Allahabad High Court
Ram Darash Yadav (Dr.) vs State Of U.P. And 2 Others on 12 September, 2018
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 23.05.2018 Delivered on 12.09.2018 Court No. - 34 Case :- WRIT - A No. - 64307 of 2015 Petitioner :- Ram Darash Yadav (Dr.) Respondent :- State Of U.P. and 2 Others Counsel for Petitioner :- Alok Kumar Yadav Counsel for Respondent :- C.S.C.,Ajay Kumar,Anoop Trivedi, M.N.Singh, Ramesh Chandra Tiwari, Shailendra Hon'ble Sudhir Agarwal, J Hon'ble Ifaqat Ali Khan, J (Delivered by Hon'ble Sudhir Agarwal, J.)
1. Heard Sri Alok Kumar Yadav, Advocate for petitioner, Sri M.N. Singh for the Commission and learned Standing Counsel for respondents.
2. Petitioner claiming to be a candidate for recruitment to the post of Principal, Government Homeopathy Medical College, has assailed Advertisement No. 1/2013-14 dated 24.8.2013 in so far as one post is reserved for women and one of the eligibility condition that the incumbent must have experience of having worked in a institution on a full time salaried post. Petitioner has further sought a mandamus commanding respondents to make appointment on two posts of Principal of Government Homeopathy Medical College treating the same as unreserved and also by taking into account experience earned by candidate working on honorary basis or part time.
3. Facts, in brief, giving rise to present dispute are stated as under.
4. In the State of U.P., there were 9 Homeopathy Medical Colleges, run privately. Same were taken over by U.P. Government by enacting UP Homeopathy Medical College (Acquisition & Miscellaneous Provisions) Act, 1985 (hereinafter referred to as the "Act, 1985"). The aforesaid Medical Colleges are now State Medical Colleges run by State Government. There was already one Homeopathy Medical College run by State Government and therefore after acquisition, total Homeopathy Medical Colleges run by State Government came to 10. Subsequently 3 were closed hence at the time of filing writ petition there were only 7 Homeopathy Medical Colleges run and maintained by State Government.
5. Recruitment and conditions of service of Teachers in State Homeopathy Medical Colleges (hereinafter referred to as SHMC) are governed by the Rules framed under proviso to Article 309 of Constitution of India titled as "Uttar Pradesh State Homeopathy Medical College Teachers' Service Rules, 1990" (hereinafter referred to as "Rules 1990").
6. The post of Principals are to be filled in by direct recruitment through UP Public Service Commission (hereinafter referred to as "Commission") as provided in Rule 5(a) of Rules, 1990. The essential qualifications and preferential qualification for the post of Principal as provided in Rule 8 read with Appendix-B of Rules, 1990 are as under:
Sl No. Name of Post Educational Qualification Preferential Qualification 1 Principal (A) (i) A recognized diploma or a degree in Homeopathy or
(ii) A qualification included in the III Schedule of the Hemeopathy Central Council Act, 1973.
(B) Ten years' teaching experience with five years' administrative experience in a recognized Homeopathic College or Hospital.
(A) Having both a recognized diploma or a degree in Homeopathy and any qualification included in the III Schedule of the Homeopathy Central Council Act, 1973.
(B) Research experience in Homeopathy in an institution recognized by Central Coucil for Research in Indian Medicine and Homeopathy of the Central Government or a State Government.
7. Rules, 1990 nowhere contemplates any honorary, contractual or temporary appointment. However, considering the facts that there was deficiency of teachers in SHMC, Government issued a Government Order (hereinafter referred to as "G.O.") dated 4.7.1998 permitting Director, Homeopathy, UP, Lucknow to engage a Guest Faculties. The terms and conditions for engaging Guest Faculties provided in para-2 of the G.O. dated 4.7.1998 read as under:
"2& bl lEcU/k esa eq>s ;g dguk gS fd xsLV QSDyVh ¼vfrfFk izoDrk½ dh mDr oSdfYid O;oLFkk fuEufyf[kr 'krksZ ,oa izfrcU/kksa ds v/khu gksxh %& 1& gksE;ksiSfFkd dkyst ds izkpk;Z }kjk dkyst dh f'k{k.k lEcU/kh dfBukb;kW dk vkadyu djds ;g lqfuf'pr fd;k tk;sxk fd fdu& fdu fo"k;ksa esa f'k{kdksa dh deh gS vkSj muds fy;s izoDrk vkeaf=r fd;s tk;sxsA 2& vkeaf=r fd;s tkus okys vfrfFk izoDrk gksE;ksiSfFkd dkystks esa f'k{k.k gsrq fu/kkZfjr vgZrk j[krs gksA 3& ,sls ik= fpfdRld] lsokfuo`r fpfdRlk f'k{kd vFkok [;kfr izkIr futh izSfDVl dj jgs fpfdRldksa dks vkeaf=r fd;k tk ldrk gS ftudh vk;q 65 o"kZ ls vf/kd u gks vkSj iq.kZ:is.k LoLFk gksA 4& izkpk;Z }kjk vfrfFk izoDrk dh O;oLFkk dsoy mu inksa ds lkis{k dh tk;sxh tks fjDr py jgs gS] vkSj rnuqlkj fjfDr;ks ds vk/kkj ij ysDpj fu/kkZfjr fd;s tk;sxsA 5& ,sls vkeaf=r f'k{kd dks :0 150@& ¼:i;s ,d lkS ipkl ek=½ izfr ysDpj dh nj ls ekuns; fn;k tk;sxk fdUrq izfrcU/k ;g gksxk fd ,d ekg esa fdlh Hkh vfrfFk izoDrk dks :i;s 3]000@& ls vf/kd dk Hkqxrku u gksA 6& bl oSdfYid O;oLFkk ds fy;s izkjEHk esa izR;sd jktdh; gksE;ksiSfFkd esfMdy dkyst dks :0 40]000@& ek= fn;s tk;sxsA mDr /kujkf'k dks fjDr inksa ds osru cpr vkfn enksa esa miyC/k cprksa ls iqufoZ&fu;kstu }kjk Lohd`r fd;k tk;A"
"2. In this connection, I have to say that the aforesaid alternative arrangement of the Guest Faculty (Guest Lecturers) shall be subject to the following conditions and restrictions:
1. After assessing the education related hardships of the college, it shall be ensured by the Principal of the Homeopathic College to determine how much shortage of teachers is and in which subjects and also to invite lecturers for them.
2. The Guest Lecturers to be invited must be having prescribed qualifications for teaching in the Homeopathic Colleges.
3. Such eligible doctors, retired medical teachers or renowned doctors in private practices may be invited who are not above 65 and are quite fit.
4. The arrangement of Guest Lecturers shall be done by the Principal only against those posts which have been lying vacant, and accordingly, the lectures shall be determined on the basis of vacancies.
5. Such invited teachers shall be given an honorarium at the rate of Rs. 150/- (Rs. One hundred fifty only) per lecture subject to the condition that any Guest Lecturer shall not be paid more than Rs. 3,000/- in a month.
6. For this alternative arrangement, every State Homeopathic Medical College shall at the outset be given Rs. 40,000/- only. The aforesaid amount shall be sanctioned by re-appropriating the savings available in the salary-savings heads for the vacant posts."
(emphasis added) (English translation by Court)
8. Petitioner obtained his degree in Homeopathy Medicine and Surgery in 1991 from G.H. Medical College, Ghazipur affiliated to Agra University. He completed his internship on 14.1.1993 and registered with Homeopathy Medicine and Surgery Board, UP, Lucknow vide certificate dated 30.7.1993.
9. Pursuant to G.O. dated 4.7.1998, petitioner was engaged as "Guest Faculty" in the subject of "Physiology" vide letter dated 18.9.1999, issued by Principal, Dr. Brij Kishore Homeopathy Medical College and Hospital, Faizabad. He continued to work as "Guest Lecturer" till 18.9.2005. A certificate to this effect was issued by Principal, Dr. Brij Kishore Homeopathy Medical College, Faizabad on 7.3.2013 certifying that petitioner delivered 1307 lecturers in the subject "Physiology" and "Biochemistry" from 20.9.1999 to 18.9.2005.
10. In the meantime, recruitment to the post of Lecturer in SHMC was notified by Commission and petitioner having being selected thererin was appointed as Lecturer (Physiology and Biochemistry) in Dr. Brij Kishore Homeopathy Medical College, Faizabad vide appointment letter dated 16.9.2005 issued by State Government. By the aforesaid letter of appointment, petitioner was placed on probation of two years. Subsequently, by order dated 25.7.2011 issued by State Government, petitioner was given temporary appointment on regular basis as Reader (Physiology and Biochemistry) and posted in SHMC, Faizabad. Then he was further appointed on the next higher post of Professor (Physiology and Biochemistry) by order dated 22.5.2013 issued by State Government.
11. Commission, vide Advertisement No 1/2013-14 dated 24.8.2013 published an advertisement for various posts including 2 vacancies of Principals in SHMCs whereof is reserved for woman. One of the condition for eligibility for the posts advertised, reads as under :
"¼3½ ljdkj }kjk ekU;rk izkIr laLFkk ls iw.kZdkfyd oSrfud in dk vuqHko izek.k i= fu;qfDr izkf/kdkjh }kjk tkjh gksuk pkfg;s rFkk funs'kd jkT; gkSE;ksiSfFkd lsoka;s vFkok 'kklu ds fdlh l{ke izkf/kdkjh }kjk izfr gLrk{kfjr gksuk pkfg,A voSrfud ,oa v'kadkfyd in dk vuqHko ekU; ugha gksxkA"
"3. The experience certificate for a full-time salaried post in the institution recognized by the Government must have been issued by the appointing authority and the same must be counter signed by the Director, State Homeopathic Services or by any competent authority. The experience of unsalaried and part-time post shall not be accepted." (emphasis added) (English translation by Court)
12. Last date of submission of application forms was 24.9.2013. Petitioner applied pursuant to the aforesaid advertisement for the post of Principal, but in the list of eligible candidates published by Commission, for the purpose of interview, petitioner's name was not shown. Petitioner understood that his candidature has not been accepted on the ground that he did not possess requisite experience as full time salaried teacher.
13. No interim order was passed in the present writ petition and in the meantime selection was finalised by Commission, and recommendations were made to State Government. It has come on record that Dr. Govind Swarup and Dr. Renu Mahendra were recommended by Commission for appointment on the post of Principals in SHMC, advertised by advertisement dated 24.8.2013. State Government did not accept selection of Dr. Govind Swarup. The selection of Dr. Renu Mahendra was challenged in Writ Petition No. 1971 (SB) of 2015 filed at Lucknow Bench of this Court and vide judgment dated 2.3.2016 her selection was quashed. Thereafter State Government appointed one Dr. Mukesh Srivastava against one of the advertised post and by way of amendment of this writ petition, appointment of Dr. Mukesh Srivastava, impleaded as respondent no. 4, has been challenged.
14. A counter affidavit has been filed by Commission (Respondent no. 3) stating that requisition dated 1.3.2012 was received from State Government for filling up two posts of Principal in State in SHMCs and one was reserved for women in compliance of judgment dated 14.9.2010 passed by a Division Bench of Lucknow Bench in Writ Petition No. 194 (SB) of 2006, Dr. Renu Mahendra Vs. State of UP and others which provides that since there are 7 posts of Principals in 7 SHMCs, therefore, as per Government Order dated 26.2.1999, 20% reservation has to be provided to women which brings in one post of Principle to be kept reserved for women. Pursuant to above Lucknow bench judgment, State Government vide letter dated 31.2.2012 required Commission to consider Dr. Renu Mahendra against one of the vacancy of Principle in SHMC.
15. The qualification advertised for the post of Principal were as under.
"Essential Qualification" (a). A recognized disploma or a degree in Homeopathic or a qualification included in the III Schedule of Homeopathic Central Counsel Act, 1973.
(b) Ten years' teaching experience with five years Administrative Experience in recognized Homeopathic Medical College or Hospital.
Note 1........
Note 2........
3. Experience certificate should be of full time paid post in an institution recognized by Government and issued by appointing authority and it should be counter signed by Director of State Homeopathic Service or by a competent authority of the Government. Experience of unpaid or part time post will not be acceptable."
16. Petitioner had applied for the post of Principal, but it was found that he did not possess requisite teaching/administrative experience, hence not called for interview. It is further said that against judgment dated 14.9.2010 passed by Division Bench at Lucknow Bench in Dr. Renu Mahendra (Supra), Special Leave Petition No. 20982 of 2011 was also filed but the same was dismissed on 3.1.2012 on the ground of delay as well as on merits. Pursuant to aforesaid advertisement, 57 candidates applied for the posts of Principle in SHMCs. After scrutiny, only 11 candidates were found eligible and called for interview. Out of 11, 9 were males and two females. However, only 10 candidates actually appeared in interview. Commission declared result on 2.12.2015 selecting Dr. Renu Mahendra against one of the two posts.
17. In the rejoinder affidavit filed by petitioner, replying counter affidavit of Commission (Respondent no. 3), facts stated in writ petition are broadly reiterated. However, copy of judgment dated 2.3.2016 passed in Writ Petition No. 1971 (SB) of 2015, Dr Hemlata Vs. State of UP has been filed as Annexure RA-1, whereby Division Bench at Lucknow has quashed appointment of Dr. Renu Mahendra on the post of Principal in one of SHMCs pursuant to Advertisement No. 1/2013-14 dated 24.8.2013. However, Court has further issued direction to make inquiry in regard to "teaching experience" claimed by petitioner, Dr. Hemlata, and if claim set up by Dr. Hemlata is found forged, to take appropriate action against her.
18. Respondent no. 4 (Dr. Mukesh Srivastava) has also filed counter affidavit. Besides justifying his own selection and appointment, he has said that petitioner does not possess requisite qualification as per Rules 1990. It does not contemplate appointment of "Guest Lecturer" and therefore, his candidature has rightly been rejected by Commission.
19. It is contented by Sri Yadav, learned counsel appearing for petitioner that firstly reservation of one post for women out of 2 is patently illegal and arbitrary inasmuch as under G.O. dated 26.2.1999 only 20% reservation is provided for women, horizontally, against respective categories and secondly Rules nowhere contemplates that experience shall be considered only against full time salaried post and not otherwise.
20. Learned Counsel for petitioner further contended that term "experience" having not been defined under Rules, 1990, Regulations 1983 must be looked into and since there is no requirement of teaching experience having been acquired on full salaried post, the same could not have been added by respondents in the advertisement in question and to that extent qualification advertised for the post of Principal in SHMC is liable to be struck down. He further contended that so far as administrative experience is concerned, a clarification was issued by State Government vide letter dated 13.3.2002 addressed to Secretary, Commission stating that senior most teacher in Homeopathy college may be treated as Head of Department and such experience may be counted towards administrative experience.
21. Sri Alok Kumar Yadav, learned counsel for petitioner has placed reliance on Supreme Court judgment in Dr. Asim Kumar Bose Vs. Union of India, AIR 1983 SC 509 to contend that in absence of any specific provision in Rules providing otherwise, teaching experience gained as specialist or in an ex-officio position must be taken into consideration.
22. In the light of rival submission, broadly two questions straightway have been agitated in this matter:
(i) Whether condition in advertisement requiring experience against whole time salary post is valid?
(ii) Whether keeping one post out of two advertised for the post of Principal reserved for women candidate is in accordance with law?
23. The standard of Homeopathy Medical Colleges is governed by the provisions made by Central Council of Homeopathy (hereinafter referred to as "CCH") under Homeopathy Central Council Act, 1973 (hereinafter referred to as "HCC Act, 1973") and Rules and Regulations framed thereunder. CCH, in exercise of powers under Section 33(i), (j) and (k) and Section 20(i) of HCC Act, 1973, and with the previous sanction of Central Government, made Homeopathy (Minimum Standards of Education) Regulations, 1983 (hereinafter referred to as "Regulations, 1983"). Therein the term "teaching experience" has been defined in Regulation 2(x) and it contemplates "teaching experience" in the subject concerned in Homeopathic College or in a Hospital recognized by the Central Council. Qualification for teaching staff for Homeopathy Medical College is provided in Annexure-E of Regulations, 1983 and for the post of Principal for degree courses the qualification prescribed are as under.
"PRINCIPAL Essential Qualifications A. (i) A recognized disploma after 4 years' study or a degree inh Homeopathy.
OR
(ii) Qualification included in the III Schedule of the Homeopathy Central Counsel Act, 1973.
B. Ten year's experience with 5 years administrative experience Preferential Qualification.
A. Having both a recognized diploma after 4 years' study or a degree in homeopathy and any qualification included in the III schedule of the Homeopathy Central Council Act.
B. Research experience in Homeopathy in an institution recognized by Central Council for Research in Indian Medicine and Homeopathy or Central Council for Research in Homeopathy of the Central Government or a State Government.
Age. Not more than 50 years as on the last of of receipt of application for the post Age relaxable for an exceptionally qualified person."
24. We may also notice at this stage that in writ petition, petitioner has relied on Regulation, 1983 framed by CCH under the Provision of HCC Act, 1973, but the said Regulations have already been superseded vide Government of India Gazette (Extraordinary) Notification dated 8.3.2013 and new Regulations have been framed namely "Homeopathy Central Council (Minimum Standards Recruitment Homeopathic Colleges and attached Hospitals) Regulations, 2013" (hereinafter referred to as "Regulation, 2013").
25. In aforesaid Regulations, we find that term "teaching experience" has been defined in Rule, Regulation 2 (h) which reads as under.
"2(h) "Teaching Experience" means teaching experience in the subject concerned in a Homeopathic College and includes teaching experience in the subject concerned in a Medical College permitted by the Central Government."
26. Regulation 12, however, provides in detail qualification for Head of Institute and Colleges and others, which reads as under.
"12. Qualification of head of the institute or college, hospital and teaching departments and teachers.- The Director or Principal, Medical Superintendent, Professors, Readers and Lecturers of college and hospital shall have the qualification and experience prescribed in these regulations, and the qualification of teaching staff and hospital staff shall be as laid down in Schedule - VII.
Provided that the teaching experience in the concerned subject of persons appointed as regular teaching staff in the colleges, prior to notification of these amended regulations, fulfilling the prescribed requirements of Homeopathy (Minimum Standards of Education) Regulations, 1983 shall be counted for appointed of teaching staff as per Schedule-IV to these regulations.
Provided further that teaching faculty appointed on the basis of the Homeopathy (Minimum Standards of Education) Regulations, 1983 will be covered under these regulations for all cadres.
Explanation - for the purposes of this regulation, teaching experience of a Teacher in a subject shall be the teaching experience counted for that subject only:
Provided also that these regulations shall not be applicable on teaching faculty appointed on prescribed post before this notification." (emphasis added)
27. Regulation 12, therefore, makes it very clear that teaching experience appointed on regular post of teaching staff prior to Regulations, 2013 has to be taken into consideration.
28. Schedule VII of Regulations, 2013 lays down qualification for teaching staff of Homeopathy College and the relevant one prescribed for the post of Principal/Director, reads as under :
"1. PRINCIPAL / DIRECTOR A. ESSENTIAL QUALIFICATION.
Post Graduate qualification in Homeopathy and holding a post of not less than the teaching cadre of Professor in a Degree Level Homeopathic College for at least two years.
The qualification shall be the one included in Second Schedule of Homeopathy Central Council Act, 1973.
B. DESIRABLE QUALIFICATION.
Degree / Diploma in administration / Health Administration from any recognized institution.
Experience as Supervisor / Guide for post Graduate programme in Homoe0pathy and original publication in research."
29. Regulations, 2013 having been notified before advertisement. If qualification prescribed therein is applied it cannot be doubted that advertisement prescribing qualification is not consistent with Regulations, 2013 inasmuch as advertisement talks of 10 years teaching experience but does not include 2 years in teaching cadre of Professor in a degree level Homeopathy College. Morever, petitioner admittedly having been appointed as Professor on 22.5.2013 does not satisfy above qualification prescribed in Regulations, 2013 i.e. Regulation 12 read with Schedule VII.
30. Both parties, however, have proceeded to refer Rules, 1990 and advanced their submission in the light of said Rues.
31. Rules, 1990 admittedly do not clarify the term "teaching experience" and "administrative experience". It contemplates four categories of posts i.e. Lecturer, Reader, Professor and Principal. Qualifications and other conditions, as also manner of recruitment, have been provided for these categories. Post of Principal is the highest post in SHMCs. In respect to the post of Professor and Reader requirement of experience contemplates that it should be in the subject concerned in a recognized SHMC. In respect of Lecturer the requirement is 3 years teaching experience as Demonstrator when appointment is to be made as Lecturer in Homeopathy subjects, and for Lecturer in allied subject it is 3 years experience in a recognized Homeopathic or Allopathic Medical College.
32. Further, in advertisement we do not find any clarification about as to what is the cut off date for the purpose of satisfying the essential qualification though in respect of age it has clearly mentioned that cut off date for the purpose of determining the age is 1.7.2013. The cut off date is consistent with "year of recruitment" defining in Rule 3 (k) of Rules, 1990,read with Rule 9, which reads as under.
"3(k) : "Year of recruitment" means a period of twelve months commencing from the first day of July of a Calender Year.
9. Age: A candidate for direct recruitment to the various categories of posts in the service, must have attained the minimum age and must not have attained more than the maximum age, on the first day of July of the Calender year in which the vacancies are advertised by the Commission, as specified below:
Sl No. Name of post Minimum age Maximum age 1 Principal 35 years 60 years 2 Professor 30 years 50 years 3 Reader 28 years 45 years 4 Lecturer 25 years 40 years Provided that the upper age limits in the case of candidates belonging to the Scheduled Castes, Scheduled Tribes and such other categories as may be notified by the Government from time to time shall be greater by such number of years as may be specified.
Provided further that in the case of exceptionally qualified candidates, the Governor may relax the prescribed age limit, in consultation with the Commission."
33. With respect to qualification neither Rule 8 nor Appendix B makes it clear as to what should be the date by which qualification must be satisfied by concerned candidate. In absence of any otherwise indication in Rules, a candidate must possess requisite qualification at least till last date of submission of application form which in the present case is 24.9.2013. Petitioner as per his own case set up in the writ petition was appointed on the post of Lecturer in Physiology and Bio-chemistry vide appointment letter dated 16.9.2005. Therefore, till 24.9.2013 he has not completed 10 years of service against whole time salaried post. It is this reason which has compelled petitioner to claim "Teaching Experience" which he has gained while working as "Guest Lecturer" and that is how Note-3 of eligibility condition has been challenged.
34. Experience of a person working as a Lecturer in regular capacity or as part time or Guest Lecturer cannot be equated since it all differ in quality, quantity and various other aspects. A Lecturer regularly appointed is not supposed to only take lectures in the College but he has to perform various other duties also in the capacity of his appointment as Lecturer on regular basis. A part time Lecturer discharge duties for a smaller length of period in a day and a Guest Lecturer is required to take lectures in the classes and nothing more than that. The term "Teaching Experience" contemplates an experience in composite form which is to be performed by a Teacher whether he is working as Lecturer or in any other capacity.
35. In Tulsi Ram v. State of U. P., 1998 (3) ESC 1617, it has been held that teaching experience of part-time teachers cannot make them eligible for appointment. Above decision has been followed by another Division Bench in Ayodhya Prasad vs. Public Service Commission and another, 2002(3) AWC 2468.
36. Now we propose to consider decision in Dr. Asim Kumar Bose (Supra) which has been heavily relied by counsel for petitioner.
37. Therein we find that Asim Kumar Bose was actually appointed on a post of "Specialist" which was a post under the Rules which contemplate full time payment of salary. The only question was, whether experience gained by "Specialist" in teaching in hospital in the capacity of Associate Professor (Ex-officio) can be counted towards requisite "Teaching Experience" for promotion as "Professor". Court found that there were cases in the past where "Specialists" were appointed as "Professors" as is evident of the instances given in para 28 of the judgment, which reads as under:
"28. Instances are not uncommon where Specialists have been promoted as Professors of their concerned speciality. One instance of this as given by the appellant is of his immediate predecessor Dr O.P. Bhardwaj, Radiologist-cum-Reader in Radiology (ex officio) in the Irwin Hospital who was appointed as Professor of Radiology in the Maulana Azad Medical College; and presently is Dean, Jawaharlal Institute of Postgraduate Medical Education & Research, (JIPMER), Pondicherry. The other instances that we could gather with difficulty are these. One is that of Dr (Km) P. Nirupma Nayak, Specialist in Gynaecology, Central Hospital, Dhanbad, promoted as Professor of Obstetrics & Gynaecology, JIPMER, Pondicherry; later promoted to Supertime Grade I as Medical Superintendent at JIPMER, Pondicherry. Another is that of Dr Prakash Chand Sikand, Specialist Physician, Safdarjang Hospital, promoted as Professor of Medicine, Medical College, Simla; later transferred as Professor of Medicine 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 N.C. Shinghal Drv. Union of India [(1980) 3 SCC 29: 1980 SCC (L&S) 269: AIR 1980 SC 1255 : (1980) 3 SCR 44] . On the recommendation of the Medical Superintendent, Willingdon Hospital, the post of Specialist in Ophthalmology which was an unspecified Specialists' 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 Shinghal who was Specialist in Ophthalmology attached to the Willingdon Hospital, was offered the post of Chief Ophthalmologist-cum-Associate Professor of Ophthalmology, Medical College, Simla. There may be other instances as well."
38. Then Court has further held that there is no difference so for as "Teaching Experience" is concerned whether it is acquired on regular appointment or as "Specialist" in a teaching hospital with ex-officio designation. Aforesaid judgment, therefore, was rendered in different facts and circumstances and interpretation of relevant Rules.
39. In our view it does not help petitioner at all. Asim Kumar Bose, in fact, was holding post of "Specialist" which is not the case here when petitioner has been engaged as "Guest Lecturer". The distinction evident in the judgment of Dr. Asim Kumar Bose from para 40 is reproduced below.
"40. We find it rather difficult to support the impugned action of the Government of India in the Health Ministry in holding that the teaching experience gained by the appellant as Radiologist-cum-Associate Professor of Radiology (ex officio) with effect from October 9, 1964 cannot be taken into consideration. The view taken by the Health Ministry appears to proceed on a misconstruction of Rule 8(2-A) and para 3 of Annexure I to the Second Schedule. As already stated, the word "as" in these provisions must, in the context in which it appears, be interpreted to mean "in the capacity of". The Ministry of Health cannot be heard to say that the appellant has not acquired the status of an Associate Professor of Radiology with effect from October 9, 1964, particularly when the Central Government have been utilizing his services as such for teaching the PostGraduate and under-graduate students of the Maulana Azad Medical College for the MD, MS, DMRT and MBBS courses of studies for the last 17 years. The arrangement has continued for all these years with the approval of the Delhi University and presumably with the tacit sanction of the Medical Council of India. In our opinion, the provisions contained in Rule 8(2-A) and para 3 of Annexure I to the Second Schedule must be interpreted in a broad and liberal sense as it would otherwise work great injustice to persons in Specialists' Grade II like the appellant who, while holding a non-clinical post in a teaching hospital like the Irwin Hospital, has been actually teaching the students of the Maulana Azad Medical College to which 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 Rs 200 p.m. is of no legal consequence because the allowance is attached to the post of Associate Professor."
(emphasis added)
40. As a Guest Lecturer, petitioner was required to attend assigned lectures. For each lecture prescribed amount was payable. As per G.O. dated 4.7.1998, Rs. 150/- per lecture was payable, subject to maximum payment of Rs. 3000/- per month. Meaning thereby, no person could have been engaged to deliver more than 20 lectures in a month. Petitioner actually delivered 1307 lectures in a period of about 6 years i.e. about 18 lectures per month were delivered by him. It is not pleaded anywhere in the entire writ petition that a Lecturer regularly appointed in a Medical College is supposed to deliver only 18 or 20 lectures in a month and not more than that. It is also not pleaded that teaching work of a regularly appointed "Lecturer" is confined only to deliver lecturers and nothing more than that. When experience is talked in terms of "period", it cannot be equated with certain number of Lectures rendered in certain period for the reason that such an interpretation if accepted, even if a Guest Lecturer may have delivered or engaged for delivering one or two lectures in a month but has continued so engaged for a length of time, he can also claim to have gained requisite "Teaching Experience". This interpretation would be clearly a travesty and mockery to the purpose of which requirement of "Teaching Experience" has been provided. When Rules contemplate "Teaching Experience" of a particular period, it means that experience must be in a post held for full time. Experience acquired by rendering requisite "Teaching work" which a regular teacher is required to perform. It cannot be equated with occasional or fortuitous engagement of a person to deliver lectures otherwise it would also amount to treating unequals as equal. Moreover, requirement under advertisement is consistent with requirement of such "experience" under Regulations, 2013. We are inclined to give an interpretation in favour of the qualification advertised and not as contemplated by petitioner. Hence it cannot be said that petitioner has been wrongly held ineligible for consideration for appointment to the post of Principle SHMC pursuant to advertisement under challenge.
41. The writ petition, therefore, fails and is accordingly dismissed.
42. Interim order, if any, stands vacated.
Order Date :- 12.09.2018 SKS/AK