 68, and in Crawford on Statutory Construction, at p. 492, that it is the duty of the Judge ' to make such construction of a statute as shall suppress the mischief and advance the remedy, and for that purpose the more extended meaning could be attributed to the words be as to bring all matters fairly within the scope of such a statute even though outside the letter, if within its spirit or reason. But both Maxwell and Crawford administered a caution in resorting to such construction. Maxwell says at p. 68 of his book:The construction must, not of course, be strained to Include cases plainly omitted from the natural meaning of the words .

This last passage has been quoted by their lordships with approval and likewise they have also observed that the fundamental and elementary rule of construction is that the words and phrases used by the legislature shall be given their ordinary meaning and shall be construed according to the rules of grammar. Their lordships added that when the language is plain and unambiguous and admits of only one meaning, no question of construction of a statute arises, for the Act speaks for itself. Their lordships further observed that it is awell-recognized rule of construction that the meaning must be collected from the expressed intention of the legislature.

15. In Martin Burn, Ltd. v. Calcutta Corporation : [1966]1SCR543 , their lordships observed that a result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not.

16. To my mind, the above passages, whether relied on by learned Counsel for the petitioner or by learned Counsel for the respondents, bring out the essential principles that have to be borne in mind by a Court in interpreting a particular statutory provision before it and there is no contrariety In the various passages. The primary object, as I have observed above, of interpreting a statute is to get at the legislative Intent and one has to look to the medium of words employed by the legislature to convey its intention in the first instance. It is only where the language is not quite clear or where it suffers from vagueness or ambiguity that, as pointed out by their lordships of the Supreme Court the problem of interpretation arises and then too there are well-defined limits within which the various principles have to operate. It has also to be borne in mind that the legislature is not presumed to intend irrational results or any absurdity and, therefore, as far as possible, the Court has to see that such a meaning is not put on the words as may result in any Irrationality or absurdity and as It may frustrate the true intent of the legislature.

17. Therefore, I will try to Interpret the provisions In the present case, bearing in mind the above principles.

18. Now what was the purpose behind the enacting of the rules Here one should bear in mind the state of things obtaining on the date the rules came into force. It is not disputed by either side that before these rules there were no statutory rules governing the employment of the teaching staff in the medical colleges in Rajasthan. So far as the classification of the teaching staff is concerned, according to the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1950, the teaching staff of the medical college formed part of the Medical and Public Health Department of the State-vide Sch. I of these rules. There were two sections under the heading 'Medical and Public Health Department.' Section A was the Medical and Public Health Department as such, and Section B was 'S.M.S. Medical College.' Under the heading B, there appeared one post of Principal, S.M S. Medical College. Then there were Professors in certain subjects, such as, Physiology, Anatomy, Pharmacology and Pathology. Then there were Readers in Pathology, Medicine (clinical) and Bio-chemistry. Then there were assistant professors, senior demonstrators and then the last sub-heading was that of lecturers, A comparison of items 33 and 31 with the heading ' Lecturers ' revisals that so far as the lecturers ware concerned there was no distinction maintained regarding1 the subjects. This position continued even when the Rajasthan Civil Services (Classification, Control and Appeal) Rules of 1950 were replaced by analogeus Rules of 1953. Then it further appears that the Director of Public Health and Medical Services was the head of tins department both for the College section as well as the Public Health Department as such. The question of transfer was a matter that was provided in Rule 20 of the Rejasthan Service Rules, Rule 20 provides that the Government may transfer a Governmentservant from one post to another, provided that except on account of inefficiencyor misbehavior, or on hie written request he shall not be transferred substantivelyto another post carrying less pay than the pay of the permanent post on which the Government servant holds a lieu. It is also the common case of the parties that before the coming into forces of the rules some doctors attached to the hospitals and belonging to Civil Assistants Surgeons, class I, were assigned the job of part-time lecturers in the S.M.S. Medical College. When more medical colleges wars established in Rajasthan this system continued. It is in this context that one has to see that the rules came to be made in 1962 with a viaw to separating the educational wing from the Medical and Health Service as each. Rule 2 of these rules provided that all existing rules and orders in relation to matters covercil by these rules stand superseded, but any section taken by or appointments made under or in pursuance of such existing rules and orders shall be deemed to have been taken or made under these rules. Rule 5, as Ha title suggests, is for initial constitution of the services. I may mention that after the integration of the personnel of the erstwhile covenanting States or even in the process of integration whenever a new service or order had been constitution in Rajasthan, it has been the feature of the rules to provide therein a rule for absorption of the existing personnel under certain conditions. Such a provision exists even in the allied rules knows at Rajasthan Medical and Health Service Rules 1963, and I need not here enumerate similar rules for other services. The underlying object; of making such a provision, to my mind, in to absorb, as far as possible, the existing personnel. It is true, the object of the rules, as pointed by this Court in Dr. (.Miss) B. Joseph case 1966 R.L.W. 229 (vide supra) was to promote efficiency of teaching in the State Medical Colleges and that is obviously the overall effect of the rules taken as a whole, but making use of existing personnel la, to my mind, quite in keeping with the object of the rules, namely, that of promoting efficiency of teaching in the State Medical Colleges. The rules divided the collegiate branch into two wings:

(i) clinical; and

(ii) non-clinical,

but that is a thing introduced by these rules for the first time. Prior to that, as I have shown with reference to the Rajasthan Civil Services (Classification, Control and Appeal) Rules, the medical personnel were all tinder one department under a common head and there was no ban against transfer of lecturers in the so-called one wing to the other. It may be a different matter, if according to the relevant rules of the university a lecturer may Act be qualified or eligible to held a particular post, but that is not the point that is engaging my attention at the moment. The position remains that they all belonged to one department and now by these rules the collegiate branch is sought to be created and then divided into two separate wings. Therefore, the question of promotion would fall to be governed within a particular wing in accordance with the rules. It is in this light that the meaning of Rule 5 has to be found out.

19. Sub-rule (1) deals with the clinical wing and Sub-rule (2) deals with the co clinical wing. The teaching personnel have been divided into three categories under Sub-rule (1). In the first category come the doctors already working as Readers and Professors which means those who are actually working as Readers and Professors and they shall be deemed to have bean substantively appointed to the posts included in the service on which they were working. Those who were purely temporary or officiating have not been accorded this banefit of automatic absorption on the posts on which they were working, but I am not concerned with such temporary or officiating appointments. Then the second category is of all doctors who have been working as lecturers for a period of three years. The words that fall to be construed are ' who have worked as lecturers for a period of three years on 1 October 1961.' Learned counsel for the petitioner, as I have already observed, contends that here it must be taken that lecturers means lecturers who have worked for three years in the clinical wing. In other words, the words 'lecturers in the subject' have to be taken to be there. For this the learned Counsel submits that the entire scheme of the rules has to be borne in mind and for this he draws attention to Sub-rule (ill) of Rule 5(1), Sub-rule (4) of Rule 30 of the rules and he also invited my attention to the Rajasthan Medical Service (Collegiate Branch) Special Selection Rules, 1968. Learned counsel points out that even for temporary appointments it is a person who has been practising in thespecialty who is eligible for appointment and, according to learned Counsel, so is the effect of Ordinance No. 65(p 135 of the Handbook) of the University of Rajasthan, Part II (68 th Edn). Now Sub-rule (iii) of Rule 5(1) speaks of the third category of doctors who have not been automatically fixed by operation of Sub-rules (1)(i) and (1)(ii) of Rule 5. This sub-rule talks of such doctors being qualified under the rules and this brings in Rule 12 which refers to the academic and technical qualifications as prescribed by the Rajasthan University for teaching in the medical colleges from time to time. About the special selection rules mentioned above, it is pointed out that selection can be made of a person who is practising in thespecialty as already pointed out. To my mind, the natural meaning of the words put in inverted commas by me above is not controlled by the several roles on which learned Counsel for the petitioner placed reliance. The rule contained In Rule 5(1)(1) or 5(1)(11) is for initial constitution of the service and for judging the effect of that one need not go to the other rules which will apply to state of things that will be coming into being after the constitution of the service. This rule is in the nature of a transitional provision designed to absorb the existing personnel. So far as the Professors and Readers are concerned, if they were holding the appointments, except on purely temporary or officiating basis. irrespective of the length of time, they came to be appointed automatically. As regards the lecturers, if they have been working on the particular posts falling in the clinical wing, then they too came to be automatically fixed up, if the total period of their lectureship was three years or more. Here, to my mind, the rule-making authority had not proceeded to lay down as to what post of lecturer an individual should have been holding prior to the holding of the post of lecturer in the clinical wing. The meaning of the words, to my mind, being quite clear and the intention of the legislature being to absorb the personnel who had rendered three years' service or more as lecturers the term ' lecturer ' has to be construed in the light of the position obtaining under the Rajasthan Civil Services (Classification, Control and Appeal) Rules, when no distinction was made between lecturer in one subject and a lecturer in another subject in the medical college. A lecturer could even be a whole-time or a part-time. Therefore, if a person had continuously held the pest of a lecturer in a medical college prior to his holding the post in the clinical wing, then he is entitled to count total period of service rendered as a lecturer in the medical college and if such total period comes to three years or more, then, to mind, he is entitled to automatic fixation as lecturer in the clinical wing where he has been working when the rules came into force. The period of three years which is provided is also, to my mind, net without any significance. Even temporary employees under the Rajasthan Service Rules acquire security of tenure if they have put in three years' service and it may well be that in order to ensure security of tenure the rule-making authority has provided that such doctors who had put in three years' service as lecturers shall be fixed up in the clinical wing, if they have been working as lecturers in that wing on the date of coming into force of these rules. In these circumstances I do not feel persuaded to give any nearing to the words ' who have worked as lecturers for a period of three years on 1 October 1961,' other than what is conveyed by the plain natural and grammatical meaning of these words and addition of any more words is hardly justifiable. The plain, natural and grammatical meaning of these words, to my mind, if quite in keeping with the scheme of things envisaged in a transitional provisions the idea being to absorb the existing personnel working on the posts included in the cadre. This benefit of automatic fixation was not allowed to those lecturers who had not rendered three years' service as such on 1 October 1961. They and other doctors who had till then not worked as lecturers had been put in one category and they were to be subjected to the process of screening by a committee. Here also the rule-making authority has not yet gone to the method of recruitment from the open market. To put it differently, even for the third category the effort was made to utilise the existing personnel though they might be working as lecturers having put in less than three years' service or as doctors under the State otherwise.

20. Now, I may here advert to Ordinance No. 65. For a lecturer or a clinical lecturer the qualification prescribed is post-graduate degree of arecognized university or equivalent postgraduate diploma in the respective subjects with experience of teaching the subject for four years to under graduates and have practised specialty for four years and should have practised thespecialty exclusively for four years. This has to be the qualifications for a lecturer no doubt, but the writ petition has not been founded on the plea that respondent 2, Dr. Gangwal, did not fulfil this qualification when he was first appointed as a lecturer in the medical college or as a lecturer in Surgery for that matter. It was sought to be argued by Sri Jain that the appointment of Dr. Gangwal as lecturer in Anatomy was itself null and void. It is sufficient to say that this plea was advanced for the first time only in the course of arguments. Such a plea has not been taken in the writ petition when it should have been so taken, but apart from it even in the rejoinder that the petitioner has given to the reply filed by the State as well as Dr. Gangwal this plea has not been taken in so many words. In these circumstances, I am not at all inclined to entertain the plea that Dr. Gangwal was not eligible for appointment as lecturer in Anatomy when he was so appointed.

21. Having considered the matter pro and con I am satisfied that in terms of Rule 5(1)(ii) of the rules Dr. Gangwal was entitled to automatic fixation as a lecturer in Surgery on account of his having rendered more than three years' service as lecturer; first as a lecturer in Anatomy and then as a lecturer in Surgery.

22. I may now turn to the second point. This raises a question of fact. It is primarily for the competent authority to determine as to whether a particular doctor had or had not worked as a lecturer for a particular period and normality is not for this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution to proceed to examine the question whether the Government had arrived at a correct decision on facts or not, forthis Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution does not sit as a Court of appeal or revision against the administrative determination by the competent authority. It is true, at one time, the State Government did not feel inclined to accept the contention of Dr. Gangwal that he was entitled to automatic fixation as a lecturer in Surgery in terms of Rule 5(1)(ii) of the rules, but in law there was nothing to preclude the State Government from coming to another decision, if on reconsideration of the matter in the light of the facts placed before it, the State Government felt that the earlier decision was not correct and had resulted in injustice to the candidate. An administrative decision could be changed provided by such a decision legal rights have not already been created in favour of any other party. But, in the case of present nature it cannot be argued with any show of cogency that by denying the benefit of automatic fixation to Dr. Gangwal legal rights have been created in favour of the petitioner or any other party for that matter. This was, to my mind, purely an administrative matter and it was open to the State Government to come to a certain decision on reappraisal of the whole matter,

23. An administrative decision can of course be impugned on the ground of mala fide. In the present case the writ petitioner had taken the ground of mala fides in the writ petition (vide Paras. 22 and 23 of the writ petition), but at the time of arguments, learned Counsel for the petitioner did not choose to rely on this plea and he did not address me on that aspect at all. It was realized by him that in Para. 22 the name of Sri Damodarlal Vyas as Minister for Health on 30 May 1964 had been wrongly mentioned and on that date Sri Damodarlal Vyas was not the Minister for Health, but it was Sri Barkatullah who was the Minister-in-charge of Medical and Public Health. Neither of these gentlemen have been imp leaded as a respondent in the writ petition. In these circumstances, realizing the obvious difficulties in his path the learned Counsel for the petitioner had rightly chosen to abandon that plea and in view of these it is not necessary for me to examine the reply of the respondents regarding the averment of mala fides,

24. Learned counsel for the petitioner subjected the various certificates or verifications given by the Principal, Medical College, Dr.G.C. Sharma, Dr. Talwar. Dr. Sarin, Dr. B.N. Sharma to a scathing criticism, but as I have already observed it was for the Government to consider the available material and without the plea of mala fides such an administrative decision of the Government is not open to challenge.

25. Learned counsel for the petitioner then submitted that it has not been established by the respondents that Dr. Gangwal was assigned the task of giving lectures In Applied Surgical Anatomy to fifth year class of M.B.B.S or in Introduction to Surgery to second year classes of M.B.B.S. by any competent authority. Learned counsel contended on the basis of certain observations in a Judgment of this Court In Dr. M.C. Mehta v. State of Rajasthan and Ors. S.B. Civil Writ Petition No. 150 of 1968 decided by me on 23 July 1968, that, if the respondent had worked as a lecturer in Surgical Anatomy for some time without the orders of a competent authority, then that period cannot be counted. I am afraid the Judgment in Question is hardly helpful to learned Counsel. At p. 11 of the Judgment it was observed while considering Ordinance No. 150 of 1935:

There might be some flaw in the appointment of a person as a lecturer, but in my view, that cannot prevent him from acquiring the necessary experience of teaching as a lecturer. The essential requirement, is my view, was that one must be a post-graduate and then after such post-graduation one most acquire the teaching experience as a lecturer for a period of two years to quality him for the post of a Reader.

In order to guard against certain persons having not bean appointed as lecturer at all seeking the benefit of this provision I had observed at p. 14 of the judgment that.

As I have already observed, it will. be a different, matter if the order would be altogether null and void on account of it having not been passed by a competents authority or the petitioner lacking the necessary qualifications, but is all other cases the order will be there for the purposes of acquisition of teaching experience, unless it has been set aside at the instance of an interested party whose legal rights may thereby be affected by anon appointment or it is avoided by the Government themselves

At another place in the Judgment I had observed that if a person acts as a busy body, and thendelivers any lecturers, then that thing cannot be availed of. Present is not a case of that type. The Government who were the competent authority on consideration of the whole matter felt satisfied that respondent 2 had delivered lectures in Applied Surgical Anatomy, then the decision of the Government: cannot be assailed, unlese a specific plea is raised to the effect that respondent 2 had delivered the lectures without any orders of any competent authority or as a busy body. Learned counsel for the petitioner contends that it was for the respondents to snow that Dr. Gangwal had delivered lectures in Applied Surgical Anatomy under orders of a competent authority. I am not persuaded to accept this contention. Since it is the petitioner who is assailing the Government order, it was for him to plead all the essential facts and he cannot throw the burden of that on the respondents. Apart from this in the rejoinder it self the petitioner had not chosen to specifically deny the foot that Dr Gangwal had been teachings Applied Surgical Anatomy during the relevant period.

26. The other plea raised by the petitioner in his writ petition that Dr. Gangwal was estopped from taking the position that he was entitled to automat is fixation or that the judgment in Dr. (Miss) B. Joseph case 1966 R.L.W. 229 (vide supra) operated as constructive res judicata, need not detain me at all. I have mentioned the plea only to be rejected. It has no substance worth the name.

27. In view of what I have discussed above, I dismiss the writ petition, but in the facts and circumstances of the case, I leave the parties to bear their own costs.


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