Civil Appeal No 598 of 1980
Appeal by Special leave from the judgment and order dated the 9th November 1979 of the Delhi High Court in CWP No885 of 1974
NC Sikri for the Appellant
Hardayal Hardy Girish Chandra and RN Poddar for the Respondents
The Judgment of the Court was delivered by SEN J
This appeal by special leave from a judgment and order of the Delhi High Court dated January 9 1979 raises a question of some complexity
The question is whether a Specialist Grade II in a teaching hospital belonging to the Central Health Service is eligible for appointment or promotion as a Professor or Associate Professor of the concerned speciality
The appeal turns on a construction of sub rs
2 and 2A of r8 and paragraphs 2b and 3 of Annexure I to the Second Schedule of the Central Health Service Amendment Rules 1966
The Central Health Service was formed more than two decades ago and was intended to replace the Indian Medical Service but the recruitment rules were not framed till the year 1963
The Service was constituted for providing doctors for manning the medical public health and medical research and teaching posts in the Central Government hospitals dispensaries scientific research institutions and institutions of higher education
The members of this Service are also meant to man posts in the Union Territories and the various autonomous bodies
In exercise of the powers conferred by the proviso to Art309 of the Constitution the President on May 1 1963 made the Central Health Service Rules 1963 which came into force 18 on May 5 1963
R3 provided for the constitution of the Central Health Service
Under r4 the Service was divided into two classes viz Class I and Class II
The rules envisaged categorization of personnel manning the service into five different categories viz Categories A  to E 
Rule 5 provided for the authorized permanent and temporary strength of the Service
Under r5 3 the controlling authority had the power to interchange any post included in the junior scale with any post included in the senior scale without altering the authorized strength in each category
R8 provided for the future maintenance of the Service
80 of the vacancies in Category B  of the supertime scale were to be filled by promotion through Departmental Promotion Committee of officers holding the post in the senior scale who had rendered not less than six years of service in that scale and 20 of the vacancies thereof were to be filled by direct recruitment in the manner prescribed in the Second Schedule
By a notification dated January 1 1965 the initial appointments were notified
The essential pre condition for the inclusion of a post in the Central Health Service was that a medical qualification recognized under the Indian Medical Council should be prescribed for it
By the Central Heath Service Amendment Rules 1966 the Central Health Service was reorganized with effect from September 9 1966 and the concept of General Duty officers and Specialist Grade Officers was introduced for the first time
R3 provides that there shall be a Service constituted to be known as the Central Health Service consisting of a persons appointed to the Service under r7 or r7A and b persons appointed to the Service under r8
R4 classifies the Service into four categories viz Category 1 Supertime Grade apart from the post of i Director General of Health Services on a fixed pay scale of Rs2750 and ii Additional Director General of Health Services on a fixed pay of Rs 2250  a Supertime Grade I carrying a pay scale of Rs 1800 2250 Supertime Grade II with a pay scale of Rs 1300 1800 Category 2 Specialists  Grade with a pay scale of Rs 600 1300 Category 3 General Duty Officers Grade I with a pay scale of Rs 450 1250 and Category 4 General Duty Officers Grade II on a scale of Rs 350 900
Under r5 the authorized strength of the various categories was to be as specified in the First Schedule
R7 provides for the initial appointment to the Service
R7A provides for the appointment of departmental candidates
R7A is in two 20 parts
Part A deals with the departmental candidates who were initially appointed in Categories A  and B  of the Service prior to the 1966 Rules
All of them are to be appointed to the corresponding Supertime Grade I and Supertime Grade II of the new Categories
Part B provides that every departmental candidate who was initially appointed to a category other than Categories A  and B  shall be appointed to the newly formed appropriate Category After selection
That had to be so because the new Categories were different and the conditions of eligibility had also been revised
Accordingly officers from Category C  Category D  and Category E  and were selected by the Departmental Promotion Committee for appointment to the Specialists  Grade General Duty Officers Grade I and General Duty officers Grade I and General Duty Officers Grade II after taking into account the qualification experience and conditions of eligibility
Several Officers who were in former Category C  were placed in General Duty Officers Grade I R8
provides for the future maintenance of the Service
After appointments have been made to the Service under rs 7 and 7A future vacancies have to be filled in the manner provided therein
R8 2 provides that every vacancy in the Specialists  Grade shall be filled by direct recruitment in the manner provided by the Second Schedule through the Union Public Service Commission subject to the exception made in r82A with regard to Associate Professors and Assistant Professors
R83 provides for 50 of the vacancies in Supertime Grade II to be filled by promotion of General Duty Officers Grade I and Specialists  Grade Officers in the ratio of 2  3 on the basis of merit and seniority and the remaining 50 of the vacancies are to be filled by direct recruitment in the manner specified in the Second Schedule
It would therefore appear that there is 50 direct recruitment in Supertime Grade II which practice is in the public interest and is essential for the maintenance of efficiency
Further Supertime Grade II serves as a promotion avenue to GDOS Grade I also
In view of this the Third Pay Commission found it difficult to recommend the merger of the Specialists  Grade with the Supertime Grade II but at the same time it appreciated present difficulties in promotion of Specialists to Supertime Grade II
It accordingly recommended a structural reorganization of the cadre of Specialists to get over these difficulties and to ensure that the GDOS Grade I Hospital Specialists and Teaching Specialists have reasonable 21 promotional opportunities in their respective fields
It therefore directed taking of the following steps The administrative posts in Supertime Grade II should be reserved for GDOS Grade I except where GDOS Grade I with the required specialists qualifications are not available
The posts which cannot be filled by direct recruitment through the Union Public Service Commission and it would be open to the Specialists  grade officers to compete for such posts
These posts should not be filled by hospital specialists or teaching specialists by promotion in the normal course
The Supertime Grade II will thus consist only of administrative posts in future for which the revised scale will be Rs 1500 2000
The teaching posts Professors and hospital specialist  posts comprising other than administrative and teaching posts at present included in Supertime Grade II should be placed in the revised scale of Rs 1800 2250
This new grade may be called Specialists  Grade I and the existing Specialists  Grade may be called Specialists  Grade II
50 of the vacancies in the new grade ie Specialists Grade I should be filled by direct recruitment as at present the remaining 50 being filled by promotion from the new Specialists  Grade II
There could be interchange between hospital specialists and Professors in the higher grade subject to the candidates satisfying the prescribed qualifications
We notice that at present out of 27 clinical specialities only a few have posts in Supertime Grade II
We would suggest that there should be at least one post in the higher grade of Rs 1800 2250 for every speciality
The proportion of hospital specialists  posts in the new grade should not exceed 20 of the number of hospital specialists  posts in the lower grade Specialists Grade II and additional number of posts as may be necessary to make up the 20 may be created Emphasis supplied As a result of the recommendation of the Third Pay Commission the Specialists  Grade is now bifurcated into specialists 22 Grade I or Supertime Grade II carrying a pay scale of Rs 1800 2250 and Specialists Grade II carrying a pay scale of Rs 1100 1800
As at present constituted the Central Health Service has the following grade structure as per the recommendations of the Third Pay Commission  ____________________________________________________________ section No Grade Pay Rs ____________________________________________________________ 1
a Supertime Grade I i Director General Health Services 3500 ii Commissioner of Rural Health 3000 iii Additional Director General Health Services 3000 iv Other post a Level I 2500 2750 b Level II 2250 2500 b Supertime Grade II  Specialists Grade I 1800 2250 2
Specialist Grade II 1100 1800 3
General Duty Officers Grade I 1100 1600 General Duty Officers Selection Grade 1500 2000 General Duty Officers Grade II 700 1300 ____________________________________________________________ The Commission also recommended a scheme of special merit promotion for the medical services on the following lines Doctors in Specialists  Grade I in the revised grade of Rs 1800 2250 and Supertime Grade II Rs 1500 2000 who have outstanding performance to their credit deserving the recognition may be promoted to Supertime Grade I scale while continuing in their original posts without 23 having to wait until a vacancy arises in the Supertime Grade I
Such upgradations of the post consequent upon merit promotions will be personal to the individuals concerned
Eminent specialists and doctors in Supertime Grade I should be considered for merit promotion to the grade Rs 3000 3500
There will be no non practical allowance in addition
 Such being the infra structure of the Central Health Service the question is as to the promotional prospect of a Specialist Grade II in a teaching hospital to Specialists Grade I
The whole controversy turns on the question whether such a person is eligible for appointment as a Professor or Associate Professor of the concerned speciality and that depends on whether for purposes of sub rs
2 and 2A of r 8 and paragraphs 2 b and 3 of Annexure I to the Second Schedule the condition prerequisite is actual teaching experience of the Specialist or the capacity in which such teaching experience is gained
It is common ground that the appellant has the requisite essential qualifications for appointment as a Professor or an Associate Professor of Radiology
After obtaining his MBBS degree from Calcutta University in the year 1955 the appellant went for further studies to the United Kingdom
There he studied Radiotherapy for two years at the Liverpool Radium Institute and obtained the Diploma in Medical Radiology  Therapy DMRT from the University of Liverpool in 1958
During the course of his studies there he held the appointment of Registrar in Radiotherapy at the Liverpool Radium Institute from August 1957 to December 1958
Besides gaining teaching experience in that post which under Indian Medical Council Rules is a teaching post he also had the privilege of visiting some important London hospitals like Mt Verman and Hammersmith which institutions have a unique and distinguished position in the area of Cancer therapy by irradiation
On his return to India the appellant worked as Junior Lecturer and Clinical Assistant in the Department of Radiology at the Christian Medical College  Hospital Vellore from February 6 1959 to December 26 1960
This post required the appellant to take up 24 teaching classes in Radiotherapy for the Master of Surgery MS Diploma in Gynaecology  Obstetrics DGO and MBBS courses
During his stay there he was placed in charge of the Department of Radiotherapy during the absence of Professor Scudder and as he had considerable experience in the United Kingdom in the practical aspect of handling such cases he proved to be extremely useful to the institution
The certificate of the renowned Neuro Surgeon Dr Jacob Chandy Medical College  Hospital Vellore pays high encomiums to the services rendered by the appellant and records that his work there was well appreciated by colleagues and teachers both as a surgeon and as a teacher
As a consequence of a successful academic career as a teacher of post graduate courses in the Christian Medical College  Hospital Vellore the appellant was appointed as a Lecturer in Radiology under the West Bengal Health Scheme and held that post from January 2 1961 to January 12 1963
During this period as a Lecturer in the Medical College Calcutta he had the privilege of teaching post graduate classes in Diploma in Medical Radiology  Electrology DMRE
While he was employed in that capacity he was asked by the authorities of the Christian Medical College Vellore his erstwhile employers to assist them in organizing the newly installed Tele Cobalt Therapy Unit under the Colombo Plan Aid from Canada in that institution
The State Government of West Bengal were pleased to depute him for the task and he apparently performed and fulfilled his duties to the entire satisfaction of the authorities
On January 14 1963 the appellant was appointed as a Lecturer in Radiology in Maulana Azad Medical College New Delhi a post placed in Category E  of the Central Health Service and continued to work in that capacity till October 8 1964
He was also employed as a part time Lecturer in Delhi University with effect from 1963 and even now continues to be employed as such
On October 9 1964 he was appointed as a Radiologist in the Irwin Hospital which was a post in Category C  of the Central Health Service
By Letter dated April 6 1965 the Delhi Administration informed the Principal Maulana Azad Medical College in answer to a communication made by him that consequent upon the appointment of the appellant in Category C  of the Central Health Service the Administration had no objection to designating him as Associate Professor of Radiology ex officio in the Maulana Azad Medical 25 College provided it was not detrimental to his normal duties as a Radiologist and no financial implications were involved
In pursuance of r 7A 1 b of the Central Health Service Rules 1963 as amended by the Central Health Service Amendment Rules 1966 and all other powers enabling him in that behalf the President of India issued a notification dated June 8 1967 making substantive appointments of 80 officers to the Specialists  Grade with effect from September 9 1966
The appellant was listed at Sr No 80 and the entry giving his name and designation reads 80
Dr Asim Kumar Bose Radiologist Irwin Hospital New Delhi
 As a result of this the appellant has continued to hold the post of Radiologist in the Irwin Hospital which is attached to the Maulana Azad Medical College and treated as an Associate Professor of Radiology ex officio both by the University of Delhi as well as by the Maulana Azad Medical College
By the early 70s the appellant had acquired the requisite teaching experience of an Associate Professor of Radiology as well as acquired higher academic qualification
On August 1920 1968 the Principal Maulana Azad Medical College addressed a letter to the appellant conveying that the Vice Chancellor of the Delhi University in exercise of his emergency powers had granted him recognition as an Associate Professor of Radiology for teaching the post graduate and under graduate students for the DMRT and MBBS courses of studies
In 1970 the appellant was conferred the degree of Doctor of Philosophy Medicine in Radiotherapy by the Calcutta University
The Faculty of Medical Sciences University of Delhi by its letter dated July 10 1972 informed the appellant that the Board of Research Studies for Medical Sciences had at its meeting held on January 15 1972 appointed him as a Supervisor for the post graduate students for the MD Radiotherapy course of study
It would therefore appear that the appellant was not only holding the post of Radiologist in the Irwin Hospital but was also actively associated with teaching the under graduate and post graduate students as an Associate Professor of Radiology of the Maulana Azad Medical College for the MD DMRT and MBBS courses of studies of the Delhi University
26 It appears that subsequent to his substantive appointment by the President to Specialists  Grade with effect from September 9 1966 the appellant was called by the Banaras Hindu University for an interview on August 7 1972 for the post of Professor of Radiotherapy but since the post of Associate Professor of Radiotherapy in Maulana Azad Medical College was falling vacant in 1973 he did not appear for the interview
In 1973 the Government of India promoted and appointed Dr KP Mittal Lecturer in Radiology in the Maulana Azad Medical College as Associate Professor of Radiotherapy ignoring the claim of the appellant
The appellant accordingly made a representation to the Government of India but the same was rejected
The Government of India Ministry of Health  Family Planning Department of Health by its letter dated February 23 1974 informed the Delhi Administration that the appellant could not be considered for appointment to the post of Associate Professor of Radiotherapy in the Maulana Azad Medical College inasmuch as he did not possess at least five years  teaching experience as ReaderAssistant Professor in the concerned speciality as required under the Central Health Service Amendment Rules 1966
The Ministry of Health was of the view that although the appellant had the essential qualification prescribed for teaching post the teaching experience gained by him while holding the post of Radiologist cum Associate Professor of Radiology ex officio in the Irwin Hospital since October 9 1964 cannot be taken into consideration
The appellant assailed the impugned order by filing a writ petition in the Delhi High Court on July 24 1974 complaining that the action of the Government of India in the Ministry of Health disregarding his claim for appointment to the post of Associate Professor of Radiotherapy was in denial of equal opportunity in matters of employment and thus violative of articles 14 and 16 of the Constitution
The contention upon which the writ petition was based was that on a true construction of r 8 2A and paragraph 3 of Annexure I to the Second Schedule he was clearly eligible for appointment to the post of Associate Professor as he had the essential educational qualification and had also the requisite teaching experience while holding the post of Radiologist cum Associate Professor of Radiology ex officio in the Irwin Hospital which is a teaching hospital attached to the Maulana Azad Medical College
The respondents Nos 1 and 2 filed a return reiterating the stand 27 taken by the Government of India in the Health Ministry that the experience gained by the appellant as an Associate Professor of Radiology ex officio by virtue of his holding the post of Radiologist in the Irwin Hospital cannot be taken into consideration for the purpose of determining the question of his eligibility for appointment as Associate Professor
It was pleaded that the impugned order was thus perfectly legal and valid and had been issued on a correct interpretation of the Central Health Service Rules 1963 as amended by the Central Health Service Amendment Rules 1966
In support of the plea it was averred The teaching experience gained by the petitioner while holding the post of Radiologist in the Irwin Hospital New Delhi by virtue of his having ex officio status of Associate Professor of Radiotherapy from the 9th of October 1964 cannot be counted as requisite teaching experience under the Central Health Service Rules
 It appears that while the writ petition was pending in the High Court the appellant was in 1976 selected by the Haryana Public Service Commission for the post of Professor of Radiology Radiotherapy in the Medical College Rohtak but was not relieved of his duties by the Government of India in the Ministry of Health  Family Planning
A letter of the Registrar of the Rohtak University dated December 9 1976 requesting the Central Government to place his services on deputation with the Rohtak University for a period of three years in the first instance as the appellant having put in 17 years  service was not inclined to resign his post as Radiologist in the Irwin Hospital
The Ministry of Health by its letter dated January 17 1976 however informed the Secretary Medical Delhi Administration that it was not possible to relieve the appellant of his duties or place his services on deputation with a lien on his post as Radiologist in the Irwin Hospital and if he wanted to join as Professor of Radiology Radiotherapy in the Medical College Rohtak he should give up all connections with the Central Health Service
By the judgment under appeal the High Court while observing that the appellant admittedly holds high academic and professional qualifications and has also good teaching experience to his credit 28 rejected his writ petition on its construction of the Rules
It observed that the recruitment rules required that the requisite experience must be the experience gained while working in a medical college or in a teaching institution ie as a teacher in a teaching department
It also observed that it is a well known fact that after acquiring the requisite medical qualifications there are different careers open to a medical graduate and in fact it is so in all professional careers According to the High Court some people opt for a teaching career while others opt for a regular professional career as Doctors
The medical graduates who opt for a teaching career join a cadre different from that of the career of Doctors
 In the words of the High Court they tie down their fate to the teaching career and expect promotions to various posts in their channel of promotion ie in the cadre of teachers
 While rejecting the claim of the appellant the High Court observed  It is a fortuitous circumstance that a medical graduate regularly working as a doctor is also permitted by the authorities to take up a teaching assignment
The normal duty of such a doctor is in the hospital and in the cadre of doctors in hospital
If the person who is working as a doctor is allowed to compete with teachers in the teaching cadre such teachers are at a disadvantage
Their chances of promotions are adversely affected by recruitment of people who do not initially opt for a teaching career
This being the rationale behind the respondents  decision we do not find that there is any illegality or arbitrariness in the decision of the respondent
 It is difficult to support the reasoning or the conclusion reached by the High Court on a construction of the Rules
The appellant has placed on record a number of documents emanating from the University of Delhi as well as from the Dean Maulana Azad Medical College showing that his services were utilized as an Associate Professor of Radiology ex officio for delivering lectures to the post graduate and undergraduate students for the MD MS DMRT and MBBS courses during the last 17 years
In response to a query from the Court the Ministry of Health prepared a note on the structure of the Central Health Service 29 drawing our particular attention to r 8 2A and paragraph 3 of Annexure I to the Second Schedule and Sr No 4 of Annexure II to the Second Schedule and on the basis of these provisions it is asserted that for promotion to the post of Associate Professor at least five years  experience as ReaderAssociate Professor in the concerned speciality in a medical collegeteaching institution after the requisite post graduate qualification is absolutely essential
It is said that in response to an advertisement of the Union Public Service Commission for the non teaching post of Radiologist in the former Category C  the appellant who had joined the Central Health Service in Category E  as Lecturer in Maulana Azad Medical College with effect from January 14 1963 on selection to that post switched over from teaching to non teaching post of Radiologist
After setting out his teaching experience as a Lecturer of Radiology in Maulana Azad Medical College from January 14 1963 to October 8 1964 and elsewhere it is said that the appellant was not eligible for appointment as Associate Professor as he was not holding the post of ReaderAssistant Professor
In trying to refute the appellant s allegation that there was denial of equal opportunity it is asserted  In the absence of the particular advertisement for the post of Associate Professor it is not possible to indicate as to when the applications were first called for the appointment to the post of Associate Professor of Radiology in a teaching institution participating in the CHS
According to the provisions of the CHS Rules all posts of Lecturers Assistant Professors and Associate Professors were required to be filled through the UPSC before the rules came to be amended wef
18091971
After the amendment of the CHS Rules only Assistant Professors possessing five years experience were eligible for appointment as Associate Professor
Since Dr Bose was holding the clinical post of Radiologist he was not in direct line of and eligible for promotion to the post of Associate Professor
 It is somewhat strange that alongwith the aforesaid note the Ministry had produced a letter of the Dean Maulana Azad Medical College dated January 25 1982 addressed to the Secretary Ministry of Health  Family Welfare which tends to show that 30 the appellant as Radiologist cum Associate Professor of Radiology ex officio was not actually teaching the post graduate and undergraduate students of the Maulana Azad Medical College
The letter is self explanatory and reads  With reference to the telephonic conversation with Sri R N Tewari with respect to the question received from the Supreme Court regarding Dr A K Bose I have to state that Dr Bose while performing his duties as Radiologist was not lecturing to the students as an Associate Professor is required to do
 It is rather difficult to act on the letter of the Dean particulary when it runs counter to his own affidavit sworn in February 1982 the relevant extracts of which are given below  That since 1964 the Appellant continues to be a Radiologist and is not holding any teaching designation assigned by the Central Health Service and is not is receipt of the teaching allowance of Rs 20000 which is admissible in the case of an Associate Professor
Dr Bose has never worked as Assistant ProfessorReader to become eligible for promotion as Associate Professor
He is working in the Radiology Department
The Head of the Radiology Department uses the services of some of the Radiologists who do not have any teaching designation to take lectures
Over the years as an internal arrangement the non teaching Radiologists such as Dr I Sahai Dr DP Garg Dr AR Dar Dr BL Jain Dr SC Gupta etc in addition to Dr AK Bose have been assigned lectures to under graduate students
Dr AK Bose has been delivering lectures to post graduates of Delhi University and has guided some thesis
Delhi University has recognised him as a Supervisor of Thesis and a teacher
However in the matter of post graduate teaching the Delhi University also recognises and utilises the services of Specialists of non teaching hospitals like Safdarjang Hospital Army Hospital and Dr RML Hospital Willingdon
The Specialist in Safdarjang Hospital and Dr RML Hospital do not have teaching designation assigned by 31 the Central Health Service
The Army Hospital is not under the Central Health Service
 As regards the documents placed on record by the appellant the Dean goes on to aver in the affidavit  That the Appellant has produced the Under graduate lecture programme the post graduate lecture programme prospectus of Maulana Azad Medical College for the year 1966 67 and Annual Report of Maulana Azad Medical College for the year 1980
The Under graduate teaching programme is only an internal arrangement of the Radiology Department
The post graduate programmes have been drawn up by the Delhi University
The prospectus and the Annual Report are informative bulletins only
All that they state is that Dr AK Bose is an ex officio Associate Professor
 The Ministry has also filed the affidavit of Shri NS Bakshi Deputy Secretary to the Government of India Ministry of Health  Family Welfare to the effect  That according to the Central Health Service Amendment Rules 1966 atleast 5 years experience as ReaderAssistant Professor in the concerned speciality in a medical collegeteaching institution is after the requisite post graduate qualification is absolutely essential for promotion to the post of Associate Professor
That the appellant does not fulfil the above mentioned requirement and thus cannot be considered for promotion to the post of Associate Professor as per CHS Rules
That according to the provisions of the CHS Rules all posts of Lecturers Assistant Professors and Associated Professors were required to be filled through the UPSC before the Rules came to be amended with effect from 18 9 1971
After the amendment of the CHS Rules only Assistant Professors possessing five years experience were eligible for appointment as Associate Professor
Since Dr Bose was holding the Clinical post of Radiologist he was not in direct line of and eligible for promotion to the 32 post of Associate Professor
As such the question of the Appellant becoming due for promotion to the post of Associate Professor does not arise After the conclusion of the hearing the Health Ministry at our behest prepared a note on the pattern of teaching and non teaching staff as laid down in the Central Health Service Rules 1963 amended from time to time
It would be convenient to re produce the note in its entirety and it reads  TEACHING POSTS Specialists  Grade new Specialist Grade II Lecturers All vacancies in this Grade are filled by direct recruitment through the UPSC at the level of Lecturers in the scale of pay of Rs 1100 1800 plus NPA at graded rates
AssistantAssociate Professors All vacancies in the posts of Assistant Professor and Associate Professor are filled by promotion through the Departmental Promotion Committee from amongst officers holding the posts of Lecturers and Assistant Professor respectively
The officers are required to possess the qualification and experience prescribed for the post in question
The officers promoted to the posts of Assistant Professor and Associate Professor are allowed a special pay of Rs 100 pm and Rs 200 pm respectively In case no departmental officer is available for promotion to the posts of AssistantAssociate Professor such vacancy is filled by direct recruitment through the UPSC Composite Supertime Grade II Revised Specialist Grade I Professor On the recommendation of the Third Pay Commission the Composite Supertime Grade II has been bifurcated into Specialist Grade I Rs 1800 2250 and Supertime Grade II revised Rs 1500 2000
Vacancies in the Specialist Grade I posts of Professor are filled by direct recruitment and promotion in the ratio of 1  1 33 For promotion to the posts of Professor Associate ProfessorAssistant Professor with 8 years service are eligible
Supertime Grade I Level II Rs
2250 2500 All the vacancies in the posts of Principals of Medical College Heads of teaching institution Deans are filled by promotions of Professors
NON TEACHING POSTS Specialists  Grade now Specialist Grade II All vacancies in this Grade Rs 1100 1800 are filled by direct recruit through the UPSC
Composite Supertime Grade II now Specialist Grade I Rs1800 2250 Vacancies in the Specialist Grade I posts of Senior Specialists are filled by direct recruitment and by promotion to the ratio of 1  1
For promotion in the posts of Senior Specialists Specialist Grade II officers with eight years of regular service and considered
Supertime Grade I Level II Rs 2250 2500 Vacancies in Supertime Grade I posts of Consultants etc
are filled by promotion of officers of composite Supertime Grade II
The officers must however possess the requisite qualifications and experience for appointment to a particular post in this grade
 The aforesaid note is in consonance with the view that there is no inflexible rule that Specialists in a teaching hospital cannot be promoted as Associate Professor or Professors of their concerned speciality
On the contrary the note clearly brings out that vacancies in Specialists Grade I posts of Professors are filled by direct recruitment and by promotion in the ratio of 1  1
The Health Ministry has also submitted a separate note regarding persons imparting teaching in various disciplines who are neither Professor Associate Professor Assistant Professor or Lecturer
The note runs as under 34 There is no provision in the CHS Rules whereby the officers who do not possess the requisite teaching experience is appointed to a post of Professor in CHS
However the University College of Medical Sciences which is under the administrative control of the University of Delhi has been utilising the services of the Medical officers of the CHS working in the Safdarjang Hospital New Delhi for clinical teaching of the students of the University College of Medical Sciences
These persons who are participating in the teaching programme have been recognised by the University of Delhi as ProfessorsReadersLecturersTeachers without specific teaching designation on the condition that such designations will be valid for the period till such time the Safdarjang Hospital continues to impart instructions in clinical subjects to the under graduate students of University College of Medical Sciences and the persons continue to take part in the said teaching
The conferment of teaching designations by the University of Delhi does not mean that these officers are recognised as teachers for the purposes of their service conditions in the Central Health Service
 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 Post Graduate Medical Education  Research JIPMER Pondicherry
The other instances that we could gather with difficulty are these
One is that of Dr Kum 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 Anesthesiology Maulana Azad Medical College New Delhi
A 35 further instance is furnished by the case of Dr N C Shinghal vs Union of India1 On the recommendation of the Medical Superintendent Willingdon Hospital the post of Specialist in Ophthalmology which was an unspecified Specialist Grade post was upgraded by the Central Government as a specified post in Supertime Grade II and Dr B section 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 Willindon Hospital was offered the post of Chief Opthalmologist cum Associate Professor of Ophthalmology Medical College Simla
There may be other instances as well
It is necessary to emphasise that the recruitment rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital in the capacity of an Associate Professor ex officio shall not count towards the requisite teaching experience
There is no provision made in the Rules that the teaching experience must be gained on a regular appointment
There is hardly any difference so for as teaching experience is concerned whether it is acquired on regular appointment or as Specialist in a teaching hospital with the ex officio designation
As the statutory rules do not provide that the teaching experience gained in an ex officio capacity shall not count towards the requisite teaching experience the teaching experience gained by the appellant while holding the post of Radiologist cum Associate Professor of Radiology ex officio in the Irwin Hospital cannot be ignored in determining his eligibility for appointment as Professor or Radiology in Maulana Azad Medical College
There is a failure on the part of the Ministry of Health to draw a distinction between teaching and non teaching hospitals under the Central Health Service
The two general hospitals under the Central Health Service are the Willingdon Hospital  Nursing Home New Delhi and the Safdarjang Hospital New Delhi
The Service also runs Central Hospital Asansol Central Hospital Dhanbad Goa Medical College  Hospital Panaji GB Pant Hospital Port Blair and Government Hospital Lakshadweep
In contradistinction the teaching hospitals under the Central Health 36 Service are  1 Irwin Hospital New Delhi and 2 G B Pant Hospital New Delhi which are both associate hospitals of Maulana Azad Medical College
The Lady Hardinge Medical College also has a separate hospital attached to it
The medical colleges run by the Central Health Service are  1 Maulana Azad Medical College New Delhi 2 Lady Hardinge Medical College New Delhi and 3 Jawaharlal Institute of Post Graduate Medical Education  Research JIPMER Pondichery
Besides the medical colleges the Central Health Service also runs several medical institutions viz Hospital for Mental Diseases Ranchi Patel Chest Institute
Delhi etc
The teaching in these medical colleges is undertaken by Professors and Associate Professors as well as by Specialists attached to the hospitals affiliated to the respective colleges
The modern pattern in medical education during recent years is the organization of clinical units
As medical education has developed the distinctive feature is the thoroughness with which theoretical and scientific knowledge are fused with what experience teaches in the practical responsibility of taking care of human beings
The clinical teacher has an immediate and absolute responsibility Physicians and surgeons still go round their wards at stated hours followed by groups of students to whom they point out the features of each case expound the nature of the malady and explain the reasons for the treatment adopted
But no longer as formerly is the student dependent upon walking the wards attending lectures and reading about the illness of which the cases he has seen are illustrations
The clinical unit is a far more efficient training centre
The importance of the clinical years is brought out in the Encyclopaedia Britannica Macropaedia 15th edn
p 810  The two or more clinical years of un effective curriculum are characterized by active student participation in small group conferences and discussions a decrease in the number of formal lectures and an increase in the amount of contact with patients in teaching hospitals and clinics
Through work with patients under the supervision and guidance of experienced teachers students learn methods of obtaining comprehensive accurate and meaningful accounts 37 of illness how to conduct physical examinations and how to develop judgments in the selection and utilization of laboratory diagnostic aids
During this period they learn to apply the knowledge gained in their pursuit of the basic medical sciences to the study of general medicine and the medical and surgical specialities
 We must first deal with certain amendments in the Rules prescribing the mode in which the posts of Professors and Associate Professor can be filled in
By amendments dated February 21 1968 and September 18 1971 paragraphs 2 b and 3 of Annexure I to the Second Schedule and sub r
2A of r 8 were inserted respectively
These amendments have brought about a change inasmuch as there is now a vertical channel of promotion to the teaching posts upto the post of Associate Professor
The Third Pay Commission in its Report at p 173 observes  While the Specialists on the teaching side can hold posts of hospital specialists the latter cannot be promoted to teaching posts because of lack of teaching experience
 On a literal construction of these Rules the effect of these amendments appears to be this
Normally a Professor or an Additional Professor in a medical college or teaching institution can be appointed by direct recruitment from amongst persons holding the post of Associate Professor or Assistant Professor in the concerned speciality in a medical college or a teaching institution having at least six years  teaching experience out of 12 years  standing in the Grade through the Union Public Service Commission
An Associate Professor in the medical college or a teaching institution can only be promoted from amongst persons holding the post of Assistant Professor having at least five year s teaching experience in the concerned speciality by the Departmental Promotion Committee
We are inclined to the view that the word as in the collocation of the words used at least six years experience as Associate ProfessorAssistant ProfessorReader in paragraph 2 b and of the words at least five years  experience as ReaderAssistant Professor in paragraph 3 and sub r
2A of r 8 must be interpreted in its ordinary sense as meaning teaching experience gained in the capacity of
In Black s Legal Dictionary 5th edn
 p 104 the meaning of the word as as given is  Used as an adverb etc
means like similar to of the same kind in the same manner in the 38 manner in which
In Shorter Oxford Dictionary 3rd edn
p 111 the word as is stated to mean  The same as in the character capacity role of
In our view the Ministry of Health is apparently wrong in assuming that the word as in paragraphs 2 b and 3 of Annexure I the Second Schedule and sub r
2A of r 8 makes holding of a post in the cadre a condition precedent to the appointment of a Professor or an Associate Professor
The question that falls for consideration is whether the appellant possessed the qualification and experience requisite for appointment to the post of Associate Professor of Radiotherapy in Maulana Azad Medical College New Delhi and if not whether the appellant is eligible for appointment to the post of Professor of Radiotherapy in that College
That depends on whether he fulfilled the conditions laid down in r 8 2 and 2 A and paragraphs 2 b and 3 of Annexure I to the Second Schedule
R 8 provides that after appointments have been made to the Service under rs 7 and 7A future vacancies shall be filed in the manner provided there under
R 8 2 provides that every vacancy in the Specialists  Grade shall be filled by direct recruitment in the manner specified in the Second Schedule
That is to say 100 of vacancies in the Specialists  Grade have to be filled by direct recruitment through the Union Public Service Commission
The post of Professor of Radiotherapy in the Maulana Azad Medical College is a post belonging to Specialist Grade I which is equivalent to Supertime Grade II carrying a pay scale of Rs 1800 2250
Annexure I to the Second Schedule prescribes the age limit educational qualifications and experience for direct recruitment to the various categories of the Service
Paragraph 2 b thereof reads  Supertime Grade II 50 years For ProfessorsAdditional Rs 1300 1800 and be Professors low re in medical colleges laxable teaching institu for Govt
tions
servant
A post graduate degree in the concerned speciality mentioned Govt
in Part A of Annexure II or equiva lent servant
        For ProfessorsAdditional Professor in medical colleges or tea 39 ching institutions at least 6 years experience as Associate Professor Assistant ProfessorReader in a medical college or teaching institution after the requisite post graduate degree qualifica tion out of the aforesaid 12 years  standing
Qualifications relaxable at Commission s discretion in the case of candidates otherwise well qualified
 R 8 3 provides that 50 of the vacancies in Supertime Grade II to be filled in by promotion of General Duty officers Grade I and Specialists Grade II officers in the ratio of 23 and the remaining 50 of the vacancies to be filled by direct recruitment in the manner specified in the Second Schedule
That is to say there is certain amount of flexibility and it cannot be that the appellant who is a Radiologist in the Maulana Azad Medical College which is a post belonging to Specialists Grade II cannot be appointed by direct recruitment as Professor of Radiotherapy under r 8 2
The Ministry of Health seems to quite oblivious of the fact that during the pendency of appeal the post of Professor of Radiotherapy in Maulana Azad Medical College having fallen be vacant the vacancy in the post has to be filled up in the manner provided by r 8 2 i e by direct recruitment through the Union Public Service Commission
It is not disputed before us that the Union Public Service Commission has the power to relax the qualifications prescribed in the case of candidates otherwise well qualified
That being so the appellant who admittedly is a highly qualified person and has the requisite teaching experience as Radiologist cum Associate Professor of Radiologist ex officio is clearly eligible for appointment as Professor of Radiotherapy under r 8 2
The Union Public Service Commission while advertising the post of Professor Radiotherapy which has fallen vacant must as it rightly did invite the appellant for an interview for being considered for appointment to that post
That conclusion however does not relieve us from dealing 40 with the main question viz whether the appellant possessed the qualifications and experience requisite for appointment to the post of Associate Professor of Radiotherapy
The question must turn on a construction of r 8 2 A and paragraph 3 of Annexure I to the Second Schedule of the Rules
As stated above r 8 2 provides that every vacancy in the Specialists  Grade shall be filled by direct recruitment in the manner specified in the Second Schedule
R 8 2A however makes an exception in the case of Associate Professors and Assistant Professors Sub r
2A of r 8 contains a non obstante clause and it reads  Notwithstanding anything contained in sub r
2 the vacancies in the post of Associate Professor and Assistant Professor in the medical colleges and teaching institutions shall be filled by the appointment of Assistant Professors and Lecturer respectively in the Specialists  Grade possessing the qualifications and experience prescribed in Annexure I to the Second Schedule for the respective post on the recommendation of a Departmental Promotion Committee
Provided that if no suitable officer is available for appointment to the post of Associate Professor or Assistant Professor in any medical college or teaching institution from the Grades of Assistant Professor or Lecturer as the case may be such vacancy shall be filled by direct recruitment in the manner specified in the Second Schedule
 Paragraph 3 of Annexure I to the Second Schedule reads as follows  Specialists  Grade 45 years For Associate Rs 600 1300 and below ProfessersReaders relaxable Assistant Profe for Govt
ssorsLecturers
servants A post graduate degree in the concerned specially mentioned in Part A of Annexure II or equivalent
For Associate Professors  At least 5 years  experience as Reader Assistant Professor in 41 the concerned speciality in a medical college teaching institution after the requisite post graduate qualifications
Qualifications relaxable at Commissions s discretion in the case of candidates otherwise well qualified The contention on behalf of the respondents is that the appellant could not be considered for appointment to the post of Associate Professor of Radiotherapy in Maulana Azad Medical College because the teaching experience gained by him while holding the post of Radiologist cum Associate Professor of Radiology ex officio in the Irwin Hospital since October 9 1964 cannot be taken into consideration
It is urged that there is a distinction between the two posts of Radiologist and Associate Professor of Radiology as the post of Radiologist is a clinical post while that of Associate Professor of Radiology is a teaching post
That being so it was urged that the channels of promotion to the two posts are different and the appellant who had been substantively appointed to the post of Radiologist in the Irwin Hospital must seek his own channel of promotion in Supertime Grade II for a non teaching job
It is further urged that since the appellant was not holding the post of an Associate Professor he was not drawing the teaching allowance of Rs 200 pm to which he would otherwise be entitled
It is also urged that the status of Associate Professor of Radiology ex officio which the appellant holds in the Irwin Hospital is akin to that of honorary Professor or Associate Professor in the Willing don Hospital or the Safdarjang Hospital and the mere designation of the appellant as Associate Professor of Radiology ex officio by the University of Delhi does not give him a right to hold the post of Professor of Radiology in Maulana Azad Medical College
It is pointed out that a similar question arose in connection with the conferral of honorary teaching designations on certain medical officers in the Willingdon Hospital and Safdarjang Hospital New Delhi in the year 1973
It is said that the President of India was pleased to direct that the conferral of such teaching designations would not entitle the Specialists to claim seniority or eligibility for promotion merely by virtue of these honorary designations nor would it entitle the incumbent any special benefit with regard to any teaching 42 allowance which may be given to the teachers in a medical college
By parity of reasoning it is urged that the designation of the appellant as a Radiologist cum Associate Professor of Radiology ex officio did not make him eligible for appointment to the post of Associate Professor of Radiotherapy in Maulana Azad Medical College
We are afraid we cannot subscribe to this line of argument
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 or 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 r 8 2A and paragraph 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 post graduate 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 r 8 2A and paragraph 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 43 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 pm is of no legal consequence because the allowance is attached to the post of Associate Professor
We wish to make it clear that it is not for the Court to give the appellant promotion or make his appointment to the post of Professor of Radiotherapy
The Court can only on a true construction of r 8 2A and paragraph 3 of Annexure I to the Second Schedule determine the question of his eligibility for such promotion or appointment
If the appellant is eligible to hold the post of Professor of Radiotherapy he can always apply irrespective of the fact whether or not he is in the line of promotion
It is for the Union Public Service Commission to advertise the post of Professor of Radiotherapy and everyone who satisfies the required qualifications can make an application
That is because the Commission undoubtedly has the power to relax any of the qualifications
The result therefore is that the appeal must succeed and is allowed with costs
The judgment and order of the High Court is set aside and the impugned order passed by the Government of India Ministry of Health  Family Planning Department of Health New Delhi dated February 23 1974 is quashed
It is declared that the appellant had acquired the requisite teaching experience as envisaged by r 8 2A and paragraph 3 of Annexure I to the Second Schedule of the Central Health Service Rules 1963 as amended by the Central Health Service Amendment Rules 1966 and was therefore eligible to be considered for appointment to the post of Associate Professor of Radiotherapy in Maulana Azad Medical College which had fallen vacant in 1973
The second respondent shall give effect to the declaration
As a necessary consequence we direct the Union Public Service Commission to re advertize the post of Professor of Radiology in Malulana Azad Medical College New Delhi which had fallen vacant during the pendency of the appeal and call the appellant for an interview for being considered appointment to that post
44 We wish to clarify that the declaration shall not adversely affect or act to the detriment of any person who was and is senior to the appellant in the Central Health Service or had already been appointed as Associate Professor in the concerned speciality
SR Appeal allowed


Summary:
In pursuance of r 7A1b of the Central Health Service Rules 1963 as amended by the Central Health Service Amendment Rules
1966 and all other powers enabling in that behalf the President of India issued a notification dated
June 81967 making the substantive appointment of the appellant Dr Asim Kumar Bose as Radiologist Irwin Hospital New Delhi
By virtue of his post as Radiologist cum Associate Professor of Radiology the appellant was teaching the under graduate and post graduate students as an Associate Professor of Radiology of the Maulana Azad Medical College for the MD MS DMRT
And M BBS courses of studies of the Delhi University
In 1973 the Central Government promoted Dr KP Mittal Lecturer in Radiology in the Maulana Azad Medical College as Associate Professor of Radiotherapy ignoring the claim of the appellant who thereupon made a representation
The Government of India Ministry of Health  family Planning Department of Health by its letter dated February 23 1974 rejected the representation holding that the appellant could not be considered for appointment to the post of Associate Professor of Radiotherapy in the Maulana Azad Medical College inasmuch as he did not possess at least five years  teaching experience as ReaderAssistant Professor in the concerned speciality as required under r 82A and paragraph 3 of Annexure I to the Second Schedule of the 1966 Rules
The appellant filed a writ petition in the Delhi High Court challenging the impugned order but the High Court rejected the writ petition holding that the requirement rules required that the requisite teaching experience must be the experience gained while working in a medical college or in a teaching institution ie as a Teacher in a teaching department
Allowing the appeal
 HELD 1 There was a failure on the part of the Government of India in the Ministry of Health to draw a distinction between teaching and non 17 teaching hospitals under the Central Health Service
The Irwin Hospital and the GB Pant Hospital are the two associate hospitals of the Maulana Azad Medical College and the teaching in the medical college is undertaken by Professors and Associate Professors as well as by the Specialists attached to the two hospitals affiliated to the College
Thus the teaching experience gained by the appellant while holding the post of Radiologist cum Associate Professor of Radiology ex officio had to be taken into consideration to determine his eligibility for appointment as Professor or Associate Professor of the concerned speciality
35 G H 36 A C 43 F G 2 On a construction of r 82 and paragraph 2b of Annexure 1 to the Second Schedule of the 1966 Rules it was held that the appellant possessed the qualifications and experience requisite for appointment to the post of Professor of Radiotherapy in the Maulana Azad Medical College which is a post belonging to Specialist Grade I equivalent to Supertime Grade II carrying a pay scale of Rs 1800 2250 which had fallen vacant during the pendency of the appeal
The Union Public Service Commission must therefore re advertise the post of Professor and call the appellant for an interview for being considered for appointment to the post
38 C D F H 3 The action of the Central Government in the Ministry of Health ignoring the claim of the appellant for appointment to the post of Associate Professor of Radiotherapy in the Maulana Azad Medical College in 1973 was based on a misconstruction of r B2A and paragraph 3 of Annexure I to the Second Schedule
The word as in these provisions must in the context in which it appears be interpreted to mean in the capacity of
These provisions must be interpreted in a broad and liberal sense as it would otherwise work great injustice of persons in Specialists Grade II like the appellant who while holding a non clinical post in a teaching hospital like the Irwin Hospital has actually been teaching the students of the Maulana Azad Medical College to which it is affiliated
The Ministry of Health cannot be heard to say that the appellant had 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 post graduate 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 which has conferred the designation of Associate Professor of Radiology on the appellant presumably with the tacit sanction of the Medical Council of India
37 F G 38 A B 42 D F 4 The recruitment rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital in the capacity of an Associate Professor ex officio shall not count towards the requisite teaching experience for purposes of sub rs
2 and 2A of r 8 and paragraph 2 b and 3 of Annexure I to the Second Schedule of the 1966 Rules
There is no provision made in the Rules that the teaching experience must be gained on a regular appointment
There is hardly any difference so far as teaching experience is concerned whether it is acquired on regular appointment or as a Specialist in a teaching hospital with the ex officio designation
As the statutory rules do not 18 provide that the teaching experience gained in an ex officio capacity shall not count towards the requisite teaching experience the teaching experience gained by the appellant while holding the post of Radiologist cum Associate Professor of Radiology ex officio in the Irwin Hospital can not be ignored in determining his eligibility for appointment as Professor or Associate Professor of the concerned speciality
35 C E