D R SHAH Vs. STATE OF RAJASTHAN
LAWS(RAJ)-1967-4-5
HIGH COURT OF RAJASTHAN
Decided on April 28,1967

D R SHAH Appellant
VERSUS
STATE OF RAJASTHAN Respondents

JUDGEMENT

JAGAT NARAYAN, J. - (1.) THIS is a petition under Article 226 of the Constitution by Dr. DR. Shah at present Lecturer in Medicine, Ravindra Nath Tagore Medical College, Udaipur, challenging the appointment of Dr. B. P. Jain as Junior Specialist under the Rajasthan Medical and Health Service Rules, 1963, and for certain other reliefs. The writ petition has been contested on behalf of the State of Rajasthan and Dr. B. P. Jain.
(2.) THE relevant facts as appear from the material on record are these. Both Dr. D. R. Shah and Dr. B. P. Jain were Civil Assistant Surgeons Class I when Dr. Jain was temporarily appointed for a period of six months as Junior Specialist (Physician) under an order of the Government dated 17th October, 1962 (annexure 3 ). This appointment has been continued in a temporary capacity until today. THE position of Dr. Jain on the seniority list of Civil Assistant Surgeons Class I was at No. 97 and that of Dr. Shah was at No. 198. Two temporary posts of Junior Specialists (were advertised by the Rajasthan Public Service Commission under advertisement No. 3 of 1960-61 on 10-6-60 (annexure 18 ). THE qualifications prescribed for this post were as follows: - "m. B. B. S. with Post-graduate degree in Medicine of recognised Indian University or M. R. C. B. (Edinburgh or London) or 2 year's study in Medicine in Europe, U. K. , U. S. A. or Canada, (b) Must have practised independently for five years in Medicine as independent incharge of a ward at least in a big hospital of Grade I or II or incharge of Grade II Hospital including beds pertaining to this speciality. Pay and age same as for posts No. 3 and 5 respectively. House job or residentship shall not count towards experience. " Dr. Jain did not possess a post-graduate degree in Medicine of a recognised Indian University. He took the Fellowship in Medicine from the College of Physicians and Surgeons Bombay after passing an examination in March, 1959. The duration of this course is 3 years and only those possessing the degree of M. B. B. S. or holding the membership of the College of Physicians and Surgeons Bombay or other basic qualification recognised by the Medical Council of India were eligible for admission to this course. The following four doctors who were junior to Dr. Jain were promoted as Junior Specialists (Physicians) before him: - 1. Dr. S. N. Mathur on 16. 1-62 2. Dr. M S. Mathur on 16-1-62 3. Dr. R. A. Sharma on 16-1-62 4. Dr. Kushal Banerjee on 7-1-62 This was in all probability done because Dr. Jain did not possess a post graduate degree from a recognised Indian University. He was however promoted temporarily as a Junior Specialist by the order dated 17th October, 1962. Under the same order Dr. V. M. Bhandari was also promoted as Junior Specialist (Physician ). The petitioner was the next eligible doctor in order of seniority who held a post graduate degree in Medicine from the Rajasthan University. His case is that Dr. Jain was not eligible for appointment to the temporary post of the Junior Specialist on 17-10-62, when he was so appointed and that he should have been appointed in place of Dr. Jain. In June 1963 the Rajasthan Medical and Health Service Rules 1963 came into force Both the petitioner and Dr. Jain who held the posts of Civil Assistant Surgeons Class I became members of this Service. Under the proviso to rule 26 a vacant post could be filled temporarily by appointing thereto a member of the Service eligible for appointment to the post by promotion or by direct recruitment. The academic and technical qualifications of a Junior Specialist for direct recruitment are given under rule 11 as follows: (a) He must hold a degree in Medicine and Surgery of a University established by law in India, or a qualification recognised as equivalent thereto by the Government. (b) He must hold a post-graduate degree or diploma of a University established by law in India in the specified branch of medicine or surgery or a qualification of a foreign country recognised as equivalent thereto by the Government. Under rule 23 the persons enumerated in column 3 of the schedule are eligible for promotion to posts specified in column 1 subject to their possessing the minimum qualifications and experience specified in column 4. The qualifications and experience for promotion to the post of Junior Specialist is prescribed in this schedule run as follows: "three years service after post-graduation in the speciality or 8 years service, as C. M. S. with necessary post-graduate qualification. Note - (1) Necessary post-graduate qualification means a post-graduate degree or any other qualification recognised as equivalent by Medical Council of India. (2) Post-graduate Diploma will be equal to a post-graduate degree in such subjects in which such a degree is not awarded by any University. (3) Public Service Commission may relax the prescribed number of years of experience in case candidates with required experience are not available. " The contention of the petitioner is that Dr. Jain did not possess the qualification prescribed for direct recruitment under rule 11 as he did not hold a post graduate degree or diploma of a University established by law in India or a qualification of a foreign country recognised as equivalent thereto by the Government. His further contention is that Dr. Jain did not possess the qualification prescribed for promotion to the post of Junior Specialist under rule 23 read with corresponding item of the schedule as the Fellowship of the College of Physicians and Surgeons, Bombay is not recognised as equivalent to a post-graduate degree by the Medical Council of India. In support of this he has filed a copy of letter from the Secretary. , Medical Council of India, dated 29th February 1964 (annexure 12) which runs as follows: - "reference - your letter dated 13th February, 1964. You may please mention the subject of the qualifications granted by the College of Physicians and Surgeons of Bombay are not considered by the Council as equivalent to the MS & MD degrees of the Indian Universities. " He has also filed another letter from the Secretary, Medical Council of India dated 17-10-63 (annexure 14) which runs as follows: - "with reference to your letter No. BMA-65/ 62-63 dated 14th September, 1963, on the subject mentioned above, I am to state the F. C. P. S. (Med) (BOM) granted by the college of Physicians and Surgeons, Bombay is included in the First Schedule to the Indian Medical Council Act 1956 and recognised by this Council. The question of its equivalency to the post-graduate degree does not arise. The Council at its meeting held on 27th March, 1955 noted the opinion of the Executive Committee that these FCPS qualifications shall not be accepted as equivalent to post-graduate qualification (MS, MD etc.) of the Universities and other equivalent fellowships for purpose of teaching appointments. " The respondents relied on yet another letter of the Secretary, Medical Council (annexure 83) which runs as follows: - "please refer to your D. O. letter No. 1 (9) RPC/66 dated the 6th October, 1966. I am to state that the Medical Council of India at its meeting held on 27th March, 1965 noted the opinion of its Executive Committee that the F. C. P. S. qualification shall not be accepted as equivalent to post-graduate qualifications (M. S. and M. D. etc.) of the Universities and other equivalent fellowship for purposes of teaching appointments. As regards the equivalency of these qualifications for non-teaching appointments, I am to state that the matter is outside the purview of the Medical Council of India. " The above three letters were written by the Secretary to three different persons in reply to the queries made by them. In my opinion there is no difference in what is stated in these 3 letters. The Medical Council of India has laid down the minimum qualification for teaching appointments. That qualification is a post-graduate degree of an Indian University or an equivalent qualification. For the purpose of these appointments only the Medical Council passes resolutions from time to time holding some post-graduate diplomas to be equivalent to post graduate degrees of Indian Universities. So far as the F. C. P. S. of the Bombay College of Physicians and Surgeons is concerned the Medical Council does not recognise it as equivalent to a post-graduate degree of an Indian University for teaching appointments. For non-teaching appointments the minimum qualification prescribed is an M. B. B. S. degree of an Indian University or equivalent qualifications which are given in the schedule to the Indian Medical Council Act F. C. P. S. as well as M. C. P. S. of the Bombay College of Physicians and Surgeons are recognised as qualifications entitling one to practice as a medical practitioner and therefore to hold a non-teaching job. It is not within the purview of the Medical Council of India to equate post-graduate qualification for purposes of non-teaching appointments. It is thus quite clear that the qualification of F. C. P. S. (Medicine) held by Dr. Jain is not considered as equivalent to a post graduate degree of an Indian University by the Medical Council of India. The contention on behalf of the respondents is that the note to the schedule referred to above is only applicable to the alternative qualification mentioned in the schedule for the post of Junior Specialist namely "8 years service as C. A. S. with necessary post graduate qualification" and is not applicable to the first qualification namely "3 years service after post-graduation in the speciality" I am unable to accept this contention. If it were to be accepted then it would mean that any diploma whatever its duration and whatever its merit which is obtained after graduation qualifies a doctor for holding the post of a Junior Specialist provided he has put in 3 years' service after obtaining this qualification. But a similar qualification is not sufficient if it is obtained after 8 years' service as C. A. S. I have no doubt that the note is equally applicable to the qualification of post-graduation in both clauses. Only such postgraduate qualification makes one eligible for appointment as a Junior Specialist as is considered equivalent to the postgraduate degree of a University by the Medical Council of India. On 21-12-65 the Government passed an order recognising the F. C. P. S. qualification of the College of Physicians and Surgeons, Bombay, as equivalent to a post graduate qualification for non-teaching appointments in Rajasthan. This recognition however cannot help Dr. Jain as the Rajasthan Medical and Health Service Rules 1963 do not give power to the Government to recognise any qualification of an Indian institution as equivalent to a post-graduate degree or diploma of an Indian University. Under rule 11 (a) (i) Government have power to recognise a qualification as equivalent to a degree in Medicine and Surgery of an Indian University. Under rule 11 (a) (ii) the Government have power to recognise a qualification of a foreign country as equivalent to a post-graduate degree or diploma of an Indian University. But under rule 23 read with the schedule and the note appended thereto the Government have no power to recognise any post graduate qualification acquired in India as equivalent to a post graduate degree of an Indian University. There can be no doubt that the qualification of F. C. P. S. is a post graduate qualification. Further the Bombay Government recognises it as equivalent to a post graduate degree of an Indian University. But under the Rajasthan Medical and Health Service Rules 1963 this qualification cannot be regarded as equivalent to a post graduate degree of an Indian University for reasons which have been given above.
(3.) ANOTHER contention on behalf of the respondents is that Dr. Jain was appointed before the Rajasthan Medical and Health Service Rules 1963 came into force and his appointment is saved by rule 36 which runs as follows: - "repeal and Saving - All rules and orders in relation to matters covered by these rules and in force immediately before the commencement of these rules are hereby repealed: Provided that any order made or action taken under the rules and orders so repealed shall be deemed to have been made or taken under the provisions of these rules. " A similar rule contained in the Rajasthan Medical Service (Collegiate Branch) Rules 1962 came up for interpretation in Dr. (Miss) B. Joseph vs. The State (1 ). It was held that this rule is only applicable to an appointment made under some rule. When Dr. Jain was first appointed there was no rule relating to the appointment of Junior Specialists. Moreover the appointment was made in a temporary capacity for a period of six months. It was extended from time to time. After the Rajasthan Medical and Health Service Rules 1963 came into force the temporary appointment could not be continued as Dr. Jain did not possess the necessary academic qualifications laid down in them for the post of a Junior Specialist. Thus no question of his appointment being saved from the operation of the Rules arises. He was not appointed substantively as a Junior Specialist before the Rules came into force. The petitioner became a member of the Rajasthan Medical Service (Collegiate Branch) when he filed the present writ petition. It was contended on behalf of the respondents that he had no right to maintain the present writ petition. The appointment held by Dr. Jain is a public appointment. It was held in Dr. (Miss) Joseph's case (1) that a private person may apply for quo-warranto in the matter of a public office without having a personal interest in the appointment. The petitioner is thus entitled to maintain the present petition. He has of course claimed some other reliefs also which will be dealt with here presently. Another contention was that the petition was belated. As Dr. Jain is still holding the appointment of Junior Specialist without having the requisite qualification prescribed under the Rules the petition cannot be considered to be belated so far as the relief of quashing his appointment is concerned. The petitioner is not entitled to any other relief claimed in the petition. The notification dated 21-12-65 issued by the Government of Rajasthan has not the effect of making Dr. Jain eligible for appointment as Junior Specialist under the Rajasthan Medical and Health Service Rules 1963, as has already been held above. Dr. Jain's appointment as Junior Specialist with effect from 17-10 62 cannot be quashed as when it was made the Rajasthan Medical and Health Service Rules 1963 had not come into force. No other rule was in force under which the appointment was illegal. The appointment became illegal when the Rajasthan Medical and Health Service Rules 1963 came into force. But the appointment cannot be quashed with effect from the date of coming into force of those Rules because no writ petition was filed within a reasonable time of the coming into force of those Rules. Nor can the petitioner be considered for promotion as a Junior Specialist, in the Rajasthan Medical and Health Service with effect from the date of coming into force of the Rules. For reasons given above I hold that the continuance of Dr. B. P. Jain as a Junior Specialist is illegal in view of the Rajasthan Medical and Health Service Rules 1963 and issue a direction to the State Government to revert him from the post of Junior Specialist within three months of the date of this order unless the Rules are in the meantime suitably amended. ;


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