- (1.) These three appeal (Civil Appeal Nos. 1818-1819 and 1820 of 1968) with certificate of fitness presented by Dr. Ram Pal Chaturvedi are directed against a common Judgment of the Rajasthan High court and as they raise common questions, they are being disposed of by one Judgment. Civil Appeal No. 1818 of 1968 is concerned with the challenge to the appointment of Dr. D. G. Ojha as Principal of Sardar Patel Medical College, Bikancr. He was appointed a Professor of Surgery and Officiating Principal of the said College on 2/03/1964. At the time of his appointment, he was officating as Director of Medical and Health Services, Rajasthan at Jaipur. Civil Appeal No. 1819 of 1968 is concerned with the challenge to the appointment of Dr. P. D. Mathur on 13/07/1965 as Professor of Surgery and Officiating Principal of Rabindra Nath Tagore Medical College, Udaipur. This order of appointment was subsequently superseded and Dr. Mathur was appointed as Professor of Surgery and Principal of Rabindra Nath Tagore Medical College, Udaipur with effect from the date of his taking over charge. It may be pointed out that Dr. Mathur's appointment as a Professor of Surgery was not challenged either in the High court or before us and his appointment as Principal alone was assailed in this court. Civil Appeal No. 1820 is concerned with the challenge to the appointment of Dr. Rishi dated 28/07/1966 as Principal of Medical College, Jodhpur. The appointment was made on a purely temporary and adhoc basis till further orders. On 31/12/1966, this order was partially modified in so far as Dr. Rishi's remuneration is concerned, but his appointment as Professor of Surgery and Principal of Medical College was re-affirmed to be on a purely temporary and adhoc basis. The challenge to these three appointments by means of writ petitions failed in the Rajasthan High court and the present appeals are directed against the common order of that court. In the High court, it was common ground between the parties that Dr. Ojha, Dr. Rishi and Dr. Mathur did possess academic qualifications prescribed by the University Ordinance and it was also not disputed there that these respondents had acquired the qualifications prescribed by Rule 30 (4) of the Rajasthan Medical Service (Collegiate Branch) Rules 1962 (hereafter called the Collegiate Branch Rules). The High court made the following observations in the impugned order:- "We would, however, observe that Rule 30 (4) empowers the State government to make only a temporary or officiating appointment and the appointments of Dr. Ojha, and Dr. Rishi will be deemed to be temporary or officiating even though these words may not have been used in the orders of their appointments as Professors of Surgery. Learned Advocate General has also conceded that the government cannot make permanent appointments under Rule 30 (4) and the omission of the words 'temporary' or 'officiating' in the orders was by mistake. It is, therefore, not necessary to pursue the matter any further as these appointments will be considered only as temporary or officiating. " These observations deserve to be borne in mind while dealing with the present appeals. The High court further took the view that the qualifications relating to teaching experience were directory and not mandatory and in view of the fact that the University was not objecting to the impugned appointments, that court did not consider it proper, in its judicial discretion, to interfere in proceedings for quo-warranto at the instance of the appellant. In this connection, it was observed that the breach of the relevant Ordinance No. 65 could have afforded a ground for the University to withdraw affiliation of the Colleges concerned, but it was not open to the appellant to found his claim on this grievance.
(2.) In this court, the question raised principally centres round (lie validity and effect of the proviso to sub-rule (4) of Rule 30 contained in Part VIII of the Collegiate Branch Rules. These rules were made by the governor of Rajasthan under Article 309 of (the Constitution of India and were duly published in the Rajasthan Gazette (Extraordinary) dated 5/11/1962 and came into force with effect from the date of their publication. The argument canvassed before us was that these rules could not override the provisions of Ordinance No. 65 made under the University of Rajasthan Act of 1946. This Ordinance lays down the minimum qualifications for teachers of various stages of University Education in the affiliated Collegess. Pan VIII deals with the Faculty of Medicine etc. , and accordingto paragraph (A) (3) , teachers in Medical Colleges for M. B. B. S. and Post-Graduate Courses must possess the special academic qualifications and teaching experience prescribed therein. The requisite qualification by way of teaching experience prescribed for Professors/additional Professors/associate Professors in Surgery is, to reproduce the language of the Ordinance, "at least five years as Assistant Processor or Reader or Lecturer in a Medical College. " The minimum qualifications for Principals of affiliated Colleges in the Faculty of Medicine etc. , are prescribed in. Pact X (B) (3) and they read as under: "Master's Degree or equivalent Post-Graduate qualification or a higher one in one of the branches in which the College is affiliated with a minimum professional experience of 20 years, of which at least 10 years must have been spent as a teacher of Post-Graduate Classes and 5 years in administrative work. "
(3.) We may now turn to the Collegiate Branch Rules and examine the appellant's argument. These Rules framed under Article 309 of the Constitution for regulating the recruitment to posts in, and the conditions of service of persons appointed to, the Rajasthan Medical Service (Collegiate Branch) directly govern the impugned appointments and their binding character is beyond question. Rule 6 providing for the composition and strength of the Rajasthan Medical Service (Collegiate Branch) lays down that the Service shall consist of two wings viz Clinical and non-Clinical and the right of promotion shall be confined to each wing. The nature of conditions included in each wing are as specified in Column 2 of the Schedule attached to the Rules. Procedure for promotion is dealt with in Part V of these Rules. Rule 23 provides that the persons enumerated in Column 4 of the Schedule shall be eligible, on the basis of seniority-cum-merit, for promotion to posts specified in Column 2 subject to their possessing minimum qualifications and experience as laid down by the Rajasthan University for the teaching staff in Medical Colleges. In selecting candidates for promotion, regard is to be had to six factors mentioned in sub-rule (2) which include, inter alia academic qualifications and experience. In the Schedule in the non-Clinical wing, the selection posts consisting of Professors and Additional Professors are to be filled 100 per cent. by promotion from Readers. There is nothing specific in this Schedule in regard to the posts of Principals and these rules do not provide specifically for their appointments. Rule 30, on the basis of which arguments were principally addressed in these three appeals, may now be reproduced in extenso : "30.Temporary or officiating appointments: (1) A temporary vacancy in a Senior or Selection post, may be filled by government by appointing thereto in an officiating capacity an officer whose name is included in the list prepared under Rule 24 (3) or in the lists under sub-rules (2) and (3) of Rule 23 : Provided that till the preparation of the first list or in case the list is exhausted, a vacant post may be filled by government by appointing thereto a member of the Service eligible for appointment to the post by promotion or by appointing thereto temporarily person eligible for appointment by direct recruitment to the service under the provisions of these Rules. (2) A temporary vacancy in the Junior posts may be filled by government by appointing thereto temporarily a person eligible for appointment by direct recruitment to the service under the provisions of these Rules. (3) No appointment made under sub rules (1) and (2) above, shall be continued beyond a period of six months without referring it to the Commission for their concurrence and shall be terminated immediately on their refusal to concur. (4) Notwithstanding anything contained in sub-rules (1) or (3) above or any other provisions in the rules, any selection or senior posts falling vacant may be filled in temporarily by appointment of any Specialist (Jr. or Senior) in the service of the State, who is a post-graduate and has teaching experience and practice in the specialty, for such periods as are required by the University Ordinance for the time being in force on the date of such appointment : Provided that:- Two years of service rendered in the speciality shall be reckoned as equivalent to one year teaching experience gained in the Specialty. "sub-rule (4) , it may be pointed, was added on 22/08/1966 with retrospective effect during the depending of the writ petition in the High court, with the result that the writ petitions were allowed to be amended so as to include a challenge to the validity of this amendment. The amendment was assailed on the grounds of mala fides and unconstitutional discrimination. The validity of the retrospective operation of this sub-rule was not questioned before us by Shri Gokhale, though a lukewarm challenge was suggested before the close of the arguments on the grounds of mala fides. It may be noted that the requirement of teaching experience as laid down in the University Ordinance also finds place in sub-rule (4) of Rule 30 as added in 1966 and it is only the proviso which has the effect of modifying to some extent this condition. The narrow question requiring consideration therefore is whether the proviso, according to which two years of service rendered in the specialty is to be reckoned as equivalent to one year's teaching experience gained in the speciality) must) as contended on behalf of the appellant, yield to the requirement in the Ordinance which prescribes the minimum qualification of teaching experience and, therefore, must be ignored. We are unable to uphold the contention. The Collegiate Branch Rules having been made pursuant to the power conferred by Article 309 of the Constitution, they must be given full effect subject to the provisions of any Act made by the appropriate Legislature regulating the recruitment and conditions of service of persons appointed to the Rajasthan Medical Service (Collegiate Branch). Such Act need not specifically deal with the aforesaid Medical Services but it must be an Act as contemplated by Article 309 by or under which provision is made regulating the recruitment and conditions of service taking within its fold the said Medical Services.;