- (1.) THE petitioner, who holds a degree of Doctor of Medicine, was initially appointed as a Civil Assistant Surgeon Glass II in the service of the Government of Rajasthan on July 2, 1954. Ha was subsequently promoted as a Civil Assistant Surgeon Class I and was confirmed on that post with effect from February 19, 1960. THE petitioner was appointed as a tutor in Medicine in the RNT. Medical College, Udaipur on July 1, 1963. He was thereafter promoted as an officiating Lecturer in Medicine on September 16, 1965. Some time later he was promoted as a Reader in Medicine by the order of the State Government dated February 21, 1969.
(2.) IN the year 1968, the State Government considered it proper to recruit to the clinical wing of the Rajasthan Medical (Collegiate Branch) Service (hereinafter called "the Service"), persons belonging to the Rajasthan Medical and Health Service by means of special selection. With that aim in view, the Government of Rajasthan promulgated the Rajasthan Medical Service (Collegiate Branch) (Special Selection), Rules, 1958 (hereinafter referred to as "the 1988 Rules") which provided the method of recruitment of persons employed in the Rajasthan Medical and Health Service of the State into the clinical wing of the Service and also prescribed the conditions and eligibility for recruitment by special selection to the various posts included in the service. These rules prescribed the criteria to be adopted by the Special Recruitment Board for assessing the suitability of the candidates as also the principles to be adopted for determining the inter se seniority of persons recruited by special selection vis-a-vis the persons who were already working on the posts included in the Service. Respondent No. 2, Dr. V. M. Bhandari was selected by the Special Selection Board for appointment as a Reader in Medicine in accordance with the 1968 Rules and he was appointed on the aforesaid post by the order of the State Government dated February 21, 1969, It is also not in dispute that in the inter se seniority list prepared in pursuance of Rule 11 of the 1s68 Rules, respondent No. 2 was placed at No 2 in the category of Readers in Medicine while the petitioner was placed at No. 6 in the aforesaid seniority list and thus the petitioner was junior to the respondent No 2 in the cadre of Readers in Medicine. Subsequently, when the post of a Professor of Medicine fell vacant, the Departmental Promotion Committee selected the respondent No. 2 for the said post and the State Government by its order dated January 17, 1973 appointed respondent No. 2 as a Professor of Medicine on probation for a period of six months. Respondent No. 2 was subsequently also confirmed on the post of Professor of Medicine. The petitioner's case is that on the day when the Departmental Promotion Committee met and considered the matter relating the promotion to the post of Professor in Medicine, under the Rule 24 (2) of to Rajasthan Medical Service (Collegiate Branch) Rules, 1962 (hereinafter referred to as "the Rules") as also on the date when the State Government proceeded to appoint respondent No. 2 as a Professor of Medicine, he was not eligible for being selected for the said post and to be appointed thereto and as such the selection and the appoint-ment of the respondent No 2 as Professor of Medicine by the order of the State Government dated January 17, 1973 should be struck down being illegal. It has been further prayed that as the petitioner was eligible for promotion to the post of Professor of Medicine, when the Departmental Promotion Committee considered the matter and on January 17, 1973 when respondent No 2 was appointed to that post by the State Government, in pursuance of the recommendation of the Departmental Promotion Committee, the State Government should be directed to reconsider the question of appointment to the post of Professor of Medicine as on January 17, 1973. The contention advanced by Mr. Hasti Mal Parekh on behalf of the State Government is that the respondent No. 2 was fully qualified and was eligible for selection and for appointment to the post of Professor of Medicine on January 17, 1973 and that the appointment of respondent No. 2 on the said po3t does not suffer from any infirmity. In order to appreciate the rival contentions, it would be necessary to consider the relevant provisions of the rules, Rule 23 of the Rules, which prescribes the criteria for selection for promotion to the posts included in the service, as it then existed, runs as under: - "23. Criteria for selection - (1) 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 subjects to their possessing minimum qualifications, and experience as laid teaching staff in Medical College. Provided that experience gained prior to appointment in accordance with one of the mehtods of recruitment prescribed in the rules, shall not count towards the requisite experience: provided further that the clinical experience treated as 'teaching experience' under the Rajasthan Medical Service (Collegiate Branch) Special Selection Rules, 1968, shall continue to be considered as such for the purpose of this rule as well. " According to the Schedule appended to the Rules, the post of Professor and Additional Professor is to be filled in 100% by promotion from, amongst the persons holding the posts of Readers. Now the minimum qualifications and experience requisite for promotion from the past of a Reader to the post of a Professor in Medicine is laid down by the Rajasthan University and is contained in Ordinance 65 of the Ordinances made under the University of Rajasthan Act, 1946. The minimum qualifications prescribed in Ordinance 65 of the University for the various posts in the department of Medicine are as under: - **** TABLE **** MEDICInE (a) Director M D. , M. R. C. P , As Professor for ten years in a F. R. C. P. , F. R. F. Medical College. P. S (P), Glasgow, Speciality Board of Internal Medicine (U. S. A.) or equivalent quali- 319 fiction in the subject. (b) Professor/ - do - As Associate Professor Reader, Additional Assistant Professor, Lecturer in Professor. Medicine for five years in a Medical College after requisite post graduate qualification of these five years atleast three years must be as Associate Professor or Reader. (c) Associate - do - As Reader, Assistant Professor, Professor. Lecturer in Medicine for three years in a Medical College after requisite post-graduate qualification, of these three years atleast two years must be as Reader. (d) Reader.- do - Three years in the subject, of which atleast two years a slecturer in a Medical College after post-graduation. (e) Assistant - do - Two years teaching in the subject Professor/ as Clinical Tutor, Registrar in a Lecturer. Medical College, of which atleast one year must be after post-graduation. (f) Clinical tutor - do - So far as the academic qualifications are concerned, it is not in dispute between the parties that the petitioner as well as the respondent No 2 fulfilled the academic qualification prescribed in Ordinance 65 of the University of Rajasthan, which have been adopted as the criteria for selection by virtue of the provisions of rule 23 of the Rules. As regards the teaching experience for the post of Professor, the minimum qualification laid down is that the person concerned should have teaching experience of atleast five years in a Medical College, after obtaining the requisite posf-gradute qualification, as Associate Professor, Reader, Assistant Professor of Lecturer in Medicine and atleast for three years, out of the aforesaid five years such person must have held the post of an Associate Professor or Reader. The contention of the learned counsel for the petitioner is that on January 17, 1973 which may be taken to be the crucial date, the respondent No. 2 possessed teaching experience for a period of three years 10 months and 12 days only as he had joined the post of a Reader in Medicine on April 6, 1969. Thus, according to the learned counsel for the petitioner, although the respondent No. 2 had three years' teaching experience as a Reader, yet he did not possess five years' total teaching experience as an Associate Professor, Reader, Assistant Professor or Lecturer in Medicine and this is the basis for the submission that the respondent No. 2 was not eligible for appointment on the post of a Professor in Medicine on January 17, 1973 when the State Government issued the order of his appointment on the post of Professor of Medicine, after he was selected for the said post by the Departmental Promotion Committee. The aforsaid contention of the learned counsel for the petitioner cannot be held to be without any force, on the basis of the qualifications prescribed far eligibility for selection under Rule 23 of the Rules read with Ordinance 65 of the Rajasthan University. However, the argument of the learned counsel appearing for the State is that by an amendment made vide notification dated March 14, 1973, and published in the Rajasthan Rajpatra dated March 22, 1973, two provisos were added to sub-rule (1) of Rule 23 of the Rules with retrospective effect from March 1, 1969 and the second proviso which was thus introduced in Rule 23 by way of amendment removed the defect in the appointment of the respondent No. 2 on the post of a Professor of Medicine. The two proviso which were added by the notification dated March 14, 1973 retrospectively with effect from March l, 1969 ran as under: - "provided that experience gained prior to appointment in accordance with one of the mehtods in the recruitment prescribed in the Rules, shall not count towards the requists experience: Provided further that the clinical experience treated as 'teaching experience' under the Rajasthan Medical Service (Collegiate Branch) Special Selection Rules, 1968, shall continue to be considered as such for the purposes of this rule as well. "
(3.) THERE was some confusion as to whether both the aforesaid provises were subsequently deleted or not and it was thereafter found that by the notification dated October 9, 1975, both the aforesaid provisos to Rule 23 (1) of the Rules were deleted. However, learned counsel appearing for the State filed an affidavit dated November 2, 1977 of one K. K. Gupta in which it was stated that only the first proviso to Rules 23 (1) was actually sought to be deleted by the notification dated October 9, 1975 and that there was a printing mistake in the aforesaid notification, as published in the Rajasthan Rajpatra dated October 22, 1975 as both the existing provisos were mentioned therein to have been deleted. So a corrigendum was latter issued on August 11, 1977 rectifying the mistake in the earlier notification dated October 9, 1975 and it was stated therein that only the first proviso to sub-rule (l) of Rule 23 was actually deleted and not the second proviso to the aforesaid sub-rule. Affidavit of Shri K. K. Gupta dated November 2, 1977 also suffered from a serious infirmity as the earlier notification was mentioned in para (1) thereof as dated October 9, 1977 while as a matter of fact it was dated October 9, 1975. On the last date of hearing, learned counsel appearing for the State, stated that he was prepared to place the relevant records before this Court to convince the Court that there was a printing mistake in the earlier notification dated Oct 9, 1975 and instead of the words "existing first proviso", the words "existing provisos" was mentioned and the said notification dated October 9, 1975 as published in the Rajasthan Rajpatra dated October 22, 1975 containing the aforesaid paras. As the learned counsel for the State expressed his readiness to place the relevant record before this Court, he was directed to do so on the next date of hearing However, when the case came up for hearing yesterday, learned counsel appearing for the State was not in a position to place the relevant record before the Court which he had undertaken to do and no reasonable explanation for not producing the same was forthcoming. I must observe that the State as a party in a writ petition is expected to appear in court with clean hands like any other litigant and it roust place all the relevant records before the Court, unless on proper grounds it seeks to claim privilege for the non-production of such record. The non production of the record by the State in the present case deserves to be highly deprecated. However, as the arguments in the present case have proceeded on the basis that the first proviso to Rule 23 (i) only was deleted by the notification dated October 9, 1975 and the second proviso thereof has been kept intact and as such I need not say any thing more in respect of the non production of the relevant record by the counsel appearing for the State. So far as the qualification prescribed for appointment to the post of a Professor of Medicine is concerned, the matter should be considered in the light of the teaching experience as laid down by the Rajasthan University subject to the modification introduced therein by the second proviso to sub rule (1) of Rule 23 of the Rules, The second proviso, referred to above, was added retrospectively with effect from March 1, 1969 and as such it should be deemed that the qualification as amended by the aforesaid proviso was in existence on January 17, 1973, when the impugned order of appointment of the respondent No. 2 on the post of Professor of Medicine was passed by the State Government. The eligibility of the respondent No. 2 for appointment to the post of Professor of Medicine has to be judged on the basis of the qualification prescribed therefor in Ordinance 65 of the Rajasthan University, as amended by the second proviso to rule 23 (1) of the Rules. Learned counsel for the petitioner also desired to challange the vires of the second proviso as added by the notification dated March 14, 1973. However, he submitted that even if the afore-said second proviso to Rule 23 (1) is held to be constitutionally valid then also the respondent No. 2 was still not eligible for appointment to the post of Professor of Medicine on January 17, 1973 Learned counsel submitted that even if the clinical experience, which was treated as teaching experience under the 1968 Rules, could also be considered as teaching experience for the purposes of sub rule (1) of rule 23 of the Rules, yet the respondent No. 2 did not possess five years* teaching experience as Associate Professor, Assistant Professor, Reader or Lecturer, which was required under Rule 23 (1) read with Ordinance 65 of the University. Mr Hasti Mal, appearing for the State Government, on the other hand submitted that the respondent No. 2 was appointed as a Reader in Medicine and as such, he must be deemed to possess the qualification requisite for appointment to the post of a Reader in Medicine under the Rules and as thereafter the respondent No. 2 also acquired three years teaching experience as a Reader, it cannot be said that the said respondent was not eligible for appointment to the post of Professor of Medicine on the relevant date. According to Mr. Parekh, the selection of the petitioner for the post of a Reader in Medicine and his appointment to that post in the year 1969 would have the effect of conferring upon him all the requisite qualifications for appointment on the post of a Reader. It has been further argued by the learned counsel that as the respondent No. 2 has now required five years' actual teaching experience, this Court should not grant any relief to the petitioner. The argument advanced by Mr. Parekh would involve an assumption that the clinical experience, which has been treated as teaching experience under the 1968 Rules, should also be treated as teaching experience on the post of an Associate Professor, Reader, Assistant Professor or Lecturer in Medicine. It would have to be examined whether there is sufficient justification for making such an assumption as the learned counsel for the State has sought to make. It should be pointed out that the respondent No 2 was not selected or appointed to the post of a Reader by promotion under rule 23 (1) of the Rules, but his selection and appointment on the post of a Reader was made in accordance with the provisions of the 1968 Rules which made provision for appointment by special selection from amongst the member of the Rajasthan Medical and Health Service, A different mode of appointment and different qualification were prescribed in the 1968 Rules for recruitment by special selection and an appointment to the post of a Reader under the 1968 Rules was made on the basis of qualifications, both academic as well as in relation to teaching expert ence, as prescribed in the 1968 Rules, In Schedule I read with rule 6 of the 1968 Rules, minimum teaching experience required for appointment to the post of a Reader was four years, with the further condition that one year of clinical experience as junior/senior specialist after obtaining post graduate degree/qualification or one year of clinical experience as Civil Assistant Surgeon after post-graduation would be treated as 1/2 year of teaching experience. Thus, for the purpose of the special selection under the 1968 Rules, eight years' clinical experience as Junior or Senior Specialist or as Civil Assistant Surgeon after post graduation would be deemed to be equivalent to the requisite four years' teaching experience by fiction of law, which would be sufficient to make the person concerned eligible for appointment as a Reader under the 1968 Rules. It is clear from a perusal of Schedule I appended to the 1968 Rules that seven years' teaching experience was required for the post of Professor or Additional Professor while four years' teaching experience was required for the post of a Reader and that could be obtained by equation with double the length of clinical experience, It was on the strength of this deeming provision, by which one year of clinical experience was equated to 1/2 year teaching experience, the respondent No. 2 was deemad to possess more than four years' teaching experience and was considered eligible for appointment on the post of a Reader under the 1968 Rules. But by obtaining appointment as a Reader in accordance with the provisions of the 1968 Rules it cannot be held by any stretch of imagination that the petitioner was qualified for appointment to the post of a Reader by promotion in accordance withthe provisions of Ordinance 65 prescribed by the Rajasthan University read with sub rule (1) of rule 23 of the Rules. The appointment made by special selection under the 1968 Rules cannot be the same as an appointment made by promotion under rule 23 (1) of the Rules. It is not unusual that besides the normal procedure for selection for appointment by direct recruitment and promotion, sometimes recourse is taken to other modes of appointment like special selection or transfer from other equated posts and in doing so, the Legislature or the President or the Governor, acting under Article 399 of the Constitution, would be free to prescribe qualifications different from those which were prescribed for promotion or direct recruitment. Thus, the respondent No. 2 having entered the sarvice as a Reader by way of special selection under the 1968 Rules, cannot be said to possess the qualifications prescribed for promotion to the post of a Reader under rule 23 (1) of the Rules read with Ordinance 65 made by the Rajasthan University. It is not necessary that persons appointed to the same post by different modes of recruitment and com-ing from different sources should fulfil the same qualifications and if recruitment is made to some posts from different sources, it is open to the concerned authority to prescribe different qualifications for persons coming from such sources and also to prescribe different modes of selection. The question which then arises for consideration is as to what is the effect of the second proviso to sub rule (I) of rule 23 of the Rules. The plain and simple meaning of the second proviso appears to be that the equation given in the 1968 Rules for treating the clinical experience as equivalent to teaching experience by those Rules would also be made applicable to sub-rule (1) of Rule 23. Accordingly, one year's clinical experience as a Senior or Junior Specialist or as a Civil Assistant Surgeon, after obtaining post-graduate degree or qualification, should be treated as 1/2 year's teaching experience simplisiter. But such teaching experience, which is considered to have been obtained by fiction of law cannot be held to be teaching experience in the capacity of an Associate Professor, Reader Assistant Professor or Lecturer. It is not possible for this Court to add any words to the express language of the second proviso to rule 23 (1) of the Rules. The well established rale of interpretation is that when the language employed in a particular enactment is plain and simple, then the grammatical meaning thereof should be accepted as the correct one and it would not be open to the court to add any words to the provision enacted by the Legislature in order to give its own cc lour to such provision. The second proviso merely spa-aks of teaching experience and it does sot speak of teaching experience in the capacity of a Lecturer or Reader or Assistant Professor. It may be observed that for the post of a Reader in Medicine, the teaching experience required in accordance with rule 23 (1) of the Rules read with Ordinance 65 is three years' teaching experience in the subject, of which atleast two years teaching experience should have been obtained as Lecturer in a Medical College after post-graduation. For example, for the post of a Reader the total teaching experience requisite is three years in the subject and as it has not been specified in what capacity such teaching experience should have been obtained then it may be in any capacity. When the provision speaks of teaching experience alone, then it would be fair to construe that such teaching experience may be obtained even while working on the post of the lowest ladder amongst the series of posts included in that category For the post of Lecturer, two years' teaching experience in the subject as a Tutor or Registrar in a Medical College is necessary, while for the post of a Reader, three years' teaching experience in the subject is requisite for making a person eligible for appointment. But for the post of a Professor, a twin qualification has been prescribed namely, that the person concerned should possess five years' teaching experience in the capacity of an Associate Professor, Reader, Assistant Professor or Lecturer in Medicine and out of which three years' teaching experience must have been obtained as an Associate Professor, or Reader. Under the 1968 Rules, the requisite teaching experience was not required to be obtained by wo king in any particular capacity or on a specified post. But for the past of Lecturer 2-1/2 years' teaching experience was prescribed, while for a post of a Reader four years' teaching experience and for the post of a Professor, seven years' teaching experience was requisite which could be deemed to have been obtained by equating clinical experience for double the number of years as mentioned in column 6 of Schedule (l)appended to the 1968 Rules. It may be pointed out that the 1968 Rules were brought into existence for a particular object, of making recruitment by special selection from persons belonging to the Rajasthan Medical and Health Service into the clinical wing of the Collegiate Branch Service and they were made of a limited duration after which those Rules were allowed to lapse. Now, by enacting the second proviso to rule 23 (1) of the Rules, the fiction contained in the 1968 Rules of equating one year's clinical experience to If year of teaching experience has been incorporated in the said Rule, but it cannot be held that the qualification prescribed for the post of a Professor or Reader in the 1968 Rules could have any applica-ation after those rules were allowed to lapse. The respondent No. 2 might have possessed teaching experience of a longer duration but it cannot be held that he possessed five years' teaching experience as a Lecturer or Reader or Assistant Professor or any higher post. Mr. Hastimal Parekh placed reliance on the decision of their Lordships of the Supreme Court in Rampal Chaturvedi vs. State of Rajasthan (1) where a similar artificial aquation of two years' service rendered in a speciality was considered as equivalent to one year's teaching experience gained in that speciality for the purposes of the proviso to sub-rule (4) of rule 30 of the Rules. However, the question which came up for consideration before their Lordships of the Supreme Court in that case was: "the narrow question requiring consideration therefore is whether the proviso, accoring to which two years of service rendered in the speciality 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 prescribed the minimum qualification to teaching experience and, therefore, must be ignored. " In that case, their Lordships came to the conclusion that the qualification prescribed by the Rules, made in pursuance of the power conferred by the proviso to Article 309 of the Constitution, 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 service. It was held by their Lordship3 in the aforesaid case that Ordinance No. 65 is not a provision under an Act regulating the recruitment and conditions of service of parsons appointed to the service, as contemplated by Article 309 of the Constitution and on that basis their Lordships came to the conclusion that even if the persons concerned did not possess the qualifications prescribed by the Ordinance No. 65 of the University, yet the court would not interfere with their appointment if the same was made in accordance with the relevant service Rules. The questions regarding the quality of teaching experience obtained by working on a particular post and as to whether the teaching experience obtained by a particular person should be gained by walking in a particular capacity were not raised before their Lordships. In the present case, it is not the requirement of Ordinance 65 alone which has not been fulfilled but the provisions of Ordinance 65 have been reported in rule 23 (1) of the Rules by reference, subject of course to the second proviso which has been added to it by amendment with retrospective effect from March 1, 1969 Thus, the qualification prescribed by the Rajasthan University in Ordinance 65, as amended by the second proviso to rule 23 (1) of the Rules is required to be possessed by a person for becoming eligible for appointment to a post enumerated in the Schedule appended to the Rules, in accordance with the requirements of the service rules themselves. ;