IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. LPA No. 176/2010 Reserved on: 14.9.2011 Decided on: 19.10. 2011 _____________________________________________ Dr. D.D. Gupta. …Appellant. Versus State of Himachal Pradesh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Kurian Joseph, Chief Justice. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the Appellant : In person. For the Respondents: Mr. R.K. Bawa, Advocate General with Mr. Ankush Sood, Addl. A.G. with Mr. J.K. Verma, Dy. A.G. for respondents No. 1 to 3. Mr. Neel Kamal Sood, Advocate for respondent No.4. Mr. Dilip Sharma, Advocate for respondent No.5. Mr. B.C. Negi, Advocate for respondent No.6 _____________________________________________________ Justice Rajiv Sharma, Judge. The present Letters Patent Appeal is directed against the judgment dated 9.8.2010 passed by the learned Single Judge in CWP (T) No. 7948 of 2008 (OA No. 2355/2001). 2. Material facts necessary for the adjudication of this appeal are that the appellant passed his 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 M.B.B.S. examination in the year 1985 from Medical College, Rohtak. He obtained his M.D. in the subject of Pharmacology in the year 1991. He was appointed as Demonstrator with effect from 9.12.1991 to 7.1.1995. He worked as Lecturer with effect from 4.5.1995 to 9.10.1996. He was appointed as Assistant Professor on contract basis in Dr. R.P. Government Medical College, Tanda with effect from 19.6.1999 to 19.7.2000. Thereafter, the appellant was appointed as Medical Officer. 3. The Departmental Promotion Committee for promotion to the post of Assistant Professor in the subject of Pharmacology was held on 28.8.2001. Name of the petitioner was not considered for the post of Assistant Professor on the pretext that he was not possessing M.D. Degree in Pharmacology duly recognized by the Medical Council of India. Appellant assailed this decision by filing O.A. No. 2355/2001 before the erstwhile Himachal Pradesh Administrative Tribunal, which after abolition of the Tribunal, was transferred to this Court and assigned CWP (T) No. 7948 of 2008. Learned Single Judge dismissed the same on 9.8.2010. Hence, the present Letters Patent Appeal. 3 4. Appellant has appeared in person. According to him, the degree of M.D. in Pharmacology obtained by him on 31.12.1991 was recognized by the University created by statute, i.e. Maharishi Dayanand University, Rohtak. He further contended that the degree of M.D. in Pharmacology awarded by Maharishi Dayanand University, Rohtak has been duly recognized with effect from August, 1977 as per notification bearing No.V.11015/7/2004-ME(Policy-I) dated 29.4.2004. He further contended that he had already been found suitable for appointment to the post of Assistant Professor by the respondent-State in the subject of Pharmacology in Dr. R.P. Government Medical College, Tanda with effect from 19.6.1999 to 19.7.2000 and on the basis of same qualification he was promoted to the post of Assistant Professor on 5.3.2002. According to him, the entire exercise has been undertaken to unduly favour respondents No.4 and 5. He lastly contended that respondent-State may be directed to hold review Departmental Promotion Committee to consider his case for the post of Assistant Professor (Pharmacology) on the basis of essential educational qualification possessed by him. 4 5. Mr. R.K. Bawa, learned Advocate General, Mr. Neel Kamal Sood and Mr. Dilip Sharma have supported the judgment dated 9.8.2010 passed by the learned Single Judge. However, Mr. Dilip Sharma has raised additional contention that the notification dated 29.4.2004 cannot be applied retrospectively. 6. The Medical Council of India was added as party-respondent and Mr. B.C. Negi has put in appearance on its behalf. Mr. B.C. Negi on the basis of reply filed on behalf of respondent No.6 has brought to the notice of the Court that the degree of M.D. (Pharmacology) awarded by M.D.U. Rohtak is recognized from August, 1977. 7. We have heard the learned counsel for the parties and have perused the pleadings carefully. 8. It will be apt at this stage to take into consideration the Recruitment and Promotion Rules for the post of Assistant Professor. Respondent-State has framed rules called “Himachal Pradesh Medical Education Services Rules, 1999” (hereinafter referred to as “Rules” for brevity sake) for the post of Assistant Professor. According to these Rules, 50% posts are to be filled up by promotion, failing which by direct recruitment and 50% by direct recruitment. 50% 5 promotion quota has to be filled up on the basis of following educational qualifications: “By promotion from amongst the lecturers who possess three years regular service or regular combined with continuous ad hoc (rendered upto 31.3.1998) service, if any, in the grade in the concerned specialty failing which by appointment (by selection from amongst the members of H.P. Civil Medical Service (General Wing) having recognized post-graduation degree or its equivalent qualification in the concerned specialty and possess at least three years teaching experience as Lecturer/Registrar/Demonstrator/Tutor/Sr. Resident/ Chief Resident in the concerned specialty after doing post-graduation in the concerned specialty failing which by direct recruitment.” 9. Petitioner has obtained degree in M.D. in Pharmacology on 31.12.1991. He was appointed as Demonstrator on the basis of same qualification. He was appointed as Assistant Professor, as noticed above, in Pharmacology in Dr. R.P. Government Medical College, Tanda with effect from 19.6.1999 to 19.7.2000. The Departmental Promotion Committee was convened for filling up the post of Assistant Professor by way of promotion on 28.8.2001. Candidature of the petitioner was not considered only on the ground that the degree obtained by him, i.e. M.D. in Pharmacology was not duly recognized by the Medical Council of India. However, surprisingly, on the basis of the same 6 qualification, petitioner has been appointed as Assistant Professor in the subject of Pharmacology on 5.3.2002 alongwith respondents No.4. 10. It is evident from the phraseology employed in the Recruitment and Promotion Rules that the members of H.P. Civil Medical Service (General Wing) were required to possess recognized post-graduation degree or its equivalent qualification. The expression “Medical Council of India” does not find mention in the Rules. The degree awarded to the petitioner is by the University established by a statute. The Court cannot read something in the Rules, which have not been provided therein it. There has to be plain reading of the Rules and interpretation is only required if there is any ambiguity in the Rules. The degree of the petitioner was duly recognized by the Maharishi Dayanand University and he was also possessing three years’ teaching experience as per the Rules. The appellant has also drawn the attention of the Court to averment contained in para 7 (c) of the petition whereby similarly situate persons have been appointed as Assistant Professor in various specialty though their degrees were also not recognized by the Medical Council of India. In reply to this, it has been stated by the respondent-State that the 7 doctors, who have been mentioned by the petitioner, have passed their P.G. degree in the concerned specialties from I.G.M.C. Shimla, which was recognized by the H.P. University. One of the Doctor mentioned in para 7 (c), i.e. Dr. Suman Yadav has obtained her degree from outside the State of Himachal Pradesh. In case the degree granted by the University from outside the State was recognized for the purpose of employment in the State, there is no reason why the degree obtained by the petitioner from M.D. University was not recognized for the purpose of public employment. Respondent-State has to apply the rules uniformly. It cannot devise its own method to apply the rules differently to similarly situate persons. There has to be consistency in the applicability of the Rules to shun arbitrariness or unreasonableness. 11. The action of the respondents No.1 to 3 was actuated with legal mala fide by ignoring the petitioner for the post of Assistant Professor by taking a plea that the petitioner was not in possession of post-graduate degree duly approved by the Medical Council of India but on the same qualification he has been promoted later on to the post of Assistant Professor on the basis of same qualification on 5.3.2002. In fact, the petitioner 8 has been earlier appointed as Assistant Professor on contract basis with effect from 19.6.1999 to 19.7.2000 on the basis of same qualification, i.e. M.D. in Pharmacology. 12. Their Lordships of the Hon’ble Supreme Court in Dr. B.L. Asawa versus State of Rajasthan and others, AIR 1982 SC 933 have held that in the case of a post-graduate degree in the concerned subject awarded by a statutory Indian University, no recognition or declaration of equivalence by any other University is called for. Their Lordships have held as under: “11. The University of Bihar at Muzaffarpur is one duly established by statute and it is fully competent to conduct examinations and award degrees. The Degree of Doctor of Medicine (Forensic Medicine) M. D. (Forensic Medicine) of the University of Bihar is included in the Schedule to the Indian Medical Council Act, 1956 as a degree fully recognised by the Indian Medical Council which is the paramount professional body set up by statute with authority to recognise the medical qualifications granted by any University or Medical Institution in India. A Post-graduate Medical Degree granted by a University duly established by statute in this country and which has also been recognised by the Indian Medical Council by inclusion to the Schedule of the Medical Council Act has ipso facto to be regarded, accepted and treated as valid throughout our country. In the absence of any express provision to the contrary, such a degree does not require to be specifically recognised by other Universities in any State in India before it can be accepted as a valid qualification for the 9 purpose of appointment to any post in such a state. The Division Bench of the High Court was, in our opinion. manifestly in error in thinking that since the post- graduate degree possessed by the appellant was not one obtained from the University of Rajasthan, it could not be treated as a valid qualification for the purpose of recruitment in question in the absence of any specific order by the University of Rajasthan recognising the said degree or declaring it as an equivalent qualification. It is common ground before us that the University of Rajasthan does not conduct post-graduate examinations in the subject of Forensic Medicine and it does not award the degree of M. D. (Forensic Medicine). In order that there. should be scope for declaration of 'equivalence' of a qualification obtained from another body, there can be declaration -of equivalence only as between a qualification obtained from a body different from the one awarded by the concerned University. When the University of Rajasthan does not conduct any examination for the award of the degree of M. D. (Forensic Medicine), there cannot be any question of declaration of 'equivalence' in respect, of such a degree awarded by any University. Unfortunately, the State Public Service Commission as well as the Division Bench of the High Court failed to notice this crucial aspect. We may also point out that the declaration of 'equivalence' referred to in S. 23A of the Rajasthan University Act as well as in clause (vii) of Ordinance No. 65 of the Rajasthan University Ordinances can only be in respect of qualifications other than basic or Post- graduate degrees awarded by other statutory Indian Universities in the concerned subjects. In the case of a Post-graduate degree in the concerned subject awarded by a statutory Indian University, no recognition or declaration of equivalence by any other University is called for, This is all, the more so in the case of a medical degree basic as well as Post-graduate that is awarded by a statutory Indian University and which has 10 been specifically recognised by the Indian Medical Council.” 13. The manner in which the degrees awarded by various Universities and Institutions are to be recognized has been provided under section 11 of the Indian Medical Council Act, 1956. It reads thus: “11. Recognition of medical qualifications granted by University or medical institutions in India.- (1) The medical qualifications granted by any university or medical Institution in India which are included in the first Schedule shall be recognised medical qualifications for the purpose of this Act. 2. Any University or medical institution in India which grants a medical qualification not included in the First Schedule may apply to the Central Government to have such qualification recognised, and the Central Government, after consulting the Council, may, by notification in the official gazette, amend the First Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in the last column of the First Schedule against such medical qualification declaring that it shall be a recognised medical qualification only when granted after a specified date.” 14. In the case in hand, the petitioner has also placed on record copy of communication dated 28.8.2010 (Annexure PA-3). Text of letter dated 28.8.2010 reads thus: “With reference to your letter dated 13.8.2010, this is to inform you that MD (Pharmacology) qualification granted by Maharishi Dayanand University, Rohtak in respect of students being trained at Medical College 11 Rohtak now known as Pt. B.D. Sharma Postgraduate Institute of Medical Sciences, Rohtak is recognized by the Medical Council of India and included in the 1st Schedule of the IMC Act, 1956 with following proviso:- “This shall be a recognized medical qualification when granted in or after August, 1977.” 15. Similarly, respondent No.5 has also filed supplementary affidavit placing on record notification dated 29.4.2004 issued by the Government of India, Ministry of Health and Family Welfare, Department of Health. According to notification dated 29.4.2004, M.D. Pharmacology has been recognized as medical qualification granted in or after August, 1977 in respect of students trained at Maharishi Dayanand University, Rohtak. The newly added respondent No.6 has also filed reply to this effect as per contents of para 39 thereof. Thus, it is evident that the degree obtained by the petitioner has now been included in First Schedule as per notification dated 29.4.2004 and it has been recognized with effect from August, 1977. There is no merit in the contention of Mr. Dilip Sharma that the notification will not apply retrospectively. In the instant case, the notification dated 29.4.2004 will relate back to August, 1977. The factum that the degree obtained by the petitioner has now been included in the notification dated 29.4.2004 has not been brought to the notice of 12 the learned Single Judge. It can safely be concluded that the degree obtained by the petitioner was valid with effect from August, 1977. 16. There is no merit in the contention of Mr. Dilip Sharma that the seniority of respondent No.5 shall be affected. Respondent No.5 has been considered in the year 2002 and the appellant was required to be considered in the year 2001. 17. Accordingly, in view of the observations and discussions made hereinabove, the Letters Patent Appeal is allowed. The judgment of the learned Single Judge dated 9.8.20109 is set aside. Respondents No.1 to 3 are directed to hold review Departmental Promotion Committee for the post of Assistant Professor within a period of eight weeks from today. The appellant shall be entitled to all the consequential benefits in case he is found suitable by the Departmental Promotion Committee for appointment in 2001. No costs. (Justice Kurian Joseph), Chief Justice. (Justice Rajiv Sharma), Judge. 19.10. 2011 *awasthi*