judgement:
Civil Appeal Nos.
2040 2042 of 1987 From the Judgment and order dated 11.2.1986 of the Central Administrative Tribunal, New Delhi in Appln.
Registration No. 4, 9 and 10 of 1985 Shanti Bhushan, K.R. Nagaraja, R.S. Hegde and Jayant Bhushan for the Appellants.
V.C. Mahajan, C.V. Subba Rao, A. Subba Rao and T.S. Sundrarajan in person for the Respondents.
The Judgment of the Court was delivered by RAY, J.
In these appeals under special leave the only question that falls for consideration is whether the service rule requiring 8 years of approved service as Section officer both for the direct recruits as well as for promotees for being eligible for consideration for promotion to the Grade I Post in Central Secretariat Service is arbitrary being in contravention of Articles 14 and 16 of the Constitution of India.
The matrix of the case is that the appellants along with one Rajiv Kalsi made four applications under section 19 of the challenging the vires of proviso to sub rule 2 of Rule 12 of Central Secretariate Service (C.S.S.), 1962 as amended by Notification No. 5/8/80 CS.
I dated 29th December, 1984 prescribing 8 years of approved service as Section officer as condition of eligibility for being considered for promotion to Grade I Post in C.S.S.
The appellants, Miss Prabha Devi and Shri Rajiv Kalsi were recruited directly through examination held by Union Public Service Commis 151 sion in 1978 as Section officers.
The appellants Shri G.S. Grewal and Shri Surjit Singh were recruited through examination held by Union Public Service Commission in 1980 as Section officers.
These direct recruits had been appointed in substantive vacancies of Section officers in accordance with the quota reserved for direct recruits by the service rules.
The inter se seniority of the direct recruits and the promotees is fixed in accordance with the quota and rota system.
The appellants are seniors to the promotees in accordance with the said quota and rota Rule.
The promotion to Grade I post of C.S.S. Rules is made in accordance with the provisions of sub rule 2 of rule 12 of the said Rules.
The proviso to sub rule 2 of rule 12 of C.S.S. Rules, 1962 was originally to the following effect: "Provided that if any person appointed to the Section officers ' Grade before the prescribed date is considered for promotion to Grade I in accordance with the provisions of this sub rule, all persons senior to him in that grade before the prescribed date shall also be considered notwithstanding that they may not have rendered l0 years ' approved service in the grade.
" According to this rule the direct recruits were eligible for consideration for promotion to Grade I in C.S.S. even though they have not rendered 10 years ' service when promotee Section officers junior to them are considered for promotion to Grade I. The promotee Section officers had to render 10 years ' approved service as Section officer before being considered for promotion to Grade I.
This proviso to sub rule (2) of Rule 12 was substituted by the following proviso with effect from July 31, 1972: "Provided further that if any person appointed to the Section officers ' Grade is considered for promotion to Grade I under this sub rule, all persons senior to him in that grade shall also be considered notwithstanding that they may not have rendered 10 years ' approved service in that grade.
" The proviso to sub rule (2) of rule 12 was again substituted by the following proviso with effect from February 23, 1978: "Provided further that if any person appointed to the Section officers ' Grade is considered for promotion to Grade I under this sub rule, all persons senior to him in Section Officers ' Grade who have rendered not less than six years ' 152 approved service in that Grade, shall also be considered notwithstanding that they may not have rendered 10 years ' approved service in that Grade; provided that the aforesaid condition of six years ' approved service shall not apply to a person belonging to the Scheduled Castes or the Scheduled Tribes." Thus according to this proviso to sub rule (2) of rule 12 a direct recruit Section officer who has rendered six years ' approved service in that grade was eligible for consideration for promotion to Grade I whereas a promotee Section officer would have to render ten years ' approved service in the grade of Section officer before being eligible for consideration for promotion.
In 1979 the substantive part of sub rule (2) of rule 12 was amended to provide eight years ' approved service in the Section officers ' Grade as against ten years approved service for eligibility for promotion to Grade I of C.S.S.
The third proviso of sub rule (2) of rule 12 was further substituted by the following proviso by Notification dated December 29, 1984: "Provided further that if any person appointed to the Section officers ' Grade is considered for promotion to Grade I under this sub rule, all persons senior to him in Section officers ' Grade, belonging to the Scheduled Castes or the Scheduled Tribes who have rendered not less than 4 years ' approved service in that grade, shall also be considered for promotion.
This amended rule enjoins that a directly recruited Section officer has to render 8 years ' approved service in the grade of Section officer before being eligible for consideration for promotion to Grade I.
The only exception made in this rule is with regard to Section officers belonging to the Scheduled Castes or Scheduled Tribes who shall have to render only four years approved service in that grade in order to qualify themselves for being considered for promotion to the said Grade I.
This condition of eligibility as introduced by the 1984 amendment of the third proviso of sub rule (2) of rule 12 has been questioned in the petitions before the Central Administrative Tribunal which after hearing the parties dismissed the applications by a common judgment holding inter alia that neither the amendment of February, 1978 nor the amendment of December, 1984 made in the proviso to sub rule (2) of rule 12 of the C.S.S. Rules, 1962 is discriminatory or arbitrary or 153 unreasonable so as to be declared ultra vires of Articles 14 and 16 of the Constitution of India.
It has been further held that the amended rule of December, 1984 is valid, just and equitable and no exception can he taken to it.
Aggrieved by the said order these three appeals on special leave have been preferred before this Court.
Mr. Shanti Bhushan, learned counsel appearing on behalf of the appellants has advanced three fold submissions before this Court.
The first submission is that the impugned amendment made in third proviso of sub rule (2) of rule 12 of C.S.S. Rules purports to entrench upon the prospects of the directly recruited Section officers for being considered for promotion to Grade I in as much as they are left out of the zone of consideration while their juniors i.e. the promotee Section officers are eligible for being considered for promotion to Grade I.
This condition of eligibility has no nexus to suitability for promotion to the post and as such this is in violation of the equality clause in Article 16 of the Constitution of India.
It has been submitted that any rule framed by the Government must be subject to the Fundamental Rights guaranteed by the Articles 14 and 16 of the Constitution of India.
Seniority of the direct recruits entitles them for consideration for promotion to the higher post while their juniors i.e. promotee Section officers are being considered for promotion to the higher post.
The purpose of the seniority in service is that the senior will be considered for promotion before those who are junior to them in the service.
Of course, a senior incumbent may be considered not suitable for promotion.
It has been submitted that the condition of eligibility as laid down in the said rule has no reference to suitability for promotion to the post and as such it is arbitrary and so void.
It has been submitted in this connection that prior to 1978 directly recruited Section officers having rendered 3 4 years of service in that grade had been promoted to Grade I and they had duly performed their duties.
Some of them have rendered their service in the promoted post very efficiently and they have earned remarks such as "very meritorious and outstanding" from the Department.
There is nothing to show that the promoted direct recruits were proved inefficient in discharging their duties and responsibilities of the higher post.
Mr. Shanti Bhushan furhter submitted that even in accordance with the provisions of sub rule (2) of rule 12 as amended in 1978 direct recruit Section officers after having rendered six years ' approved service in the grade had been considered for promotion and were promoted to Grade I.
This system worked out very satisfactorily and 154 the direct recruit Section officers who were promoted to Grade I post performed their duties attached to the higher post duly and satisfactorily.
The amendment of the eligibility qualification in 1984 providing a longer period of service as S.O. is, therefore, arbitrary and inequitable.
There is no rationale behind this amendment which works to the serious prejudice of the direct recruit Section officers for being considered for promotion to Grade I of the C.S.S. Service even though the promotee Section officers junior to them are being considered for promotion.
It has been secondly contended that the rule of determination of seniority on quota rota basis in the grade of Section officers having been held valid and not arbitrary by this Court in the case of H.V. Pardasani and ors.
vs Union of India and Ors., , the condition of eligibility introduced by the 1984 amendment of sub rule (2) of rule 12 is wholly unjust and arbitrary as it excludes direct recruit Section officers from the zone of consideration for promotion even though their juniors having put in eight years ' approved service as Section officers are eligible for consideration for promotion.
It has been submitted that the effect of the amendment is to neutralise and negative the decision of this Court which held that the rules of seniority on the basis of quota rota basis are unexceptionable.
It has been lastly contended that at any rate the promotee Section officers form a very small portion of the officers promoted to the Grade I Post and as such elimination of the direct recruit Section officers from the zone of consideration for promotion will not have any appreciable effect in as much as it will not obviate the frustration of the promotee Section officers for not being promoted to the higher post.
It has also been submitted that it is unjust and arbitrary to prevent the senior Section officers from being considered for promotion by enhancing the period of service from six years to eight years to be rendered in the grade of Section officer.
Mr. T.S. Sundara Rajan, a promotee Section officer, Respondent No. 2 has submitted that the appellants who are directly recruited Section officers on the result of examination held by the Union Public Service Commission in 1978 and 1980 against substantive vacancies, have become senior to the promotee Section officers on the basis of the quota reserved for direct recruits even though the promotee Section officers have rendered more than thirteen years ' service as Section officers.
This Fixation of seniority has no reference to the length of service.
The inter se seniority between the direct recruits and the promotee Section officers being determined on the basis of the 155 quota, the promotee Section officers even though they have been A promoted to the post of Section officers and have rendered service for a considerable period have become juniors to them in service and were not considered for promotion even.
These promotee Section officers like the Respondent No. 2 have not been considered for promotion in spite of their rendering service as such for more than thirteen years whereas the direct recruit Section officers who were appointed much later were considered and promoted purely on the ground of seniority.
This has created frustration in the minds of the promotees.
To obviate this the Government after due consideration of all aspect has by Notification dated December 29, 1984 amended the proviso to sub rule (2) of rule 12 of C.S.S. Rules prescribing an uniform eligibility of rendering eight years ' approved service as Section officers by both the direct recruit Section officers and the promotee Section Officers for being considered for promotion to Grade I (Under Secretary).
The said amendment, it has been submitted, is neither arbitrary nor unjust.
It has been further submitted that the promotee Section officers if given promotion will render their service duly and efficiently as has been rendered by the direct recruit Section officers promoted to Grade I.
According to the C.S.S. Rules, 1962, the substantive vacancies of Section officers are manned by direct recruits and promotees and a quota of one fifth of the total substantive vacancies has been reserved to be filled up by direct recruits.
The remaining substantive vacancies of Section officers are filled up by appointment of persons included in the select list i.e. by promotion.
The inter se seniority between the direct recruits and promotees is determined on the basis of the quota rota rule.
The direct recruits on their appointment against substantive vacancies become senior to the promotees.
This Court in the case of H.V. Pardasani and ors.
vs Union of India and Ors.
(supra) considered the question of the validity of rule providing for fixation of seniority between the direct recruits and promotees in the grade of Section officer on the basis of quota reserved for direct recruits and held that the prescription of quota becomes necessary to work out a scheme constituting a service manned by both the direct recruits as well as promotees.
Such a scheme is unexceptionable and seniority based upon the rota is also not open to attack.
The scheme does not appear to be arbitrary and the rules and regulations to give effect to the scheme are not ultra vires either Article 14 or Article 16 of the Constitution.
Therefore, the inter se seniority of direct recruit and promotee Section officers on the basis of 156 quota rota rules has been held to be valid.
This does not mean that the A direct recruits who are senior to the promotees are entitled to be considered for promotion to a higher post even though they do not fulfil the eligibility qualification specified in the rule framed by the rule making authority.
The rule making authority by the amendment made in 1984 has brought in an uniform eligibility qualification of eight years ' approved service to be rendered by the Section officers both promotees and direct recruits before coming within the Zone of consideration for promotion to Grade I.
Thus it treats all Section officers equally and there is no discrimination between the Section officers.
It has been submitted that this rule is arbitrary and unreasonable as it prescribes a certain minimum service in a lower post for promotion to a higher post on the ground that it has no nexus to suitability for holding the higher post.
This submission in our considered opinion, cannot be sustained in as much as experience over certain number of years in service and also due performance of the duties and responsibilities attached to the post of Section officer is very relevant and as such prescribing such an eligibility qualification has nexus to the suitability for the promoted post.
The directly recruited Section officers are not totally excluded from the zone of consideration for promotion.
They will be considered like the promotee Section officer as soon as they have rendered eight years ' approved service as Section officer.
The Tribunal has held that: "The qualifications for any post are prescribed having regard to the nature of the post and the duties and responsibilities attached to it.
For due discharge of duties attached to a post, academic excellence alone may not be sufficient.
Factors like experience over certain number of years in service and holding a post of a certain level are relevant.
That gives them the opportunity to deal with several files, handle different situations, tackle varied problems, extract work from subordinates of varying capabilities and serve under superiors with differing styles of functioning.
They acquire knowledge of men and matters and the necessary acumen to deal with issues arising from time to time.
Academic brilliance and excellent performance at the competitive examinations by themselves cannot wholly substitute experience.
They can only supplement.
However brilliant a person may be, he needs experience such as can be gathered only by discharging the duties and responsibilities attached to a post.
If recruitment to a post is by way of promotion, the minimum 157 number of years one should serve in the lower post would have to be prescribed.
Valuable experience gained in service, better equips a person to shoulder higher responsibilities and man the superior post.
Period spent in discharge of duties of a post has nexus to.
the object of enlisting experienced officers of proven merit with consistent good record over sufficiently long period to man the higher posts by way of promotion.
" The 1984 amendment of the rules providing an eligibility condition of rendering eight years ' approved service as section officer for coming within the zone of consideration for promotion to Grade I Post of C.S.S. is not at all arbitrary and unreasonable as it prescribes a minimum period of eight years ' of service as Section officer both for direct recruits and promotees as a condition of eligibility for consideration for promotion to the higher post.
This rule is, therefore, not violative of Articles 14 and 16 of the Constitution of India.
The rule making authority is competent to frame rules laying down eligibility condition for promotion to a higher post.
When such an eligibility condition has been laid down by service rules, it cannot be said that a direct recruit who is senior to the promotees is not required to comply with the eligibility condition and he is entitled to be considered for promotion to the higher post merely on the basis of his seniority.
The amended rule in question has specified a period of eight years ' approved service in the grade of Section officer as a condition of eligibility for being considered for promotion to Grade I post of C.S.S.
This rule is equally applicable to both the direct recruit Section officers as well as the promotee Section officers.
The submission that a senior Section officer has a right to be considered for promotion to Grade I post when his juniors who have fulfilled the eligibility condition are being considered for promotion to the higher post, Grade I, is wholly unsustainable.
The prescribing of an eligibility condition for entitlement for consideration for promotion is within the competence of the rule making authority.
This eligibility condition has to be fulfilled by the Section officers including senior direct recruits in order to be eligible for being considered for promotion.
When qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment.
Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules.
A person must be eligible for promotion having regard to the qualifications prescribed for the 158 post before he can be considered for promotion.
Seniority will be relevant only amongst persons eligible.
Seniority cannot be substituted for eligibility nor it can over ride it in the matter of promotion to the next higher post.
The rule in question which prescribes an uniform period of qualified service cannot be said to be arbitrary or unjust violative of Articles 14 or 16 of the Constitution.
It has been rightly held by the Tribunal: "When certain length of service in a particular cadre can validly be prescribed and is so prescribed, unless a person possesses that qualification, he cannot be considered eligible for appointment.
There is no law which lays down that a senior in service would automatically be eligible for promotion.
Seniority by itself does not outweight experience.
" It has also been observed: "In any event, the appropriate Rule making Authority is the best judge in this regard.
The Rule making Authority is certainly competent to amend the Rule and extend the period from 6 years to 8 years so as to make the direct recruits more experienced and suitable for the higher post.
That is a matter for the Rule making Authority; the Tribunal cannot sit in judgment over the opinion of the Rule making Authority.
No Court or Tribunal can substitute its own view in a matter such as this.
Such a Rule framed by a competent Authority cannot be struck down unless it is shown to be violative of any Fundamental Right guaranteed to a citizen under the Constitution.
" We do not find any infirmity in the above findings arrived at by the Tribunal.
In the premises aforesaid we hold that the third proviso to sub rule 2 of Rule 12 of Central Secretariat Service Rules, 1962 as amended by Notification No. 5/8/80 CS.
I. dated 29th December, 1984 is not ultra vires of Articles 14 and 16 of the Constitution.
The judgment and order of the Central Administrative Tribunal is hereby affirmed and the appeals are dismissed without costs.
G.N. Appeals dismissed.

summary:
% The appellants are direct recruit Section officers and were appointed in substantive vacancies of Section officers in accordance with the quota reserved for direct recruits.
The inter se seniority of the direct recruits and promotees is fixed in accordance with the quota and rota system.
According to the C.S.S. Rules, 1962, the substantive vacancies of Section officers are manned by direct recruits and promotees and a quota of one fifth of the substantive vacancies has been reserved to be filled up by direct recruits.
The remaining substantive vacancies of Section officers are to be filled up by appointment of persons included in the select list i.e. by promotion.
The direct recruits on their appointment against substantive vacancies become senior to the promotees, as is in the present case.
The promotion of Section officers to Grade I post of C.S.S. Rules is made in accordance with the provisions of sub rule 2 of rule 12 of the said Rules framed in 1962.
According to this rule the direct recruits were eligible for promotion to Grade I in C.S.S. even though they have not rendered 10 years service, when promotee Section officers junior to them are considered for promotion to Grade l.
The promotee Section officers had to render 10 years ' approved service as Section officer before being considered for promotion to Grade I.
This rule had been 148 amended from time to time, the last of which was in 1984 by way of Notification No. 5/9/80 CS.
I dated 29th December, 1984 which prescribed 8 years of approved service as Section officer as condition of eligibility for being considered for promotion to Grade I post in C.S.S.
This amendment was challenged before the Central Administrative Tribunal which dismissed the applications, holding that the amended rule is valid, just and equitable and no exception can be taken to it, and that it is not ultra vires of Articles 14 and 16 of the Constitution.
Aggrieved by the said order three appeals have been preferred before this Court, by way of special leave.
It was contended that the amendment purports to entrench upon the prospects of the directly recruited Section officers for being considered for promotion to Grade l in as much as they are left out of the zone of consideration while their juniors i.e. the promotee Section officers are eligible for being considered for promotion to Grade I.
This condition of eligibility has no nexus to suitability for promotion to the post and as such is in violation of the equality clause in Article 16 of the Constitution of India.
It was contended that for purposes of seniority in service the senior will be considered for promotion before those who are junior to them in service, and that the condition of eligibility as laid down in the said rule has no reference to suitability for promotion to the post and as such it is arbitrary and so void.
The system prior to the amendment worked out satisfactorily and the direct recruit Section officers who were promoted to Grade I post performed their duties attached to the higher post duly and satisfactorily, and therefore the amendment is arbitrary and inequitable, and that this amendment works out to the serious prejudice of the direct recruit Section officers.
It was submitted that the effect of the amendment is to neutralise and negative the decision of this Court in H.V. Pardasani & Ors.
vs Union of India & Ors., which held that the rules of seniority on the basis of quota rota basis are unexceptionable.
On behalf of the promotee Section officers it was contended that the inter se seniority between direct recruit Section officers and promotee Section officers is fixed in accordance with the quota rota rule and thus has no reference to the length of service.
The promotee Section officers have not been considered for promotion m spite of their rendering service as such for more than 13 years, whereas the direct recruit 149 Section officers who were appointed much later were considered and promoted purely on the ground of seniority.
This has created frustration in the minds of the promotees and in order to obviate this, the Government has amended the proviso and that the amendment is neither arbitrary nor unjust.
Dismissing the appeals, this Court, ^ HELD: 1.
The rule in question which prescribes on uniform period of qualified service cannot be said to be arbitrary or unjust or violative of Articles 14 or 16 of the Constitution.
The rule making authority, by the amendment made in 1984, has brought in an uniform eligibility qualification of 8 years ' approved service to be rendered by the Section officers both promotees and direct recruits before coming within the zone of consideration for promotion to Grade I.
Thus it treats all Section officers equally and there is no discrimination between the Section officers.
The directly recruited Section officers are not totally excluded from the zone of consideration for promotion.
They will be considered like the promotee Section officers as soon as they have rendered eight years ' approved service as Section officers.
The eligibility conditions imposed has a nexus to the object sought to be achieved, viz. enlisting experienced officers of proven merit to man the higher posts by way of promotion.
[158B; 156B D] 2.
The validity of rule providing for fixation of seniority between the direct recruits and promotees in the grade of Section officer on the basis of quota reserved for direct recruits (i.e. 1/5 of the total substantive vacancies) has already been upheld by this Court.
But this does not mean that the direct recruits who are senior to the promotees are entitled to be considered for promotion to a higher post even though they do not fulfil the eligibility qualification specified in the rule framed by the rule making authority.
The rule making authority is competent to frame rules laying down eligibility condition for promotion to a higher post, and it cannot be said that a direct recruit who is senior to the promotees is not required to comply with the eligibility condition and he is entitled to be considered for promotion to the higher post merely on the basis of his seniority.
The submission that a senior Section officer has a right to be considered for promotion to Grade I post when his juniors who have fulfilled the eligibility condition are being considered for promotion to the higher post, is wholly unsustainable.
[155G; 156A B; 157D F] H.V. Pardasani & Ors.
vs Union of India, , followed.
150 3.
When qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment.
Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules.
A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion.
Seniority will be relevant only amongst persons eligible.
Seniority cannot be substituted for eligibility nor can it over ride it in the matter of promotion to the next higher Post.
[157G H: 158A]


judgement:
Civil Appeal Nos.
5723 5724 of 1985 etc.
From the Judgment and order dated 22.2.1985 of the Andhra Pradesh Administrative Tribunal, Hyderabad in Representation Petn.
No. 1041 and 1417 of 1983.
P.P. Rao, G.L. Sanghi, R. Venkataramani, R.A. Perumal, R.K. Gupta, B. Kanta Rao, K. Ram Kumar and A. Subba Rao for the appearing parties.
179 The Judgment of the Court was delivered by SEN, J.
These three appeals and the special leave petitions are directed against the judgment and order of the Andhra Pradesh Administrative Tribunal, Hyderabad dated 22nd February, 1985 quashing the panel of names prepared by the State Government under r. 8 of the Andhra Pradesh Medical & Health Service Special Rules, 1982 to fill up the promotional post of Professor of Cardiology as on 1st July, 1983 reckoning the teaching experience of all the Assistant Professors in that super speciality in order of seniority, holding that the Assistant Professors of Cardiology in different medical colleges in the State who had the requisite five years teaching experience under r. 5 of the Rules having the alternate qualification in cl.
(b) of Annexure II were eligible for promotion as such and directing the State Government to draw up a fresh panel after considering the claims of all such Assistant Professors of Cardiology treating them as possessing the requisite teaching experience in terms of r. S for the promotional post of Professor of Cardiology as on 1st July, 1983.
That turns on the meaning of the expression 'two years training in Cardiology ' as specified in cl.
(b) of column 5 in serial No. 17 of Annexure II to the Rules prescribing the qualifications for the post of Professor of Cardiology.
The Tribunal was of the view that such Assistant Professors of Cardiology were entitled to have the benefit of teaching experience grained by them as such after obtaining the post graduate degree in MD/MRCP in that speciality on the crucial date 1st July, 1983 when the State Government purported to prepare a panel under r. 8 of the Rules.
The issue involved is of far reaching importance to the entire medical profession as similar problem is faced by the State Governments in promoting Readers/Associate Professors in a speciality to the post of Professor in that speciality in the medical colleges.
The matters were heard a long time back and closed for judgment, but then a similar question arose in Civil Appeal No. 4456 of 1986 State of Orissa vs Dr. Sivsanker Lal Bajoria & Anr., and therefore the matters were re listed.
By order dated 12th December, 1986 this Court granted special leave to the State Government of Orissa against the judgment and order of the Orissa High Court evolving a rule of substantial compliance.
But learned counsel for the parties in these matters stated that they had made their submissions on merits and desired that the Court should proceed to judgment.
At the very outset, we wish to place on record that in Civil Appeal No. 4456 of 1986 we had on 29th October, 1986 issued notice 180 to the Medical Council of India to enable it to clarify its stand as to the eligibility of Assistant Professors/Readers in Cardiology to the promotional post of Associate Professor/Professor of Cardiology and in particular as to the import of the term 'two years special training ' within the meaning of Regulation 5(2)(b) of the Indian Medical Council Regulations, 1970, framed under section 33 of the .
We desired the Indian Medical Council to specify the particular institution where such special training is imparted It would be profitable to reproduce the relevant averments in the affidavit sworn by the Assistant Secretary on behalf of the Medical Council of India placing its point of view: "With reference to the question whether any syllabus has been prescribed for further studies in Cardiology is concerned, I state that the Council is a regulatory body which has its own rules under the Act.
It does not prescribe any syllabus which is within the jurisdiction of every University and medical institutions.
The Medical Council of India only prescribes broad guidelines for training in post graduate/ post doctoral courses leading to post graduation in D.M. (Cardiology), period of study, conduct of examination etc; true copy of the said broad guidelines which will cover post graduation courses is annexed herewith.
It may be submit ted that there are no special guidelines for Cardiology.
However it is submitted that some Universities/Institutions might have prescribed the syllabus.
With reference to the second question whether further training/instructions are imparted in any college/ institution/university or hospital, I submit that various departments attached to various colleges have started imparting post graduation courses after obtaining permission from the Medical Council of India.
Till this day, a list of such institutions which are imparting such recognised post doctoral training in Cardiology is given below: 1.
Madras Medical College, Madras (Madras University) 2.
Post Graduate Institute of Medical Education and Research, Chandigarh (P.G.I., Chandigarh) 3.
All India Institute of Medical Science, New Delhi.
181 4.
G.B. Pant Hospital (Delhi University) 5.
G.S.V.M.
Medical College, Kanpur (Kanpur University) Colleges/Institutions which have already been approved for conducting D.M. courses in Cardiology are as under: Permission accorded (STILL TO BE RECOGNISED) 1.
Osmania Medical College, (Osmania University, Hyderabad) 2.
Gandhi Medical College, (Osmania University, Hyderabad) 3.
Armed Forces Medical College, Pune (Poona University) 4.
Kasturba Medical College, Manipal (Mangalore University) 5.
Bangalore Medical College, Barlgalore (Bangalore University) 6.
S.C.B. Medical College, Cuttack (Utkal University) (Permitted in Sept., 86) 7.
Grant Medical College, Bombay (Bombay University) 8.
Seth G.S. Medical College, Bombay (Bombay University) 9.
T.N. Medical College, Bombay (Bombay University)" Emphasis supplied The affidavit sworn by the Assistant Secretary to the Medical Council of India is admirably vague and reveals a sad state of affairs.
It is quite manifest that when the Secretary to the Medical Council of India addressed a letter dated 26th April, 1976 conveying the recommenda 182 tions of the Medical Council of India purporting to lay down that after 31st May, 1977 for all teaching appointments to posts higher than Tutor in higher specialities i.e. Cardiology/ Neurology/Gastro Enterology / Thoracic Surgery / Neuro Surgery / Plastic Surgery / Paediatric Surgery/Urology, the candidates must possess post graduate degree qualifications in the speciality concerned i.e. DM/M. Ch.
after MD/ MS or other equivalent qualifications as may be approved by the Council from time to time.
There was no prospectus for a course of study for post graduation in a super speciality nor were there any institutions for imparting post doctoral training in all the subjects.
There was also a Note added that the already existing qualifications with 'two years special training ' in a recognized training centre in the speciality concerned, shall cease to be sufficient qualification for appointment to the aforesaid teaching posts from that date.
For the sake of completeness, we think it necessary to set out the aforesaid letter of the Secretary, which runs as follows: "After 31st May, 1977, for all teaching appointments to posts higher than Tutor in higher specialities i.e. Cardiology, Neurology / Gastro Enterology / Thoracic Surgery / Neuro Surgery / Plastic Surgery / Paediatric Surgery / Urology, the candidates must possess post graduate degree qualifications in the speciality concerned i.e. D.M./M.Ch.
after M.D./M.S. Or other equivalent qualification as may be approved by the Council from time to time.
The existing alternative qualifications i.e. M.D./M.S. Or an equivalent qualification with two years special training in a recognised training centre in the speciality concerned, shall cease to be sufficient qualification for appointment to aforesaid teaching posts from that date.
Provided that the requirements of possessing post graduate degree qualification in the concerned higher speciality shall not be applicable for higher appointments in the case of existing teachers holding regular teaching posts whose appointment was initially made on the basis of two years special training in the speciality after the requisite M.D./M.S. " It would be noticed that the affidavit does not disclose the date or dates from which the institutions listed above, namely, Madras Medical College, Madras, Post Graduate Institute of Medical Education & Research, Chandigarh, All India Institute of Medical Sciences, 183 New Delhi, G.B. Pant Hospital, Delhi and G.S.V.M.
Medical College, Kanpur were recognised for imparting post graduate/post doctoral training.
Nor does it specify the Universities/Institutions which have prescribed a syllabus for the post graduate/post doctoral courses leading to post graduation in DM (Cardiology), period of study, conduct of examination etc.
It is not necessary to set out the facts in any detail and it is sufficient to give only the salient facts to elucidate the points in controversy.
On 1st July, 1983 the State Government purported to prepare a panel of all Assistant Professors of Cardiology in Government Medical Colleges in the State having the requisite teaching experience under r. 5 after obtaining the post graduate qualification as specified in Annexure II.
There existed on that date four vacancies in the post of Professor of Cardiology which occurred on 1st November, 1982, 1st March, 1983, 1st May, 1983 and in June 1983.
According to the Government, the teaching experience contemplated by r. 5 of the Rules was the teaching experience gained by the Assistant Professor in the concerned speciality after obtaining the second post graduation degree in that speciality.
The Government therefore included in the penal the names of Dr. G. Subramanyam, Dr. A. Rajagopala Raju and Dr. Soghra Begum, Assistant Professors of Cardiology, who had as on the crucial date 1st July, 1983 five years teaching experience after obtaining their post graduation degree in DM (Cardiology) as enjoined by r. 5 read with the first proviso thereto, and accordingly by order dated 17th August, 1983 promoted them to the post of Professor of Cardiology.
Thereupon, the respondents Dr. R. Murali Babu Rao and Dr. G. Sai Gopal moved the Andhra Pradesh Administrative Tribunal assailing the impugned order of promotion.
The claim of the respondent Dr. R. Murali Babu Rao was that he having obtained his degree in MD/MRCP in Medicine was posted as Assistant Professor of Cardiology w.e.f.
18th January, 1978 and while continuing to work as such, he was selected to undergo a super speciality course in Cardiology i.e. DM and was deputed for that purpose on 18th January, 1980.
After completing his DM (Cardiology) in April, 1981, he was posted as Assistant Professor of Cardiology from 12th June, 1981.
Upon that basis, he claimed that apart from being seniormost Assistant Professor of Cardiology, he had five years of teaching experience in the Department of Cardiology as Assistant Professor of Cardiology as on 18th January, 1983.
According to him, if a panel had been prepared on 1st January 1983, he would have been the seniormost candidate in service with requisite qualifications for any vacancy from 1st January, 1983 to 1st July, 1983.
He characterised the action of the State Government in 184 the matter of computation of five years teaching experience after post graduation as required under r. 5 of the Rules only after the second post graduation degree in DM (Cardiology) as being wholly arbitrary and irrational.
The State Government in the counter before the Tribunal repudiated his claim and contended inter alia that under r. 5 of the Rules, one must possess five years teaching experience in the speciality concerned after obtaining the post graduate qualification in the concerned speciality i.e. after the second post graduate course.
It was averred that after completion of his post graduate course in DM (Cardiology), the respondent had been posted as Assistant Professor of Cardiology on 12th June, 1981 and thus he would complete the three years period as Assistant Professor of Cardiology after acquiring his post graduate degree in DM (Cardiology) only on 11th June, 1984.
Tn the normal course.
it was said, he would then become qualified for promotion as Professor of Cardiology.
The claim of the other representationist Dr. G. Sai Gopal was more or less similar.
He acquired his degree in MD in Medicine in 1973 and was posted as Assistant Professor of Cardiology in September 1973.
He obtained his second post graduate degree in DM (Cardiology) on 14th December, 1981.
His grievance is that he has been discriminated against by the Government.
While he was working as Assistant Professor of Cardiology after obtaining his post graduate degree in MD in Medicine, in 1978 he applied for study leave to join the All India Institute of Medical Sciences, New Delhi for undergoing further studies for the second post graduation degree in DM (Cardiology).
It was refused and he was asked to resign from service while the Government granted such leave to respondent No. 3 Dr. Soghra Begum and therefore he should have been treated at par with her as if leave had been granted, and thus he would have completed his DM (Cardiology) course in the year 1980 itself.
During the year 1979 the Government however relented and granted him leave to study DM course in Cardiology in the All India Institute of Medical Sciences, New Delhi where he completed his DM (Cardiology) on 13th December, 1981.
As he had put in 1 year 6 months 27 days after his post graduate degree in DM (Cardiology) and even after giving credit for 2 years 4 months and 18 days i.e. the second post graduation course period, he was short of the requisite five years teaching experience and thus the Government considered him ineligible for promotion.
Of the three Assistant Professors of Cardiology promoted as Professors, the Government placed before the Tribunal a tabular chart showing that Dr. A Rajagopala Raju had a teaching experience of 185 about 3 years 3 months as on 1st January, 1983 and with the gaining of teaching experience during the second post graduation degree of about two years, he had a total teaching experience of over five years.
As regards Dr. Soghra Begum, it was averred that she already had 3 years 2 months and 16 days teaching experience as Assistant Professor of Cardiology after obtaining her post graduate degree in MD/MRCP in Medicine, when the Government deputed her to undergo further studies for the second post graduate course in DM (Cardiology) and therefore the Government, as in the case of Dr. A Rajagopala Raju, decided to count the period when she was undergoing the second post graduate course in DM (Cardiology) towards her teaching experience.
It would appear from the tabular chart that Dr. G. Subramanyam who had also been promoted to the post of Professor of Cardiology was not a party to the proceedings before the Tribunal and had in fact been promoted to that post in November, 1982.
In view of this, and as he was admittedly senior to the respondent Dr. R. Murali Babu Rao, he did not press his claim against Dr. G. Sai Gopal.
The appellant C.H. Umesh Chandra has come up in appeal as the view expressed by the Tribunal prejudicially affects him.
He obtained his post graduate degree in MD in Medicine in December, 1975 and his second post graduate degree in DM (Cardiology) in April, 1980.
He had put in as Assistant Professor of Cardiology 3 years and 2 months.
Even after giving credit for 1 year and 9 months i.e. the period of his second post graduation course in DM (Cardiology), the Government was of the view that he was not eligible.
In view of the fact that he obtained his second post graduation degree in DM (Cardiology) in April, 1980, he seeks to support the stand of the Government as he has a better chance for promotion than the others to the promotional post of Professor of Cardiology.
To appreciate the contentions advanced, it is necessary to set out the relevant provisions of the Andhra Pradesh Medical & Health Service Special Rules 1982, as amended from time to time.
They are extracted below: "3.
Clinical and Non Clinical Specialities: The Clinical and Non Clinical Specialities shall be as shown in Annexure I to these rules." "(4).
Teaching experience for promotions: 186 (a) Professors Clinical, Non Clinical and Dental: A Deputy Civil Surgeon or an Assistant Professor shall be eligible for promotion as Professor after putting in a total teaching experience of 5 years in either or both categories in the concerned specialities.
(b) Deputy Civil Surgeon (Clinical, Non Clinical, Dental): * * * * (c) The teaching experience specified in sub rules (a) and (11) above, shall be computed as on the 1st January or the 1st July of the year in which panels for promotions are prepared. " "(5) Teaching experience: Teaching experience specified in rule 4 shall mean teaching experience in the speciality concerned in a Medical College or an institute recognised by the Medical Council of India after obtaining post graduate qualification as specified in Annexure II.
Provided that the teaching experience during second post graduation in a recognised College or Institute within the country or abroad in the concerned speciality of those who are: (i) Holding teaching appointments; or (ii) Holding beds under their charges or (iii)Doing tutorial work; shall count towards teaching experience for purposes of this rule." "7.
Special Training: Special training specified in these rules shall mean the work done by an Assistant Professor or Deputy Civil Surgeon in the concerned recognised unit and exclusively devoted to the speciality.
Teaching experience during the special training period in the speciality shall count towards the training." "(8) Preparation of panels: (1) The Government shall prepare a panel to fill up all the promotional posts included 187 in Class I available on 1st January and 1st July of the year based on the eligibility of the persons including the teaching experience as on 1st January and 1st July of the year." "(9) Qualification:(1) No person shall be eligible for promotion to the posts specified in column (3) of Annexure II unless he/she possesses the qualifications specified in the corresponding entry in column (5) thereof.
(2) Preference shall be given to persons who possess the qualifications specified in item (a) over those who possess the qualifications in item (b) of Column (5) of Annexure II for the posts of Professors and Deputy Civil Surgeons belonging to the specialities specified in Annexure III.
" ANNEXURE II (NON CLINICAL SPECIALITIES) See Rules 5 & 9 "section Name of Post Qualifications Degrees No. Speciality (1) (2) (3) (4) (5) 17 Cardiology Professor/ Must possess one (a) D.M Dy.
Civil of the following (cardiology) Surgeon post graduate b)M.D./M.R.C.P. qualifications in in the concerned Medicine speciality from with 2 a recognised years University/Board/ training Body.
in Cardiology.
" The entire controversy is due to the failure of the State Government to give the benefit of the teaching experience gained by Assistant Professors after they obtained their post graduate degree in MD/ MRCP in Medicine under cl.
(b) of column 5 in serial No. 17 of Annexure II.
In the proceedings before the Tribunal, the State Government in the counter revealed that there was correspondence between the Directorate of Medical & Health Department with Secretary to the Medical & Health Department since the year 1981 for deletion of the alternate qualification prescribed in cl.
(b) of column 5 in serial No. 17 188 of Annexure II, namely MD/MRCP in Medicine, as amended from A time to time, for all teaching appointments in the super specialities, as per the recommendations of the Medical Council of India.
On the recommendation of the Directorate, it was said that the State Government had decided to delete the alternate qualification prescribed in r. 5 of the Rules for eligibility to the higher post of Professor in a super speciality, and had sent a draft amendment to the Special Rules for concurrence to the Andhra Pradesh Public Service Commission and the same was awaited.
The recommendations of the Indian Medical Council had not by then i.e. till the hearing before the Tribunal, been translated into action.
The judgment of the Tribunal however reveals that the alternate qualification in cl.
(b) of column 5 in serial No. 17 of Annexure II i.e. MD/MRCP in Medicine with two years training in Cardiology stood deleted w.e.f. 12th December, 1983.
On the crucial date however i.e. On 1st July, 1983, when the impugned panel was prepared, the alternate qualification in cl.
(b) was still there.
The contention on behalf of the State Government and the other appellants before us, as was before the Tribunal, is that the rules made under the proviso to article 309 of the Constitution, are subject to the recommendations made by the Medical Council of India which is invested with statutory power under section 19A of the insofar as they relate to coordination and determination of standards for medical education and in particular to prescription of qualifications for appointment to teaching posts in higher specialities.
It is said that the directions of the Council, as conveyed by the Secretary by his letter dated 26th April, 1976 were mandatory, notwithstanding any provision to the contrary contained in the Andhra Pradesh Medical & Health Service Special Rules, 1982 and must therefore prevail and were binding on the Government.
The Government duly considered the claims of the respondents aforesaid and came to the decision that they were ineligible for promotion to the post of Professor of Cardiology inasmuch as they did not possess the requisite five years teaching experience in the speciality concerned after obtaining their post graduation qualification within the meaning of r. 5 of the Rules i.e. second post graduation degree in DM (Cardiology).
The further contention is that, at any rate the alternate qualification in cl.
(b) of column 5 in serial No. 17 of Annexure II, namely, MD/MRCP in Medicine with two years training in Cardiology, having been deleted by GOMS No. 789, Medical & Health Department, dated 12th December, 1983, it was not necessary for the Government to comply with the direction made by the Tribunal to draw up a panel of the eligible candidates afresh under r. 8 of the Rules.
The contention, 189 in the alternative, was that the Tribunal failed to appreciate that the teaching experience gained by Assistant Professors of Cardiology before obtaining the second post graduate degree in the speciality concerned.
i.e. after the post graduate degree in MD/MRCP in Medicine, could not be taken into consideration inasmuch as under r.9(2) preference has to be given to persons who possess the qualifications specified in cl.
(a) over those who possess the qualifications specified in cl.
(b) for the post of Professor belonging to the speciality specified therein and therefore it was not justified in quashing the panel prepared by the State Government under r. 8.
We are afraid, these contentions cannot prevail.
The fallacy underlying the arguments is obvious.
Rule 4 in terms speaks of the eligibility of such class of Assistant Professors of Cardiology for promotion to the post of Professor of Cardiology who possess five years teaching experience.
The expression teaching experience ' as defined in r. 5 speaks of 'teaching experience in the speciality concerned in a medical college or an institute recognised by the Medical Council of India after obtaining post graduate qualification as specified in Annexure II '.
The words used are 'after obtaining postgraduate qualification '; it does not speak of the second post graduate qualification.
Rule 5 therefore takes in both the qualifications specified in cls.
(a) and (b) of column 5 in serial no 17 of Annexure II, namely, (a) DM (Cardiology) (b) MD/MRCP in Medicine with two years training in Cardiology.
On the crucial date 1st July, 1983, cl.
(b) was very much there and the Government was bound to consider the claims of the aforesaid respondents like other officers belonging to that class before drawing up a panel under r. 8.
There is no warrant for the submission that since under r. 9(2) an Assistant Professor with the requisite five years teaching experience after obtaining his second post graduate degree in DM (Cardiology) would have preferential claim over those having qualification mentioned in cl.
(b) i.e. MD/ MRCP in Medicine with two years training in Cardiology, the State Government was entitled to ignore the claims of the latter class altogether.
On its plain construction, r. 9(2) is a rule of preference and has therefore to be applied at the stage of making appointments to the post of Professor of Cardiology and not while drawing up a panel under r. 8.
The Government was obviously misled by the wrongful assumption (i) that since the alternate qualification in cl.
(b) of column 5 in serial No. 17 of Annexure II had been deleted by GOMS No. 789 dated 12th December, 1983, it was not necessary for it to consider the claims of the aforesaid respondents and others similarly situate in drawing up a list of eligible Assistant Professors of Cardiology to fill up 190 the promotional post of Professor of Cardiology, and (ii) that such A officers were rendered ineligible by reason of r. 9(2) and therefore their claims need not be considered.
The Tribunal was therefore justified, in our opinion, in quashing the impugned panel prepared by the State Government under r. 8 of the Rules and in directing the Government to prepare a penal afresh after considering the claims of all Assistant Professors of Cardiology with five years teaching experience after their post graduation in MD/MRCP in medicine with two years training in Cardiology.
There is no substance whatever in the contention that the alternate qualification in cl.
(b) being in conflict with the recommendation of the Medical Council of India, must be deemed to have been repealed by implication and was non set w.e.f. 31st May, 1977.
The Government had no doubt before it the recommendations of the Council as conveyed by the letter of the Secretary dated 26th April, 1976 that after 31st May, 1977, for all teaching posts higher than Tutor in higher specialities i.e. Cardiology /Neurology /Gastro Enterology/ Thoracic Surgery/ Neuro Surgery/Plastic Surgery/Paediatric Surgery/ Urology, the candidates must possess the post graduate qualification in the speciality concerned i.e. DM/M.Ch.
after MD/MS or other equivalent qualification, as may be approved by the Council from time to time.
The letter also went on to say that the existing qualification MD/MS or an equivalent qualification with two years special training in a recognised training centre in the speciality concerned, shall cease to be sufficient qualification for appointment to the aforesaid teaching posts from that date.
Nevertheless, the Government failed to appreciate that the recommendation which was later approved of by the Government of India and acquired the status of a regulation, was only recommendatory and could not override a rule framed under the proviso to article 309 of the Constitution.
The panel had to be drawn by the State Government strictly in conformity with the rules of recruitment made under the proviso to article 309 and not on the basis of the recommendations of the Council.
As is manifest from the affidavit filed by the Indian Medical Council, it is only a recommendatory body.
This Court has in a series of decisions defined the precise functions and duties of the Medical Council of India.
The Indian Medical Council constituted under section 3 of the Act is an expert body intended and meant to control the minimum standards of medical education and to regulate their observance.
We may only cite the case of State of Madhya Pradesh vs Km.
Nivedita Jain.
; where the Court had to consider the effect of 191 the Regulations framed by the Medical Council and the various executive orders issued by the State Government.
Analysing the various provisions of the Act in depth, it was observed as follows: "An analysis of the various sections of the Act indicate that the main purpose of the Act is to establish Medical Council of India, to provide for its constitution, composition and its functions and the main function of the Council is to maintain the medical register of India and to maintain a proper standard of medical education and medical ethics and professional conduct for medical practitioners.
The scheme of the act appears to be that the Medical Council of India is to be set up in the manner provided in the Act and the Medical Council will maintain a proper medical register, will prescribe minimum standards of medical education required for granting recognised medical qualifications, will also prescribe standards of post graduate medical education and will further regulate the standards of professional conduct and etiquette and code of ethics for medical practitioners.
" Emphasis supplied A fortiori, the recommendations made by the Council or the Regulations framed by it are only recommendatory and not mandatory.
It is not for the Council to prescribe qualifications for recruitment to posts of Professors, Readers and Lecturers.
It can only lay down broad guidelines therefor.
Such qualifications have necessarily to be prescribed by the framing of Rules under the proviso to article 309.
Right to be considered for promotion is a condition of service and it can only be regulated by a rule framed under the proviso to article 309.
The Medical Council in its affidavit has itself said that it only prescribes broad guidelines for training in post graduate/post doctoral courses leading to post graduation in DM (Cardiology), period of study, conduct of examinations etc.
It goes further and accepts that there are no special guidelines laid down for Cardiology and asserts that some universities/institutions might have prescribed the syllabus.
It has listed five institutions which are imparting post doctoral training in Cardiology.
Such being the legal position, the contention of the State Government and the other appellants that the recommendations of the Medical Council as conveyed by the letter of the Secretary dated 26th April, 1976 rendering Assistant Professors of Cardiology having the alternate qualification of post graduate degree in MD/MRCP in Medicine ineligible for Promotion to the post of Professor of Cardio 192 logy even though they had the requisite five years teaching experience, appears to be wholly misconceived and unwarranted.
In support of the contention, learned counsel appearing for the State Government and the other appellants relied upon the following observations made by this Court in Union of India & Ors.
vs S.B. Kohli & Anr.
"Before the growth of specialised qualifications Surgeons obtaining the F.R.C.S. in general surgery used to specialise in orthopaedics and other specialities either by doing a diploma in orthopaedics or simply by practice and experience.
The regulations framed by the Medical Council require that in addition to the general F.R.C.S., a surgeon must have a diploma in orthopaedics before he could be appointed a Professor, Reader or Lecturer in orthopaedics.
That regulation has been accepted by the Government.
This gives an indication of what is considered a postgraduate degree in the concerned speciality.
Therefore, in the present case, a mere degree of F.R.C.S. as such cannot be deemed to be a post graduate qualification in the concerned speciality of orthopaedics.
To hold otherwise would mean that a person who has the qualification of F.R.C.S. could be deemed to be specialised in Tuberculosis and orthopaedics, although he is also a specialist in general surgery.
Therefore, the second Respondent does not hold a post graduate degree in the concerned speciality, orthopaedics and as such, his promotion to the post of a Professor in orthopaedics was illegal and against the Central Health Service Rules" We fail to see the relevance of these observations to the facts of the present case.
In Kohli 's case, the question turned on the construction of the phrase 'a post graduate degree in the concerned speciality ' in items 2 and 3 of Annexure II of the Second Schedule of the Central Health Service Rules, 1963.
The question that arose for consideration was whether the second respondent in that case who was FRCS (General Surgery) of the Edinburgh University, had a post graduate degree in the concerned speciality and was eligible for promotion to the post of Professor of orthopaedics Surgery in the Maulana Azad Medical College, New Delhi.
It was conceded before the High Court on behalf of the Central Government that the amendments made in the Central Health Service Rules were intended to give effect to the Regulations framed by the Indian Medical Council.
The Court held that the various 193 entries in Annexure II of the Second Schedule had to be interpreted in a reasonable manner and pointed out that the degree in FRCS was in General Surgery.
The amended rule made by the Central Government was to implement the Regulation framed by the Indian Medical Council that in addition to the General FRCS, a Surgeon must have a diploma in orthopaedics before he could be appointed a Professor, Reader or Lecturer in orthopaedics In that context, the Court held that the Central Government having accepted the recommendation of the Council and framed a rule, a mere degree of FRCS as such could not be deemed to be a post graduate qualification in the concerned speciality, orthopaedics.
In the present case, we are concerned with the meaning of the expression 'teaching experience ' occurring in r.5 of the Rules and with the class of officers who after their appointment as Assistant Professors of Cardiology, on having obtained post graduate degree in MD MRCP, have been teaching the subject Cardiology for years together.
Indeed, the alternate qualification specified in cl.
(b) of column 5 in serial No. 17 of Annexure II takes in this class of officers and makes them eligible under r. 5.
We have already repelled the contention that the alternate qualification in cl.
(b) being in conflict with the recommendation of the Council must be deemed to have been repealed by implication w.e.f. 31st May, 1977 or rendered non est as from that date.
On the crucial date 1st July, 1983, cl (b) was still there and the Government was therefore bound to consider the claims of such officers before drawing up a panel under r. 8.
Faced with this difficulty, learned counsel appearing for the State Government and the other appellants strenuously contended before us that the respondents i.e. Assistant Professors of Cardiology with the requisite teaching experience of five years after obtaining their postgraduate degree in MD/MRCP in Medicine did not come within the purview of cl.
(b) of column S in serial No. 17 of Annexure II.
Emphasis was laid on the words 'with two years training in Cardiology ' and it was submitted that none of the respondents had the requisite training.
We enquired from the learned counsel if there was any institution imparting such training in Cardiology but they were unable to throw any light on the subject.
The expression 'special training ' is defined in r. 7 to mean the work done by an Assistant Professor in the concerned recognised unit and exclusively devoted to the speciality.
The question then arises for the applicability of r. 7.
There are two conditions to be fulfilled, firstly, there must exist an institution set up either by the Medical Council of India or by the Government or Universities exclusively devoted to imparting teaching in different courses of Cardiology and secondly, such institution should have been recog 194 nised by the Government.
There is no such material on record to establish that there is any such recognised unit either in the State of Andhra Pradesh or elsewhere.
That apart, we fail to appreciate the reason why the Associate Professors, Readers, Assistant Professors of Cardiology teaching the subject Cardiology in the Medical Colleges for years together, should not be regarded as persons having special training in Cardiology within the meaning of cl.
(b) of column 5 in serial No. 17 Annexure II.
Any other view would lead to a very anomalous situation .
It would be a travesty of justice if the officers belonging to the class like the respondents representationists Dr. R. Murali Babu Rao and Dr. G.Sai Gopal, namely, Assistant Professors of Cardiology with five years teaching experience after their post graduation in MD MRCP in Medicine as on 1st July, 1983, were not empanelled by the State Government under r. 8 to fill up vacancies in the post of Professor of Cardiology, even though they possessed the requisite qualifications under r. 5 of the Rules.
It must be remembered that the alternate qualification in cl.
(b), namely, MD MRCP in Medicine with two years training in Cardiology was still there and it was not open to the Government to ignore the same merely because it was in conflict with the recommendation of the Medical Council of India.
as conveyed in the letter of the Secretary dated 26th April, 1976.
In the world as a whole today, particularly in the developed countries, both the health and the wealth of mankind is better than it was.
Even in the developing world, the health conditions of many communities have improved considerably in recent decades.
For the developing countries as a whole, life expectancy at birth increased from 32 years before the Second World War, to about 49 years in the 1960s, compared with about 70 years for the industrial world.
With the conquest of tuberculosis and other infectitious diseases, disorders of the blood vessels, hypertension, ischemia, acute myocardial infraction, arteriosclerosis, acute heart failure etc.
are the chief causes of death in at least half of population, and perhaps a quarter as many deaths from cancer.
New physiological and biophysical methods of study, together with post war developments in surgery and open heart surgery, have revolutionised the investigation and management of heart disease in the Western World.
Our country is not lagging behind and during the last few decades has seen the emergence of the new class of specialised physicians dealing with cardiovascular disorders, known as Cardiologists, for the management and treatment of patients suffering from heart diseases.
195 From time to time, a personality seintillates across the medical firmament who dazzles all beholders.
Few people of his generation have surpassed the eminence of Dr. S.K. Mukerji, MD/MRCP (Lond.), FRCP (Lond.), Emeritus Professor of Medicine, Medical College, Indore who perhaps today is the leading Physician and Cardiologist in the country and at whose feet many Physicians and Cardiologists have attained great distinction.
He has had a remarkable ability to objectify an important clinical finding and to cite all relevant literature without disquisting the patient.
Indeed his clinical analysis usually gained the confidence and respect of his patient in a most reassuring manner.
His originality in selecting clinical problems and investigating them by the available physiological methods, especially disorders of the heart and circulation, are familiar to the entire medical world.
He truly depicts the characteristics of a thoughtful physician excelled in the care of the sick, as delineated by T. R. Harrison .
renowned physician and author of the standard text book 'Principles of Internal Medicine ' in his preface in these words: "No greater opportunity or obligation can fall the lot of a human being than to be a physician.
In the care of the suffering he needs technical skill, scientific knowledge, and human understanding.
He who uses these with courage, humality, and wisdom will provide a unique service for his fellow man and will build an enduring edifice of character within himself.
The physician should ask of his destiny no more than this, and he should be content with no less." Another outstanding personality whose name comes to our mind is that of Dr.
P.N. Laha, MD, Double MRCP (Lond.), Emeritus Professor of Medicine, Medical College, Gwalior who has taught many of the leading Cardiologists in the country.
A delightful, vivacious, passionate physician, he stimulates everyone with whom he comes contact and he has placed an indelible stamp on the medical events of his days.
His many illuminating articles on different branches of Cardiology appear in the authoritative text book 'Prineiples of Medicine ', edited by Dr. Rustom J. Vakil who, along with Dr. (Col.) K.K. Datey, were two of the foremost Cardiologists in the country.
Two of the physicians who attained great eminence in the field of Cardiology were the late Dr. Sujoy B. Roy, Head of the Department of Cardiology, All India Institute of Medical Sciences, New Delhi and the late Dr. K.L. Wig, Professor of Medicine, Director, Post Graduate Institute of Medical Eduction and Research, Chandigarh and later Director, All India Institute of Medical Sciences, New Delhi in their 196 time.
Other equally eminent Cardiologists who have brought honour to the country are Dr. P.C. Dhanda, MD/MRCP, Head of the Department of Medicine, Maulana Azad Medical College, New Delhi, Dr. (Lt. Col.) K.L. Chopra, Professor of Cardiology, Medical College, Poona.
Advisor to the Armed Forces, Head of the Cardiology Department, Mool Chand Khairati Ram Hospital, President Heart Care Foundation, Dr. Padmavati, Professor & Head of the Cardiology Department, G.B. Pant Hospital, President, All India Heart Foundation, Dr. M.L. Bhatia, Head of the Cardiology Department, All India Institute of Medical Sciences, Dr. R.K. Caroli, Professor of Cardiology and Head of the Cardiology Department, Dr. Ram Manohar Lohia Hospital, Dr. S.C. Manchanda, Professor of Cardiology, All India Institute of Medical Sciences, Dr. B.K. Goyal, Visiting Professor of Cardiology in different Medical Colleges in Bombay, Dr. (Lt. Col.) K. K. Malhotra, eminent Physician and Senior Specialist and Consultant (Cardiology), Dr. Ram Manohar Lohia Hospital, Dr. P.D. Nigam, Professor of Cardiology and Head of the Department, Dr. Ram Manohar Lohia Hospital, Dr. M. Khalilullah, Director, G.B. Pant Hospital, Dr. N.S. Dixit, Head of the Cardiology Department, Batra Hospital, Dr. K. Banerji, MD, Professor of Medicine, Medical college, Jodhpur, Dr. C.E. Bhandari, Professor of Medicine, Medical College, Jabalpur, Dr. V.G. Nivasarkar, Professor of Medicine, Medical College, Gwalior, Dr. R.K. Sen, Sr.
Consultant, B.L. Kapur Hospital, New Delhi, a well known Physician and Cardiologist, Dr. S.K. Minocha, MD.
Physician & Cardiologist, Dr. Ram Manohar Lohia Hospital etc.
We would be surprised if many of these renowned Cardiologists who are MD, MRCP (Lond.) are not examiners for DM (Cardiology).
Indeed, many of their students after doing their MD in Medicine and after their post graduation go for further studies for the second post graduation in DM (Cardiology) under their direction.
We have no doubt in our mind that the Medical Council of India with the best of intentions due to fall in standards of education felt it necessary in the public interest to prescribe second post graduation in a super speciality i.e. DM (Cardiology) to be an essential qualification for the promotional post of Professor of Cardiology.
However, it must not be forgotten that there are many distinguished Physicians with specialisation in Cardiology, working as Professors of Medicine teaching students in different branches of Cardiology as a subject in various medical colleges throughout the country whose services are frequently called in as Consultants in cases of emergency.
There are also many distinguished Assistant Professors/Readers/Associate Professors of Medicine in such medical colleges in different States teaching Cardio 197 logy as a subject who have gained sufficient expertise and knowledge in different branches of Cardiology.
It would be rather unfortunate if such Assistant Professors /Readers / Associate Professors of Medicine merely because they are MD/MRCP in Medicine were considered to be ineligible for appointment to the post of Professor of Cardiology even though they may have the requisite teaching experience in many branches of Cardiology for the last 15 to 20 years in medical colleges.
In view of this, the expression 'five years teaching experience ' occurring in r. 5 of the Rules as well as the phrase 'with two years training in Cardiology ' in cl.
(b) of column 5 in serial No. 17 of Annexure II of the Rules must, in our opinion, receive a liberal construction.
We are inclined to the view that the experience gained by them while teaching students in different branches of Cardiology should be treated as sufficient to meet the requirements of r. 5 of the Rules as well as of cl.
We hope and trust that the Medical Council of India, Union Government and the State Governments, so also the State Medical Councils would give a second thought to the problem and try to evolve a solution to the problem by which the right of such persons to be considered for promotion to the post of Professor of Cardiology can be kept preserved, without allowing any fall in the standards of further education.
For the reasons stated, the appeals as well as the connected special leave petitions must fail and are dismissed.
There shall be no order as to costs.
S.L. Appeals & Petitions dismissed.

dataset_name: IN-Abs

summary:
% These appeals and the special leave petitions were directed against the judgment and order of the Andhra Pradesh Administrative Tribunal, quashing the panel of names prepared by the State Government under r. 8 of the Andhra Pradesh Medical & Health Service Special Rules, 1982 to fill up the promotional post of Professor of Cardiology as on 1st July, 1983, reckoning the teaching experience of all the Assistant Professors in that super speciality in order of seniority, holding that the Assistant Professors of Cardiology in different medical colleges in the State who had the requisite five years ' teaching experience under r. 5 of the Rules having the alternate qualification in cl.
(b) of Annexure II to the Rules were eligible for promotion as such, and directing the State Government to draw up a fresh panel after considering the claims of all such Assistant Professors of Cardiology treating them as possessing the requisite teaching experience in terms of r. 5 for the promotional post of Professor of Cardiology as on 1st July, 1983.
There were four vacancies in the post of Professor of Cardiology.
On 1st July, 1983, the State Government prepared a panel of all Assistant Professors of Cardiology in Government Medical Colleges in the State having the requisite teaching experience under r. 5 after obtaining the post graduate qualification as specified in the Annexure II, and included in the panel the names of Dr. G. Subramanayam, Dr. A. Rajagopala Raju and Dr. Soghra Begum, Assistant Professors of Cardiology, who had on the crucial date 1st July, 1983 five years ' teaching experience after obtaining their post graduation degree in DM (Cardiology) as enjoined by r. 5 read with the first proviso thereto, and by order dated the 17th August, 1983, promoted them to the post of Professor of Cardiology.
174 The respondents Dr. R. Murali Babu Rao and Dr. G. Sai Gopal then moved the Andhra Pradesh Administrative Tribunal assailing the impugned order of promotion, characterising the action of the State Government in the matter of computation of five years ' teaching experience after post graduation degree in DM (Cardiology) as being wholly arbitrary and irrational.
The appellant C.H. Umesh Chandra came up in appeal as the view expressed by the Tribunal prejudicially affected him.
He had obtained his post graduate degree in MD in Medicine in December, 1975 and his second post graduate degree in DM (Cardiology) in April, 1980.
In view of the fact that he had obtained his second post graduate degree in DM (Cardiology) in April, 1980, he sought to support the stand of the Government as he had a better chance of promotion to the post of Professor of Cardiology.
After these matters were heard and the judgment was reserved by this Court, a similar question came up before the Court in State of Orissa vs Dr. Sivsanker Lal Bajoria & Anr.
, Civil Appeal No. 4456 of 1986 by Special Leave granted to the State Government of Orissa against the judgment and order of the High Court, evolving a rule of substantial compliance, and therefore, these matters were re listed.
In the Civil Appeal No. 4456 of 1986, the Court issued notice to the Medical Council of India to clarify its stand as to the eligibility of Assistant Professors/Readers in Cardiology to the promotional post of Associate Professor/Professor in Cardiology and in particular to the import of the term 'two years special training ' within the meaning of Regulation 5(2)(b) of the Indian Medical Council Regulations, 1970, framed under section 33 of the .
The Court desired the Indian Medical Council to specify the particular institution where such training was imparted.
An affidavit sworn to by Assistant Secretary on behalf of the Medical Council of India was filed, placing its point of view.
Dismissing the appeals and the special leave petitions, the Court ^ HELD: The issue involved was of far reaching importance to the entire medical profession as similar problem was faced by the State Governments in promoting Readers / Associate Professors in a speciality to the post of Professor in that speciality in the medical colleges.
[179E F] In these cases, the entire controversy was due to the failure of the 175 State Government to give the benefit of the teaching experience gained by the Assistant Professors after they had obtained their post graduate degree in MD/MRCP in Medicine under cl (b) of Column 5 in serial No 17 of Annexure II.
[187G] Rule 4 of the Rules in terms speaks of the eligibility of such class of Assistant Professors of Cardiology for promotion to the post of Cardiology who possess five years ' teaching experience.
The expression 'teaching experience ' as defined in r. 5 speaks of 'teaching experience in the speciality concerned in a medical college or an institute recognised by the Medical Council of India after obtaining post graduate qualification as specified in Annexure II '.
The words used are 'after obtaining post graduate qualification ', it does not speak of the second postgraduate qualification.
Rule 5, therefore, takes in both the qualifications specified in clauses (a) and (b) of Column 5 in serial No. 17 of annexure II, namely, (a) DM (Cardiology) and (b) MD/MRCP in Medicine with two years ' training in Cardiology.
On the crucial date, 1st July, 1983, cl.
(b) was very much there and the Government was bound to consider the claims of the aforesaid respondents like other officers belonging to that class before drawing up a panel under r. 8.
There was no warrant for the submission that since under r. 9(2), an Assistant Professor with the requisite five years ' teaching experience after obtaining his second post graduate degree in DM (Cardiology) would have preferential claim over those having the qualification mentioned in cl.
(b) i.e. MD/MRCP in Medicine with two years ' training in Cardiology, the State Government was entitled to ignore the claims of the latter class altogether.
On its plain construction, r. 9(2) is a rule of preference and has, therefore, to be applied at the stage of making appointments to the post of Professor of Cardiology and not while drawing up a panel under r. 8.
The Government was obviously misled by the wrongful assumption (i) that since alternate qualification in cl.
(b) of Column 5 in serial 'No. 17 of Annexure II had been deleted by GOMS No. 789 dated 12th December, 1983, it was not necessary for it to consider the claims of the aforesaid respondents and others similarly situate in drawing up a list of eligible Assistant Professors of Cardiology, and (ii) that such officers were rendered ineligible by reason of r. 9(2) and, therefore, their claims needed not to be considered.
The Tribunal was, therefore, justified in quashing the impugned panel prepared by the State Government under r. 8 of the Rules and in directing the Government to prepare a panel afresh after considering the claims of all the Assistant Professors of Cardiology with five years ' teaching experience after their post graduation in MD/MRCP in Medicine with 2 years ' training in Cardiology.
[189C H; 190A B] 176 There was no substance whatever in the contention that the alternate qualification in cl.
(b) being in conflict with the recommendation of the Medical Council of India, must be deemed to have been replaced by implication and was non est w.e.f. 31st May, 1977.
The Government had no doubt the recommendations of the Council, conveyed by the letter of the Secretary dated 26th April, 1978, that after 31st May, 1977, for all teaching posts higher than Tutor in higher specialities i.e. Cardiology/Neurology/Gastro Enterology/Thoracic Surgery/ Neuro Surgery/Plastic Surgery/ Paediatric Surgery/ Urology, the candidates must possess the post graduate qualification in the speciality concerned i.e. DM/M.Ch.
after MD/MS or other equivalent qualification, as might be approved by the Council from time to time.
The letter also went on to say that the existing qualification MD/MS or an equivalent qualification with two years ' special training in a recognised training centre in the speciality concerned, would cease to be sufficient qualification for appointment to the aforesaid teaching posts from that date.
Nevertheless, the Government failed to appreciate that the recommendation of the Council was only recommendatory and could not override a rule framed under the proyiso to article 309 of the Constitution.
The panel had to be drawn up by the State Government strictly in conformity with the rules of recruitment made under the proviso to article 309 and not on the basis of the recommendation of the Council.
[190C F] As was manifest from the affidavit filed by the Indian Medical Council, the Council is only a recommendatory body.
Constituted under section 3 of the Act, the Indian Medical Council is an expert body intended and meant to control the minimum standards of medical education and to regulate their observance.
A fortiori, the recommendations made by the Council or the Regulations framed by it are only recommendatory and not mandatory.
It is not for the Council to prescribe qualifications for recruitment to posts of Professors.
Readers and Lecturers; it can only lay down broad guidelines therefor.
Such qualifications have necessarily to be prescribed by the framing of Rules under the proviso to article 309.
The right to be considered for promotion is a condition of service and it can only be regulated by a rule framed under the proviso to article 309.
The Medical Council in its affidavit accepted that there were no special guidelines laid down for Cardiology, and asserted that some Universities/Institutions might have prescribed the syllabus.
The contention of the State Government and the other appellants that the recommendations of the Medical Council as conveyed by the letter of the Secretary dt.
26th April, 1975, rendering Assistant Professors of Cardiology, having the alternate qualification of 177 post graduate degree in MD/MRCP in Medicine, ineligible for promotion to the post of Professor of Cardiology even though they had the requisite five years ' teaching experience, appeared to be wholly misconceived and unwarranted.
[190G H; 191E H; 192A] The present case was concerned with the meaning of the expression 'teaching experience ' occurring in r. 5 of the Rules, and with the class of officers who, after their appointment as Assistant Professors of Cardiology on having obtained post graduate degree in MD/MRCP had been teaching the subject Cardiology for years together.
Indeed, the alternate qualification specified in cl.
(b) of column 5 in serial No. 17 of Annexure II takes in this class of officers and makes them eligible under r. 5.
On the crucial date, 1st July, 1983, cl.
(b) was still there and the Government was bound to consider the claims of such officers before drawing up a panel under r. 8.
[193C E] Emphasis was laid by counsel for the State Government and other appellants on the words 'with two years training in Cardiology ' with the submission that none of the respondents had the requisite training.
The expression 'special training ' is defined in r. 7 as the work done by an Assistant Professor in the concerned recognised unit and exclusively devoted to the speciality.
The question then arises for the applicability of r. 7, there are two conditions to be fulfilled, firstly, there must be an institution set up either by the Medical Council of India or by the Government or Universities exclusively devoted to imparting teaching in the different courses of Cardiology, and secondly, such an institution should have been recognised by the Government.
There was no material on record to establish that there was any such recognised unit either in the State of Andhra Pradesh or elsewhere.
That apart, it could not be appreciated why the Associate Professors, Readers, Assistant Professors of Cardiology, teaching Cardiology in the medical colleges for years together, should not be regarded as having special training in Cardiology within the meaning of cl.
(b) of column 5 in the serial No. 17 of Annexure II.
Any other view would lead to a very anomalous situation.
It would be a travesty of justice if the officers belonging to the class like the respondents representationists Dr. R. Murali Babu Rao and Dr, G. Sai Gopal, Assistant Professors of Cardiology with five years ' teaching experience after their post graduation in MD/MRCP in Medicine as on the 1st July, 1983, were not empanelled by the State Govt.
under r. 8 to fill up vacancies in the post of Professor of Cardiology, even though they possessed the requisite qualifications under r. 5 of the Rules.
It must be remembered that the alternate qualification in cl.
(b), namely MD/MRCP in Medicine with two years ' training in 178 Cardiology was still there and it was not open to the Government to ignore the same merely because it was in conflict with the recommendation of the Medical Council of India, as conveyed in the letter of the Secretary dated 26th April, 1976.
[193F H; 194A E] There were many distinguished Assistant Professors/Readers/ Associate Professors of Medicines in the medical colleges in the different States, teaching Cardiology as a subject, who had gained sufficient expertise and knowledge in the different branches of Cardiology, and it would be unfortunate if such Assistant Professors/Readers/Associate Professors of Medicine were, merely because they were MD/MRCP in Medicine, considered ineligible for appointment to the post of Professor of Cardiology, even though they had the requisite teaching experience in the many branches of Cardiology for the last 15 to 20 years in the medical colleges.
In view of this, the expression 'five years ' teaching experience ' occurring in r. 5 of the Rules as well as the phrase 'with two years ' training in Cardiology ' in cl.
(b) of column 5 in serial No. 17 of Annexure II of the Rules, must receive a liberal construction.
The experience gained by them while teaching in different branches of Cardiology should be treated as sufficient to meet the requirements of r. 5 of the Rules as well as of cl.
The Court expressed the hope that the Medical Council of India, the Union Government and the State Governments as also the State Medical Councils would give a second thought to the problem and try to evolve a solution to the problem by which the right of such persons to be considered for promotion to the post of Professor of Cardiology could be kept preserved without allowing any fall in the standards of further education.
[196H; 197A D] State of Madhya Pradesh vs Km.
Nivedita Jain, ; and Union of India & Ors.
vs S.B. Kohli & Anr., , referred to.