KASLIWAL - (1.) SPECIAL leave granted.
(2.) THESE appeals by Dr. Arun Kumar Agrawal (appellant) and the State of Bihar are directed against the Judgment of the Patna High Court dated 20/12/1990. The dispute relates for an appointment on the post of Assistant Professor in Neurosurgery in the Patna Medical College and Hospital, Patna in pursuance to an advertisement dated 19- 12-1987. The Selection Committee prepared a panel on 4-7-1988 Which was approved by the State Government on 26-9-88. In the aforesaid panel the appellant was placed at No. 1, Dr. Chandra Shekhar Kashyap at No. 2. Dr. Shankar Bhuwan Prasad at No. 3 and Dr. Chandra Mohan Jha at No. 4. Dr. Chandra Mohan Jha filed a writ petition in the High Court challenging the above panel on grounds inter alia that Dr. Agrawal, Dr. Chandra Shekhar and Dr. Shankar Bhuwan Prasad placed above him in the, panel did not fulfil the minimum eligibility criteria laid down in the advertisement for appointment to the post of Assistant Professor. Neurosurgery. His contention was that he ought to have been placed at No. 1 and he alone was eligible for being appointed as Assistant Professor, Neurosurgcry in terms of the advertisement. It may he mentioned at this stage that the controversy before us is between the appellant and Dr.Chandra Mohan Jha, respondent No.5.In order to appreciate the controversy it would be proper to reproduce the relevant revisions of the advertisement as translated in English and extracted in the Judgment of the High Court :- Clause 2 (C): "For the post of Assistant Professor and Registrar it will be essential for the candidate to have obtained in the same speciality for which the application is being made, M.D., M.S., F.R.C.S. (U.K.), M.R.C.O.G. (U.K.) or American Board of speciality or any other post graduate qualification, considered by the Medical Council of India,as equivalent to the aforesaid degrees. Postgraduate qualification obtained from the U. K. after 11/11/1976 shall not be granted recognition". Clause 3 "For Assistant Professor:- (a) Resident/ Registrar in the same speciality or officers having worked on the two posts in an educational hospital, having obtained recognition from the Medical Council of India for conducting M.B.B.S. course, alone can apply (b) Service on any other accepted/ acknowledged teaching post (Jr. Surgeon/Jr. Physician) in the same subject for which the application is being made shall be considered equivalent to Registrar/ Resident. (c) In addition to the other conditions Resident/ Registrar in the concerned subject or medical officers having a minimum of three years experience on the two posts shall alone be eligible to apply. This, however, shall not be essential for Radiology, Skin & V. D., Anaesthesia, Neurology, Neurosurgery. Plastic Surgery or any speciality to be constituted in future, nor shall it be essential to obtain the prescribed minimum of 15 points for being posted in these subjects. In these subjects, however, in case one or more than one such candidates are available who have obtained three years' teaching experience in the concerned speciality, then in that situation, the Medical Officers having such experience shall be entitled to foremost consideration for appointment and they shall be appointed although they might have obtained less points than those candidates who do not possess three years teaching experience". Clause 3(f) (Cha): "It is essential to obtain 15 points for appointment to the post of Assistant Professor, however, for the specialities enumerated in the aforesaid clause 3 the minimum point shall be 6. In case, candidates obtaining the aforesaid points are not available in the desired number then the Government, in order to f ill up the vacancies, shall have the right to relax the minimum points". Clause 18: "For the post of Registrar and Resident Doctor in the units (specialities) of Cardiology, Cardiotheracic Surgery, Neuro Surgery. Gastro Entrology, Paediatric Surgery and Kidney in addition to the necessity of fulfilling the conditions, contained in clauses 4 and 6 respectively, preference shall be given for working experience in the concerned subject". Clause 19: "For appointment to the post of Assistant Professor in the aforesaid major super specialities, the degree and the teaching experience in the related basic (parent) subject as enumerated in clause 3 will be essential. However those having degrees, research work or working experience shall be given preference". The appellant passed in M.B.B.S. in 1977, did his internship in all subjects in 1977-78, one year's housemanship in general surgery in 1978-79 and another term of one year paid housemanship in Neurosurgery. The appellant opted for M.Ch. five years degree course in 1980. He passed M.Ch. Part I University examination in General Surgery in 1982, M.Ch. Part-II University Examination is Basic Neuro Science in 1984 and M.Ch. Part III University Examination in Clinical Neurosurgery in 1985. He entered the State Health Services in 1983 and was posted on study reserve post in the department Neurosurgery at Ranchi Medical College. He was posted at Hilsa block in 1985 and deputed to do full work as Resident Casualty Neuro Surgeon in September, 1987. Dr. Chandra Mohan Jha passed his M.B. B. S. in 1974 and M. S. (General Surgery) in 1979. He joined Bihar Health Services through Public Service Commission on 20/04/1978 and remained in rural services up to 1983. He worked as Resident Surgical Officer (General Surgery) including Neurosurgery at DMCH Lahera Sarai from 23-8-83 to 26-9-86. He was then posted as Resident Surgical Officer (Neuro Surgery) at Patna Medical College Hospital, Patna from 27-9-86 till the last date of.making application i.e. 31-1-1988. It is not necessary to mention further postings as we are concerned only up to the date of making application.
(3.) THE State Government in its counter-affidavit filed in the High Court inter alia stated that the appellant had post-graduate qualification of M.Ch. in Neurosurgery and research work and working experience in Neurosurgery and, therefore, he got preference vide clause 19 of the advertisement. Dr. Chandra Mohan Jha, respondent No. 5 neither had post-graduate degree, nor three years teaching experience in the subject i.e. Neurosurgery and, therefore, he was placed at SL. No. 4 of the merit list. It was also stated that the course of M.Ch. in Neurosurgery was being run only in the Rajendra Medical College, Ranchi, which the State Government recognised, and, therefore, the allegations of the writ petitioner (respondent No. 5) that the degree obtained by the appellant was not recognised was baseless and incorrect. The High Court held that according to the various clauses of the advertisement the requirements for the post of Assistant Professor in Neuro Surgery could be broadly classified under three heads. The first related to the group to which the applicant must belong and that was confined to the cadre of the Medical Officers of the State Health Service and Junior Teachers and Medical Officers working in the erstwhile private medical colleges. The second condition related to the academic qualification required and according to that the candidate must have a post graduate degree in the same clinical subject, in which he had applied for the post of Assistant Professor. The High Court illustrated that a candidate for Assistant Professorship in Medicine must have a M. D. degree in Medicine; a candidate for Assistant Professorship in general surgery must have a M.S. degree in general surgery and a candidate for Assistant Professorship in Neuro Surgery must have in Neuro Surgery a post graduate degree. The third condition related to experience and called for a careful consideration. The High Court came to the conclusion as per sub-clause (c) of clause 3 that with the exception of Neuro Surgery and six other clinical subjects, a candidate in all other subjects had to have three years minimum teaching experience in the same clinical subject. Further, in the clinical subject of Neurosurgery and six other subjects, there was no minimum period of time attached to it but the only condition was that he ought to have been working as a Resident/ Registrar in the subject of Neurosurgery the other six, as the case may be. While construing the two provisos of sub-clause (c) of clause 3, the High Court found that a candidate for Neurosurgery having teaching experience for three years would receive the foremost consideration and shall be offered appointment. The High Court further held that clauses 2 & 3 of the advertisement were to be understood without involving any distinction of speciality, parent speciality and super speciality. The said clauses treated all the clinical subjects at par and the requirements contained therein applied to each subject. The High Court found the appellant eligible for the post of Assistant Professor in terms of the advertisement. However, it held that the appellant secured 14 points while the respondent No. 5, 28 points and as such the appellant was not entitled to any preference.;