Allahabad High Court
Dr. Ashok Kumar Agarwal vs State Of U.P. And Ors. on 16 July, 1997
Equivalent citations: (1998)2UPLBEC955
Author: Brijesh Kumar
Bench: Brijesh Kumar
JUDGMENT K.C. Bhargava, J.
1. Both these writ petitions relate to the same matter, hence they were heard together and are being disposed of by this common judgment. The petitioner has prayed for a writ of certiorai quashing the impugned order dated 14.12.1994, contained in Annexure-4 to Writ Petition No. 97(SB) of 1995 and the order dated 19.12.1995 contained in Annexure-1 to Writ Petition No. 49(SB) of 1996. He has further prayed for a writ of mandamus commanding the opposite parties, i. e. the State of Uttar Pradesh and the Uttar Pradesh Public Service Commission to convene and finalise the selection to the post of Professor-Director. A writ of quo warranto has also been prayed for removal of opposite party No. 4, Dr. A. K. Gupta, and to show under what authority he is holding the post of Professor-Director of Rehabilitation and Artificial Lab Centre, Lucknow (hereinafter referred to as RALC). Two doctors are fighting each other for the post of Professor-Director of RALC. According to the petitioner the opposite party No. 4, Dr. A. K. Gupta, has been illegally appointed to the post of Professor-Director of RALC on deputation by order dated 14/12.1994 and this appointment has been made in total disregard of the statutory provisions and in arbitrary manner superseding the petitioner. RALC was established in the year 1972 under the Department of Orthopaedic Surgery of K. G. M.C. Lucknow in order to provide rehabilitation services to the disabled and to initiate teaching, research and other related programmes in the field of physical medicine and rehabilitation. The petitioner after graduating in Orthopaedic Surgery was selected as Medical Officer in RALC in January, 1976. Thereafter he was, on his application, was selected to the post of Senior Medical Officer RALC. In the year 1980 RALC was declared an autonomous society by the State of U.P. vide Government Order dated 1.10.1980, a copy of which is contained in Annexure-2 to the writ petition. By Government Order dated 7.6.1986 the autonomous society was dissolved and the RALC was merged With KGMC as Department of Physical Medicines and Rehabilitation (hereinafter referred to as DPMR) and the post of Director was converted into the post of Professor-Director. A copy of this Government Order dated 7.6.1986 is Contained in Annexure-3 to the writ petition. The post of Senior Medical Officer was also designated as Senior Medical Officer-cum-Reader. The petitioner was also re-designated as Senior Medical Officer-cum-Reader. Previously the post of Professor-Director RALC was held by Professors/retired Professors of the Department of Orthopaedic Surgery at KGMC. On 29.6.1991 the post of Director-Professor at the DPMR was advertised in the Employment News by the U. P. Public Service Commission writ essential qualifications. The essential qualifications were (i) M.S.(General Surgery)/M.S. (Orthopaedic Surgery), (ii) Two years' special training in the speciality or PMR. Teaching/Research experience as Reader in Physical Medicines and Rehabilitation in a Medical College for four years was also required. Published research work in the field of rehabilitation was the preferential qualification. The petitioner applied for this post but no selection has been made in pursuance of the advertisement till date even in spite of the representations made by the petitioner. It is further alleged that Dr. A. K. Gupta, opposite party No. 4 applied for the post of Assistant Professor at RRTC Lucknow and he was selected as Assistant Professor in RRTC and was posted as such with effect from 29.8.1987. The educational qualifications of Dr. A. K. Gupta, opposite Party No. 4 (U.K.), 1977-79. He had also clinical experience. Photostat copy of the certificates of Sri A. K. Gupta, opposite party No.4, as Annexure-10 to the writ petition. The State Government in the year 1990 promulgated the U. P. State Medical College Teachers Service Rules, 1990. Rule 5 provides the source for recruitment to the post of Professor in a Medical College whereby only two sources of recruitment have been provided:(i) by direct recruitment and(ii) by departmental promotion committee from amongst Associate Professors who have completed five years' service. After the judgment of this Court' in writ petition No. 4919 of 1981, Dr. K. C. Garg and Ors. v. State of U.P. and Ors., and other connected writ petitions the management was re-transferred to Lucknow University and the property and assets of KGMC were also transferred to the Lucknow University vide Government Order dated 10.8.1992, a copy of which is contained in Annexure-12 to the writ petition. The petitioner had been performing teaching, research, examination and other academic work for the DPMR. Photostat copies of the letters showing the petitioner's engagement in academic work for the Medical College are annexed as Annexure-13 to the writ petition. By Government Order dated 13.9.1993 the State Government clarified the status of DPMR and provided that the designation of Senior Medical Officer-cum-Reader shall be known as Associate Professor with effect from 5.8.1987. Accordingly the petitioner was redesignated as Associate Professor vide office order dated 18.10.1993 with effect from 5.8.1987, a copy of which is Annexure-15 to the writ petition. By Government Order dated 29th January, 1994, Photostat copy of which is Annexure-16, it was provided that the academic work of RALC shall be under the Department of Physical Medicine and Rehabilitation and the Professor-Director of the DPMR shall function under the Principal/Dean of the Medical Faculty of KGMC and the administrative and policy matters shall be carried out in accordance with the decision taken by the Advisory Committee which was constituted by the Government Order for this purpose. This Committee was headed by the Chief Secretary of Uttar Pradesh Government. The Medical Council of India made certain additions to the academic qualifications required for the post of Professor in DPMR. The petitioner was already working on the senior post as Associate Professor. The opposite party No. 4 joined as Assistant Professor in RRTC on 29.8.1987. The opposite party No. 4 does not fulfil the essential qualifications for the post of Director-Professor in RALC in as much as he does not possess any experience as a teacher in DPMR in a medical college in India. It is further alleged that Diploma of Medical Rehabilitation was obtained by the petitioner from U. K. in 1979. This diploma has been derecognised by the Medical Council of India with effect from 11.11.1978. The relevant recommendations on the qualifications required for the appointment of persons to the post of teachers, as prescribed by the Medical Council of India, are contained in Annexure-22 to the writ petition. The appointment of the opposite party No. 4, Dr. A. K. Gupta, is not within the source of recruitment to the post of Professor. The opposite party No.4 was working as Assistant Professor for the purpose of training only and as such he cannot be deemed to be eligible for appointment to the post of Professor without working ever as Associate Professor in a Medical College. By Government Order dated 18.4.1994 the State Government has put a ban on appointing persons on deputation. Prior to that there was also a ban on fresh appointments. The opposite party No. 4 could not have been appointed on deputation to the post of Professor which is two grades higher to the post on which the opposite party No. 4 was working and he has never worked as Associate Professor, The Government had no authority to appoint opposite party No. 4 on the post of Director-Professor in DPMR because neither the Principal/Dean of the KGMC nor the Advisory Committee had recommended the appointment of the opposite party No. 4 to the post of Director-Professor in DPMR. The post of Professor-Director in DPMR is a post of public nature which has been illegally. usurped by the opposite party No. 4. The petitioner has suffered irreparable loss and injury and his substantial legal rights relating to seniority and. eligibility will be impaired and overlooked if the opposite Party No. 4 is allowed to stand as he has not been appointed to the said post in accordance with the rules.
2. Opposite Parties 1 and 2, State of Uttar Pradesh and Director Genera! of Medical Education and Training, Lucknow in a joint counter affidavit have averred that RALC deal in providing rehabilitation services to the disabled in the field of Physical Medicines and Rehabilitation. It is not an academic centre till date and no teaching work has been started in the RALC and it has no concern with the Lucknow University or the KGMC. It is under the authority of the State Government and the State Government looks after the affairs of the RALC. Its management and governance are not controlled by the Lucknow University or by the KGMC. By the Government Orders dated 7.5.1986 and 29.1.1994 the State Govt. has exclusive domain over the RALC. It is further alleged that certain retired Professors of the Department of Orthopaedic Surgery of KGMO remained part-time directors of the RALC. Thereafter, it was decided that full time director should be appointed and the matter be referred to the U. P. Public Service Commission. The U. P. Public Service Commission issued an advertisement twice inviting applications for the said post but no fully qualified person was available. Thereafter steps were taken to fill up the vacancy on deputation. On 22.10.1994 a circular was issued to all the-medical colleges of the State requesting for sending the names of persons desirous to be considered for appointment as Director of the RALC on deputation. Three applications were received of the State Government, i. e. the applications of Dr. K. S. P. Choudhary, Dr. Ashok Kumar Agarwal (petitioner) and Dr. A. K. Gupta (opposite party No. 4). The contention the petitioner that the post of Director should be filled by promotion was rejected by the State Government because it was not a promotional post. No rules have been framed so far regarding the services of the RALC. All the three persons were considered. The candidature of Dr. A. K. Gupta, opposite party No. 4, was found fittest and he was appointed on the post of Director-Professor by order dated 14.12.1994 and he joined on the said post on 23.12.1994. The petitioner was not having two years' special training in speciality of Physical Medicine and Rehabilitation or two years of equivalent training approved in the subject in any approved institution in India. The opposite party No. 4 was having post graduate degree in General Medicine (M. D. in General Medicines), Diploma in Medical Rehabilitation from Royal College, London, two years of special training in speciality of Physical Medicine and Rehabilitation, and he was working as Assistant Professor in Physical Medicine and Rehabilitation, Regional Rehabilitation Training Centre, Ministry of Welfare, Government of India. Centre, Ministry of Welfare, Government of India. In view of these qualifications the opposite party No. 4 was better place in comparison to the petitioner. The age of opposite party No. 4 was below 54 years. In the year 1986 the post of Director was redesignated as Professor-Director in view of the fact that the Centre would start teaching work but the teaching work never started and the Centre could not get the character of a teaching centre. The qualifications recommended by the Medical Council of India for the post of Professor in a Medical College, therefore, had no relevance at the time of appointment of Director in RALC. It is further alleged that the U.P. Public Service Commission did not find the applicants including the petitioner fully qualified for the post of Director and returned the request for selection of Director-Professor. The date of birth of the petitioner is 25.12.1947 while the date of birth of opposite party No. 4 is September,' 1946. The petitioner did MBBS in December, 1970 while opposite party No. 4 did MBBS in 1969. No teaching, examination and academic work has ever taken place in the Centre so far. The State Government has power to relax the condition of any Government order in public interest.
3. Opposite Party No. 4 Dr. A. K. Gupta, who has been appointed on deputation, in his counter affidavit has averred that the Board of Management was constituted to run the Centre. It is further averred that appointment to the post of Director-Professor will be made by the Government and the same rules will be applicable in the matter which are applicable for the post of Professor. He has been legally appointed on the post of Director-Professor in RALC by the State Government on deputation for a period of one year. The Government Order dated 5.8.1987 provided that the creation of the post will be effective from the date of issuance of the order or taking over the charge whichever is later. The petitioner is not in possession of an essential qualifications as laid down by the Medical Council of India for appointment on the post of Reader because he has not obtained two years' special training in specialty of Physical Medicines and Rehabilitation. The petitioner also has not worked as Lecturer in Physical Medicines and Rehabilitation for a period of five years and he has no teaching experience. The rules quoted by the petitioner in para 20 of the petition are not applicable to RALC because it is not a medical college. RALC is meant for treatment and management of disabled persons. The authorities are making efforts to start the diploma courses at RALC. By arranging few classes on the request of KGMC or outside agencies cannot be considered to be a teaching assignment or performing the teaching by the petitioner. The post of Senior Medical .Officer-cum-Reader was not converted into the post of Associate Professor. The opposite party No. 4 possessed all the prescribed qualifications as prescribed by the Medical Council of India. He -joined the seance in PMR in the year 1985 and as such he was fully eligible and qualified as per recommendations of the Medical Council of India for the post of Director-Professor. The power for appointment to the post of Director-Professor vests with the State Government and the post is to be filled by direct recruitment. There is no rule for the advisory committee in the matter of appointment of Director-Professor of RALC.
4. Opposite Party No. 5 U. P. Public Service Commission in its counter affidavit has averred that the petitioner was not found eligible for the post of Director-Professor. On the relevant date the petitioner had not completed more than 4 years as Reader in Physical Medicine and Rehabilitation. The advertisement was issued by the Commission and only four candidates including the petitioner had applied for selection to the post of Professor-Director in FMAR in KGMC, Lucknow and all the four candidates including the petitioner were found ineligible in terms of the advertisement and were rejected by the Commission. Further proceedings in this regard were in progress when the" Government vide its letter No. 2629/Section 1/5 Sa/25/88., dated 4.5.1991 cancelled the requisition dated 1.6.1987 and consequently the Commission dropped the proposed selection. The Commission was advised by the State Government vide letter dated 17.2.1993 to close the matter with regard to the work of KGMC, Lucknow as the appointment was to be made in accordance with the rules and regulations of Lucknow University.
5. In the rejoinder-affidavit to the counter-affidavit of opposite Parties 1 and 2 most the averments of the writ petition have been repeated. The. RALC is presently working under the control of the Advisory Committee and not under the control of the State Government as alleged-by the State. Dr. J. N. Kapoor was not appointed as Director of RALC. It has been wrongly averred by the State before the Court that the U.P. Public Service Commission also could not find any suitable candidate. This is the correct position. The vacancy could not have been filled by deputation in view of the ban of the State Government. It is further alleged that the opposite party No. 4 did not possess the essential qualifications for the post of Director-Professor. In a latter 25.2.1994 addressed to the Secretary, Medical Education and Training, U.P. Government the Director General has stated in so many words that after looking into the qualifications of Dr. A. K. Gupta, opposite party No. 4, it is clear that he is not in possession of prescribed educational qualifications which are mandatory for the post of Director-Professor in RALC and as such he cannot be considered of the said post. The work and experience of opposite party No. 4 was not of such a level that he could have been granted double promotion from the post of Assistant Professor to the post of Director-Professor in RALC Lucknow. The contention that the post of Director-Professor in DPMR does not require the qualifications recommended by the Medical Council of India is not correct. The State Government has placed wrong facts before the Court by stating that the qualification of 'M. D. Medicine is additional for appointment to the post of Professor, while this qualification is mandatory in nature, meaning thereby that a person should also hold diploma in PMR. The petitioner was fully qualified for the post of Associate Professor in PMR. It is further mentioned that circular letter dated 22.10.1994 was not addressed to KGMC Lucknow by which application were invited for appointment on the post of Director-Professor.
6. We have heard learned Counsel for the petitioner as well as learned counsel for the opposite parties at length.
7. The question in the present case which arises for consideration by this Court is as to whether the appointment of opp. party No. 4 Dr. A. K. Gupta to the post of Director-Professor in the Rehabilitation & Artificial Limb Centre (hereinafter referred to as R.A.L.C.) is valid or not. The history of this Department has already been given while narrating the facts of the case. As seen in the earlier Part of the judgment, the post of Director was converted into the post of Director-Professor.. The Government also wanted that teaching work should also be done in this Department, hence the designation was changed accordingly. The designation of Senior Medical Officer was also changed to Senior Medical Officer-cum-Reader. The designation of Medical Officer was changed to Lecturer in Orthopaedic and Prosthetics and so on. But as a matter of fact teaching work could not be started as yet in this Department though the Senior Medical Officer-cum-Reader was asked by the Head of the Department of Orthopaedic Surgery of King George Medical College (hereinafter referred to as K.G.M.C.), Lucknow to arrange for lectures in R.A.L.C. for students of surgery or post-graduate etc., which is supported by various documents filed as Annexure-13 to the writ petition. But this activity cannot be said to be a regular teaching activity in R.A.L.C.
8. In order to appoint a Director-Professor in this Department, the State Government requested the U. P. Public Service Commission to recommend a suitable candidate for appointment to this post.
The Government sent a requisition vide its letter dated 1.6.87 to the U. P. Public Service Commission, which issued an advertisement No. 1/91-92. According to opp. party No. 5, only four candidates applied for the post of Director-Professor, but none of them were found eligible in terms of the qualifications given in the advertisement. Thereafter another advertisement was issued by the U. P. Public Service Commission, but in view of the letter dated 4.5.91 sent by the Government the U. P. Public Service Commission dropped the process of selection as the Commission was advised by the Government to close the matter vide its letter dated 17.2.93 as the appointments were to be made in accordance with rules and regulations of Lucknow University. Copy of this letter is Annexure-2 to the counter affidavit of opp. party No. 5 U.P. Public Service Commission.
9. In this connection it may be mentioned that in the advertisement which was issued by the U. P. Public Service Commission, essential qualifications for the post of Director-Professor were indicated. The photo copy of the advertisement is Annexure-6 to the writ petition. A perusal of this advertisement goes to show that one post of Professor-Director in the Department of Physical Medicine & Rehabilitation, K.G.M.C. Lucknow was advertised, for which essential qualifications were as under:
(i) M.S. (General Surgery)/ M.S. (Orthopaedics) with two years' special training in the speciality of Physical Medicine and Rehabilitation (Rehabilitation Medicine) or two years of equivalent training approved in the subject in any approved institution in India or any equivalent qualifications as recognised by the Medical Council of India, and
(ii) Teaching/Research experience as Reader in Physical Medicine and Rehabilitation for 4 years in a Medical College.
There were preferential qualifications also.
10. According to the U. P. Public Service Commission, none of the candidates including the petitioner and opp. party No. 4 applied, had requisite qualifications. Thus opp. party No. 4 did not fulfil the essential qualifications as given in this advertisement.
11. When the State Government asked the U.P. Public Service Commission to drop the process of selecting candidates for the post of Director-Professor, it decided to appoint a person on this post by taking on deputation. The letter issued by the Joint Secretary, Chikitsa Anubhag 1, dated 22nd Oct., 1994 shows that request was made to the Medical College at Agra, Allahabad, Kanpur, Jhansi, Gorakhpur and Meerut to send the applications of candidates alongwith their bio-datas to the State Government. This letter States that the post of Director is lying vacant and the Government is thinking to fill up this post by deputation till a person is approved by the U. P. Public Service Commission. The essential qualification which has been given in this letter is as under:
1. M. S. (General Surgery), M. S. Orthopaedic alongwith two years' special training in the Physical Medicine and Rehabilitation or teaching experience in some equivalent subject from a recognised institution.
2. Must have teaching experience as Associate Professor in Physical Medicine and Rehabilitation.
12. Learned Counsel for the petitioner has argued that opp. party No.4 does not fulfil the essential qualifications given in the letter. He has also pointed out that this letter misstates the facts inasmuch as the post is being filled tap on deputation till a suitable candidate is recommended by the U.P. Public Service Commission. As mentioned in the earlier part of the judgment, the State Government had directed the U.P. Public Service Commission to drop the recruitment procedure for the post of Director-Professor. Therefore, the statement that till the post is filled by the U.P. Public Service Commission is contrary to the facts on record. It was the State Government which had withdrawn the powers of U. P. Public Service Commission for selecting a candidate for the post of Director-Professor and at the time when this letter was issued on 22nd October, 1994, the Government had not issued any direction to the U.P. Public Service Commission to select a candidate for this post.
13. Leaned counsel for opp. party No. 4 has argued that the petitioner had also applied in pursuance of this letter. This argument is controverted by the learned Counsel for the petitioner. According to the learned Counsel for the petitioner, no copy of this letter was given to the Principal of Medical College, Lucknow. As indicated in the earlier part of the judgment, the copies of the letter were sent to the Principals of six Medical Colleges only and Lucknow Medical College was not included in this letter.
14. In para 12 of the counter affidavit filed by the State, opp. party No. 1, a mention has been made of sending circular letter dated 22.10.94. In para 13 it is mentioned that no application was received in response to the said circular letter. According to the State as alleged in para 14 of the counter affidavit, no application was received and there were only three persons available with the State Government for consideration for this post. They were the petitioner, opp. party No. 4 and one Dr. K. S. P. Chaudhary. According to the State, best candidate amongst three was the opp. party No. 4 hence he was taken on deputation as Director-Professor. It has also been averted that no rules have so far been framed regarding the services of the Centre.
15. Thus it is clear that at present no Rules exist for appointment to the post of Director-Professor in the R.A.L.C. Department. If no Rules existed then the State Government was required to act according to fixed norms and should have selected a person who had all essential qualifications. The State Government cannot ignore the essential qualifications as prescribed for the post of Director-Professor.
16. In this connection it will not be out of place to mention that after the judgment of the High Court the. Medical College reverted back to the Lucknow University. There is a Government Order dated 7th June, 1986, a copy of which is contained in Annexure-3 to the writ petition, by which it was provided that this centre is to be merged in the K.G. Medical College as the Department of Physical Medicine and Rehabilitation. In para 1 it was provided that the important administrative functions and policy matters shall be decided by an Advisory Council consisting of members given in this para. In para 6 it is provided that the post of Director R.A.L.C. has been changed by the State Government as Director-Professor. This Director-Professor will work as head of the Department and as far as the teaching work is concerned, he will work under the Principal/Dean Medical Faculty and on the administrative side he shall be under the Advisory Council, but in day-to-day working he will work independently. He will also be using the powers of Head of the Department like any other Head of the Department. It has also been provided that the selection and appointment of Director-Professor shall be done by the State Government and the same Rule will apply which applies for the post of Professor.
17. On this subject another G. O. was issued on 29.1.94 as contained in Annexure-16 to the writ petition. A reference of G. O. dated 7th June, 1986 has also been made in it. It is mentioned that after the judgment of the High Court, the Government issued an order dated 10th of August, 1992, by which it was decided that the State of this centre will be as prior to 1988. This G. O. also provides that so far as teaching work is concerned, R.A. L. C. will be treated as Department of Physical Medicine and Rehabilitation, K.G.M.C. and the Director-Professor shall work under the Principal/Dean Medical Faculty. As far as the administrative matters and policy decisions are concerned, they shall be taken on the advice of Advisory Council.
18. Thus, it is clear that as far as teaching work is concerned, the Director-Professor will work under the Principal/Dean Medical Faculty, but for the purposes of administrative work it will be under the Government and the Government will be the appointing authority of Director-Professor. 'The argument of the learned Counsel for the petitioner that the appointment to this post has to be made in accordance with the Rules framed by the State Government for Medical Colleges cannot be accepted because by virtue of 'the Government Orders, referred to above, the appointment of the Director-Professor has to be made by the State Government and not under the Rules referred to by the learned Counsel for the petitioner.
19. Now, we have to see whether opp. party No. 4 fulfils the qualifications for the post of Director-Professor as given in the letter of the State Government dated 22.10.94. As indicated in the earlier part of the judgment, teaching work is also to be started in this centre The Government may take a decision to start the teaching work in this Centre from any particular date. In that event it is necessary for the persons who are appointed in this centre to possess such qualifications which are required for teaching purposes. The post of Director has also been designated as Professor. Therefore, the person who is to be appointed as Director-Professor, should possess the requisite qualifications of Professor because in future he may be required to take classes and for which he must have the qualifications as required by the Medical Council of India. The qualifications as prescribed by the Medical Council of India are as under which are contained in Annexure-17 to the writ petition:
PROFESSOR Academic qualifications in the Department of Physical Medicine and Rehabilitation:-1. M. S. in General Surgery/M. S. Orthopaedics with two years' special training in the speciality of physical medicine and Rehabilitation (Rehabilitation Medicine)or two years of equivalent training approved in the subject in any approved institution in India.
2. Teaching/Research experience is also required. He should have worked as a Reader in Physical Medicine and Rehabilitation for four years in a Medical College.
20. Later on certain other qualifications were added by the Post-graduate Committee in its meeting held on 12.5.92 and approved by the Medical Council on 31.8.92. These qualifications which may be considered as requisite qualifications are:
1. M. D.(P.M.R.)
2. M. D.(Medicine) with Diploma in P. M. R.
3. D. N. B.(P.M.R.).
21. A note has also been given that up to 1985 certain other qualifications were acceptable, but we are not concerned with those qualifications, because the appointment of opp. party No. 4 has been made much later than 1985.
22. Now we consider the qualifications which the opp. party No. 4 possessed. In para 19 at page 6 of the writ petition, the petitioner has mentioned the qualifications which are possessed by the opp. party No. 4 they are:
(1) M.D.(Medical), 1981.
(2) Diploma in Medical Rehabilitation (U.K.), 1977-79, besides clinical experience.
23. Opp. party No. 4 in para 4 (b) of the counter-affidavit has given his qualifications. According to him, on 15.9.85 he was having the following qualifications:
(i) M. D. (General Medicine).
(ii) Specific designation and experience in the speciality of Physical Medicine and Rehabilitation from Oct., 1975 to May, 1985 as will be evident from the curriculum vitae.
(iii) Two years, special training in specialty in physical medicine and Rehabilitation per recommendations of Medical Council of India).
24. The State Government in its counter-affidavit in para 28 has given the qualifications of opp. party No. 4 which are as under:
(i) Post Graduate Degree in General Medicine (MD in General Medicine).
(ii) Diploma in Medical Rehabilitation from Royal College London known a D. Med. Rehab. U.K.
(iii) Two years special training in speciality in physical medicines and rehabilitation:-
(iv) He was working as Asstt. Professor in Physical Medicine and Rehabilitation, Regional Rehabilitation Training Centre, Ministry of Welfare, Govt. of India.
25. Now we have to see whether opp. party No. 4 fulfils the essential qualifications for the post of Director-Professor as prescribed by the Medical Council of India. As seen in the earlier part of the judgment, qualifications for the post of Professor have been mentioned in Annexure-17 to the writ petition. Later on M. D. (PMR) was also added, meaning thereby M.D. (Medicine)with Diploma in PMR. Now according to the petitioner, opp. party No. 4 is M.D. (Medicine) and holds a Diploma in Medical Rehabilitation from Royal College, London (U.K.).
26. According to the learned Counsel for the petitioner, the Diploma from Royal College, London is no longer recognized by the Medical Council of India and as such this qualification is not possessed by the opp. party No. 4. For this purpose, reference may be made to Annexure-22 to the writ petition. The Medical Council of India had recommended certain qualifications which are required for the appointment on the post of Professor. A note has been given that all British qualifications obtained after 11.11.78 will cease to be recognised qualifications. The petitioner has filed Annexure-8 to the rejoinder-affidavit showing that opp. party No. 4 obtained this qualification in April, 1979. It is a letter from Royal College of Physicians addressed to the petitioner and signed by G. N. Leopoid (Mrs.) Registrar's Office. A perusal of this document shows that in response to the correspondence made by the petitioners the above named Doctor, namely, Dr. Ashok Kumar Gupta was awarded Diploma in Medical Rehabilitation jointly by this College and Royal College of Surgeons of England in April, 1979. This fact is also not denied by opposite party No. 4.
27. Thus, it is clear that the opposite party No. 4 obtained this Diploma in 1979 while this Diploma was de-recognised by the Medical Council of India on 11.11.1978. It clearly says that any Diploma obtained after 11.11.1978 will not be recognised from Medical Council of India. The added qualifications for the post of Professor as mentioned in Annexure-17 are: MD(Medicine)with Diploma in PMR, meaning thereby a person should be MD in Medicine and also hold a Diploma in PMR. Opposite Party No. 4 is MD(Medicine), but as the Diploma in PMR given by the Royal College of London(U.K.) is not recognised in India, he does not fulfil the requisite qualifications given under the head of academic qualifications.
28. In the case or Dr. M. C. Bindal and Ors. v. R. S. Singh and Ors., AIR 1987 SC 358, the Apex Court quashed the appointment of Dr. Bindal as Drugs Controller, U. P. on the ground that he did not possess essential qualifications. In that case Dr. Bindal did not possess the requisite qualifications of five years practical experience in drug testing. In that case the State Government in spite of the advice of the Commission to the contrary, namely, he did not possess the requisite five years' experience in drug testing etc., and therefore, was not eligible for the appointment to that post, appointed Dr. Bindal as Drugs Controller, which was not a bona fide exercises. On these facts the appointment of Dr. Bindal was quashed by the Apex Court.
29. This was a short order which was pronounced by the Apex Court on 19.12.1986. The detailed reasons were given by the Apex Court later on which have been reported in AIR 1989 SC 1314. The important fact which has to be noted in this judgment is that a candidate in order to be considered for appointment to the said post has to comply with the requisite qualifications as well as practical experience in drug testing, etc., for a period of five years. If any of these essential qualifications are lacking then the candidate cannot claim to be appointed on that post.
30. In the case of Bhagirath Das v. State of Rajasthan and Ors., (1992) 4 SCC 64, it was held in para 10 that the qualifications prescribed were twofold: educational and practical experience. A better educational qualification does not obviate the need for prescribed, practical experience.
31. Similarly in the case of Dr. M. S. Mudhol and Anr. v. S.D. Halegkar and Ors., (1993) 3 SCC 591, it was held that the respondent did not have the requisite educational qualifications to be selected for the post of Principal. The contention that M. Ed. Second Division was equivalent to M. A. Second Division was fallacious. The former is academic qualification while the latter is a professional qualification. Secondly the courses of the former is whole time spread over not less than two years while the course of the letter is part time and is spread over one year. In any case, the statutory Rule with regard to the essential qualifications is very clear inasmuch as it requires both academic Masters Degree and the teaching degree, the latter being not the substitute for the former. What is further, while laying down the qualification with regard to the academic degree, viz., the Master's Degree, the Rule insists upon Second Division for such degree.
32. As far as the Teaching and Research Experience is concerned, it has clearly been provided that a candidate must be a Reader in Physical Medicine and Rehabilitation for four years in a Medical College. As mentioned in the earlier part of the judgment, opposite party No. 4 was working, according to the State Government, as Assistant Professor in Physical Medicine and Rehabilitation, Regional Rehabilitation Training Centre, Ministry of Welfare Government of India. Thus opposite party No. 4 was working as Assistant Professor only while the teaching experience was required as Reader in Physical Medicine in a Medical College.
33. It is, therefore, apparent that opposite party No. 4, Dr. A. K. Gupta, was not a Reader in a Medical College at the time when the selection was done by the State Government. Moreover, it has not been indicated as to whether opp. party No. 4 was working as Reader for the last four years or not. Assistant Professor is not equivalent to Reader. It is the Associate Professor, which is equivalent to Reader. Therefore, opp. party No. 4 does not fulfil the qualifications of teaching also. In the- letter dated 22.10.94 which the Government issued to various Medical Colleges for taking a person on deputation on the post of Director-Professor, it has clearly been mentioned-that the candidate must have four years' experience as Associate Professor. Opp. party No. 4 even according to the qualifications disclosed in the letter, does not fulfil the essential qualifications, hence he could not have been considered for this post.
34. It has been argued by the learned Counsel for opp. party No. 4 that recommendations of Medical Council Of India are only re-commendatory in nature and are not mandatory. He has placed reliance on the case of State of Madhya Pradesh and Anr. v. Kumari Nivedita Jain and Ors., (1981) 4 SCC 296. This case does not apply to the facts of the present case. That case related to reservation under Articles 14 and 15. The Hon'ble Supreme Court held that by virtue of the authority conferred by the Medical Council Act, the Medical Council may prescribe the eligibility of a candidate who may seek to get admitted into a Medical College for obtaining recognized medical qualifications. As to how the selection has to be made out of the eligible candidates for admission into the Medical College necessary depends on circumstances and conditions prevailing in Particular States and does not come within the purview of the Council. These observations are clear. As far as the admissions are concerned, they have to be regulated by the qualifications which have been prescribed by the Medical Council of India but the procedure adopted for selection is left to the State Government. !t was held that the State is entitled to make reservations for the Scheduled Castes and Scheduled Tribes in the matter of admission to medical and other technical institutions. In the absence of any law to the contrary, it must also be open to the Government to Impose such conditions as would make the reservation effective and would benefit the candidates belonging to these categories.
35. Another case on this point is Ajay Kumar Singh and Ors. v. State of Bihar and Ors., (1994) 4 SCC 401. In this case it was held that even if one relates the Indian Medical Council Act to Entry 25 of List 111 in addition to Entry 66 of List I, even then the position is not different. The Act does not purport to deal with, regulate or provide for admission to graduate or post-graduate medical courses. It was further held that the power of the Indian Medical Council to prescribe the minimum standards of medical education is only advisory in nature and not of a binding character. The Regulations made under the Act cannot also provide for or regulate admission to postgraduate courses in any event. It was further provided that the recommendations of post-graduate medical education(adopted by the Medical Council of India in January, 1992 revised up to April, 1993, have not yet been approved by the Central Government nor have they been published as Regulations under Section 33.
36. The third case on this point is Dr. Ganga Prasad Verma and Ors. v. State of Bihar and Ors., 1995 Supp. (1) SCC 192, in which it was held that the Associate Professor is to teach the students in that subject or guide the research students. So the regulation intended to prescribe M. Ch. after M. S. as a must. Since the appellant did not have the qualification of M. Ch. though he had the experience, he is not entitled to be considered for promotion as Associate Professor in suppression of the claims of candidates having the qualification of M. Ch. in the speciality concerned in addition to M. S. General Surgery. It was further held that the regulations made by the Medical Council of India do not have any overriding effect on the statutory Rules. Rule 5 prescribed 5 years' teaching experience after D. M. which was upheld. In this case admittedly no statutory Rules have been made by the State of Bihar. Therefore, the regulations made by the Medical Council of India under Section 33 would bind the State Government. The conditions prescribed therein namely, for promotion to the post of Professor or Associate Professor, the qualification in the speciality namely, M. Ch. concerned after M.S./F.R.C.S. is a must.
37. Thus, it is clear that the Medical Council of India has prescribed certain qualifications and these qualifications will prevail unless there are statutory Rules to the contrary. Therefore, the contention of the learned Counsel for opp. parties that the recommendations of Medical Council of India are only recommendatory in nature, cannot be accepted.
38. Thus, we find that from any angle opp. party No. 4 was not qualified to be appointed as Director-Professor of this centre. In this connection, reference may be made to a letter dated 25.2.94 written by Director-General Medical Education and Training, U. P. to the Secretary, U. P. Government (Medical Department). This letter is contained in Annexure SC-1 to supplementary affidavit of the petitioner. The subject of this letter is about taking of opp. party No. 4 as full time Director in R.A. L. C. on deputation. It has been mentioned that Medical Council of India has prescribed qualifications for the post of Professor which will also apply to the post of Director-Professor. These qualifications are the same which have been mentioned by the State Government in its letter dated 22.10.94. After considering the case of opp. party No. 4 it was mentioned that keeping in view the academic qualifications, It Is clear that Dr. Ashok Kumar Gupta, opp. party No. 4 cannot be recommended for deputation to the post of Director-Professor in R. A. L. C. This letter was issued on 25.2.94 only a few months before the appointment of opp. party No. 4. The appointment of opp. party No. 4 was done on 14.12.94 ignoring the letter dated 25.2.94 written by the Director General, Medical Education and Training. Within these ten months opp. party No. 4 has not acquired these qualifications. Thus, the action of the State Govt. in appointing the opp. party No. 4 as Director-Professor cannot be approved in view of the facts on record.
39. Learned Counsel for the petitioner has further drawn the attention of this Court to a G. O. dated 13.4.94 contained in Annexure-23 to the writ petition. This is a letter written by the Secretary, U.P. Govt. to all the Principal Secretaries, U.P. Govt. all Head of the departments, Commissioners and the District Magistrate. It provides that a ban has been imposed by the State Government on recruitment, but this ban will not apply to regular appointments/promotions. It has also been clarified that there is a ban on taking on deputation. As mentioned in the earlier part of the judgment, opp. party No. 4 has been appointed as Director-Professor on 14.12.94 when this ban was in force and had not been lifted by the State Government. Thus, the appointment of opp. party No. 4 is also hit by the ban imposed by the State Govt. The State Govt. without taking into consideration this aspect of the matter, made the appointment of opp. party No. 4 to the post of Director-Professor to which he was not qualified.
40. Thus, on the basis of facts on record it is held that opp. party No. 4 did not fulfil the essential academic and teaching qualifications for appointment to the post of Director-Professor in R.A.L.C.
41. Much arguments have been advanced by the learned Counsel for the opposite party No. 4 to show that the petitioner is not eligible to be appointed as Director-Professor of the Centre. In the present case the Court is not going through the questions to whether the petitioner, is eligible for promotion to the post of Director-Professor or not. According to learned Counsel for opposite party No. 4 this post is not meant to be filled up by promotion but is to be filled up by deputation or direct recruitment. According to learned Counsel for opposite parties no rules have been framed so far for appointing a person as Director-Professor of the Centre. When no Rules have been framed for appointment of Director-Professor of the Centre it cannot be said that this post cannot be filled up by promotion. Moreover, this Court is not going to look into the question as to whether this post is to be filled up by promotion. The Court is concerned only to see as to whether the appointment of opposite party No. 4 on deputation to the post of Director-Professor of the Centre is valid or not. The Court has already found that the opposite party No. 4 does not possess the essential qualifications to become Director Professor of the Centre, therefore, his appointment has already been held to be invalid. Even in the written statement much stress - has been laid to the fact that the petitioner is not eligible for appointment by promotion to the post of Director-Professor. Opposite party No. 4 did not show as to how appointment of opposite Party No. 4 was valid on the post of Director-Professor on deputation.
42. It has also been vehemently argued by the learned counsel for the opposite parties that this writ petition should be thrown out on the ground that the petitioner made certain allegations against the then Health Secretary. The allegations to which a reference has been made related to the monetary considerations on behalf of opposite party No. 4 to the Health Secretary but these allegations are not to be found in the writ petition. Allegations to this effect have been made in the application moved for contempt of the Court under Article 215 of the Constitution of India. Those allegations have been mentioned in para 5 of the applications and the same has been denied in para 4 of the counter affidavit. This application was moved by the petitioner on the ground that in spite of the Court's order staying the absorption of the opposite party No. 4 on deputation the opposite party No. 1 has passed orders for absorption of the opposite party No. 4. At present this application is not being disposed of by this Court. Only the petition is being disposed of. Whenever the application under Article 215 is disposed of then the plea can be looked into as to whether the application under Article 215 is to be thrown out or to be entertained by the Court.
43. It has also been argued by the learned Counsel for opposite party No. 4 that the petitioner has wrongly mentioned in the petition that teaching job is performed in the centre. This is mentioned in para 22 of the writ petition wherein it has been alleged that all along the petitioner had been performing teaching, research, examination and other academic work for the DPMR. According to the learned Counsel the petitioner has not done any teaching work in the Centre and only some demonstrations were done by the petitioner to the students of KGMC of the Orthopaedic Department. This contention is wrong. The petitioner has filed some documents as Annexure-13 to the writ petition to show that the petitioner has done teaching work also in the Centre. The first paper of Annexurel3 is the letter written by the Head of Department of Orthopaedic Surgery of KGMC dated 18.1.1995 addressed to the petitioner requesting him to arrange ten lectures in RALC for D. Orth. Partl. The second letter in the series is dated 6.6.1991 written by the Head of Deptt. of Orthopaedic Surgery KGMC to the petitioner requesting him for arranging lectures in RALC for M. S. Orthopaedic Surgery. The next letter is dated 20.5.1992 written by the Head of Department of Orthopaedic Surgery KGMC to the Director of the Centre requesting him to arrange a few lectures in the Centre, whereupon an order has been passed by the Director asking the petitioner and Dr. V. P. Sharma to make a schedule of the lectures and demonstration. The next letter is dated 2.3.1994 written by the Head of Department of Orthopaedic Surgery KGMC to the Director of the Centre requesting him to arrange for teaching on Rehabilitation for post-graduates which has been marked to the petitioner for making arrangement. The last letter annexed with the petition is dated 2.12.1994 written by the Head of Department of Orthopaedic surgery KGMC to the Director of the Centre requesting him to arrange ten lectures for D. Orth. Surgery students. The Director has marked this letter to the petitioner for making arrangements. These letters clearly go to show that from time to time lectures have been arranged by the petitioner for the students of Orthopaedic Surgery of KGMC. Thus we find that the opposite parties have also not correctly Stated their case and have merely argued that no lectures took place in the Centre and only demonstration work was done. This was misleading of the facts of the case on the part of the opposite parties. Thus, we find that the contention of the opposite parties that no teaching work was ever done in the Centre is wrong. As mentioned in the earlier part of the judgment it was also intended that this Centre will start teaching work also but due to some inaction on the part of the State Government this work could not be done in the Centre.
44. Learned counsel for opposite party No. 4 has also argued that as no suitable candidate, could be found by the U. P. Public Service Commission therefore the opposite party No. 4 had to be taken on deputation. This Statement of fact is wrong. As mentioned in the earlier part of the judgment the U. P. Public Service Commission in its counter affidavit has alleged that initially advertisement for selecting a suitable person for the post of Director-Professor was made on requisition sent by the State Government vide letter dated 1.7.1987, As no suitable candidate got through the said post was re-advertised vide advertisement, No. 1/91-92 dated June 29, 1991, The State Government vide letter dated 4.5.1991 cancelled the selection and vide letter dated 17.2.1993 requested the Commission to drop the matter finally where upon the Commission dropped the matter finally. These facts clearly go to show that the Commission was not allowed to do its job and in the midway the State Government cancelled the selection and made appointment of the opposite party No. 4 on deputation on the post of Director-Professor of the Centre. Thus, it is wrong to say that the U. P. Public Service Commission did not find any suitable candidate for the post of Director-Professor of the Centre. This wrong assertion has been made even by the State Government.
45. In the result we find that the appointment of opposite party No. 4, Dr. A. K. Gupta, to the post of Director-Professor is not valid because he did not fulfil the essential qualifications required for the said post.
46. It will not be out of place to observe that in this institution teaching work was also intended to be done but no sincere efforts were made by the State Government to .start the teaching work although the post of Senior Medical Officer of the Centre was redesignated as Senior Medical Officer-cum-Reader, the post of Medical Officer was redesignated as Lecturer in Orthotic and Prosthetics and the post of Senior Physiotherapist was redesignated as Lecturer in Physiotherapy vide Government Order dated 5.8.1987, Annexure-4 to the writ petition, presumably with the intention that teaching work would start soon. Subsequently the post of Director of the Centre was re-designated as Director-Professor. We hope that the State Government will try to start teaching work in regular manner at the Centre which had been the intention of the State Government. It is all the more necessary that the persons who are appointed to these posts should possess required qualifications and experience. In the Government Order the State Government vide order dated 7.6.1986, mentioned that for the appointment of the post of Director-Professor of the Centre those rules will be applicable which are applicable for appointment to the post of Professor. The State Government before making any appointment to these posts will frame rules for appointment of director-Professor and all other lecturers, teachers and other officers of the Centre as to avoid any dispute about the appointment or seniority in the Centre.
47. Learned Counsel for the petitioner has lastly argued that a writ of quo-warranto be issued against opposite party No. 4, Dr. A. K. Gupta, who has been appointed as Director-Professor of RALC. According to the learned Counsel the appointment of opposite party No. 4 has been made against the Rules.
48. In this connection it may be mentioned that it is the admitted position that no Rules have been framed for appointment of Director-Professor in RALC. No Rules have been placed before the Court either by the State Government or by opposite party No. 4 to show that any Rules have been framed for appointment of Director-Professor in RALC. The appointment of opposite party No. 4 had been made on the basis of one D. O. letter dated 22.10.1994 written by the Joint Secretary too the Principals Medical Colleges, Agra, Allahabad, Kanpur, Jhansi, Gorakhpur and Meerut which is Annexure C-A-1 to this counter affidavit of opposite party No. 4. This is merely a D. O. letter and there are no executive instructions for guiding the appointment of Director - Professor in RALC, therefore, this letter cannot take the place of executive instructions. Therefore when no Rules have been framed under Article 309 of the Constitution of India it cannot be said that there had been any violation of statutory rules in the appointment of Director-Professor in RALC. A perusal of the record goes to show that there is nothing on the record to indicate that executive instructions have been issued in absence of statutory Rules governing the selection and appointment of Director-Professor under Article 162 of the Constitution of India. Therefore in such a case it cannot be said that any infringement of statutory Rules has been made by the State Government in the matter of appointment of Director-Professor.
49. A writ of quo-warranto is issued against a person who has been appointed to a public office in violation of statutory Rules. By means of a writ of quo-warranto the usurper is asked "by what authority he is in the office?" In the case of University of Mysore v. Govinda Rao, AIR 1965 SC 491, in para 7 the Hon'ble Supreme Court has held as under:
" Broadly stated, the quo warranto proceedings affords a judicial enquiry in which any person holding an independent substantive public office or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty, if the enquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto outs him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter o£ making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the Courts to issue writ of quo warranto if properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it, It is, thus a clear that before citizen can claim a writ of quo warranto, he must satisfy the Court, Inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not."
50. In the case of Rajendar Singh v. N. K. Shejwalker and Anr., AIR 1971 MP 248, it was held that the election was held in breach of imperative provisions of law and therefore it was no election in the eye of law and the High Court will not refuse issue of a writ of quo warranto.
51. Similar view was taken in the case of Rajendra Shankar v. State of U. P., 1979 Cri. L. J. 243. In this case it was held that satisfaction of the Court that the office in question is a, public office and is held by usurper without any authority is a pre-condition for issuance of a writ of quo warranto. If the office is a public office and is occupied by usurper without legal authority, issuance of quo warranto would be justified.
52. Thus from a perusal of the above mentioned cases it will be clear that the essentials which have to be seen in the case before issuing a writ of flu o warranto are firstly the petitioner must first satisfy the Court that the post in question is a public office and secondly that it is held by usurper without any legal authority. Thereafter a judicial enquiry is to be made as to whether the appointment of the person to a public office has been made in accordance with Rules or not. If the statutory Rules have been violated in the matter of appointment then a writ of quo warranto can be issued. As seen in the earlier part of the judgment the appointment of opposite party No. 4 cannot be said to be in violation of the statutory Rules because no statutory Rules existed at the time of appointment of Director-Professor. Therefore, a writ of quo warranto on the facts of the case cannot be issued.
53. Learned Counsel for the opposite parties have argued that writ of quo warranto can only be issued in favour of a person who can be appointed to the post. According to the learned Counsel the petitioner is not eligible for appointment to; the post of Director-Professor, therefore, a writ of quo warranto cannot be issued at his instance. This Court is not to go into these questions as it has already been held in the earlier part of the judgment that a writ of quo warranto cannot be issued in the present case as the appointment of opposite party No, 4 cannot be said to be in violation of any statutory Rules because no Rules have been framed for appointment of Director-Professor in RALC.
54. The next relief claimed by the petitioner is that opposite parties 1 and 5 be directed to make appointment to the post of Director-Professor after selecting of a suitable candidate to this post. As the Rules for appointment have not been framed so far by the State Government the post of Director-Professor in RALC cannot be filled. The State Government will have first to frame the Rules and thereafter the post can be filled up in consultation with the U. P. Public Service Commission.
55. The next prayer that a writ of mandamus be issued to the opposite parties to decide the representation of the petitioner. It is not necessary to issue such a direction because after framing the Rules the State Government has to make selection for the post of Director-Professor in consultation with the Public Service Commission.
56. It has been brought to the notice of the Court that orders regarding opposite party No. 4 for absorption as Director-Professor have been passed by the State Government. These orders will have no effect as they have been passed during the pendency of the writ petition especially when application for stay of absorption of opposite party No. 4 was pending for disposal. When the order of appointment is being quashed the subsequent order of absorption also goes with it.
57. As has been held in the earlier part of the judgment that opposite party No. 4 does not fulfil the requisite I essential qualifications for appointment to the post of Director-Professor, the appointment of opposite party No. 4 is to be quashed and once the appointment is quashed the post of Director-Professor becomes vacant. After the quashing of this appointment a vacuum will be created in the Department because there is none to hold the post of Director-Professor. Till the regularly selected candidate joins on the post of Director-Professor in RALC, the present incumbent shall continue. The State Government shall frame Rules for appointment to the post of Director-Professor in RALC and appoint a person to the said post in consultation with Public Service Commission, as far as possible within six months, in accordance with law.
58. Thus, in view of what has been said above the writ petition is partly allowed. The order of appointment of Dr. A. K. Gupta, opposite party No. 4, dated 14.12.1994, contained in Annexure-1 to the writ petition, is quashed. It is directed that the, State Government shall, as far as possible, within a period of six months, take necessary steps after framing of Rules for appointment of a suitable candidate fully qualified to hold the post of Director-Professor in RALC in consultation with U.P. Public Service Commission, in accordance with law. The parties shall bear their own costs.