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Dr. L.K. Joshi Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 3231 of 1974
Judge
Reported in1975(8)WLN166
AppellantDr. L.K. Joshi
RespondentState of Rajasthan and ors.
DispositionPetition allowed
Cases Referred and Indra Bai v. Gift Tax Officer A.I.R.
Excerpt:
.....health service rules, 1963 - rule 11 expression 'post--graduate qualification'--does not mean 'post graduate degree'--held, it embraces 'post graduate diploma'.;to my mind, the expression 'post-graduate qualification is not always the same thing as a post-graduate degree. the former is a wider expression which will embrace whatever be the prescribed qualification after graduation and it may not be a 'post-graduate degree where as the latter namely, the pest graduate degree will mean a degree after graduation.;(c) rajasthan medical & health service rules, 1963 - rule 11 qualification for junior specialist--3 years experience for promotes after post graduation and 5 years experience for direct recruits after post graduation-petitioner's application for junior specialist was..........here, as i have already observed, the expression used is 'pest graduate qualification' and rot 'postgraduate degree', therefore, established' is wider and it will embrace the diploma of a university established by law in india which is obtained alter the degree in medicine & surgery in this way, the two provisions have to be read harmoniously. the outcome is that a person who had obtained the degree in subject from the university established by law, or a qualification recognised as equivalent there to by the government, and (2) then holds a diploma of a university established by law in india, (3) and then who gains 5 years experience in the speciality, fulfills the requirement of the rules for direct recruitment to the post of a junior specialist the learned additional government.....
Judgment:

Kan Singh, J.

1. This is writ petition under Article 226 of the Constitution challenging a decision of the Rajasthan Public Service Commission whereby toe petitioner's candidature for direct recruitment for the post of Junior Specialist in authority rejected. The petition raises a regarding the inter pretation of Rule 11 of the Rajasthan Medical and Health, Service Rules, 1963, hereinafter to be referred as 'the Rule' read with the schedule appended there to.

2. The petitioner Dr. Joshi obtained his MBBS in the year 1951 He entered Government service as Civil Assistant Surgaon on 6-9-57. He obtained the post graduate Diploma in Ophthalmology from the Aligarh Muslim University in the year 1967. He obtained his M.S. in Ophthalmology in May, 1970 On 7-9-70 the petitioner was appointed as a Junior Specialist in the specialty of Ophthalmology for a period of six months. This appointment was continued by subsequent extensions from time to time. On 22-3-70 he was appointed as a Junior Specialist on officiating basis pursuant to a list prepared by a Departmental Promotion Committee in accordance with Rule 24(3) of the Rules. The Rajasthan Public Service Commission invited applications for five posts of Junior Specialists in Opthamology its advertisement No. 12/72-73, of these 5 posts one was reserved for Scheduled Castes and Scheduled Tribes. This advertisement was corrected by a corrigendum No. 6/74, 75 and it was mentioned in the total number of post to be tilled would be 2 on of which would hi far a Scheduled Caste candidate. The petitioner Dr. Joshi had applied for the post By a communication, Ex. 7 on record, the petitioner was told that be was not eligible for the post as he was lacking the prescribed experience. It is this Ex. 7 which is the subject matter of challenge in the present writ petition. B side this the petitioner has questioned the filling of vacancies by promotion quota, but as at the time of hearing this contention was abandoned by learned Counsel for the petitioner, I need not make any further reference to it.

3. The writ petition has been opposed by the respondent Section it is denied that the decision of the Rajasthan Public Service Commission conveyed in Ex.7 was invalid or erroneous on any of the grounds taken by the petitioner. The short question that, therefore, falls for consideration is whether the petitioner fulfills the requisite qualifications for the post of a Junior Specialist for direct recruitment. I may read the relevant rules according to which the question has to be determined Part III of the Rules relates to recruitment. Rule 11 is about the academic and technical qualifications and I may read the relevant portion of this rule:

Rule 11. Academic and Technical qualifications. A candidate for direct recruitment to the post specified the in Schedule shall, in addition to such experience as is required, possess toe following qualifications:

(a) Senior and Junior Specialists. - (1) must hold a degree in Medicine and Surgery of a University established by law in India, or a qualification recognised as equivalent there to by the Government;

(ii) must hold a post-graduate degree or diploma pf a University established by law in India in the specified branch of medicine or surgery or a qualification of a foreign country recognised as equivalent there to by the Government; and

(iii) must possess a working knowledge of Hindi written in Devnagti script.

The post of a Junior Specialist is a senior post under the Schedule and the relevant entry there in is as follows:

____________________________________________________________________Designation Method of recruitment If by promotionof post with percentage a post fromwhich promotionwill be made____________________________________________________________________1 2 3____________________________________________________________________Senior Posts 1. 100% by promo-Junior tion till the endSpecialist of the year 1966.2.50% by promo.tion and 50% bydirect recruitmentafter the year 1966... ... ..._______________________________________________________________________qualifications and experience qualifications andfor promotion experience for Remarksdirect recruitment______________________________________________________________________4 5 6______________________________________________________________________3 years service after post-gradu- 5 years experieation in the speciality or 3 years nce in theservice as C.A.S. with necessary speciality afterpost-graduate qualification or a post-graduateCAS class I, selected In a speci- qualificationfic speciality requiring experiencein that speciality for which hewas specifically recruited andwho became due for promotionto the post of Junior Specialistbefore promulgation of theseRules on the basis his experiencein that speciality or has been workingon that nost, without post-graduatequalification.... ...

At the end of the Schedule there is the following note:

Note : (1) Necessary post-graduate qualification means a post-graduate degree or any other qualification recognised as equivalent by Medical Council of India or by the Government of Rajasthan.

(2) Post-graduate Diploma will be equal to a pout-graduate degree in such subject in which such a degree is not awarded by any University.

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

4. The argument of learned Counsel for the petitioner, in brief, is that a person who holds degree in Medicine and Surgery of a University established by law in India or a qualification recognised as equivalent there to by the Government and further holds a post-graduate degree or Diploma of a University established by law in India in the specified branch of Medicine or Surgery (in the present case Opthalmology) will be eligible for appointment, provided he has the necessary experience as mentioned in columa 5 of the relevant entry in the Schedule That is, according to learned Counsel, if the petitioner can be said to have 5 years experience in the specialty after post-graduate qualification he will be qualified. The post-graduate qualification, according to learned Counsel, that the petitioner had, was the post-graduate Diploma in Opthalmology obtained by him from the Aligarh Muslim University in the year 1967 and thereafter, according to him, he had giineJ tne experience in the speciality for more than 5 years. The argument centres round the words after post graduate qualification'. While learned Counsel for the petitioner contends that the note below the Schedule cannot modify what is contained in Rule 11 of the Rule and would be governing only what is stated in column 4 regarding 'necessary post graduate qualification', the learned Additional Government Advocate argues that both the rue as well as the Schedule appended to the Rules including the note there under have to be read together and harmoniously construed and if the rules are interpreted in this way then they could bear out only one meaning and it is that a candidate to be eligible must have gained 5 years experience in the speciality after he had obtained his M.S. Degree and the obtaining of the Diploma will not meet the requirements of the rules. Learned Additional Government Advocate postulates a few rules of interpretation : (1) the Schedule is to be taken to be a part of the Rules, (2) the rules and the Schedule have to be read as a whole. In other words, the Rules should be read witb the Schedule and he cites Inland Revenue Commissioners v. Gift 1920 (1) K.B. 563 and Indra Bai v. Gift Tax Officer A.I.R. 1962 Mad. 96 to reinforce his argument. The relevant passage in Gittus's case 1920 (1) K.B. 563 on which reliance is placed is as follows:

It seems to me there are two principles or rules of interpretation which ought to be applied to the combination of the Act & the schedule. If the Act says that the schedule is to be used for a certain purpose and the hearing of the part of the schedule in question shows that it is prima facie at any rate devoted to that purpose, then you must read the Act and the schedule as though the schedule were operating for that purpose, and if you can satisfy the language of the section without extending it beyond that purpose you ought to do it. But if in spite of that you find in the language of the schedule words and terms that go clearly outside that purpose, then you must give effect to them and you must not consider them as limited by the heading of that part of the schedule or by the purpose mentioned in the Act for which the schedule is prima facie to be used. You cannot refuse to give effect to clear words simply because prima facie they seem to be limited by the heading of the schedule and the definition of the purpose of the schedule contained in the Act. Those are the rules which I intend to apply to this case as well as I can.

In the Madras case A.I.R. 1962 Mad. 896 the observations are:

It is axiomatic that the statute bas to be read as a whole and that the schedule to the Act is as much part of the Act as any other provision thereof. Rules of interpretation even require that if an enactment in a schedule other than one merely of form contradicts an earlier clause, it is the schedule that would prevail.

5. One can have no quarrel with the principle laid down in the above passage, or the postulates of the learned Additional Government Advocate. There is no gain saying the fact that a Schedule appended there to have to be read as a whole and one has to put a harmonious construction But what follows is the question Here the cote is appended at the end of the Schedule. The Schedule, as a whole, may at best be treated as one of substantive rules, thereof, but here lam laced with the situation when a certain Schedule bas a note appended to it. The note is nothing but a kind of explanation. All that one can say is that use of the word ''Note' below a provision in a statute is inartistic. One rarely comes across statutes where a section has a note below it. What it really has if anything in the section is to be clarified is an explanation or if its ambit is sought to be enlarged or restricted from what its language otherwise connotes then a proviso or an explanation is added. The so-called note is splendid generally under administrative rules. Any way, one need not have any difficult ever that because a note here or ay be taken as an explanation and I may take the Schedule as a whole as if it were one section or a substantive rule. Then the question arises whether an explanation under one section of an enactment should be bodily incorporated into another section of the enactment so as to restrict or enlarge its meaning. To by mind, an explanation under a particular rule or section of an enactment will be helpful in gathering the meaning of that particular rule or section only. Once the meaning of that particular section or rule or, in the present case the Schedule is ascertained in the light of such explanation then it has of course to be read in the light of the other provision in the enactment or the rules. Therefore, in my view, the three notes under the Schedule to the Rules could govern only the various entries in the Schedule to which they are appropriate Note-1 gives a meaning to the phrase 'necessary post-graduate qualification' which means a post-graduate : or any other qualification recognised as equivalent by Medical Council of India or by the Government of Rajasthan. Now the phrase 'post graduate qualification', occurs in Column 4 only Under Column 5 this phrase does not occur and what is mentioned is 'post graduate qualification', that is, after the expression 'necessary post graduate qualification' shorn of the word 'necessary'. The note 2 uses the phrase 'post-graduate Diploma' and equates it to a post-graduate Degree in such subjects in which such a Degree is not awarded by any University. The phrase post-graduate diploma does not occur under Column 5. In Colomn 5 the expression used is 5 years experience in the speciality after post graduate qualification. Now whit is a post graduate qualification. The term post graduate means : 'Study following graduation' vide Webster's Third New International Dictionary To my mini, the expression 'post-graduate qualification' is not always the same thing as a post-graduate Degree. The former is a wider expression which will embrace whatever be 'he prescribed qualification after graduation & it may not be a post-graduate Degree where as the latter namely the post-graduate Degree will mean a Decree after graduation Rule 11(a)(i) of the Rules lays down that besides the Degree in Surgery of university established by law in India or a qualification recognised as an equiv lent there to by the Government the person must hold either a post-graduate Degree or a Diploma of a University established by law in India in the specified branch of Medicine or Surgery or a qualification of a foreign country recognised as equivalent there to by the Government. Here the Diploma that the petitioner had obtained from the University of Aligarh which was established by as Act of the Central Legislature will be satisfying, in my view, the requirement of Rule 11(a)(ii) of the Rules. The only other thing that has to be satisfied is whether this was in addition to the experience as was required to be possessed by the candidate in accordance with the requirement for direct recruitment under the Schedule. In Columns, which alone prescribed the experience for direct recruitment, what is laid down is that 6 years experience in the speciality should be acquired after the candidate had obtained the post-graduate qualification. Here, as I have already observed, the expression used is 'pest graduate qualification' and rot 'postgraduate Degree', therefore, established' is wider and it will embrace the Diploma of a University established by law in India which is obtained alter the degree in Medicine & Surgery In this way, the two provisions have to be read harmoniously. The outcome is that a person who had obtained the Degree in subject from the University established by law, or a qualification recognised as equivalent there to by the Government, and (2) then holds a Diploma of a University established by law in India, (3) and then who gains 5 years experience in the speciality, fulfills the requirement of the rules for direct recruitment to the post of a Junior Specialist The Learned Additional Government Advocate pointed out one thing more and it was that where as for promotees as per Column 4 of the Schedule the requirement is post-graduation in the speciality, this could not have been anything less for a direct recruit. The argument has air of ingenuity, but on closer examination is devoid of force. In the first place, under Column 4 the expression that is clearly used is 'after post-graduation in 'be speciality'. Under Column 5 the expression used is 'after post-graduate qualification'. Why is the rule making authority using one kind of phrase for promotees under Column 4 and another phrase in its next breath for direct recruitment? This only shows that the Legislature or the rule making authority was undoubtedly intending differently when it framed Rule 5 in Column 5 in the form it did What is evident is that for promotees who are post-graduates only 3 years service after post-graduation is needed, but for those who are applying for direct recruitment 5 years experience after post-graduate qualification is required. Therefore, we cannot equate the two requirements.

6 Having considered the matter, therefore, I am satisfied that the Public Service Commission was in error in rejecting candidature of the petitioner for the post of a Junior Specialist.

7. I, therefore, allow this writ petition, quash the decision of the Public Service Commission rejecting the petitioner's candidature and order that the Public Service Commission shall consider the suitability of the petitioner for the post in comparison with the other candidates and then make fresh recommendations to the Government. The Government shall not make any appointment on the basis of recommendations for direct recruitment till fresh recommendations are received from the Public Service Commission, The parties are left to bear their own costs.


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