BERI, J. - (1.) THIS is a petition under Art. 226 of the Constitution of India by two teachers of S. M. S. Medical College, Jaipur. They have prayed for an appropriate writ quashing the order of appointment of Dr. Tej Prakash Bharadwaj as Professor of Pathology in the S. M. S. Medical College, Jaipur.
(2.) CIRCUMSTANCES which have given rise to this controversy as are available from the pleadings and documents of the parties may be briefly stated. Dr. R. K. Goyal, the then permanent incumbent of the post of Professor of Pathology in the S. M. S. Medical College, Jaipur was to retire on 3rd May, 1959. To fill the ensuing vacancy the Rajasthan Public Service Commission (hereinafter called "the Commission") issued an advertisement inviting applications upto 22. 4. 1959. In this advertisement the qualifications required were a postgraduate degree in Pathology and teaching experience of 5 years as a reader or lecturer in Pathology in a medical college. The age limit prescribed was 45 years relaxable up to 48 years. In response to this, it appears only three applications were received. They were from the two petitioners before us Dr. Andleigh and Dr. Sarin and one Dr. (Miss) Patil. The Commission wrote to the Government on 27th May, 1959 that the response to the advertisement was inadequate; Dr. Miss Patil being over-age and Dr. Sarin being out of India and enquired whether it was proposed to make a departmental promotion or re-advertise the post relaxing the age limit in order to attract more candidates. The Commission further informed the State Government that if departmental promotion was the course to be adopted the service records of the petitioner, Dr. Andleigh and Dr. Sarin might be sent by the State for scrutiny. It appears that the State of Rajasthan ascertained the views of Dr. R. K. Goyal, Retired Professor of Pathology, S. M. S. Medical College; Jaipur, Dr. R. M. Kasliwal, Principal and Controller, S. M. S. Medical College. Jaipur and Dr. B. N. Sharma, Director, Medical and Health Services, Rajasthan, regarding the work of the petitioner No. 1 Dr. Andleigh. These reports which are on record were extremely unfavourable to Dr. Andleigh. Presumably, therefore, the Commission issued another advertisement inviting applications for the post of Professor of Pathology for S. M. S. Medical College, Jaipur. According to this advertisement, the applications were to reach by the 24th November, 1959. The qualifications required were the same as in the earlier advertisement, but the restriction of age limit was eliminated and it was mentioned that retired persons might be taken on contract basis. This advertisement added that those who had already applied need not apply again. In answer to the second advertisement four fresh applications were received. The Commission assisted by Dr. Manglik, as an expert on the subject, interviewed on 15th January, 1960 the petitioners and a candidate from Amritsar. Another interview followed on the March, 1960 in which three applicants appeared. According to the Commission Dr. Tej Prakash Bharadwaj, the respondent No. 4 (hereinafter referred to as Dr. Bharadwaj) topped the list in order of preference, Dr. Sarin was placed fourth and Dr. Andleigh last. The Commission accordingly recommended to the Government that Dr. Bharadwaj be appointed Professor of Pathology. A doubt having arisen as to whether Dr. Bharadwaj possessed five years' teaching experience or not, the Government referred back the matter to the Commission for examining his case from this angle. Enquiries were made in this direction from Dr. P. N. Warn of the Medical College, Agra and it was found that Dr. Bharadwaj did have 5 years' teaching experience. The Commission by its confidential letter dated 20 May, 1962 Ex. E (1) informed the Government accordingly and by a notification dated nth July, 1960, the Governor was pleased to appoint Dr. Bharadwaj as Professor of Pathology in the S. M. S. Medical College, Jaipur. Challenging the aforesaid selection and appointment of Dr. Bharadwaj the petitioners presented this writ petition in August, 1960. We have heard Mr. Tyagi, the learned counsel for the petitioners, the learned Advocate General for the State and Shri N. M. Kasliwal, learned counsel for Dr. Bharadwaj. The learned counsel for the petitioners contended that there was deep-rooted prejudice against Dr. Andleigh, the first petitioner, in official circles. As evidence of this prejudice he pointed out that firstly the officiating opportunity that was afforded to Dr. Andleigh by the Government was delayed in its implementation. Later, when Dr. Andleign's promotion came to be considered the three reports from the Director, the Principal and the retired Head of the Pathology Department were created to mar Andleigh's prospects. He next contended that according to Ordinance 65 framed under the University of Rajasthan Act, 1946, the minimum qualification for a Professor of Pathology is that he should have post-graduate degree of a recognised university or equivalent post-graduate diploma in the subject with experience of teaching the subject for 5 years to under graduate. According to the recommendations of the Medical Council of India also this was the required standard before a person was qualified to be a professor in Pathology. On the above ground it is urged that Dr. Bharadwaj, while he fulfils the academic attainments requisite for this post, lacks teaching experience and is, therefore, no: qualified to be appointed as a Professor or Pathology, Appointing Dr. Bharadwaj to the post when he does not possess the requisite teaching experience is violation of the fundamental right guaranteed under Art. 14 and 16 of the Constitution of India of those candidates who might have applied but did not do so becauses they did not have that experience. His appointment according to the learned counsel ought to be, therefore, quashed. The learned Advocate General argued that assuming without admitting that Dr. Bharadwaj did not strictly fulfil the required qualification, the petitioners were not entitled to any writ because they have no legal right to demand enforcement of Ordinance 65 of the University, it is the University whose business it is to see that the Ordinance has been complied with. He has further argued that the petitioners on their own showing have made use of confidential information in an unauthorised manner and have not come to Court with clean hands and, therefore, on that account as well they are disentitled to get the relief prayed for. He also submits that due to dearth of qualified people even the Medical Council has approved that liberal view should be taken in matters such as these and has recognised research work equal to teaching experience; the terms of the Ordinance, therefore, should not be taken too rigorously. Lastly, he contends that a matter of fact Dr. Bharadwaj does posses the requisite qualifications of having five year's teaching experience. Shri N. M. Kasliwal, the learned counsel for Dr. Bharadwaj drew our attention to the brilliant academic record of his client and submitted that he was a man of outstanding attainments and naturally received the highest preference at the hands of the appointing authorities without any question of malice or ill will against the petitioner, Dr. Andleigh, as erroneously alleged in the petition. We have carefully examined the argument of the alleged prejudice against Dr. Andleigh. It is not disputed that Dr. Andleigh ultimately took over charge of the duties of the last incumbent as professor of pathology. Assuming that there was some delay in implementing the orders of the Government it does not warrant any conclusion of prejudice. In so far as the reports from Dr. B. N. Sharma. the Director of Medical and Health Services, Jaipur, Dr. R. M. Kasliwal, Principal and Controller of S. M. S. Medical College, Jaipur and Dr. R. K. Goyal, retired Professor of Pathology, S. M. S. Medical College, Jaipur are concerned when they are read with the letter from the Commission dated 27. 5. 1959 it is abundantly clear that the views from these responsible officers connected with the work of Dr. Andleigh were necessary to consider the question of departmental promotion. In fact if these officers had lacked the courage to express their candid estimate of Dr. Andleigh's work and worth they would have failed in the discharge of their public duty. The learned counsel's argument that it smacked of an official clique, in our opinion, is utterly unfounded. The dates of these reports read with the date of the Commission's letter after the first advertisement completely demolish the argument. In our opinion Dr. Andleigh was unjustified in imputing motives to responsible officers of the Government without due sense of his own responsibility in the matter. The questions which then emerge for consideration may be formulated as follows: (i) What is the correct meaning to be given to the language of Ordinance 65? (ii) Whether Dr. Bhardawaj fulfilled the qualifications specified in Ordinance 65? and (iii) Whether the petitioners are entitled to any relief even if there has been noncompliance with Ordinance 65?
(3.) SEC. 30 of the University Act enjoins that every college shall satisfy the University that the number and qualifications of its teaching staff in each subject are adequate, and in accordance with the rules prescribed by the University. The material portion of Ordinance 65 reads: - "the following shall be the minimum qualifications for teachers of various stages of University education: - FACULTY OF MEDICINE, PHARMACEUTICS & VETERINARY SCIENCE. (M) For teachers in Medical Colleges for M. B. B. S. Course; - II. Anatomy, physiology, pathology including Bacteriology: 1. Professor or Additional Professor: Post-graduate degree of a recognised University or an equivalent post-graduate diploma in respective subject, with experience of teaching the subject for 5 years to upper-graduates. 2. Reader or Asstt-professor: Post-graduate degree of a recognised Uni versity or an equivalent post-graduates diploma in respective subject, with experience of teaching the subject for 3 years to under-graduates. 3. Lecturer: Post-graduate degree of a recognised Univer sity or an equivalent post-graduate diploma in respective subject. 4. Tutor: M. B. , B. S. of a recognised University with experience of teaching the subject for 2 years. 5. Demonstrator: M. B. , B. S. of a recognised University According to the aforesaid Ordinance, therefore, a person in order to be qualified for the post of a professor or Additional professor in pathology must hold a postgraduate degree of a recognised University or an equivalent post-graduate diploma in pathology with an experience of teaching the subject of pathology for 5 years to under-graduates. Mr. Tyagi contended that before a person acquires teaching experience he must have acquired a post-graduate degree of a recognised University and it is only thereafter that he should further have an experience of teaching the subject of pathology for a period of 5 years to under-graduates. He seeks to draw support for this argument from the terms of the first and the second advertisement issued by the Commission in which it was stipulated that a candidate was required to have teaching experience of 5 years as a Reader or Lecturer in pathology in a Medical College. He contends that a person cannot be a Reader or Lecturer in a medical college unless he possesses a post-graduate degree' of a recognised University. Therefore, he urges that on a proper interpretation of the aforesaid clause of Ordinance 65 it was necessary to first hold a post-graduate degree and then acquire 5 years' teaching experience in the subject. We are unable to agree with this interpretation. What is required is that a person before he is eligible for the post of a professor in pathology should possess a post-graduate degree and should in addition to this an "experience of teaching the subject for 5 years to under-graduates. " What is insisted, therefore, is an experience of teaching the subject of pathology for a period of 5 years and to undergraduates as a qualification in addition to a post-graduate degree. The clause does not insist on the status of the teacher as a Reader or Lecturer before he acquires the teaching experience. It will be noticed from the hierarchy of teachers, contemplated by the above University Ordinance itself, that besides the Reader and the Lecturer there are the Tutor and the Demonstrator. What is essential is that a candidate for the post of professor of Pathology should have the experience of teaching i. e. of imparting knowledge to the students through a reasonably regular course, in the subject of pathology and the students must be of the undergraduate classes. If a person, therefore, has had the experience of teaching the subject of pathology to under-graduates for a duration of 5 years and such a person also possesses the requisite academic qualifications he would in our opinion be eligible for post of a professor or additional professor in pathology. Regarding the second question it will be useful to chronologically tabulate the academic degrees and experience of Dr. Bharadwaj. He took his degree of M. B. B. S. (Agra) in 1951. From June, 1951 to June, 1952 he was a House Physician. From 1. 7. 1952 to 30th June, 1924 Dr. Bharadwaj was a Resident Pathologist and Demonstrator in the Agra Medical College. He took his degree of M. D. in 1954 from Agra. From 3rd August, 1954 to 7th May, 1955 Dr. Bharadwaj was Assistant Research Officer in the Medical College, Agra. He took over charge as an Assistant Professor of Pathology at the T. N. Medical College, Bombay on 9th May, 1955 which post he was holding when he applied to the Commission in response to the second advertisement. Mr. Tyagi has for the purpose of examining the teaching experience of Dr. Bharadwaj divided it into three periods: - (i) From 1951 to April, 1954. (ii) From April, 1954 to May, 1955. (iii) From May, 1955 to 24th Nov. , 1959. Mr. Tyagi contends that because Dr. Bharadwaj did not possess a post-graduate degree until April, 1954 any experience as a demonstrator which he may have acquired does not fulfil the requirements of the Ordinance and must be ignored. He assails the second period on the ground that to work as an Assistant Research Officer is not to have teaching experience and, therefore, this period should also be excluded and then Mr. Tyagi contends that during the third period which is less than 5 years we should also exclude the period of 15 months leave which Dr. Bharadwaj took for the purposes of his studies out of India. ;