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Dr. B.L. Asawa Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 963 of 1973
Judge
Reported in1974WLN405
AppellantDr. B.L. Asawa
RespondentState of Rajasthan and anr.
Excerpt:
.....medical services (collegiate branch) rules, 1962--rule 12--appointment of a lecturer--m.d in forensic medicine of the bihar university not recognised by the rajasthan university--public service commission rejecting candidate's application--held, order is hit by article 16 and is invalid.;i am, therefore, unable to hold that there was any solid legal basis for the public service commission to have rejected the candidature of the petitioner on the ground that m.d. degree in forensic medicine of the bihar university had not been recognised by the rajasthan university, it follows as a necessary corollary that there has been denial of equal opportunity to seek employment under the state as contemplated by article 6 of the constitution so far as the petitioner was concerned. the..........2, issued an advertisement on 3.3.72 inviting applications for the recruitment of two lecturers in forensic medicine for medical colleges. the relevant portion of the advertisement was as follows:recruitment of two lecturers in forensic medicine for medical colleges, medical & public health department in accordance with the rajasthan medical service (collegiate branch) rules. one post reserved for scheduled castes of rajasthan, if available otherwise treated unreserved.posts permanent.prescribed fee : rs. 20/- (rs. 2/- for scheduled castes/tribes of rajasthan).2. the petitioner was an applicant for one of the two posts. he filed his application paying the prescribed fee. according to the petitioner, he secured the degree of m.b. b.s. from the university of rajasthan in the year1954......
Judgment:

Kan Singh, J.

1. This is a writ petition by one Dr. B.L. Asawa against the State of Rajasthan and the Rajasthan Public Service Commission asking an appropriate writ, direction or order. On a requisition made by the State Government the Rajasthan Public Service Commission, Ajmer, respondent No. 2, issued an advertisement on 3.3.72 inviting applications for the recruitment of two Lecturers in Forensic Medicine for Medical Colleges. The relevant portion of the advertisement was as follows:

Recruitment of Two Lecturers in Forensic Medicine for Medical Colleges, Medical & Public Health Department in accordance with the Rajasthan Medical Service (Collegiate Branch) Rules. One post reserved for Scheduled Castes of Rajasthan, if available otherwise treated unreserved.

Posts permanent.

Prescribed Fee : Rs. 20/- (Rs. 2/- for Scheduled Castes/Tribes of Rajasthan).

2. The petitioner was an applicant for one of the two posts. He filed his application paying the prescribed fee. According to the petitioner, he Secured the degree of M.B. B.S. from the University of Rajasthan in the year1954. After undergoing housemenship and further working as Demonstrator he was substantively appointed as Civil Assistant Surgeon with effect from 26 5.56. In the year 1962 the Medical Services in the State were bifurcated into two services : (1) Rajasthan Medical Service, and (2) Rajasthan Medical Services (Collegiate Branch) Forth the last mentioned service the Rajasthan Medical Service (Collegiate Branch) Rules, 1962, hereinafter to be referred as the ''Collegiate Branch Rules', were made by the Governor. The petitioner claims to have secured the M D Degree in Forensic Medicine from the University of Bihar in the year 1970 By Government order dated 31.12 70 the petitioner was appointed a Lecturer in Forensic Medicine on temporary basis. After the two posts of Lecturer were advertised as aforesaid the petitioner applied for one of the posts, but he was informed by the Rajasthan Public Service Commission vide letter Annexure 4 that the petitioner lacked the necessary academic qualifications as per the advertisement and consequently his application was rejected It is this order of the Rajasthan Public Service Com-mission which the petitioner is challenging in the present writ petition and is seeking an appropriate writ, direction or order.

3. It has transpired during the tearing that instead of two posts of Lecturers in Forensic Medicine four posts of Lecturers in Forensic Medicine were advertised for recruitment. The number of posts advertised is. however, immaterial for the decision of the case. The petitioner is questioning the validity of the order Annexure-4 on the short ground that he was fulfilling the requisite qualifications prescribed by the Collegiate Branch Rules as also those prescribed by the Rajasthan University under its relevant Ordinance.

4. The writ petition has been contested by the respondents. It is dented that the order rejecting the candidature of the petitioner on the ground that ha lacked the necessary academic qualifications was wrong or erroneous on any of the grounds taken by the petitioner.

5. It was urged by the respondents that the M.D. Degree in Forensic Medicine of the Bihar University, Muzaffurpur, had not been recognised by University of Rajasthan and consequently the petitioner cannot be said to possess the pr scribed qualifications. It was submitted that before rejecting the candidature of the petitioner the Rajasthan Public Service Commission made an enquiry from the University of Rajasthan if the Degree of the Bihar University had been recognised by them and as the University wrote to say to the Commission that the aforesaid Degree of the Bihar University had not been recognised by the University of Rajasthan the Commission in its turn rejected the petitioner's candidature.

6. The only question that, therefore, arises for determination in the writ pinion is whether the petitioner can be said to possess the requisite qualifications. Before proceeding further I may mention that on his own the petitioner had entered into correspondence with the Registrar of the Rajasthan University seeking confirmation of his own point of view that he was fulfilling the necessary academic qualifications for the post of Lectursr in Forensic Medicine. The reply that was received by the Principal of the S.M.S. Medical College, Jaipur, through whom the petitioner addressed the Registrar, University of Rajasthan, Jaipur, has been placed on record. I will have occasion to refer to it in the course of the discussion hereinafter. At the hearing I asked the learned Deputy Government Advocate to place on record the latter that was addressed by the Commission to the University as he has already placed the University's reply of the letter on record and he did so. I will have occasion to refer to the two letters hereinafter. I may at this point deal with the question as to what are the qualifications for appointment as Lecturer in Forensic Medicine according to the Collegiate Branch Rules and the relevant Ordinance or regulations of the University.

7. The posts of Lecturers are shown in the Schedule attached to the Collegiate Branch Rules as Part 'C (Junior Posts). The method of recruitment is 100% by direct recruitment Rule 12 of the Collegiate Branch Rules prescribed the academic and technical qualifications for the post of a Lecturer and I may read in full:

Rule 12 Academic and Technical qualifications.--The candidate for direct recruitment to the posts specified in part 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.

From this rule it is clear that no separate academic or technical qualifications have been prescribed by the Collegiate Branch Rules, but by adoption the 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 shall be the prescribed qualifications. Therefore, one has necessarily to look to such academic and technical qualifications and experience as are laid down by the Rajasthan University. There is Ordinance No 65 occurring in Chapter XX of the Hand-Book of the University of Rajasthan Part II, Vol. I which interalia, deals with the Faculty of Medicine. Sub-heading 'A' is for Teachers in Medical Colleges for M. B. B. S. and Post-graduate Courses. I may read its relevant portion:

1. All teachers must possess a basic University of equivalent qualification entered in Schedules to the Indian Medical Council Act,1956, except in the non-clinical departments of Anatomy, Physiology, Biochemistry, Pharmacology, Micro-biology where non-medical teachers, to the extent of 30% of the total posts of the department may be appointed to posts other than that of the Director or Head of the Department, who must necessarily hold a recognised medical qualification.

2. Medical men must be registered under the State Central Medical Registration Act and non-medical persons must be recognised as teachers with the University before appointments are made permanent.

3. All the teachers in Medical Colleges except Registrars and Demonstrators must possess the requisite post-graduate qualification in their respective subjects.

4. 50% of the time spent in recognised research under the Indian Council of Medical Research or a University or a Medical College, after obtaining the requisite Post-graduate qualification be counted toward a teaching experience for the post of Lecturer in the same or in allied subject provided that 50% of the teaching experience shall be the regular teaching experience.

5. Equivalent qualification referred to above and in there commendations below shall be determined by the University of Rajasthan.

6. In case of specialties under Medicine and Surgery the qualifications and experience should also be as scheduled below but in case the post has been advertised and suitable candidates are not available, the qualifications can be relaxed.'

This is followed by a tabular statement headed 'Requirements of Special Academic Qualifications and Teaching Experience'. Column 1 of this table deals with the Pests. Column 2 lays down the academic qualifications and column 3. is about Teaching Experience. The table has a number of sub headings according to the various specialities. The speciality of Forensic Medicine is given at page 168 of the Hand-Book (1971 Edition). The relevant provision regarding a Lecturer in Forensic Medicine is as follows:

(d) Assistant M. D. (Path), M D. (Forensic Two years ofProfessor/ Medicine), Speciality Board of Medico-legalLecturer Pathology (U.S.A.), M.D./ work.'MR C.P /F.R.C.P (withDiploma D.F.M.), M.R.C.P.(with Forensic Medicine asSpecial Subject) or Equivalentqualification or Post-graduatedecree or equivalent qualification in Medicine or Surgery.Whereas leraned Counsel for the petitioner strongly emphasises that the post-graduate Degree need not be of the University of Rajasthan and it could be of any other University in India, leraned Counsel for the respondents contended that though the Degree may not be of the University of Rajasthan it must be one such as has been recognised as an equivalent qualification by the University of Rajasthan to its own Degree. Leraned Counsel for the petitioner further referred to the provisions of Section 23A of the Rajasthan University Act and submitted that it is the function of the Academic Council to advise the Syndicate regarding equivalence of examinations and recognition of other bodies but argued leraned Counsel, there was no provision as such for recognition of Degrees of other Universities. Degrees of other Universities, according to him, which are established by law take effect by their own force and their efficacy is not dependent on their recognition by the University of Rajasthan. According to leraned Counsel, the provision for recognition of the examinations of the Universities as equivalent to the examinations of the University of Rajasthan is for the limited purpose of admitting candidates to higher courses in the University, but acceding to leraned Counsel that has not to be done for the purpose of securing service under the Government or the University. Leraned Counsel further drew attention to the fact that according to the Ordinance 331thete is an Equivalence Committee whichconsists of the Vice- Chancellor and Deans of Faculties Then leraned Counsel copiously referred to Regulations44A, 44B, 44E and 44F and endeavoured to show that the equivalence that is contemplated is one of the examinations and that too in respect of such examinations as are held by the Rajasthan University itself, but there is noprovision for recognition of Degrees of other Universities as such. Learned Deputy Government Advocate, on the other hand, submitted that the purpose of recognition of equivalence cannot be restricted to that of admission to higher courses of the University, but will cover even the academic qualifications that the University of Rajasthan has prescribed for its teaching staff. Referring to serial 12 under Regulation 44F, learned Deputy Government Advocateput emphasis on the fact that only some of the Degrees of the Bihar University, Muzaffarpur, have been recognised and unlike that of many other Universities the Degree of M.D. or M.D. in Forensic Medicine has not been recognized as an equivalent one.

8. Both the leraned Counsel are, however, agreed on one point and it is that the Rajasthan University does not bold any examination for the Degree of M.D. in Forensic Medicine nor does it confer any such degree. This, according to learned Deputy Government Advocate is immaterial for the present purposes. I may first reproduce the two letters that were exchanged between the Rajasthan Public Service Commission and the University of Rajasthan.

Rajasthan Public Service Commission.

No. F. 7 (3) Rectt-R/71. 72/3063 6.6.73.The Registrar,

University of Rajasthan, Jaipur.

Sub : Recognition of the degree of M. D. awarded by the University of Bihar

Sir,

I am directed to say that while examining the qualifications awarded by the various Universities, the Commission observed whether the degree of M.D. by the University of Bihar, has been recognised by the University of Rajasthan I am, therefore, to request you kindly to intimate if the equivalence committee of the University has recommended to the Academic Council Syndicate of the University recognition of the degree of M.D. of Bihar University & whether the Syndicate had taken any decision in this matter. A copy of the resolution, if any, passed in this behalf may kindly be furnished to this office.

Since the above information is required in connection with a case pending with the Commission I am to request you kindly to furnish the requisite information at (sic) every early date.

Yours faithfully,

Sd/- K.S. Bbatnagar,

Asstt. Secretary.

From:

The Registrar, University of Rajasthan,

To,

The Asstt. Secretary,

Rajasthan Public Service Commission,

Ajmer.

F. 4-1/73/Aca. 11/1973 A

Dated, Jaipur 14-6-197S.

Sub :--Recognition of the degree or MD awarded by the University of Bihar

Dear Sir,

Please refer to your letter No. F. 7 (30) Rectt-B 71-72/3063 dated6.6.73 on the above subject.

I write to inform you that the said degree of Bihar University, Muzaffarpur, is not recognised by this University.

Yours truly,

Sd/-

for Registrar.

On the side of the petitioner the letter that be wrote to the University was as follows:

From:

Dr B.L. Asawa,

L & I Hospital,

M.D. Road,

Jaipur dated 25.9.1073.

To,

The Registrar,

University of Rajasthan,

Jaipur.

THROUGH PROPER CHANNEL

Sub :--Clarification about the list of Examination recognised by the University under Rule 44-A to 44-1 and recognition of the Degree of M. D. awarded by the University of Bihar for the purpose of appointment to teaching staff in the Medical College under Order 65 VIII-A.

Ref. :--Your office letter No 4989

A dated 28.8.1973

Sir,

The University vide its letter No quoted above on furnishing my qualification and experience as reproduced below has categorically informed me through the Principal, SMS. Medical College, Jaipur that I fulfil the requirements as per O65 for appointment to the post of Lecturer in Forensic Medicine and that the University accepts degrees/diplomas of the statutory Universities which clearly purports that M. D Degree of Bihar University is accepted by the University of Rajasthan for the purpose of appointment for teaching staff in Medical Colleges.

I-QUALIFICATION:

(a) M.B.B S. - Rajasthan University, 1954.

(b) M. D.-Bihar University (Forensic Medicine), 1970.

III-EXPERIENCE:

Medico legal 3 years 10 Months & 11 days till 5.12.1972.(Medico-legal 4 years 8 Months & 10 days till date).

2. I have come to know that in reply to a query made by the R.P.S.C. the University vide its letter No. 4 1/73/Aca-II/l973 of14.6.73 had informed the R.P.S.C. that the M.D. Degree awarded by Bihar University of Muzzafarpur, is not recognised by this University without mentioning therein he purpose of the recognition in question viz; whether for appointment of teaching staff or for admission to higher studies in the University.

3 Under the circumstances, I wish to know that the position with regard to recognition of degrees awarded by the University of Bihar, are not recognised only for purpose of admission to the higher studies or whether the said recogmsion of the equivalence of examination as laid down vide Regulation 44-A to 44-1 under Ordinance 330 &331 govern the appointment of teachers also.

4 The misleading information sent by you to the Public Service Commission has created an anamolous situation which may soon be clarified. A letter of clarification with regard to the M.D. Degree of Bihar University for the purpose of appointments may kindly be sent immediately so as to avoid any confusion which might have been created by your letter quoted in para 2 of this letter.

Yours faithfully,

Sd/-

(Dr. B.L. Asawa).

The reply that was given by the Registrar to the above letter was as follows:

From : To :The Registrar, The Principal,University of Rajasthan, S.M.S. Medical College,Jaipur,No. F 3 1/73 (Aca. II) 6863 A Dated, Jaipur 1.10.1973Dear Sir,

Please refer to your endorsement No. F. 3/36117/MC/40 dated the 25th Sept., 1973 forwarding therewith an application of Dr. B.L. Asawa, Lecturer in Forensic Medicine.

I write to inform you that the Secretary, R.P.S.C. Ajmer vide his letter No F. 7 (3) Recct B/7172/3063 dated 6.6 1973 had enquired that if the Equivalence Committee of the University has recommended to the Academic Council/Syndicate the recognition of the degree of M D. of Bihar University and whether the Syndicate has taken any decision in this matter. In response to the Said letter a reply to the effect that the said degree has not been recognised by the University was sent to the Public Service Commission vide this office letter No. F 14-1/73 (Aca. II) 1973 A dated 14 6.73. The Secretary while enquiring about the recognition of the said degree no where mentioned in the letter about the purpose for which he needs such an information. Had the Secretary mentioned the fact that the said information is needed by him for the purpose of appointment as teachers in Medical Colleges this anamolous situation would Dot have been arisen.

I would like to mention that the examinations, which are recognised by the Syndicate on the recommendation of the Equivalence Committee and the Academic Council and as are listed under Rule 44A to 44-I are recognized as equivalent to the corresponding examinations of the University for the purpose of higher studies/recognition of Ph.D. etc. and not for the purpose of appointments of teaching staff in the affiliated colleges as the appointments of teachers in the affiliated Medical colleges are governed by Order 65 VII of the University Hand Book Pt. II and the University accepts the degrees/Diploma of the Statutory Indian Univtrsities unless otherwise mentioned in the said Ordinance. As such for the purpose of appointment, University accepts, the M.D. degree of Bihar University by the virtue of its being awarded by a statutory University.

On the basis of the information supplied by Dr. B.L. Asava as contained in his letter duly forwarded by you vide endorsement No. F3/MC/EG/32641 dated 24.8 1973 it has already been intimated to you vide this office letter No. 4988 A dated 28.8.1973 that Dr. Asawa fulfils the academic qualifications as laid down vide O 65 VII for the post of Lecturer in Forensic Medicine in any medical college affiliated to the University.

Yours truly,

Sd/-

Registrar.

9. I have carefully read all these four letters, but even bearing in mind the respective contexts of the two letters addressed by the Registrar of the University one to the Commission and other to the Principal, S.M.S. Medical College through whom the petitioner addressed the Registrar I find it exceedingly difficult to reconcile the contents of the two letters. The letters do not leave a good taste in one's mouth and it is better to leave the matter at that The question is one of interpreting the relevant statutory provisions which. I have referred already and for that the view expressed by the Registration one letter in one manner and in the other differently will be of no assistance whatsoever. The Court has to interpret the statutory provisions un-influenced by what the Registrar had written on the two occasions Now Section 22 of the Collegiate Branch Rules only adopts academic qualifications and experience as is laid down from time to time by the Rajasthan University for the teaching staff in the Medical Colleges. The problem is thus one of ascertaining as to what those academic and technical qualifications and experience are The problem is thus one of ascertaining as to what those academic and technical qualifications and experience are. The clear provision regarding this is Ordinance 65 which I have already read. All teachers in the first instance have to possess a basic University or equivalent qualification entered in the Schedule to the Indian Medical Council Act, 1956 except in certain non-clinical departments. The second requirement is that the Medical men must be registered under the State Central Medical Registration Act and non-medical persons must be recognised as teachers with the University before appointments are made permanent Then the third qualification and this is the most important one is that all the teachers in Medical Colleges except Registrars and Demonstrators must possess the requisite post graduate qualification in their respective subjects If one were to interpret this clause uninfluenced by anything else then it clearly means that in the case of a Lecturer in a Medical College he must possess the post-graduate qualification in the subject in which he is to be a Lecturer. In other words, an M D will be fulfilling the requisite academic qualifications prescribed under Clause 3. The Ordinance does not say that the must be an M D of the Rajasthan University. Indeed, Rajasthan University does not impart post-graduate education in the speciality of Forensic Medicine, nor does it confer any degrees the speciality. Therefore, it would be a degree of some other University.

10. The next question is whether this plain language of clause 3 can be modified by adding the words that such post-graduate degree of another University should be recognised by the University of Rajasthan I am afraid, according to the well known canons of interpretation that is not permissible since the language of clause 3 is quite plain and admits of no ambiguity. Learned Deputy Government Advocate put emphasis on clause 5 which is to the effect that equivalent qualification referred to above and in the recommendations below shall be determined by the University of Rajasthan. This, to my mind, means that the various clauses to be so interpreted must deal with equivalent qualifications along side the prescribed degree. The words 'or equivalent qualifications' occur in Clause 1 and in the following Clause 5.There is, however, no room to infer that a degree of a sister University established by a statute will not be having efficacy by its own vigour but it will need recognition for the purposes of Ordinance 65 to make the holder of a degree eligible for appointment as a teacher in Rajasthan. At any rate, even if there were such a meaning that was intended then that has not been brought out by the language employed. To make a person who is holding a post-graduate degree in the speciality from a University in India established by law in eligible for the purposes of Ordinance 65 one needs a clearer enunciation than what one finds. The doors of a person to seek employment cannot be shut by use of language which is not clearly susceptible of the meaning that is sought to be given to this Ordinance.

11. Now I may turn to Regulation 44 to which my attention was invited. Chapter 40 of Rajasthan University Act, 1946 deals with equivalance of examinations Under Section 23A it is the function of the Academic Council to advise the Syndicate regarding equivalence of examinations and recognition of the examinations of other bodies. The first part deals with equivalence of examinations and the second part deals with recognition of examinations of other bodies. The first part will clearly be covering the contingency when there is correspondence between the examinations of a body with the examinations that the Rajasthan University is holding The second part relates to recognition of the examinations of other bodies as such. Ordinance 4lA is to the following effect:

The following examinations of the under mentioned Universities have been recognised as equivalent to the corresponding examinations of the University as shown against each, subject to the provisions of the foregoing Regulation 44D.

Then there is a tabular statement with two columns & with two separate headings. The first column is about the name of examinations of other Universities and the second column is about equivalent examinations of the University. Then various Unixersities are mentioned under column No 1 and also the various degrees or examinations of such Universities are mentioned In the second column opposite to each entry pertaining to a particular University are mentioned the corresponding examinations of the Rajasthan University. At serial number 12 is the Bihar University Muzzaffarpur. Under the first column various examinations are mentioned and opposite that are mentioned the corresponding examinations of the Rajasthan University. The frame of regulation 44F unmistakably shows that the equivalence expressly relates to the examinations that are held by the Rajasthan University. It is the admitted case of the parties that the Rajasthan University does not hold any examination for the degree of M.D. in Forensic Medicine. There could thus be no occasion under regulation 44F to mention the post-graduate degree of the Bihar University in Forensic Medicine. Thus this regulation 44F cannot be of any help in interpreting Ordinance 65. 1 am, therefore, unable to hold that there was any solid legal basis for the Public Service Commission to have rejected the candidature of the petitioner on the ground that M.D. Degree in Forensic Medicine of the Bihar University had not been recognised by the Rajasthan University. It follows as a necessary corollary that there has been denial of equal opportunity to seek employment under the State as contemplated by Article 16 of the Constitution so far as the petitioner was concerned. The consequential appointments made are, therefore, not valid.

12. Leraned Counsel for respondent No 3, Dr. Bhanu Prakash Gupta, contended that the petitioner does not possess the other requisite qualification namely, one about experience As this is not the ground on which the petitioner's candidature has been rejected and the Public Service Commission has not said anything regarding the same in its reply, there is no occasion for me to go into this question at this stage. It will be for the Rajasthan Public Service Commission to rescrutinise all the applications as were received in pursuance of its advertisement for the posts of Lecturers in Forensic Medicine and then to make fresh recommendations to the Government. The appointments of respondents of respondents Nos. 3 and 4 should be treated to be ad hoc in the meantime and they will be subject to the final recommendations and orders of the State Government.

13. Accordingly, I allow this writ petition in part and while I set aside the order of the Rajasthan Public Service Commission (Annexure4),rejecting the petitioner's candidature for the post of a Lecturer in Forensic Medicine I direct the Rajasthan Public Service Commission to re-scrutinise all the applications that were received in pursuance of its advertisement and then to dispose them of suitably. It recommendations for appointments are received by the State Government from the Commission then it will pass suitable orders w the matter & till then the respondents Nos. 3 and 4 may be continued on an ad hoc basis, but they shall cot be treated as substantively appointed. This order is passed in Court's discretion as otherwise the studies of students are likely to suffer There will be no order as to costs.


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