- (1.) IN these three writ petitions under Art. 226 of the Constitution the validity of some appointments to the Clinical Wing and the fixation of seniority under the Rajasthan Medical Service (Collegiate Branch) Rules 1962 (hereinafter referred to as the Rules) have been challenged. The validity of some of Rules has also been challenged. All the three writ petitions have been contested on behalf of the State and on behalf of some of the respondents. They were heard together and the material on record in one writ petition was also read in the other writ petitions with the consent of the parties.
(2.) UP to the year 1959 there was only one Medical College in the State namely the Sawai Man Singh Medical College, Jaipur. Two new colleges namely the Sardar Patel Medical College Bikaner and the Ravindra Nath Tagore Medical College, Udaipur, were started in 1959 and 1961 respectively. Teaching in the Clinical Wing was imparted mostly by the members of the Medical Service of Rajasthan in these colleges till the Rajasthan Medical Service (Collegiate Branch) Rules 1962 came into force with effect from November 5, 1962. These teachers were designated as part-time Professors, Readers and Lecturers. They were ordinarily drawn from the following three cadres of the Medical Services: (1) Senior Specialists. (2) Junior Specialists. (3) Civil Assistant Surgeons Class I. Senior Specialists were granted a special pay of Rs. 200/ -. Junior Specialists were appointed as part-time Readers on a special pay of Rs. 150/ -. Officers belonging to C. A. S. Class I were appointed part-time Lecturers on a special pay of Rs. 100/ -. In addition to their teaching duties these doctors attended indoor and outdoor patients in the hospitals attached to the three Medical Colleges like other Senior Specialists, Junior Specialists and C. A. S. Class I Officers who were attached to these hospitals. All the above mentioned Medical Colleges were affiliated to the University of Rajasthan. Under Ordinance No. 65 made by the Syndicate of the University in exercise of the powers conferred under sec. 29 of the University of Rajasthan Act 1956 the following minimum qualifications for teachers in the Clinical Wing of the Faculty of Medicine were prescribed: Medicine Surgery, Ophthalmology and Gynaecology and Obstetrics - 1. Professor or Additional Professor - ''post-graduate degree of a recognised University or equivalent post-graduate diploma in the respective subject with experience of teaching the subject for 4 years to under-graduates and have practised the speciality for 4 years and should have practised the speciality exclusively for 4 years. The period spent in exclusive practice of the speciality may be deemed equivalent to teaching experience for half the period. " 2. Reader or Asstt. Professor 3 Lecturer. ''post-graduate degree of a recognised University or equivalent post-graduate diploma in the respective subject with experience of teaching the subject for 4 years to under-graduates and have practised the speciality for 4 years, and should have practised the speciality exclusively for 4 years. " Diseases of E. N. T. : Any teaching appointment - "post-graduate degree of a recognised University or a post-graduate diploma in the respective subject. " The above Ordinance was amended by the Syndicate on 16. 3. 63 and the qualifications prescribed for teachers in the Clinical Wing under the amended Ordinance are as follows - Post Academic Qualifications Teaching Experience Medicine, Surgery, Ophthalmology and Gynaecology and Obstetrics 1. Professor/ Addl. Professor Post-graduate degree or an equivalent postgraduate diploma in the subject such as M. D. M. R. C. P. At least 5 years as Asstt. Professor/reader/lecturer in a Medical College. 2. Reader do At least 3 years teaching experience in the subject of which at least 2 years as Lecturer. 3. Lecturer do At least 2 years teaching experience in the subject as Clinical Tutor/registrar. E. N. T. 1. Professor/ Addl. Professor Post-graduate degree or an equivalent diploma in the subject OR Post-graduate degree in a major subject with diploma in the speciality of a recognised University. At least 4 years as Asstt. Professor/reader/lecturer in the subject in a Medical College. 2. Reader Post-graduate degree or an equivalent diploma in the subject OR Post-graduate degree in a major subject with diploma in the speciality of a recognized University At least 3 years teaching experience in the subject of which at least 2 years as Lecturer. 3. Lecturer do At least 2 years teaching experience in the subject as Clinical Tutor/registrar. It was decided to constitute a separate service for Professors, Additional Professors, Readers and Lecturers in the Medical Colleges of Rajasthan. The Rajasthan Medical Service (Collegiate Branch) Rules, 1962 were framed under Art. 309 of the Constitution with this object. The initial constitution of the Service was to be made under rule 5, the relevant part of which relating to the Clinical Wing runs as follows - Rule 5. Initial Constitution of Service - (1) In the Clinical Wing (i) all doctors already working as Readers and Professors shall be deemed to have been substantively appointed to these posts included in the Service except those who are working in a purely temporary or officiating capacity, (ii) all doctors who have worked as Lecturers for a period of 3 years on 1. 10. 61 shall be deemed to have been substantively appointed to posts of Lecturers in the Service, and (iii) the remaining Lecturers and all other doctors who opt for this service and who are qualified under the Rules for being appointed as Lecturers shall be screened by a Committee consisting of a representative of the Commission as Chairman, the Secretary to Government in Medical & Public Health Department, Special Secretary to Government in the Appointments Department or his representative not below the rank of Deputy Secretary, Director of Medical and Health Services, and one representative of three State Medical Colleges. (2 ). . . . . . . . . . . . . . . . (3) The seniority of persons referred to in sub-rule (1) (i), (ii) and (2) shall be determined on an ad hoc basis by the Government. The seniority of persons referred to in sub-rule (1) (iii) shall be determined by Government on the advice of the Committee referred to in sub-rule (i) (iii ). " R. 12 which falls under Part IV relating' to procedure for direct recruitment runs as follows - "r. 12. Academic and Technical qualifications - -The candidate for direct recruitment to the posts specified in Part A, B and C of the Schedule shall possess such academic and technical qualifications and experience as is laid down, from time to time by the Rajasthan University for the teaching staff in Medical Colleges. " There is no other rule contained in these Rules prescribing the academic and technical qualifications for the posts of Lecturers, Readers and Professors and Additional Professors. Rule 7 which deals with the methods of recruitment after the commencement of the Rules runs as follows - "r. 7. Recruitment. Recruitment in the Service after the commencement of these Rules shall be by the following methods: - (a) Direct recruitment (in accordance with Part IV of these Rules); (b) By promotion of (substantive) members of Service in accordance with Part V of these Rules; in the proportion indicated in Column 3 of the Schedule. " The Screening Committee appointed under rule 5 (1) (iii) held its first meeting on 19th July, 1963 and decided to assess the suitability of the candidates, who in its opinion possessed the minimum qualifications which had been prescribed by allotting marks to them under the following heads - 1. Academic record and qualifications - 10 marks. 2. Teaching experience - 10 marks. 3. Research work - 10 marks. 4. Date on which a candidate acquired qualifications to make him eligible for appointment as a Lecturer - 10 marks. 5. Confidential Rolls - 10 marks. 6. Performance before the Screening Committee - 25 marks. 7. Deductions for failures. The marks allotted under each head were not mentioned in the proceedings, but they are apparent from an inspection of the marks sheet. The Committee made the following observations about the criteria - "these criteria were designed to test the merit of each candidate in addition to determine whether or not he would make a successful teacher. The Committee felt that it was necessary to interview the candidates in order to assess their merit. It also took into consideration other particulars such as teaching experience, the date on which a particular candidate became eligible for appointment as a Lecturer, the manner in which he had attended to his duties as a teacher which was reflected in his confidential rolls and his academic career including the factor whether he had passed certain crucial examinations at first or subsequent attempts. The Committee also thought it proper to attach importance to the research carried out by each candidate and the extent to which he had made an original contribution to the medical science. The Committee felt that without research no teaching institution could thrive. Marks were allotted for each criterion in such a manner as to make an aggregate of 75. The Committee also decided that a candidate who failed to obtain 12 marks out of 25 in the interview should not be considered suitable for the post of a Lecturer. They took a further decision that a candidate must obtain 33 marks out of the aggregate in order to qualify him for the post of a Lecturer. Greater stress was laid on the performance of a candidate before the Screening Committee because this would bring out the merit of each candidate more vividly than other factors, such as teaching experience, date of eligibility and the quality of the work turned out by a candidate as reflected in his confidential rolls. The Committee proceeded on the assumption that in order to make a good teacher, a candidate must keep himself abreast of the latest trends in the Speciality in which he was working. Such questions relating to his Speciality were put to him as were intended to draw out only the extent of his knowledge but also its depth, and whether or not he could put it across to others with ease and facility. Stress was laid on research and the academic career of each candidate because it was felt by the Committee that these factors would, to a considerable extent, enhance the merit of each candidate as a teacher. " Dr. Ramavtar was given 10 marks for performance before the Committee and was rejected out-right even though he secured more than 33 marks in the aggregate. The Screening Committee arranged the names of doctors selected by it in order of preference on the basis of the total marks obtained by them and recommended that their seniority should be fixed in that order. This recommendation was accepted by Government. The inter se seniority of these doctors in C. A. S. I was completely disregarded. Eleven doctors were appointed as Lecturers under rule 5 (i) (ii ). They were placed above the doctors appointed under rule 5 (i) (iii) in order of seniority. The inter se seniority of doctors appointed under rule 5 (1) (i) and (ii) was fixed in accordance with their seniority in their parent cadres from which they were drawn. Two of the optants who appeared before the Committee namely Dr. P. Chatterji and Dr. S. P. Mathur had served as Registrars in the Irwin Hospital. They were not borne on the staff of any Medical College. They claimed that they had been teaching in the Irwin Hospital, but could not produce any cogent documentary evidence before the Committee to substantiate their claim. The Committee postponed the consideration of their cases. They were subsequently held qualified and were selected.
(3.) ON behalf of the petitioners rule 5 (1) has been challenged on the ground that it is violative of Art. 14 of the Constitution for the following reasons: (1) Clause (i) There is no reasonable basis for classifying doctors already working as Professors and Readers into a separate class for which neither the qualifications prescribed by the University were insisted upon nor was any screening provided. (2) Clause (ii) - There is no reasonable basis for classifying Lecturers into two classes - those who had worked as Lecturers for a period of 3 years upto 1. 10. 61 and those who had not so worked. The date 1. 10. 61 bears no relationship to the object to be achieved by the Rules. There is no reasonable basis for not prescribing for them minimum qualifications in accordance with the University Ordinance and for not subjecting them to screening as has been done in the case of doctors falling under rule 5 (l) (iii ). (3) Clause (iii) - Although the rules prescribe for screening by a Committee no principles for the guidance of the Screening Committee have been laid down for assessing the merits of the candidates and there is no provision for co-opting experts in various specialities, candidates for which were to be screened by the Committee. As such arbitrary and unfettered powers have been given to the Screening Committee. The constitutionality of the last part of rule 5 (3) is challenged on the ground that although the Committee was authorised to make recommendations with regard to the fixation of seniority of the candidates no guiding principles for fixing the seniority were laid down with the result that obituary and unfettered powers were also given to the Committee in this behalf. The screening by the Committee was criticised on the ground that the total clinical experience of the candidate in the speciality was not taken into consideration. 10 marks were allotted to research work even though it was not prescribed as a necessary qualification for the post of Lecturer, and that marks allotted for the performance before the Screening Committee were unduly high - 25 out of a total of 75 having been allotted under this head - whereas 10 marks were allotted under each of the other heads. It was contended that the marking under this head is more or less subjective whereas marking under the other heads is more objective as it is based on material which remains on record even after the Screening Committee had completed its work and this material provided a check against awarding marks arbitrarily. The fixation of seniority of doctors selected under rule 5 (i) (iii) was criticised on the ground that in doing so one universally accepted principle was violated. That principle is that if recruitment is made from one service into another, the inter se seniority of members in their parent service is maintained in the new service. It was argued that by not applying this principle which is generally applied to other services and which has been applied by the State Government in fixing the seniority of doctors recruited under rule 5 (1) (10) and 5 (1) (ii) there has been an unreasonable discrimination against those falling under rule 5 (1) (iii) which is violative of Art. 14 of the Constitution. Various allegations of undue favouritism in favour or Dr. S. R. Mehta and Dr. H. K. Bedi were made which need not be mentioned here as in our opinion they are irrelevant to the present case. Only one allegation is relevant and that is that the date 1-10 61 was fixed for the ulterior motive of benefitting these two doctors who were first appointed as part-time Lecturers on 26 8-58 and 29. 5. 58 respectively. Further, with regard to the above two doctors it was contended that they cannot be said to have "worked as Lecturers for a period of 3 years on 1. 10. 61" within the meaning of rule 5 (l) (ii) as between the date of their first appointment as part-time Lecturers and 1. 10. 61 both of them went abroad as Research Fellows for a period of one year each. ;