KAN SINGH, J. - (1.) THIS is a writ petition under Art. 226 of the Constitution challenging a decision of the Rajasthan Public Service Commission whereby the petitioner's candidature for direct recruitment for the post of Junior Specialist in Ophthalmology was rejected. The petition raises a question regarding the interpreta-tion of Rule 11 of the Rajasthan Medical and Health Service Rules, 1963, hereinafter to be referred as "the Rules" read with the Schedule appended thereto.
(2.) THE petitioner Dr. Joshi obtained his M. B. B. S. in the year 1955. He entered Government service as Civil Assistant Surgeon on 6 9-57. He obtained the post graduate Diploma in Ophthalmology from the Aligarh Muslim University in the year 1967. He obtained his M. S. in Ophthalmology in May, 1970 On 7 9 70 the petitioner was appointed as a Junior Specialist in the speciality of ophthalmology for a period of six months. This appointment was continued by subsequent extensions from time to time. On 22-3-70 he was appoined as a Junior Specialist on officiating basis pursuant to a list prepared by a Departmental Promotion Committee in accordance with rule 24 (3) of the Rules. The Rajasthan Public Service Commission invited applications for five posts of Junior Specialists in Ophthalmology by its advertisement No. 12/72-73. Of these 5 posts one was reserved for Scheduled Castes and Schedule Tribes. This advertisement was corrected by a corrigendum No. 6/74 75 and it was mentioned in the corrigendum that the total number of posts to be filled would be 2, one of which would be for a Scheduled Caste candidate. The petitioner Dr. Joshi had applied for the post. By a communication, Ex. 7 on record, the petitioner was told that he was not eligible for the post as he was lacking the prescribed experience. It is this Ex. 7 which is the subject matter of challenge in the present writ petition. Besides this the petitioner has questioned the filling of vacancies by promotion against the promotion quota, but as at the time of hearing this contention was abandoned by learned counsel for the petitioner, I need not make any further reference to it. The writ petition has been opposed by the respondents. It is denied that the decision of the Rajasthan Public Service Commission conveyed in Ex. 7 was invalid or erroneous on any of the grounds taken by the petitioner. The short question that, therefore, falls for consideration is whether the petitioner fulfils the requisite qualifications for the post of a Junior Specialist for direct recruitment. I may read the relevant rules according to which the question has to be determined. Part III of the Rules relates to recruitment. Rule 11 is about the academic and technical qualifications and I may read the relevant portion of this rule : R. 11. Academic and Technical qualifications - A candidate for direct recruitment to the post specified in the Schedule shall, in addition to such experience as is required, possess the following qualifications - (a) Senior & Junior specialists - (i) 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; (ii) 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; and (iii) must possess a working knowledge of Hindi written in Devnagri script. . . . . . . . . . . . . . . . " The post of a Junior specialist is a senior post under the Schedule and (he relevant entry therein is as follows - Designation of post Method of recruitment with percentage If by promotion a post from which promotion will be made Qualifications and experience for promotion Qualifications Recruitment and experience marks for direct recruitment 1 2 3 4 5 6 Senior posts - Junior Specialist 1. 100% by promotion till the end of the year 1966 2. 50% by promotion and 5% by direct recruitment after the year 1966 - 3 years service after post graduation in the speciality or 8 years service as C. A. S. with necessary post-graduate qualification or a C. A. S. Class I, selected in a specific specially requiring experience in that speciality for which he was specifically recruited and who became due for promotion to the post of Junior Specialist before promulgation of these Rules on the basis of his experience in that speciality or has been working on that post, without post-graduate qualification. 5 years experience in the speciality after post-graduate qualification. - . . . . . . . . . . . . . . . . . . At the end of the Schedule there is the following note - "note - (1) Necessary post-graduate qualification means a post-graduate degree or any other qualification recognised as equivalent by Medical Council of India or by the Govt. of Rajasthan. (2) Post-graduate Diploma will be equal to a post-graduate degree in such subject in which such a degree is not awarded by any University. (3) Public Service Commission may relax theprescribed number of years of experience in case candidates with required experience are not available. "
(3.) THE argument of learned counsel for the petitioner, in brief, is that a person who holds a decree in Medicine and Surgery of a University established by law in India or a qualification recognised as equivalent thereto by the Government and further holds a post-graduate degree or Diploma of a University established by law in India in the specified branch of Medicine or Surgery (in the present case Ophthalmology) will be eligible for appointment, provided he has the necessary experience as mentioned in Column 5 of the relevant entry in the Schedule. That is, according to learned counsel, if the petitioner can be said to have 5 years experience in the speciality after post-graduate qualification he will be qualified. THE post-graduate qualification, according to learned counsel, that the petitioner had, was the post-graduate Diploma in Ophthalmology obtained by him from the Aligarh Muslim University in the year 1967 and thereafter, according to him, he had gained the experience in the speciality tor more than 5 years. THE argument centres round the words "after post-graduate qualification". While learned counsel for the petitioner contends that the notes below the Schedule cannot modify what is contained in R. 11 of the Rules and would be governing only what is stated in Column 4 regarding "necessary post-graduate qualification", learned Additional Government Advocate argues that both the rule as well as the Schedule appended to the Rules including the note thereunder have to be read together and harmoniously construed and if the rules are interpreted in this way then they could bear out only one meaning and it is that a candidate to be eligible must have gained 5 years experience in the speciality after he had obtained his M. S. Degree and the obtaining of the Diploma will not meet the requirements of the rules. Learned Additional Government Advocate postulates a few rules of interpretation : (1) the Schedule is to be taken to be a part of the Rules, (2) the Rules and the Schedule have to be read as a whole. In other words, the Rules should be read with the Schedule and he cites Inland Revenue Commissioners vs. Gittus (l) and Indra Bai vs. Gift Tax Officer (2) to reinforce his argument. THE relevant passage in Gittus's case (l) on which reliance is placed is as follows - "it seems to me there are two principles or rules of interpretation which ought to be applied to the combination of Act and schedule. If the Act says that the schedule is to be used for a certain purpose and the heading of the part of the schedule in question shows that it is prima facie at any rate devoted to that purpose, then you must read the Act and the schedule as though the schedule were operating for that purpose, and if you can satisfy the language of the section without extending it beyond that purpose you ought to do it. But if in spite of that you find in the language of the schedule, words and terms that go clearly outside that purpose, then you must give effect to them and you must not consider them as limited by the heading of that part of the schedule or by the purpose mentioned in the Act for which the schedule is prima facie to be used. You cannot refuse to give effect to clear words simply because prima facie they seem to be limited by the heading of the schedule and the definition of the purpose of the schedule contained in the Act. Those are the rules which I intend to apply to this case as well as I can. " In the Madras case (2) the observations are - "it is axiomatic that the statute has to be read as a whole and that the schedule to the Act is as much part of the Act as any other provision thereof Rules of interpretation even require that if an enactment in a schedule other than one merely of form contradicts an earlier clause, it is the schedule that would prevail. " One can have no quarrel with the principles laid down in the above passages or the postulates of the learned Additional Government Advocate. There is no gain saying the fact that a Schedule appended to an Act is part of the Act. Further an enactment and the Schedule appended thereto have to be read as a whole and one has to put a harmonious construction. But what follows is the question. Here the note is appended at the end of the Schedule. The Schedule, as a whole, may at best be treated as one of the substantive rules thereof, but here I am faced with the situation when a certain Schedule has a note appended to it. The note is nothing but a kind of explanation. All that one can say is that use of the word "note" below a provision in a statute is inartistic. One rarely comes across statutes where a section has a note below it. What it really has if anything in the section is to be clarified is an explanation or if its ambit is sought to be enlarged or restricted from what its language otherwise connotes then a proviso or an explanation is added. The so-called note is appended generally under administrative rules. Any way, one need not have any difficulty over that because a note here may be taken as an explanation and I may take the Schedule as a whole as if it were one section or a substantive rule. Then the question arises whether an explanation under one section of an enactment should be bodily incorporated into another section of the enactment so as to restrict or enlarge its meaning. To my mind, an explanation under a particular rule or section of an enactment will be helpful in gathering the meaning of that particular rule or section only. Once the meaning of that particular section or rule or, in the present case, the Schedule is ascertained in the light of such explanation then it has of course to be read in the light of the other provisions in the enactment or the Rules. Therefore, in my view, the three notes under the Schedule to the Rules could govern only the various entries in the Schedule to which they are appropriate. Note - 1 gives a meaning to the phrase "necessary post-graduate qualification" which means a post-graduate Degree or any other qualification recognised as equivalent by Medical Council of India or by the Government of Rajasthan. Now the phrase 'post-graduate qualification" occurs in Column 4 only. Under Column 5 this phrase does not occur and what is mentioned is "post-graduate qualification", that is, after the expression "necessary post-graduate qualification" is shown of the word "necessary". The Note - 2 uses the phrase "postgraduate Diploma" and equates it to a postgraduate Degree in such subjects in which' such a Degree is not awarded by any University. The phrase post-graduate diploma does not occur under Column 5. In Column 5 the expression used is 5 years experience in the speciality after post-graduate qualification. Now what is a post graduate quali-fication? The term post-graduate means : "study following graduation" vide Webster's Third New International Dictionary. To my mind, the expression 'post-graduate qualification" is not always the something as a post-graduate Degree. The former is a wider expression which will embrace whatever be the prescribed qualification after graduation and it may not be a post graduate Degree whereas the latter namely, the post-graduate Degree will mean a Degree after graduation. R. ll (a) (ii) of the Rules lays down that besides the Degree in Surgery of a University established by law in India or a qualification recognised as an equivalent thereto by the Government the person must hold either a post-graduate Degree or a 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. Here the Diploma that the petitioner had obtained from the University of Aligarh which was established by an Act of the Central Legislature will be satisfying, in my view, the requirements of R. 11 (a) (ii) of the Rules. The only other thing that has to be satisfied is whether this was in addition to the experience as was required to be prossessed by the candidate in accordance with the requirement for direct recruitment under the Schedule. In Column 5, which alone prescribes the experience for direct recruitment, what is laid down is that 5 years experience in the speciality should be acquired after the candidate had obtained the post graduate qualification. Here, as I have already observed, the expression used is "post-graduate qualification" and not "post graduate Degree" and therefore, its ambit is wider and it will embrace the Diploma of a University established by law in India which is obtained after the Degree in Medicine and Surgery. In this way. the two provisions have to be read harmoniously and the outcome is that a person (1) who had obtained the Degree in Surgery of a University established by law, or a qualification recognised as equivalent thereto by the Government, and (2) then holds a Diploma of a University established by law in India, (3) and then who gains 5 years experience in the speciality, fulfils the requirement of the rules for direct recruitment to the post of a Junior Specialist. ;