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TMI Blog1982 (12) TMI 224X X X X Extracts X X X X X X X X Extracts X X X X ..... or manning the medical, public health and medical research and teaching posts in the Central Government hospitals, dispensaries scientific research institutions and institutions of higher education. The members of this Service are also meant to man posts in the Union Territories and the various autonomous bodies. 3. In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the President on May 1, 1963 made the Central Health Service Rules, 1963 which came into force on May 5, 1963. Rule 3 provided for the Constitution of the Central Health Service. Under Rule 4 the Service was divided into two classes viz. Class I and Class II. The rules envisaged categorization of personnel manning the service into five different categories viz. Categories 'A' to 'E'. Rule 5 provided for the authorized permanent and temporary strength of the Service. Under Rule 5(3), the controlling authority had the power to interchange any post included in the junior scale with any post included in the senior scale without altering the authorized strength in each category. Rule 8 provided for the future maintenance of the Service 80% of the vacancies in Category &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be appointed to the newly-formed appropriate Category after selection . That had to be so because the new Categories were different and the conditions of eligibility had also been revised. Accordingly, officers from Category 'C', Category 'D' and Category 'E' and were selected by the Departmental Promotion Committee for appointment to the Specialists' Grade-General Duty Officers Grade I and General Duty Officers Grade II-after taking into account the qualification, experience and conditions of eligibility. Several Officers who were in former Category 'C were placed in General Duty Officers Grade I. 5. Rule 8. provides for the future maintenance of the Service. After appointments have been made to the Service under Rules 7 and 7A, future vacancies have to be filled in the manner provided therein. Rule 8(2) provides that every vacancy in the Specialists' Grade shall be filled by direct recruitment in the manner provided by the Second Schedule through the Union Public Service Commission, subject to the exception made in Rule 8(2A) with regard to Associate Professors and Assistant Professors. Rule 8(3) provides for 50% of the vacancies in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade subject to the candidates satisfying the prescribed qualifications. We notice that at present out of 27 clinical specialties only a few have posts in Supertime Grade II. We would suggest that there should be at least one post in the higher grade of ₹ 1800-2250 for every speciality. The proportion of hospital specialists posts in the new grade should not exceed 20% of the number of hospital specialists' posts in the lower grade (Specialists Grade II) and additional number of posts as may be necessary to make up the 20% may be created. (Emphasis supplied) As a result of the recommendation of the Third Pay Commission, the Specialists' Grade is now bifurcated into specialists Grade I or Supertime Grade II carrying a pay-scale of ₹ 1800-2250 and Specialists Grade II carrying a pay-scale of ₹ 1100-1800. 7. As at present constituted, the Central Health Service has the following grade structure as per the recommendations of the Third Pay Commission: S.No. Grade Pay (Rs.) 1. (a) Supertime Grade I (i) Director-General Health service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he year 1955, the appellant went for further studies to the United Kingdom. There he studied Radio therapy for two years at the Liverpool Radium Institute and obtained the Diploma in Medical Radiology Therapy (D.M.R.T) from the University of Liverpool in 1958. During the course of his studies there, he held the appointment of Registrar in Radiotherapy at the Liverpool Radium Institute from August 1957 to December 1958. Besides gaining teaching experience in that post which under Indian Medical Council Rules is a teaching post, he also had the privilege of visiting some important London hospitals like Mt. Verman and Hammersmith which institutions have a unique and distinguished position in the area of Cancer-therapy by irradiation. 11. On his return to India, the appellant worked as Junior Lecturer and Clinical Assistant in the Department of Radiology at the Christian Medical College Hospital, Vellore from February 6, 1959 to December 26, 1960. This post required the appellant to take up teaching classes in Radiotherapy for the Master of Surgery (M.S.), Diploma in Gynaecology Obstetrics (D.G.O.) and M.B.B.S. courses. During his stay there he was placed in charge of the Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to his normal duties as a Radiologist and no financial implications were involved. 14. In pursuance of Rule 7A(1)(b) of the Central Health Service Rules, 1963, as amended by the Central Health Service (Amended) Rules, 1966 and all other powers enabling him in that behalf, the President of India issued a notification dated June 8, 1967 making substantive appointments of 80 officers to the Specialists' Grade with effect from September 9, 1966, The appellant was listed at Sr. No. 80 and the entry giving his name and designation reads: 80. Dr. Asim Kumar Bose Radiologist, Irwin Hospital, New Delhi. As a result of this, the appellant has continued to hold the post of Radiologist in the Irwin Hospital which is attached to the Maulana Azad Medical College and treated as an Associate Professor of Radiology (ex-officio) both by the University of Delhi as well as by the Maulana Azad Medical College. 15. By the early 70s, the appellant had acquired the requisite teaching experience of an Associate Professor of Radiology as well as acquired higher academic qualification. On August 19/20, 1968 the Principal, Maulana Azad Medical College addressed a letter to the appellant conveyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essential qualification prescribed for teaching post, the teaching experience gained by him while holding the post of Radiologist-cum-Associate Professor of Radiology (ex-officio) in the Irwin Hospital since October 9, 1964 cannot be taken into consideration. 18. The appellant assailed the impugned order by filing a writ petition in the Delhi High Court on July 24, 1974 complaining that the action of the Government of India in the Ministry of Health disregarding his claim for appointment to the post of Associate Professor of Radiotherapy was in denial of equal opportunity in matters of employment and thus violative of Articles 14 and 16 of the Constitution. The contention upon which the writ petition was based was that on a true construction of Rule 8(2A) and paragraph 3 of Annexure I to the Second Schedule, he was clearly eligible for appointment to the post of Associate Professor as he had the essential educational qualification and had also the requisite teaching experience while holding the post of Radiologist-cum-Associate Professor of Radiology (ex-officio) in the Irwin Hospital which is a teaching hospital attached to the Maulana Azad Medical College. The respondents Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Rules. It observed that the recruitment rules required that the requisite experience must be the experience gained while working in a medical college or in a teaching institution i.e. as a teacher in a teaching department. It also observed that it is a well-known fact that after acquiring the requisite medical qualifications there are different careers open to a medical graduate, and in fact it is so in all professional careers. According to the High Court, some people opt for a teaching career while others opt for a regular professional career as Doctors. The medical graduates who opt for a teaching career, join a cadre different from that of the career of Doctors. In the words of the High Court, they tie down their fate to the teaching career and expect promotions to various posts in their channel of promotion i.e. in the cadre of teachers. While rejecting the claim of the appellant, the High Court observed: It is a fortuitous circumstance that a medical graduate regularly working as a doctor is also permitted by the authorities to take up a teaching assignment. The normal duty of such a doctor is in the hospital and in the cadre of doctors in hospital. If the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement for the post of Associate Professor, it is not possible to indicate as to when the applications were first called for the appointment to the post of Associate Professor of Radiology in a teaching institution participating in the CHS. According to the provisions of the CHS Rules, all posts of Lecturers, Assistant Professors and Associate Professors were required to be filled through the UPSC before the rules came to be amended w.e.f. 18. 09.1971. After the amendment of the CHS Rules, only Assistant Professors possessing five years experience were eligible for appointment as Associate Professor. Since Dr. Bose was holding the clinical post of Radiologist, he was not in direct line of and eligible for promotion to the post of Associate Professor. 23. It is somewhat strange that alongwith the aforesaid note, the Ministry had produced a letter of the Dean, Maulana Azad Medical College dated January 25, 1982 addressed to the Secretary, Ministry of Health Family Welfare which tends to show that the appellant as Radiologist-cum-Associate Professor of Radiology (ex-officio) was not actually teaching the post-graduate and under graduate students of the Maulana Azad Medical College ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Radiology Department The post-graduate programmes have been drawn up by the Delhi University. The prospectus and the Annual Report are informative bulletins only. All that they state is that Dr. A.K. Bose is an ex-officio Associate Professor. 25. The Ministry has also filed the affidavit of Shri N.S. Bakshi, Deputy Secretary to the Government of India, Ministry of Health Family Welfare to the effect : That according to the Central Health Service (Amendment) Rules, 1966, atleast 5 years experience as Reader/Assistant Professor in the concerned speciality in a medical college/teaching institution is after the requisite post-graduate qualification is absolutely essential for promotion to the post of Associate Professor. That the appellant does not fulfil the above mentioned requirement and thus cannot be considered for promotion to the post of Associate Professor as per CHS Rules. That according to the provisions of the CHS Rules, all posts of Lecturers, Assistant Professors and Associated Professors were required to be filled through the UPSC before the Rules came to be amended with effect from 18. 9.1971. After the amendment of the CHS Rules, only Assistant Professors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Specialists' Grade (now Specialist Grade II) All vacancies in this Grade (Rs. 1100-1800) are filled by direct recruit through the UPSC. Composite Supertime Grade II (now Specialist Grade I ₹ 1800-2250) Vacancies in the Specialist Grade I posts of Senior Specialists are filled by direct recruitment and by promotion to the ratio of 1 : 1. For promotion in the posts of Senior Specialists, Specialist Grade II officers with eight years of regular service and considered. Supertime Grade I (Level II) ₹ 2250-2500 Vacancies in Supertime Grade I posts of Consultants etc. are filled by promotion of officers of composite Supertime Grade II. The officers must, however, possess the requisite qualifications and experience for appointment to a particular post in this grade. The aforesaid note is in consonance with the view that there is no inflexible rule that Specialists in a teaching hospital cannot be promoted as Associate Professor or Professors of their concerned speciality. On the contrary, the note clearly brings out that vacancies in Specialists Grade I posts of Professors are filled by direct recruitment and by promotion in the ratio of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne to Lady Hardinge Medical College, New Delhi. The other is that of Dr. Harinandan Prasad Verma, Specialist in Anaesthesia, promoted as Professor of Anaesthesiology, Maulana Azad Medical College, New Delhi. A further instance is furnished by the case of Dr. N.C. Shinghal v. Union of India. [1980] 3 SCR 44 . On the recommendation of the Medical Superintendent, Willingdon Hospital, the post of Specialist in Ophthalmology which was an unspecified Specialist Grade post was upgraded by the Central Government as a specified post in Supertime Grade II, and Dr. B.S. Jain, Chief Ophthalmologist-cum-Associate Professor of Ophthalmology, Medical College, Simla was transferred to that post. In the vacancy caused thereby, Dr. Sbingbal who was Specialist in Ophthalmology attached to the Willindon Hospital, was offered the post of Chief Ophthalmologist-cum-Associate Professor of Ophthalmology, Medical College, Simla. There may be other instances as well. 29. It is necessary to emphasise that the recruitment rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital in the capacity of an Associate Professor (ex-officio) shall not count towards the requisit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss with which theoretical and scientific knowledge are fused with what experience teaches in the practical responsibility of taking care of human beings. The clinical teacher has an immediate and absolute responsibility, Physicians and surgeons still go round their wards at stated hours, followed by groups of students to whom they point out the features of each case, expound the nature of the malady and explain the reasons for the treatment adopted. But no longer, as formerly, is the student dependent upon walking the wards , attending lectures and reading about the illnesses of which the cases he has seen are illustrations. The clinical unit is a far more efficient training center. The importance of the clinical years is brought out in the Encyclopaedia Britannica Macropaedia, 15th edn. p. 810: The two or more clinical years of un-effective curriculum are characterized by active student participation in small group conferences and discussions, a decrease in the number of formal lectures, and an increase in the amount of contact with patients in teaching hospitals and clinics. Through work with patients, under the supervision and guidance of experienced teachers, students learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaning of the word as as given is : Used as an adverb, etc. means like, similar to the same kind, in the same manner, in the manner in which . In Shorter Oxford Dictionary 3rd edn. p. 111 the word as is stated to mean : The same as, in the character capacity, role of . In our view, the Ministry of Health is apparently wrong in assuming that the word as in paragraphs 2(b) and 3 of Annexure I to the Second Schedule and Sub-rule (2A) of Rule 8 makes holding of a post in the cadre a condition precedent to the appointment of a Professor or an Associate Professor. 35. The question that falls for consideration is whether the appellant possessed the qualification and experience requisite for appointment to the post of Associate Professor of Radiotherapy in Maulana Azad Medical College, New Delhi, and if not, whether the appellant is eligible for appointment to the post of Professor of Radiotherapy in that College. That depends on whether he fulfilled the conditions laid down in Rule 8(2) and 2(A) and paragraphs 2(b) and 3 of Annexure I to the Second Schedule. Rule 8 provides that after appointments have been made to the Service under Rules 7 and 7A, future vacancies shall be fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be filled up in the manner provided by Rule 8(2) i.e. by direct requirement through the Union Public Service Commission. It is not disputed before us that the Union Public Service Commission has the power to relax the qualifications prescribed in the case of candidates otherwise well-qualified. That being so, the appellant who admittedly is a highly qualified person and has the requisite teaching experience as Radiologist-cum-Associate Professor of Radiologist (ex-officio) is clearly eligible for appointment as Professor of Radiotherapy under Rule 8(2). The Union Public Service Commission while advertising the post of Professor Radiotherapy which has fallen vacant, must, as it rightly did, invite the appellant for an interview for being considered for appointment to that post. 38. That conclusion however does not relieve us from dealing with the main question viz. whether the appellant possessed the qualifications and experience requisite for appointment to the post of Associate Professor of Radiotherapy. The question must turn on a construction of Rule 8(2A) and paragraph 3 of Annexure I to the Second Schedule of the Rules. As stated above, Rule 8(2) provides that every vacancy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist is a clinical post while that of Associate Professor of Radiology is a teaching post. That being so, it was urged that the channels of promotion to the two posts are different and the appellant who had been substantively appointed to the post of Radiologist in the Irwin Hospital must seek his own channel of promotion in Supertime Grade II for a non-teaching job. It is further urged that since the appellant was not holding the post of an Associate Professor, he was not drawing the teaching allowance of ₹ 200/- p.m. to which he would otherwise be entitled. It is also urged that the status of Associate Professor of Radiology (ex-officio) which the appellant holds in the Irwin Hospital is akin to that of honorary Professor or Associate Professors in the Willing-don Hospital or the Safdarjang Hospital and the mere designation of the appellant as Associate Professor of Radiology (ex-officio) by the University of Delhi does not give him a right to hold the post of Professor of Radiology in Maulana Azad Medical College. It is pointed out that a similar question arose in connection with the conferral of honorary teaching designations on certain medical officers in the Willingdon H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is affiliated. The contention that the position which the appellant enjoys as Radiologist-cum-Associate Professor of Radiology (ex-officio) in the Irwin Hospital is similar to that of honorary Professor or Associate Professor in the Willingdon Hospital or the Safdarjang Hospital and the mere designation of the appellant as such does not give him a right to hold the post of Associate Professor of Radiology, cannot prevail. There is no order placed before us of the President of India directing that conferral of honorary teaching designations on Specialists in the Willingdon Hospital and the Safdarjang Hospital would not entitle such Specialists to claim seniority or eligibility for promotion. Even if it were so, that would hardly make any difference. The submission overlooks the distinction between a teaching and a non-teaching hospital. There cannot be a medical college without a teaching hospital as its integral and inseparable part. The mere fact that the appellant was not drawing a teaching allowance of ₹ 200/- p.m. is of no legal consequence because the allowance is attached to the post of Associate Professor. 41. We wish to make it clear that it is not for the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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