ivil Appeal No 3951 of 1990
From the Judgment and Order dated 1041990 of the Himachal Pradesh High Court in CWP No 12 of 1990
VA Bobde AKSanghi and section Mudaliar for the Appellants
Dr YS Chitale Mrs Sadhna Ramachandran and Jagan Mohan Rao for the Respondent
Respondent Raj Kumar Thakur was a student in the Postgraduate Doctoral Programme as a PhD scholar with his subject for doctoral study Breeding of Honey Bees A Mellif era for Honey production through Artificial Insemination which is a subject under the Department of Agriculture of Dr YS Parmar University of Horticulture  Forestry and is a course of study available in several other institutions in the country
The respondent was registered for this course in 1985 and was required to complete the same in six semes ters with entitlement for extension by two more semesters by the Dean on the recommendation of the Adviser and for a further extension of two more semesters by the Vice Chancel lor of the Dr YS Parmar University of Horticulture and Forestry on the recommendation of the Dean
The respondent completed seven semesters as a student and registered for the eighth semester on 2471989 as a student of the Univer sity
However during this period respondent was appointed as Assistant Scientist in the pay scale of Rs2200 4000 vide letter of appointment dated 2671989
The Dean by order dated 774 2771989 permitted the respondent to register for the eighth semester
This permission of the Dean was granted without the knowledge of the respondent having become an employee of the University as a result of the appointment letter dated 2671989
The respondent joined the post of Assistant Scientist pursuant to this appointment on 2971989
The respondent thereafter applied for a further extension of his registration for the course for the ninth semester
The Vice Chancellor vide his order dated 22111989 refused the permission on the ground that the respondent having become an employee of the University was not entitled to that benefit in accordance with the provi sions applicable
The restrictions in regard to an employeeteacher of the University for the purpose are as under a An employeeteacher of the University is permitted to undertake doctoral programme only in subjects for which facilities in other Universities in the country are not available
Forestry being one such subject in the petitioner University
The course of study of the respondent viz Agriculture is however available in numerous other insti tutions and Universities in the country
b An employeeteacher is required to take study leave and the same is admissible for pursuing approved courses outside the University only
It is only in cases where facilities for the course of study which is not available elsewhere in the country an in service teacher is permitted to undertake the same in the petitioner University
c Study leave is not granted as a matter of fight and can be granted only after the employeeteacher has completed five years of continuous service in the University
d Considering the number of employees aspiring to do doctoral programme the permission to do the same is given according to seniority
 An employee of the University would be required to complete the PhD within eight years of recruitment failing which increments are not admissible till completion of the course
An employee who is Assistant Professor or holds an equivalent post the respondent being in that category normally becomes entitled to the senior scale of Rs3000 5000 after completion of eight years of service
However in case of an employee obtaining the PhD degree the senior scale be 775 comes applicable after five years instead of eight years
On completion of eight years in the senior scale an employeeteacher is promoted to the next higher rank of reader
Thus a person getting a PhD degree gets the senior scale earlier and consequently he is also promoted earlier to the post of reader
There are 24 other employees who are senior to the respondent and are awaiting completion of their five years service for doing the doctoral programme and there are eight other employees who joined initially with the PhD degree and are awaiting completion of five years for getting the senior scale
The consequence of granting permission to the respondent for registration to the ninth semester would be to confer on the respondent the benefit which is not available to an employee of the Univer sity because of the aforesaid restrictions and this would result in giving a benefit to the respondent contrary to the provisions applicable while denying the same to others who are senior to the respondent in employment
According to the appellants this was the reason for refusal by the Vice Chancellor of the permission sought by the respondent
The respondent challenged this refusal of the permission to him by the Vice Chancellor by order dated 221189 in the High Court of Himachal Pradesh in CWP No 12 of 1990
By the impugned judgment dated 1041990 the Full Bench of the High Court by majority allowed the writ petition and direct ed the Vice Chancellor to register the respondent for the remaining two semesters namely the ninth and the tenth semesters
Hence this appeal by special leave
The grievance of the appellants is that the result of the impugned majority judgment of the High Court Would be that though the respondent is an employeeteacher of the University he would be doing research in a subject in which otherwise employees of the University are not permitted the respondent would get the senior scale earlier and also be promoted to the post of Reader much before 24 persons senior to him who are awaiting their turn in the order of seniority to undertake the doctoral programme after completion of the requisite five years service which is contrary to the statu tory provisions and the 24 other employees senior to the respondent would be adversely affected even without being parties in the writ petition
The statutory provisions applicable to the case and their meaning is not in controversy
The only controversy is whether the respondent can be treated as an employee or in service candidate for the PhD course on these facts so as to attract the restrictions which are relied on by the University for refusing the permission for registration to the 776 ninth and tenth semesters sought by the respondent
The majority opinion in the impugned judgment takes the view that the respondent is not an in service candidate for this purpose as he has already completed eight semesters and requires only two or three months to complete the PhD course
The majority has also been influenced by the fact that refusal of permission for completing the course at this stage would be hard on the respondent
The minority view of Bhawani Singh J is that on appointment to a teaching post in the University the respondent incurred the disability and attracted the restrictions which are applicable to all employees of the University irrespective of the consequence flowing from it
In our opinion the minority judgment of Bhawani Singh J on this point and the conclusion reached by him that the respondent attracted the restrictions at taching to all employees of the University on his appoint ment as a teacher of the University is the correct view and the respondent cannot escape from the statutory restrictions which became applicable to him as soon as he became an in service candidate for the remaining part of the PhD course on his taking up of the appointment in the University
The further fact that the benefit claimed by the respondent if granted would result in the respondent getting consequen tial benefits much before his several seniors as a result of this permission alone cannot also be overlooked
It is not a case of merely giving some benefit to the respondent even by relaxation of some statutory provisions without causing any prejudice to anyone else but a case where such a benefit granted to the respondent alone from amongst a large number of employees of the University would also seriously preju dice their claim and amount to an act of discrimination
Obviously such a course is impermissible
This is the consequence of the High Court judgment and therefore it must be set aside
Consequently the appeal is allowed and the impugned judgment dated 1041990 of the High Court of Himachal Pradesh in CWP No 12 of 1990 is set aside
No costs
RSS Appeal allowed


Summary:
The appellants are junior doctors who were in a house job on 2281989
They had been admitted to post graduate degree course second year in the MLN Medical COllege under the Residency Scheme for junior doctors which was notified on 2281989 but was given retrospective effect from 181987
They however lost their seats as a result of the High Court s decision allowing the writ petitions flied by the respondent doctors whose applications for admission to the same course had been rejected
The modifications introduced by the Residency Scheme needed certain transitory provisions being made for two purposes
The first was to devise a formula of equating between the old and the new systems
This was done by redes ignating all students junior doctors house officers and others in position in the manner set out in para 5 of the scheme
The second provision necessary was in regard to their admission to the post graduate courses
This was done by the second sub para of para 5
The respondent doctors who had done their MBBS internship and house job by April 1988 and who had even obtained admission in March 1989 into a diploma course sought admission in the MLN College into the second year of a degree course by taking advantage of clause 5 of the Residency Scheme
Their applications were rejected on the ground that the clause 5 of the scheme was a transitory provision intended to benefit only persons who were on a house job as on 2281989 they alone could take advantage of the scheme as soon as they completed the house job and not persons who had completed their house job much earlier to that date
Thereupon these doctors filed writ petitions in the High Court
A Division Bench of the High Court al lowed the petitions and held that clause 5 extended the privilege of admission to 896 the second year of the degree course to all persons who were working as house officers on or after 1st August 1987
The State as well as certain doctors who were in house jobs as on 2281989 and who had been admitted to post graduate degree courses on the basis of the State s inter pretation of the scheme but lost their seats as a result of the High Court s decision have preferred these appeals
So far as the present appeals are concerned all parties have proceeded on the footing that the residency scheme is a valid one and that it envisaged that a person who had com pleted house job for one year could get admission into the second year of the course whether degree or diploma
The only controversy is whether this admission was open only to those persons who were in a house job as on 2281989 and had completed it before 30101989
Dismissing the appeals this Court HELD 1 There is no rule which prohibits a person even though he may already be a student in a post graduate course from seeking admission to the second year of junior residency the eligibility clauses for admission to which he fulfills
The High Court was therefore right in holding that they could not be excluded from consideration for admission to the second year of the degree course merely because they were already students in a diploma course
901H 902A B 2 To ask persons who had already completed a one year house job to undergo the three year degreetwo year diploma course would be a severe handicap to them as earlier they could have got their postgraduate degreediploma course after two yearsone year
In order to adjust them into the new scheme the State designated holders of house jobs as junior residents first year under the new scheme
This enabled the holders of house jobs to get into the second year course under the residency scheme
902H 903A 3 The scheme however could not be stretched and converted into a limitless provision making it possible for all persons who had completed their house jobs at some distant past to compete for admission to the second year of the degree course
That is why para 5 limited the scope of the redesignation and admission
The first part of it limit ed the equation only to persons who were working on house jobs since 181987
903B C 897 4 The date material for the purpose of their admission was 3091989 the last date by which the applications had to be sent in
That being so the words ussamay used in the second sub para of para 5 are the operative words
They clearly embody a reference to an anterior point of time and this can only be a reference to the period since 181987 which finds specific mention in the first sub para and which is the period subsequent to the scheme coming into opera tion
905D E 5 All persons doing house jobs after 181987 are covered by the second sub para of para 5
The words after completion of the tenure had to be used here because the class of persons referred to also included those who were in house jobs as on 2281989
905F 6 It is clear that the words House Officer Junior Residents and Senior Residents used against serial Nos 1 2 and 3 in para 5 of the scheme redesignate all such officers working since 181987 as junior residents 1st 2nd and 3rd year respectively
That being so both the writ petitioners as well as the appellants are all junior resi dents 1st year and should be eligible for admission to the second year of the residency scheme course
903D E 7 It is clear from the judgments of the High Court on the subject that the interpretation of the clauses on the scheme is by no means an easy task
In this state of af fairs it is upto the State to find out a practical solution to ensure that the student community is not prejudiced by the ambiguities in the scheme
909H 910A Mridula Avasthi and Others vs University of Delhi and Others   referred to