Civil Appeal Nos
5723 5724 of 1985 etc
From the Judgment and order dated 2221985 of the Andhra Pradesh Administrative Tribunal Hyderabad in Representation Petn
No 1041 and 1417 of 1983
PP Rao GL Sanghi R Venkataramani RA Perumal RK Gupta B Kanta Rao K Ram Kumar and A Subba Rao for the appearing parties
179 The Judgment of the Court was delivered by SEN J
These three appeals and the special leave petitions are directed against the judgment and order of the Andhra Pradesh Administrative Tribunal Hyderabad dated 22nd February 1985 quashing the panel of names prepared by the State Government under r 8 of the Andhra Pradesh Medical  Health Service Special Rules 1982 to fill up the promotional post of Professor of Cardiology as on 1st July 1983 reckoning the teaching experience of all the Assistant Professors in that super speciality in order of seniority holding that the Assistant Professors of Cardiology in different medical colleges in the State who had the requisite five years teaching experience under r 5 of the Rules having the alternate qualification in cl
b of Annexure II were eligible for promotion as such and directing the State Government to draw up a fresh panel after considering the claims of all such Assistant Professors of Cardiology treating them as possessing the requisite teaching experience in terms of r S for the promotional post of Professor of Cardiology as on 1st July 1983
That turns on the meaning of the expression two years training in Cardiology  as specified in cl
b of column 5 in serial No 17 of Annexure II to the Rules prescribing the qualifications for the post of Professor of Cardiology
The Tribunal was of the view that such Assistant Professors of Cardiology were entitled to have the benefit of teaching experience grained by them as such after obtaining the post graduate degree in MDMRCP in that speciality on the crucial date 1st July 1983 when the State Government purported to prepare a panel under r 8 of the Rules
The issue involved is of far reaching importance to the entire medical profession as similar problem is faced by the State Governments in promoting ReadersAssociate Professors in a speciality to the post of Professor in that speciality in the medical colleges
The matters were heard a long time back and closed for judgment but then a similar question arose in Civil Appeal No 4456 of 1986 State of Orissa vs Dr Sivsanker Lal Bajoria  Anr and therefore the matters were re listed
By order dated 12th December 1986 this Court granted special leave to the State Government of Orissa against the judgment and order of the Orissa High Court evolving a rule of substantial compliance
But learned counsel for the parties in these matters stated that they had made their submissions on merits and desired that the Court should proceed to judgment
At the very outset we wish to place on record that in Civil Appeal No 4456 of 1986 we had on 29th October 1986 issued notice 180 to the Medical Council of India to enable it to clarify its stand as to the eligibility of Assistant ProfessorsReaders in Cardiology to the promotional post of Associate ProfessorProfessor of Cardiology and in particular as to the import of the term two years special training  within the meaning of Regulation 52b of the Indian Medical Council Regulations 1970 framed under section 33 of the 
We desired the Indian Medical Council to specify the particular institution where such special training is imparted It would be profitable to reproduce the relevant averments in the affidavit sworn by the Assistant Secretary on behalf of the Medical Council of India placing its point of view With reference to the question whether any syllabus has been prescribed for further studies in Cardiology is concerned I state that the Council is a regulatory body which has its own rules under the Act
It does not prescribe any syllabus which is within the jurisdiction of every University and medical institutions
The Medical Council of India only prescribes broad guidelines for training in post graduate post doctoral courses leading to post graduation in DM Cardiology period of study conduct of examination etc true copy of the said broad guidelines which will cover post graduation courses is annexed herewith
It may be submit ted that there are no special guidelines for Cardiology
However it is submitted that some UniversitiesInstitutions might have prescribed the syllabus
With reference to the second question whether further traininginstructions are imparted in any college institutionuniversity or hospital I submit that various departments attached to various colleges have started imparting post graduation courses after obtaining permission from the Medical Council of India
Till this day a list of such institutions which are imparting such recognised post doctoral training in Cardiology is given below 1
Madras Medical College Madras Madras University 2
Post Graduate Institute of Medical Education and Research Chandigarh PGI Chandigarh 3
All India Institute of Medical Science New Delhi
181 4
GB Pant Hospital Delhi University 5
GSVM
Medical College Kanpur Kanpur University CollegesInstitutions which have already been approved for conducting DM courses in Cardiology are as under Permission accorded STILL TO BE RECOGNISED 1
Osmania Medical College Osmania University Hyderabad 2
Gandhi Medical College Osmania University Hyderabad 3
Armed Forces Medical College Pune Poona University 4
Kasturba Medical College Manipal Mangalore University 5
Bangalore Medical College Barlgalore Bangalore University 6
SCB Medical College Cuttack Utkal University Permitted in Sept 86 7
Grant Medical College Bombay Bombay University 8
Seth GS Medical College Bombay Bombay University 9
TN Medical College Bombay Bombay University Emphasis supplied The affidavit sworn by the Assistant Secretary to the Medical Council of India is admirably vague and reveals a sad state of affairs
It is quite manifest that when the Secretary to the Medical Council of India addressed a letter dated 26th April 1976 conveying the recommenda 182 tions of the Medical Council of India purporting to lay down that after 31st May 1977 for all teaching appointments to posts higher than Tutor in higher specialities ie Cardiology NeurologyGastro Enterology  Thoracic Surgery  Neuro Surgery  Plastic Surgery  Paediatric SurgeryUrology the candidates must possess post graduate degree qualifications in the speciality concerned ie DMM Ch
after MD MS or other equivalent qualifications as may be approved by the Council from time to time
There was no prospectus for a course of study for post graduation in a super speciality nor were there any institutions for imparting post doctoral training in all the subjects
There was also a Note added that the already existing qualifications with two years special training  in a recognized training centre in the speciality concerned shall cease to be sufficient qualification for appointment to the aforesaid teaching posts from that date
For the sake of completeness we think it necessary to set out the aforesaid letter of the Secretary which runs as follows After 31st May 1977 for all teaching appointments to posts higher than Tutor in higher specialities ie Cardiology Neurology  Gastro Enterology  Thoracic Surgery  Neuro Surgery  Plastic Surgery  Paediatric Surgery  Urology the candidates must possess post graduate degree qualifications in the speciality concerned ie DMMCh
after MDMS Or other equivalent qualification as may be approved by the Council from time to time
The existing alternative qualifications ie MDMS Or an equivalent qualification with two years special training in a recognised training centre in the speciality concerned shall cease to be sufficient qualification for appointment to aforesaid teaching posts from that date
Provided that the requirements of possessing post graduate degree qualification in the concerned higher speciality shall not be applicable for higher appointments in the case of existing teachers holding regular teaching posts whose appointment was initially made on the basis of two years special training in the speciality after the requisite MDMS  It would be noticed that the affidavit does not disclose the date or dates from which the institutions listed above namely Madras Medical College Madras Post Graduate Institute of Medical Education  Research Chandigarh All India Institute of Medical Sciences 183 New Delhi GB Pant Hospital Delhi and GSVM
Medical College Kanpur were recognised for imparting post graduatepost doctoral training
Nor does it specify the UniversitiesInstitutions which have prescribed a syllabus for the post graduatepost doctoral courses leading to post graduation in DM Cardiology period of study conduct of examination etc
It is not necessary to set out the facts in any detail and it is sufficient to give only the salient facts to elucidate the points in controversy
On 1st July 1983 the State Government purported to prepare a panel of all Assistant Professors of Cardiology in Government Medical Colleges in the State having the requisite teaching experience under r 5 after obtaining the post graduate qualification as specified in Annexure II
There existed on that date four vacancies in the post of Professor of Cardiology which occurred on 1st November 1982 1st March 1983 1st May 1983 and in June 1983
According to the Government the teaching experience contemplated by r 5 of the Rules was the teaching experience gained by the Assistant Professor in the concerned speciality after obtaining the second post graduation degree in that speciality
The Government therefore included in the penal the names of Dr G Subramanyam Dr A Rajagopala Raju and Dr Soghra Begum Assistant Professors of Cardiology who had as on the crucial date 1st July 1983 five years teaching experience after obtaining their post graduation degree in DM Cardiology as enjoined by r 5 read with the first proviso thereto and accordingly by order dated 17th August 1983 promoted them to the post of Professor of Cardiology
Thereupon the respondents Dr R Murali Babu Rao and Dr G Sai Gopal moved the Andhra Pradesh Administrative Tribunal assailing the impugned order of promotion
The claim of the respondent Dr R Murali Babu Rao was that he having obtained his degree in MDMRCP in Medicine was posted as Assistant Professor of Cardiology wef
18th January 1978 and while continuing to work as such he was selected to undergo a super speciality course in Cardiology ie DM and was deputed for that purpose on 18th January 1980
After completing his DM Cardiology in April 1981 he was posted as Assistant Professor of Cardiology from 12th June 1981
Upon that basis he claimed that apart from being seniormost Assistant Professor of Cardiology he had five years of teaching experience in the Department of Cardiology as Assistant Professor of Cardiology as on 18th January 1983
According to him if a panel had been prepared on 1st January 1983 he would have been the seniormost candidate in service with requisite qualifications for any vacancy from 1st January 1983 to 1st July 1983
He characterised the action of the State Government in 184 the matter of computation of five years teaching experience after post graduation as required under r 5 of the Rules only after the second post graduation degree in DM Cardiology as being wholly arbitrary and irrational
The State Government in the counter before the Tribunal repudiated his claim and contended inter alia that under r 5 of the Rules one must possess five years teaching experience in the speciality concerned after obtaining the post graduate qualification in the concerned speciality ie after the second post graduate course
It was averred that after completion of his post graduate course in DM Cardiology the respondent had been posted as Assistant Professor of Cardiology on 12th June 1981 and thus he would complete the three years period as Assistant Professor of Cardiology after acquiring his post graduate degree in DM Cardiology only on 11th June 1984
Tn the normal course
it was said he would then become qualified for promotion as Professor of Cardiology
The claim of the other representationist Dr G Sai Gopal was more or less similar
He acquired his degree in MD in Medicine in 1973 and was posted as Assistant Professor of Cardiology in September 1973
He obtained his second post graduate degree in DM Cardiology on 14th December 1981
His grievance is that he has been discriminated against by the Government
While he was working as Assistant Professor of Cardiology after obtaining his post graduate degree in MD in Medicine in 1978 he applied for study leave to join the All India Institute of Medical Sciences New Delhi for undergoing further studies for the second post graduation degree in DM Cardiology
It was refused and he was asked to resign from service while the Government granted such leave to respondent No 3 Dr Soghra Begum and therefore he should have been treated at par with her as if leave had been granted and thus he would have completed his DM Cardiology course in the year 1980 itself
During the year 1979 the Government however relented and granted him leave to study DM course in Cardiology in the All India Institute of Medical Sciences New Delhi where he completed his DM Cardiology on 13th December 1981
As he had put in 1 year 6 months 27 days after his post graduate degree in DM Cardiology and even after giving credit for 2 years 4 months and 18 days ie the second post graduation course period he was short of the requisite five years teaching experience and thus the Government considered him ineligible for promotion
Of the three Assistant Professors of Cardiology promoted as Professors the Government placed before the Tribunal a tabular chart showing that Dr A Rajagopala Raju had a teaching experience of 185 about 3 years 3 months as on 1st January 1983 and with the gaining of teaching experience during the second post graduation degree of about two years he had a total teaching experience of over five years
As regards Dr Soghra Begum it was averred that she already had 3 years 2 months and 16 days teaching experience as Assistant Professor of Cardiology after obtaining her post graduate degree in MDMRCP in Medicine when the Government deputed her to undergo further studies for the second post graduate course in DM Cardiology and therefore the Government as in the case of Dr A Rajagopala Raju decided to count the period when she was undergoing the second post graduate course in DM Cardiology towards her teaching experience
It would appear from the tabular chart that Dr G Subramanyam who had also been promoted to the post of Professor of Cardiology was not a party to the proceedings before the Tribunal and had in fact been promoted to that post in November 1982
In view of this and as he was admittedly senior to the respondent Dr R Murali Babu Rao he did not press his claim against Dr G Sai Gopal
The appellant CH Umesh Chandra has come up in appeal as the view expressed by the Tribunal prejudicially affects him
He obtained his post graduate degree in MD in Medicine in December 1975 and his second post graduate degree in DM Cardiology in April 1980
He had put in as Assistant Professor of Cardiology 3 years and 2 months
Even after giving credit for 1 year and 9 months ie the period of his second post graduation course in DM Cardiology the Government was of the view that he was not eligible
In view of the fact that he obtained his second post graduation degree in DM Cardiology in April 1980 he seeks to support the stand of the Government as he has a better chance for promotion than the others to the promotional post of Professor of Cardiology
To appreciate the contentions advanced it is necessary to set out the relevant provisions of the Andhra Pradesh Medical  Health Service Special Rules 1982 as amended from time to time
They are extracted below 3
Clinical and Non Clinical Specialities The Clinical and Non Clinical Specialities shall be as shown in Annexure I to these rules 4
Teaching experience for promotions 186 a Professors Clinical Non Clinical and Dental A Deputy Civil Surgeon or an Assistant Professor shall be eligible for promotion as Professor after putting in a total teaching experience of 5 years in either or both categories in the concerned specialities
b Deputy Civil Surgeon Clinical Non Clinical Dental     c The teaching experience specified in sub rules a and 11 above shall be computed as on the 1st January or the 1st July of the year in which panels for promotions are prepared  5 Teaching experience Teaching experience specified in rule 4 shall mean teaching experience in the speciality concerned in a Medical College or an institute recognised by the Medical Council of India after obtaining post graduate qualification as specified in Annexure II
Provided that the teaching experience during second post graduation in a recognised College or Institute within the country or abroad in the concerned speciality of those who are i Holding teaching appointments or ii Holding beds under their charges or iiiDoing tutorial work shall count towards teaching experience for purposes of this rule 7
Special Training Special training specified in these rules shall mean the work done by an Assistant Professor or Deputy Civil Surgeon in the concerned recognised unit and exclusively devoted to the speciality
Teaching experience during the special training period in the speciality shall count towards the training 8 Preparation of panels 1 The Government shall prepare a panel to fill up all the promotional posts included 187 in Class I available on 1st January and 1st July of the year based on the eligibility of the persons including the teaching experience as on 1st January and 1st July of the year 9 Qualification1 No person shall be eligible for promotion to the posts specified in column 3 of Annexure II unless heshe possesses the qualifications specified in the corresponding entry in column 5 thereof
2 Preference shall be given to persons who possess the qualifications specified in item a over those who possess the qualifications in item b of Column 5 of Annexure II for the posts of Professors and Deputy Civil Surgeons belonging to the specialities specified in Annexure III
 ANNEXURE II NON CLINICAL SPECIALITIES See Rules 5  9 section Name of Post Qualifications Degrees No Speciality 1 2 3 4 5 17 Cardiology Professor Must possess one a DM Dy
Civil of the following cardiology Surgeon post graduate bMDMRCP qualifications in in the concerned Medicine speciality from with 2 a recognised years UniversityBoard training Body
in Cardiology
 The entire controversy is due to the failure of the State Government to give the benefit of the teaching experience gained by Assistant Professors after they obtained their post graduate degree in MD MRCP in Medicine under cl
b of column 5 in serial No 17 of Annexure II
In the proceedings before the Tribunal the State Government in the counter revealed that there was correspondence between the Directorate of Medical  Health Department with Secretary to the Medical  Health Department since the year 1981 for deletion of the alternate qualification prescribed in cl
b of column 5 in serial No 17 188 of Annexure II namely MDMRCP in Medicine as amended from A time to time for all teaching appointments in the super specialities as per the recommendations of the Medical Council of India
On the recommendation of the Directorate it was said that the State Government had decided to delete the alternate qualification prescribed in r 5 of the Rules for eligibility to the higher post of Professor in a super speciality and had sent a draft amendment to the Special Rules for concurrence to the Andhra Pradesh Public Service Commission and the same was awaited
The recommendations of the Indian Medical Council had not by then ie till the hearing before the Tribunal been translated into action
The judgment of the Tribunal however reveals that the alternate qualification in cl
b of column 5 in serial No 17 of Annexure II ie MDMRCP in Medicine with two years training in Cardiology stood deleted wef 12th December 1983
On the crucial date however ie On 1st July 1983 when the impugned panel was prepared the alternate qualification in cl
b was still there
The contention on behalf of the State Government and the other appellants before us as was before the Tribunal is that the rules made under the proviso to article 309 of the Constitution are subject to the recommendations made by the Medical Council of India which is invested with statutory power under section 19A of the insofar as they relate to coordination and determination of standards for medical education and in particular to prescription of qualifications for appointment to teaching posts in higher specialities
It is said that the directions of the Council as conveyed by the Secretary by his letter dated 26th April 1976 were mandatory notwithstanding any provision to the contrary contained in the Andhra Pradesh Medical  Health Service Special Rules 1982 and must therefore prevail and were binding on the Government
The Government duly considered the claims of the respondents aforesaid and came to the decision that they were ineligible for promotion to the post of Professor of Cardiology inasmuch as they did not possess the requisite five years teaching experience in the speciality concerned after obtaining their post graduation qualification within the meaning of r 5 of the Rules ie second post graduation degree in DM Cardiology
The further contention is that at any rate the alternate qualification in cl
b of column 5 in serial No 17 of Annexure II namely MDMRCP in Medicine with two years training in Cardiology having been deleted by GOMS No 789 Medical  Health Department dated 12th December 1983 it was not necessary for the Government to comply with the direction made by the Tribunal to draw up a panel of the eligible candidates afresh under r 8 of the Rules
The contention 189 in the alternative was that the Tribunal failed to appreciate that the teaching experience gained by Assistant Professors of Cardiology before obtaining the second post graduate degree in the speciality concerned
ie after the post graduate degree in MDMRCP in Medicine could not be taken into consideration inasmuch as under r92 preference has to be given to persons who possess the qualifications specified in cl
a over those who possess the qualifications specified in cl
b for the post of Professor belonging to the speciality specified therein and therefore it was not justified in quashing the panel prepared by the State Government under r 8
We are afraid these contentions cannot prevail
The fallacy underlying the arguments is obvious
Rule 4 in terms speaks of the eligibility of such class of Assistant Professors of Cardiology for promotion to the post of Professor of Cardiology who possess five years teaching experience
The expression teaching experience  as defined in r 5 speaks of teaching experience in the speciality concerned in a medical college or an institute recognised by the Medical Council of India after obtaining post graduate qualification as specified in Annexure II 
The words used are after obtaining postgraduate qualification  it does not speak of the second post graduate qualification
Rule 5 therefore takes in both the qualifications specified in cls
a and b of column 5 in serial no 17 of Annexure II namely a DM Cardiology b MDMRCP in Medicine with two years training in Cardiology
On the crucial date 1st July 1983 cl
b was very much there and the Government was bound to consider the claims of the aforesaid respondents like other officers belonging to that class before drawing up a panel under r 8
There is no warrant for the submission that since under r 92 an Assistant Professor with the requisite five years teaching experience after obtaining his second post graduate degree in DM Cardiology would have preferential claim over those having qualification mentioned in cl
b ie MD MRCP in Medicine with two years training in Cardiology the State Government was entitled to ignore the claims of the latter class altogether
On its plain construction r 92 is a rule of preference and has therefore to be applied at the stage of making appointments to the post of Professor of Cardiology and not while drawing up a panel under r 8
The Government was obviously misled by the wrongful assumption i that since the alternate qualification in cl
b of column 5 in serial No 17 of Annexure II had been deleted by GOMS No 789 dated 12th December 1983 it was not necessary for it to consider the claims of the aforesaid respondents and others similarly situate in drawing up a list of eligible Assistant Professors of Cardiology to fill up 190 the promotional post of Professor of Cardiology and ii that such A officers were rendered ineligible by reason of r 92 and therefore their claims need not be considered
The Tribunal was therefore justified in our opinion in quashing the impugned panel prepared by the State Government under r 8 of the Rules and in directing the Government to prepare a penal afresh after considering the claims of all Assistant Professors of Cardiology with five years teaching experience after their post graduation in MDMRCP in medicine with two years training in Cardiology
There is no substance whatever in the contention that the alternate qualification in cl
b being in conflict with the recommendation of the Medical Council of India must be deemed to have been repealed by implication and was non set wef 31st May 1977
The Government had no doubt before it the recommendations of the Council as conveyed by the letter of the Secretary dated 26th April 1976 that after 31st May 1977 for all teaching posts higher than Tutor in higher specialities ie Cardiology Neurology Gastro Enterology Thoracic Surgery Neuro SurgeryPlastic SurgeryPaediatric Surgery Urology the candidates must possess the post graduate qualification in the speciality concerned ie DMMCh
after MDMS or other equivalent qualification as may be approved by the Council from time to time
The letter also went on to say that the existing qualification MDMS or an equivalent qualification with two years special training in a recognised training centre in the speciality concerned shall cease to be sufficient qualification for appointment to the aforesaid teaching posts from that date
Nevertheless the Government failed to appreciate that the recommendation which was later approved of by the Government of India and acquired the status of a regulation was only recommendatory and could not override a rule framed under the proviso to article 309 of the Constitution
The panel had to be drawn by the State Government strictly in conformity with the rules of recruitment made under the proviso to article 309 and not on the basis of the recommendations of the Council
As is manifest from the affidavit filed by the Indian Medical Council it is only a recommendatory body
This Court has in a series of decisions defined the precise functions and duties of the Medical Council of India
The Indian Medical Council constituted under section 3 of the Act is an expert body intended and meant to control the minimum standards of medical education and to regulate their observance
We may only cite the case of State of Madhya Pradesh vs Km
Nivedita Jain
 where the Court had to consider the effect of 191 the Regulations framed by the Medical Council and the various executive orders issued by the State Government
Analysing the various provisions of the Act in depth it was observed as follows An analysis of the various sections of the Act indicate that the main purpose of the Act is to establish Medical Council of India to provide for its constitution composition and its functions and the main function of the Council is to maintain the medical register of India and to maintain a proper standard of medical education and medical ethics and professional conduct for medical practitioners
The scheme of the act appears to be that the Medical Council of India is to be set up in the manner provided in the Act and the Medical Council will maintain a proper medical register will prescribe minimum standards of medical education required for granting recognised medical qualifications will also prescribe standards of post graduate medical education and will further regulate the standards of professional conduct and etiquette and code of ethics for medical practitioners
 Emphasis supplied A fortiori the recommendations made by the Council or the Regulations framed by it are only recommendatory and not mandatory
It is not for the Council to prescribe qualifications for recruitment to posts of Professors Readers and Lecturers
It can only lay down broad guidelines therefor
Such qualifications have necessarily to be prescribed by the framing of Rules under the proviso to article 309
Right to be considered for promotion is a condition of service and it can only be regulated by a rule framed under the proviso to article 309
The Medical Council in its affidavit has itself said that it only prescribes broad guidelines for training in post graduatepost doctoral courses leading to post graduation in DM Cardiology period of study conduct of examinations etc
It goes further and accepts that there are no special guidelines laid down for Cardiology and asserts that some universitiesinstitutions might have prescribed the syllabus
It has listed five institutions which are imparting post doctoral training in Cardiology
Such being the legal position the contention of the State Government and the other appellants that the recommendations of the Medical Council as conveyed by the letter of the Secretary dated 26th April 1976 rendering Assistant Professors of Cardiology having the alternate qualification of post graduate degree in MDMRCP in Medicine ineligible for Promotion to the post of Professor of Cardio 192 logy even though they had the requisite five years teaching experience appears to be wholly misconceived and unwarranted
In support of the contention learned counsel appearing for the State Government and the other appellants relied upon the following observations made by this Court in Union of India  Ors
vs SB Kohli  Anr
Before the growth of specialised qualifications Surgeons obtaining the FRCS in general surgery used to specialise in orthopaedics and other specialities either by doing a diploma in orthopaedics or simply by practice and experience
The regulations framed by the Medical Council require that in addition to the general FRCS a surgeon must have a diploma in orthopaedics before he could be appointed a Professor Reader or Lecturer in orthopaedics
That regulation has been accepted by the Government
This gives an indication of what is considered a postgraduate degree in the concerned speciality
Therefore in the present case a mere degree of FRCS as such cannot be deemed to be a post graduate qualification in the concerned speciality of orthopaedics
To hold otherwise would mean that a person who has the qualification of FRCS could be deemed to be specialised in Tuberculosis and orthopaedics although he is also a specialist in general surgery
Therefore the second Respondent does not hold a post graduate degree in the concerned speciality orthopaedics and as such his promotion to the post of a Professor in orthopaedics was illegal and against the Central Health Service Rules We fail to see the relevance of these observations to the facts of the present case
In Kohli s case the question turned on the construction of the phrase a post graduate degree in the concerned speciality  in items 2 and 3 of Annexure II of the Second Schedule of the Central Health Service Rules 1963
The question that arose for consideration was whether the second respondent in that case who was FRCS General Surgery of the Edinburgh University had a post graduate degree in the concerned speciality and was eligible for promotion to the post of Professor of orthopaedics Surgery in the Maulana Azad Medical College New Delhi
It was conceded before the High Court on behalf of the Central Government that the amendments made in the Central Health Service Rules were intended to give effect to the Regulations framed by the Indian Medical Council
The Court held that the various 193 entries in Annexure II of the Second Schedule had to be interpreted in a reasonable manner and pointed out that the degree in FRCS was in General Surgery
The amended rule made by the Central Government was to implement the Regulation framed by the Indian Medical Council that in addition to the General FRCS a Surgeon must have a diploma in orthopaedics before he could be appointed a Professor Reader or Lecturer in orthopaedics In that context the Court held that the Central Government having accepted the recommendation of the Council and framed a rule a mere degree of FRCS as such could not be deemed to be a post graduate qualification in the concerned speciality orthopaedics
In the present case we are concerned with the meaning of the expression teaching experience  occurring in r5 of the Rules and with the class of officers who after their appointment as Assistant Professors of Cardiology on having obtained post graduate degree in MD MRCP have been teaching the subject Cardiology for years together
Indeed the alternate qualification specified in cl
b of column 5 in serial No 17 of Annexure II takes in this class of officers and makes them eligible under r 5
We have already repelled the contention that the alternate qualification in cl
b being in conflict with the recommendation of the Council must be deemed to have been repealed by implication wef 31st May 1977 or rendered non est as from that date
On the crucial date 1st July 1983 cl b was still there and the Government was therefore bound to consider the claims of such officers before drawing up a panel under r 8
Faced with this difficulty learned counsel appearing for the State Government and the other appellants strenuously contended before us that the respondents ie Assistant Professors of Cardiology with the requisite teaching experience of five years after obtaining their postgraduate degree in MDMRCP in Medicine did not come within the purview of cl
b of column S in serial No 17 of Annexure II
Emphasis was laid on the words with two years training in Cardiology  and it was submitted that none of the respondents had the requisite training
We enquired from the learned counsel if there was any institution imparting such training in Cardiology but they were unable to throw any light on the subject
The expression special training  is defined in r 7 to mean the work done by an Assistant Professor in the concerned recognised unit and exclusively devoted to the speciality
The question then arises for the applicability of r 7
There are two conditions to be fulfilled firstly there must exist an institution set up either by the Medical Council of India or by the Government or Universities exclusively devoted to imparting teaching in different courses of Cardiology and secondly such institution should have been recog 194 nised by the Government
There is no such material on record to establish that there is any such recognised unit either in the State of Andhra Pradesh or elsewhere
That apart we fail to appreciate the reason why the Associate Professors Readers Assistant Professors of Cardiology teaching the subject Cardiology in the Medical Colleges for years together should not be regarded as persons having special training in Cardiology within the meaning of cl
b of column 5 in serial No 17 Annexure II
Any other view would lead to a very anomalous situation 
It would be a travesty of justice if the officers belonging to the class like the respondents representationists Dr R Murali Babu Rao and Dr GSai Gopal namely Assistant Professors of Cardiology with five years teaching experience after their post graduation in MD MRCP in Medicine as on 1st July 1983 were not empanelled by the State Government under r 8 to fill up vacancies in the post of Professor of Cardiology even though they possessed the requisite qualifications under r 5 of the Rules
It must be remembered that the alternate qualification in cl
b namely MD MRCP in Medicine with two years training in Cardiology was still there and it was not open to the Government to ignore the same merely because it was in conflict with the recommendation of the Medical Council of India
as conveyed in the letter of the Secretary dated 26th April 1976
In the world as a whole today particularly in the developed countries both the health and the wealth of mankind is better than it was
Even in the developing world the health conditions of many communities have improved considerably in recent decades
For the developing countries as a whole life expectancy at birth increased from 32 years before the Second World War to about 49 years in the 1960s compared with about 70 years for the industrial world
With the conquest of tuberculosis and other infectitious diseases disorders of the blood vessels hypertension ischemia acute myocardial infraction arteriosclerosis acute heart failure etc
are the chief causes of death in at least half of population and perhaps a quarter as many deaths from cancer
New physiological and biophysical methods of study together with post war developments in surgery and open heart surgery have revolutionised the investigation and management of heart disease in the Western World
Our country is not lagging behind and during the last few decades has seen the emergence of the new class of specialised physicians dealing with cardiovascular disorders known as Cardiologists for the management and treatment of patients suffering from heart diseases
195 From time to time a personality seintillates across the medical firmament who dazzles all beholders
Few people of his generation have surpassed the eminence of Dr SK Mukerji MDMRCP Lond FRCP Lond Emeritus Professor of Medicine Medical College Indore who perhaps today is the leading Physician and Cardiologist in the country and at whose feet many Physicians and Cardiologists have attained great distinction
He has had a remarkable ability to objectify an important clinical finding and to cite all relevant literature without disquisting the patient
Indeed his clinical analysis usually gained the confidence and respect of his patient in a most reassuring manner
His originality in selecting clinical problems and investigating them by the available physiological methods especially disorders of the heart and circulation are familiar to the entire medical world
He truly depicts the characteristics of a thoughtful physician excelled in the care of the sick as delineated by T R Harrison 
renowned physician and author of the standard text book Principles of Internal Medicine  in his preface in these words No greater opportunity or obligation can fall the lot of a human being than to be a physician
In the care of the suffering he needs technical skill scientific knowledge and human understanding
He who uses these with courage humality and wisdom will provide a unique service for his fellow man and will build an enduring edifice of character within himself
The physician should ask of his destiny no more than this and he should be content with no less Another outstanding personality whose name comes to our mind is that of Dr
PN Laha MD Double MRCP Lond Emeritus Professor of Medicine Medical College Gwalior who has taught many of the leading Cardiologists in the country
A delightful vivacious passionate physician he stimulates everyone with whom he comes contact and he has placed an indelible stamp on the medical events of his days
His many illuminating articles on different branches of Cardiology appear in the authoritative text book Prineiples of Medicine  edited by Dr Rustom J Vakil who along with Dr Col KK Datey were two of the foremost Cardiologists in the country
Two of the physicians who attained great eminence in the field of Cardiology were the late Dr Sujoy B Roy Head of the Department of Cardiology All India Institute of Medical Sciences New Delhi and the late Dr KL Wig Professor of Medicine Director Post Graduate Institute of Medical Eduction and Research Chandigarh and later Director All India Institute of Medical Sciences New Delhi in their 196 time
Other equally eminent Cardiologists who have brought honour to the country are Dr PC Dhanda MDMRCP Head of the Department of Medicine Maulana Azad Medical College New Delhi Dr Lt Col KL Chopra Professor of Cardiology Medical College Poona
Advisor to the Armed Forces Head of the Cardiology Department Mool Chand Khairati Ram Hospital President Heart Care Foundation Dr Padmavati Professor  Head of the Cardiology Department GB Pant Hospital President All India Heart Foundation Dr ML Bhatia Head of the Cardiology Department All India Institute of Medical Sciences Dr RK Caroli Professor of Cardiology and Head of the Cardiology Department Dr Ram Manohar Lohia Hospital Dr SC Manchanda Professor of Cardiology All India Institute of Medical Sciences Dr BK Goyal Visiting Professor of Cardiology in different Medical Colleges in Bombay Dr Lt Col K K Malhotra eminent Physician and Senior Specialist and Consultant Cardiology Dr Ram Manohar Lohia Hospital Dr PD Nigam Professor of Cardiology and Head of the Department Dr Ram Manohar Lohia Hospital Dr M Khalilullah Director GB Pant Hospital Dr NS Dixit Head of the Cardiology Department Batra Hospital Dr K Banerji MD Professor of Medicine Medical college Jodhpur Dr CE Bhandari Professor of Medicine Medical College Jabalpur Dr VG Nivasarkar Professor of Medicine Medical College Gwalior Dr RK Sen Sr
Consultant BL Kapur Hospital New Delhi a well known Physician and Cardiologist Dr SK Minocha MD
Physician  Cardiologist Dr Ram Manohar Lohia Hospital etc
We would be surprised if many of these renowned Cardiologists who are MD MRCP Lond are not examiners for DM Cardiology
Indeed many of their students after doing their MD in Medicine and after their post graduation go for further studies for the second post graduation in DM Cardiology under their direction
We have no doubt in our mind that the Medical Council of India with the best of intentions due to fall in standards of education felt it necessary in the public interest to prescribe second post graduation in a super speciality ie DM Cardiology to be an essential qualification for the promotional post of Professor of Cardiology
However it must not be forgotten that there are many distinguished Physicians with specialisation in Cardiology working as Professors of Medicine teaching students in different branches of Cardiology as a subject in various medical colleges throughout the country whose services are frequently called in as Consultants in cases of emergency
There are also many distinguished Assistant ProfessorsReadersAssociate Professors of Medicine in such medical colleges in different States teaching Cardio 197 logy as a subject who have gained sufficient expertise and knowledge in different branches of Cardiology
It would be rather unfortunate if such Assistant Professors Readers  Associate Professors of Medicine merely because they are MDMRCP in Medicine were considered to be ineligible for appointment to the post of Professor of Cardiology even though they may have the requisite teaching experience in many branches of Cardiology for the last 15 to 20 years in medical colleges
In view of this the expression five years teaching experience  occurring in r 5 of the Rules as well as the phrase with two years training in Cardiology  in cl
b of column 5 in serial No 17 of Annexure II of the Rules must in our opinion receive a liberal construction
We are inclined to the view that the experience gained by them while teaching students in different branches of Cardiology should be treated as sufficient to meet the requirements of r 5 of the Rules as well as of cl
We hope and trust that the Medical Council of India Union Government and the State Governments so also the State Medical Councils would give a second thought to the problem and try to evolve a solution to the problem by which the right of such persons to be considered for promotion to the post of Professor of Cardiology can be kept preserved without allowing any fall in the standards of further education
For the reasons stated the appeals as well as the connected special leave petitions must fail and are dismissed
There shall be no order as to costs
SL Appeals  Petitions dismissed


Summary:
 The appellants are direct recruit Section officers and were appointed in substantive vacancies of Section officers in accordance with the quota reserved for direct recruits
The inter se seniority of the direct recruits and promotees is fixed in accordance with the quota and rota system
According to the CSS Rules 1962 the substantive vacancies of Section officers are manned by direct recruits and promotees and a quota of one fifth of the substantive vacancies has been reserved to be filled up by direct recruits
The remaining substantive vacancies of Section officers are to be filled up by appointment of persons included in the select list ie by promotion
The direct recruits on their appointment against substantive vacancies become senior to the promotees as is in the present case
The promotion of Section officers to Grade I post of CSS Rules is made in accordance with the provisions of sub rule 2 of rule 12 of the said Rules framed in 1962
According to this rule the direct recruits were eligible for promotion to Grade I in CSS even though they have not rendered 10 years service when promotee Section officers junior to them are considered for promotion to Grade l
The promotee Section officers had to render 10 years  approved service as Section officer before being considered for promotion to Grade I
This rule had been 148 amended from time to time the last of which was in 1984 by way of Notification No 5980 CS
I dated 29th December 1984 which prescribed 8 years of approved service as Section officer as condition of eligibility for being considered for promotion to Grade I post in CSS
This amendment was challenged before the Central Administrative Tribunal which dismissed the applications holding that the amended rule is valid just and equitable and no exception can be taken to it and that it is not ultra vires of Articles 14 and 16 of the Constitution
Aggrieved by the said order three appeals have been preferred before this Court by way of special leave
It was contended that the amendment purports to entrench upon the prospects of the directly recruited Section officers for being considered for promotion to Grade l in as much as they are left out of the zone of consideration while their juniors ie the promotee Section officers are eligible for being considered for promotion to Grade I
This condition of eligibility has no nexus to suitability for promotion to the post and as such is in violation of the equality clause in Article 16 of the Constitution of India
It was contended that for purposes of seniority in service the senior will be considered for promotion before those who are junior to them in service and that the condition of eligibility as laid down in the said rule has no reference to suitability for promotion to the post and as such it is arbitrary and so void
The system prior to the amendment worked out satisfactorily and the direct recruit Section officers who were promoted to Grade I post performed their duties attached to the higher post duly and satisfactorily and therefore the amendment is arbitrary and inequitable and that this amendment works out to the serious prejudice of the direct recruit Section officers
It was submitted that the effect of the amendment is to neutralise and negative the decision of this Court in HV Pardasani  Ors
vs Union of India  Ors which held that the rules of seniority on the basis of quota rota basis are unexceptionable
On behalf of the promotee Section officers it was contended that the inter se seniority between direct recruit Section officers and promotee Section officers is fixed in accordance with the quota rota rule and thus has no reference to the length of service
The promotee Section officers have not been considered for promotion m spite of their rendering service as such for more than 13 years whereas the direct recruit 149 Section officers who were appointed much later were considered and promoted purely on the ground of seniority
This has created frustration in the minds of the promotees and in order to obviate this the Government has amended the proviso and that the amendment is neither arbitrary nor unjust
Dismissing the appeals this Court  HELD 1
The rule in question which prescribes on uniform period of qualified service cannot be said to be arbitrary or unjust or violative of Articles 14 or 16 of the Constitution
The rule making authority by the amendment made in 1984 has brought in an uniform eligibility qualification of 8 years  approved service to be rendered by the Section officers both promotees and direct recruits before coming within the zone of consideration for promotion to Grade I
Thus it treats all Section officers equally and there is no discrimination between the Section officers
The directly recruited Section officers are not totally excluded from the zone of consideration for promotion
They will be considered like the promotee Section officers as soon as they have rendered eight years  approved service as Section officers
The eligibility conditions imposed has a nexus to the object sought to be achieved viz enlisting experienced officers of proven merit to man the higher posts by way of promotion
158B 156B D 2
The validity of rule providing for fixation of seniority between the direct recruits and promotees in the grade of Section officer on the basis of quota reserved for direct recruits ie 15 of the total substantive vacancies has already been upheld by this Court
But this does not mean that the direct recruits who are senior to the promotees are entitled to be considered for promotion to a higher post even though they do not fulfil the eligibility qualification specified in the rule framed by the rule making authority
The rule making authority is competent to frame rules laying down eligibility condition for promotion to a higher post and it cannot be said that a direct recruit who is senior to the promotees is not required to comply with the eligibility condition and he is entitled to be considered for promotion to the higher post merely on the basis of his seniority
The submission that a senior Section officer has a right to be considered for promotion to Grade I post when his juniors who have fulfilled the eligibility condition are being considered for promotion to the higher post is wholly unsustainable
155G 156A B 157D F HV Pardasani  Ors
vs Union of India  followed
150 3
When qualifications for appointment to a post in a particular cadre are prescribed the same have to be satisfied before a person can be considered for appointment
Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules
A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion
Seniority will be relevant only amongst persons eligible
Seniority cannot be substituted for eligibility nor can it over ride it in the matter of promotion to the next higher Post
157G H 158A