Punjab-Haryana High Court
Dr.Akashdeep Singh And Others vs State Of Punjab And Others on 16 December, 2013
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
CIVIL WRIT PETITION NO.2623 OF 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CIVIL WRIT PETITION NO.2623 OF 2009
JUDGMENT RESERVED ON: NOVEMBER 28, 2013
DATE OF DECISION: DECEMBER 16, 2013
Dr.Akashdeep Singh and others .......Petitioners
Versus
State of Punjab and others .......Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.Sandeep Jasuja, Advocate for the petitioners in Civil
Writ Petition Nos.2623 and 14081 of 2009.
Mr.Rajender Kumar, Advocate for
Mr.PS Dhaliwal, Advocate in Civil Writ Petition
Nos.3237 and 8332 of 2009.
Mr.BS Mittal, Advocate for the petitioners in Civil Writ
Petition Nos.4643 and 13941 of 2009.
Mr.Sukhraj Singh Brar, Advocate in Civil Writ Petition
No. 9090 of 2009.
Petitioner in person in Civil Writ Petition No.4268 of
2009.
Mr.BS Walia, Additional Advocate General, Punjab
along with Mr.Pankaj Mulwani, Deputy Advocate
General, Punjab.
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TEJINDER SINGH DHINDSA, J.
This order shall dispose of 11 petitions i.e. Civil Writ Petitions No.2623 of 2009 (Dr.Akashdeep Dr.Akashdeep Singh and others v.
Malik Sushama Rani2013.12.18 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.2623 OF 2009 2 State of Punjab and others);
others 3237 of 2009 (Dr.Rupinder
Dr.Rupinder Singh and
others v. State of Punjab and others);
others 4643 of 2009
(Dr.Hardilpreet
Dr.Hardilpreet Singh Chahal and others v. State of Punjab and others);
others 3296 of 2009 (Gautam Gautam Sharma v. State of Punjab and another);
another 8332 of 2009 (Dr.Harpinder Dr.Harpinder Kaur Sidhu v. State of Punjab and others);
others 9090 of 2009 (Dr.Navneet Dr.Navneet Singh v. State of Punjab and others);
others 6216 of 2009 (Dr.Manjeet Dr.Manjeet Kaur v. State of Punjab and others);
others 4268 of 2009 (Dr.Rajeev Dr.Rajeev Kumar and another v. Punjab State and another);
another 14081 of 2009 (Dr.Tarnjeet Dr.Tarnjeet Kaur and others v. State of Punjab and others) others and 13941 of 2009 (Dr.Hardeep others) and Dr.Hardeep Singh and others v. State of Punjab and others 9931 of 2010 (Dr.Navdeep Dr.Navdeep Pal Sharma v. State of Punjab and others) others as identical issue is involved in this bunch of petitions. For the sake of brevity and convenience, facts have been noticed from Civil Writ Petition No.2623 of 2009.
2. The petitioners are aggrieved of the action of the Punjab Public Service Commission (for short 'the Commission') whereby they have been treated as ineligible for selection and appointment as Medical Officers (General) under the Department of Health and Family Welfare, State of Punjab.
3. Upon the requisition having been received from the Health and Family Welfare Department, Punjab for recruitment of 100 Medical Officers (General), the Commission issued an advertisement dated 10.10.2008, Annexure P11, inviting applications from eligible candidates. As per advertisement, the essential qualifications prescribed for the post of Medical Officer (General) were as follows:
Malik Sushama Rani2013.12.18 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.2623 OF 2009 3
"ESSENTIAL QUALIFICATIONS; (as specified below):-
1. MBBS
2. registered with the Punjab Medical Council or with any other duly constituted Medical Council in India and
3. Knowledge of Punjab Language up to Matriculation Standard. Candidates who do not possess this qualification shall have to acquire this qualification within six months of their joining the service failing which their services shall be terminated.
(Relaxable for Sikh Migrants upto the extent that they will have to acquire such qualification within two years after joining the services failing which their services shall liable to be terminated). For this purpose a Matriculation or its equivalent certificate for having passed Punjabi will be necessary."
4. It was clarified in the advertisement itself that the prescribed essential qualifications are the minimum and mere possession of the same would not entitle candidates to be called for the interview. It was open for the Commission to restrict the number of candidates for interview to a reasonable limit by resort to a process of shortlisting as per order of academic merit obtained in the qualifications possessed or by holding a screening test. The petitioners, who had acquired their medical qualification i.e. M.D. Physician in the specialty of General Medicine from Medical Institutions situated outside India, i.e. from erstwhile USSR, applied for the post in question. Pleaded case of the petitioners is that applications were submitted on the clear Malik Sushama Rani 2013.12.18 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.2623 OF 2009 4 presumption that they possess the qualification which is equivalent to MBBS. However, as per impugned list at Annexure P13, the Commission posted a list of applicants ineligible for the post of Medical Officers on the Website. The reason assigned for having held the petitioners ineligible was contained in a note appended along with the list to the following effect:
'For not fulfilling the requisite educational qualification as per Punjab Civil Medical (State Service Group-A) Rules, 1972, Rule 7(1) amended vide notification No. G.S.R.6/Const./Art.309/AMD.(5)/2008 dated 10.1.2008.'
5. It is against such brief factual backdrop that these writ petitions have been filed.
6. Learned counsel appearing for the petitioners have vehemently contended that the basis of rejection of the candidature of the petitioners and treating them as ineligible for the post of Medical Officers (General) is wholly untenable in law. It is argued that the essential qualification prescribed for the post in the advertisement was MBBS. Even in the notification dated 10.1.2008 containing the amended Rule 7(1) of the 1972 Rules, it was specifically stipulated that no person shall be appointed to the service by direct recruitment, unless he possesses the following educational qualifications and experience:
"MBBS who shall be appointed as Medical Officer (General)."
7. The entire case set up on behalf of the petitioners is that each one of them possesses medical qualification which stands recognized as equivalent to MBBS i.e. the prescribed essential qualification. Towards such assertion, learned counsel Malik Sushama Rani 2013.12.18 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.2623 OF 2009 5 would argue that the petitioners acquired their medical qualification from the respective Medical Institutes situated outside India and which were included in the list of Medical Institutes in the 2nd Schedule with the Indian Medical Council Act, 1956 and as such, are duly recognized by the apex body i.e. the Indian Medical Council. Under the provisions of Indian Medical Council Act, 1956, a person who is a citizen of India and who obtains medical qualifications from an Institution outside India shall not be enrolled in the Indian Medical Register or State Medical Councils unless he qualifies a screening test. Such screening test is termed as the National Board of Examination test conducted by the Ministry of Health and Family Welfare, Government of India. All the petitioners after having acquired the medical qualifications from Institutions situated in erstwhile USSR are stated to have appeared in such screening test and have cleared the same. Accordingly, the petitioners were given provisional registration certificates by the Medical Council of India which facilitated their undergoing internship in different Medical Institutions in India. Furthermore, on successful completion of their internship periods, the petitioners applied for permanent registration and they were duly registered as Medical Practitioners by the Medical Council of India. The petitioners are also stated to be registered with different State Medical Councils including Delhi Medical Council as also the Punjab Medical Council. The requisite documents to substantiate the assertion as noticed hereinabove stand appended as Annexures P1 to P8 along with the petition. Thereafter, some of the petitioners joined house jobs in reputed Malik Sushama Rani 2013.12.18 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.2623 OF 2009 6 Medical Institutions and having completed the same joined service as Doctors/Medical Officers in different States. Some petitioners have also secured contractual appointment as Rural Health Officers under the service of Zila Parishad in the State of Punjab. On the strength of such submissions, it has been argued that it is not open for the Commission to have declined benefit insofar as the medical qualification possessed by the petitioners which is equivalent and at par with the MBBS degree for all intents and purposes.
8. Reliance has been placed on behalf of the petitioners upon the judgment dated 7.5.2013 passed by a Co-ordinate Bench in Civil Writ Petition No.19098 of 2010 "Dr.Sanjeev Puri and others v. The State of Punjab and others" and other connected petitions, at Annexure P17. As per learned counsel for the petitioners, the controversy raised in the instant writ petitions would stand fully covered in the light of such judgment.
9. Per contra, State action is sought to be justified in the light of filing of two separate written statements, one on behalf of the Commission, respondent No.2 and the other a joint reply filed on behalf of respondents No.1 and 3. The stand taken in both the written statements is common. It has been stated that a proposal was received by the Commission from the Health and Family Welfare Department, Government of India vide letter dated 31.8.2007 to amend the Punjab Civil Medical (State Service Group-A) Rules, 1972 to the following effect:
"Educational and other qualifications - No person shall be appointed to the service by direct recruitment, Malik Sushama Rani 2013.12.18 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.2623 OF 2009 7 unless he possesses the following educational qualifications and experience:-
(1) M.B.B.S. who shall be appointed as Medical Officer (General)."
10. The Commission consented to the same on 14.9.2007. Accordingly, the notification bringing about the requisite amendment was issued on 10.1.2008, Annexure P14. It has been submitted on behalf of the State that the qualification prescribed for Medical Officers (General) is only MBBS. The candidature of the petitioners stands rejected on the ground of not fulfilling the requisite educational qualification. Commission and State have taken a stand that in pursuance to the amendment in the Service Rules vide notification dated 10.1.2008, Annexure P14, as also the advertisement dated 10.10.2008, Annexure P11, the requisite qualification for the post of Medical Officers (General) is only MBBS and not its equivalent.
11. Learned State counsel has further argued that the employer has the inherent right to prescribe the essential qualifications in relation to a post and to insist upon the prospective candidates to possess the same. Learned counsel further urges that an equivalence of qualification accepted by the Medical Council of India cannot impinge upon such right of the employer.
12. A short reply on behalf of respondent No.4, Medical Council of India has also been placed on record. In terms thereof, it has been stated that the foreign medical qualifications possessed by the petitioners are deemed to be recognized Malik Sushama Rani 2013.12.18 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.2623 OF 2009 8 medical qualifications for the purposes of the Indian Medical Council Act, 1956. Stand of the Indian Medical Council is that the MD (Physician) qualification awarded by Medical University of erstwhile USSR to the petitioners is equivalent to MBBS qualification of Indian Universities. Having taken such stand as regards equivalence of qualifications, Medical Council of India would submit in its reply that the criteria of selection to various posts of Medical Officers/ teachers in Medical Colleges/ Institutions/ State Health Department is the prerogative of the State Government/ State Commissions.
13. Learned counsel for the parties have been heard at length.
14. At the very outset, it would be pertinent to note that even though in the writ petition, a specific prayer for quashing of the notification dated 10.1.2008, Annexure P14, has been raised, yet learned counsel for the petitioners have proceeded for acceptance of their claim as regards eligibility to the post of Medical Officers (General) on the basis of treating the qualification possessed as equivalent to the MBBS Degree.
15. The question, as such, which arises for consideration is as to whether the petitioners can compel the Commission as also the respondent-State to treat their medical qualification of MD (Physician) as an MBBS Degree for the purposes of satisfying the prescribed essential qualification for the post in question?
16. Precisely the same very question came to be considered by a Division Bench of this Court in Ajay Kumar Vs. State of Haryana, 2004 (1) SCT 888 and it was held in the Malik Sushama Rani 2013.12.18 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.2623 OF 2009 9 following terms:
It is for the employer to prescribe essential qualifications for appointment to a particular post. The Government in its wisdom provided the essential qualifications specifically excluding the expression "or any other course equivalent to the prescribed qualifications." Absence of this clause clearly indicates that the State and the Commission did not desire to appoint people possessing equivalent qualifications. A clause of equivalence as treated for academic purpose may not essentially be true or universally applicable for employment purposes as well. In the field of employment a specific stipulation should be provided in the rules/instructions and/or the equivalent to the specified qualifications. Nothing has been brought to our notice which vests the respondents with such power in relation to the present advertisement. On the other hand, by very absence of such clause, exclusion of such power is clear. We are of the considered view that the petitioner cannot compel the respondents to teat his degree of Bachelor of Journalism and Mass Communication from Maharshi Dayanand University, Rohtak as a Post Graduate Diploma for the purposes of satisfying the prescribed essential qualifications."
17. The ratio of the judgment in Ajay Kumar's case (supra) would apply squarely to the facts of the present case. In the notification dated 10.1.2008, Annexure P14, as also the Malik Sushama Rani 2013.12.18 11:07 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.2623 OF 2009 10 advertisement dated 10.10.2008, Annexure P11, the prescribed essential qualification was MBBS. There was no indication as regards considering candidates possessing equivalent qualification. Whenever specific qualifications are prescribed for a post, the incumbent for such a post would not be vested with an inherent right to seek the benefit of equivalent qualification in the absence of a clear stipulation inserted in the advertisement indicating the power with the State or the Commission, as the case may be, to consider and appoint the incumbents possessing such qualifications. As such, no infirmity can be found in the action of the respondent-Commission as also the State Government in not considering the petitioners as eligible for the post of Medical Officers (General) on account of their not possessing the prescribed essential qualification i.e. MBBS.
18. The judgment rendered in Dr.Sanjeev Puri's case (supra) at Annexure P17 cannot enure to the benefit of the petitioners. The question as formulated and answered in the present case by applying the ratio of the judgment rendered by the Division Bench in Ajay Kumar's case (supra) was neither raised and, accordingly, not dealt with by the learned Single Judge in Dr.Sanjeev Puri's case (supra).
19. For the reasons recorded above, there is no merit in the writ petitions and the same are, accordingly, dismissed.
( TEJINDER SINGH DHINDSA )
DECEMBER 16, 2013 JUDGE
SRM
Note: Whether referred to the Reporter? (Yes/No)
Malik Sushama Rani
2013.12.18 11:07
I attest to the accuracy and
integrity of this document