IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No. 7948 of 2008 (OA No. 2355/2001) Judgment reserved on : 4.6.2010 Date of decision : 9.8.2010 Dr. D.D.Gupta …Petitioner. Versus State of H.P. and Others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioner : In person. For Respondents : Mr. P.K.Sharma, Addl. A.G. with Mrs. Shubh Mahajan, Dy. A.G. for respondents No. 1 to 3. Mr. S.S.Sood, Advocate vice Mr. Neel Kamal Sood, Advocate for respondent No.4. Mr. Dilip Sharma, Advocate for respondent No.5. Kuldip Singh, Judge The petitioner in this petition has prayed a direction to respondents to consider the petitioner for the post of Assistant Professor (Pharmacology) and give him appointment as Assistant Professor (Pharmacology) from the date the other appointments of Assistant Professors were made in the medical cadre with all consequential benefits. 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 2. The case of the petitioner is that he has passed his MBBS from Medical College, Rohtak in the year 1985. Thereafter, he did M.D. in Pharmacology from Medical College, Rohtak. The petitioner worked as Demonstrator at Rohtak from 9.12.1991 to 8.12.1994 and then from 9.12.1994 to 7.1.1995. The petitioner had worked as Lecturer from 4.5.1995 to 9.10.1996 at Maharaja Agrasen Institution of Medical Research and Education, Agroha, Hissar. The petitioner worked as Professor and Head of Pharmacology in B.R.S. Institute of Medical Sciences, Kot Billa, District Panchkula, Haryana. The petitioner joined as Assistant Professor in the Department of Pharmacology in Dr. Rajender Prasad Govt. Medical College, Tanda from 19.6.1999 to 10.7.2000 on contract basis. The petitioner was appointed as Medical Officer on regular basis vide memo dated 22.5.2000, Annexure A-5. 3. In accordance with the Himachal Pradesh Medical Education Service Rules, 1999 (for short ‘Rules’), the posts of Assistant Professors are filled up 50% by promotion, failing which direct recruitment and 50% by direct recruitment. The Rule 11 provides that 50% quota by promotion is to be filled up from Lecturers possessing 3 years regular service or regular combined with continuous adhoc service rendered upto 31.3.1998, failing which by appointment by selection from amongst members of H.P. Civil Medical Service (General Wing) having recognized postgraduate degree or its equivalent qualification in the concerned speciality with alteast 3 years teaching experience as Lecturer/Registrar/Demonstrator/Tutor/Senior Resident in the 3 concerned speciality after having postgraduate in the concerned speciality, failing which by direct recruitment. 4. The post of Assistant Professor (Pharmacology) could not be filled up by promotion from amongst the Lecturers as no Lecturer was eligible for promotion to the post of Assistant Professor. The Commissioner-cum-Secretary(Health) to the Government of Himachal Pradesh asked the integrity certificate/teaching experience certificate/seniority number of petitioner and others from Director Health Services vide letter dated 23.4.2001. The necessary information regarding service particulars of petitioner was supplied by respondent No.1 to respondent No.3. The respondents had convened a Departmental Promotion Committee meeting for making appointments of other doctors to the posts of Assistant Professors in other Departments but the case of the petitioner was not considered. The petitioner came to know that the case of the petitioner was not considered for appointment to the post of Assistant Professor (Pharmacology) on the ground that he had passed MBBS and MD degree from Maharshi Dayanand University, Rohtak (MDU), which is not recognized by Medical Council of India(MCI) and further that the petitioner did not possess three years service. 5. The petitioner made several representations to respondents for appointment as Assistant Professor (Pharmacology). The respondent No.2 vide Annexure A-13 dated 14.11.2000 informed respondent No.1 that the name of the petitioner was identified, the petitioner has post graduate qualification in the subject of Pharmacology and three years teaching experience. The 4 respondents at no point of time rejected the claim of the petitioner that his MBBS / MD degree in Pharmacology were not recognized and he lacks three years teaching experience. The decision of the Department in view of the DPC is against the principle of promissory estoppel and legitimate expectations. The petitioner was fully eligible for appointment to the post of Assistant Professor (Pharmacology). The petitioner was appointed as Assistant Professor in the Department of Pharmacology in Dr. Rajender Prasad Govt. Medical College, Tanda only when he fulfilled the eligibility conditions. 6. The petitioner has passed M.D.Pharmacology from M.D.U in the year 1991. The post graduate degree of M.D.U is recognized by MCI. The MCI itself vide memo dated 12.4.2001 had directed the petitioner to appear in interview for the post of Deputy Secretary (Medical) in the office of MCI. The post of Deputy Secretary (Medical) in MCI was to be filled in from amongst the persons who have MBBS from recognized University with recognized post graduation medical degree. The MCI after considering the degree possessed by the petitioner had called the petitioner for interview for the post of Deputy Secretary (Medical) in the office of MCI. 7. The rules nowhere provide three years teaching experience for General Duty Officer with post graduate degree, it provides only three years service. The Department has not considered the rules properly. The respondent No.1 has acted in arbitrary and discriminatory manner by appointing Medical Officers with lesser service as Assistant Professor. Dr. Neelam Verma was 5 appointed as Assistant Professor (Pathology) from GDOs though she was not having three years service. The action of the respondent to exclude the petitioner from zone of consideration on this ground is violative of Article 14 of the Constitution. On these grounds, the petitioner filed the petition. The respondent No.5 lateron got himself impleaded in the petition. 8. The respondents have contested the petition. The respondents No.1 to 3 have filed joint reply in which they have taken the stand that the petitioner was considered for promotion to the post of Assistant Professor (Pharmacology) by the DPC in its meeting held on 28.8.2001 but DPC was informed by the Director Medical Education, Himachal Pradesh that petitioner has passed M.D (Pharmacology) from MDU which is not recognized by the MCI and hence he was not recommended by the DPC for the post of Assistant Professor (Pharmacology). The respondents No.1 to 3 have denied that petitioner was denied the right of consideration on the ground that he does not possess three years service. The educational qualification of the petitioner is not in conformity with the existing Recruitment and Promotion Rules for the post of Assistant Professor. 9. The petitioner was appointed as Assistant Professor (Pharmacology) on contract basis in Dr. Rajender Prasad Govt. Medical College, Tanda for one year during the year 1999-2000. The matter regarding recognition of M.D. (Pharmacology) degree possessed by the petitioner could not be verified from the MCI at that time. The petitioner was not recommended by the DPC for the 6 post of Assistant Professor (Pharmacology) due to non-recognition of his P.G. degree qualification by the MCI. 10. The respondent No.4 in his reply has taken the stand that petitioner was not qualified for being considered as a departmental candidate by the DPC. The petitioner does not possess the requisite qualification. The petitioner has not served as a Lecturer at all, therefore, he cannot be considered to be a qualified candidate for the post of Assistant Professor. The petitioner was not selected as direct candidate as his P.G. degree was not recognized by the MCI. The respondent No.4 has submitted that he was rightly recommended for the post of Assistant Professor as he was fully qualified and eligible for the post of Assistant Professor. The action of the respondents in excluding the petitioner from zone of consideration is legal and valid and not violative of equality as alleged. The respondent No.4 has prayed for dismissal of the petition. 11. The respondent No.5 in his reply has stated that the petition was filed by the petitioner in the year 2001, in the meantime during the pendency of the petition, he has been promoted as Assistant Professor (Pharmacology) on 26.11.2002. The respondent No.5 was appointed as Assistant Professor in Pharmacology by direct recruitment and he joined on 14.3.2002. In the seniority list finalised vide memo dated 15.7.2004, the respondent No.5 has been placed at serial No. 1 in the Department of Pharmacology in the category of Assistant Professors. The name of the petitioner is not in the seniority list Annexure R-5/1. In the tentative seniority list of the members of H.P.Medical Education Department (Teaching 7 Wing) as on 1.11.2005 circulated on 28.11.2005 Annexure R-5/2 the respondent No.5 has been shown at serial No.1 in the category of Assistant Professors whereas the petitioner has been shown at serial No.4. In the final seniority list Annexure R-5/3, the respondent No.5 has been shown at serial No.2 and petitioner at serial No.3. The petitioner has not challenged the placement given to him in these seniority lists, hence the petition is not maintainable. 12. The respondent No.5 has been promoted as Associate Professor on 16.7.2008. The petitioner has been promoted as Associate Professor in November, 2009. Thus, as Associate Professor, respondent No.5 is senior to the petitioner in Department of Pharmacology. 13. The petitioner has done M.D. in Pharmacology from MDU. As per the minutes of the Post Graduate medical Education Committee held on 2.9.2003, circulated vide MCI letter dated 2.9.2003 Annexure R-5/4, the aforesaid Post Graduate Degree in Pharmacology was recommended for recognition and for inclusion in the First Schedule to the Indian Medical Council Act, 1956 (for short ‘Act’). The MD (Pharmacology) passed by the petitioner was not recognized by the MCI till September, 2003 when recommendation was made to recognize the same. 14. The petitioner did not possess the P.G. degree in concerned speciality recognized by the MCI, he was not eligible for promotion when DPC was held on 28.8.2001,he was not recommended for promotion by the DPC. The petitioner was promoted as Assistant Professor on 26.11.2002 when his Post Graduate Degree in Pharmacology had still not been recognized by 8 the MCI. The respondent No.5 has prayed for dismissal of the petition. 15. The petitioner has filed rejoinder to the reply of respondents No.1 to 3 and has reiterated his stand taken by him in the petition. The petitioner has also filed rejoinder to the reply of respondent No.5 and while denying the stand of respondent No.5, he has reiterated his stand taken by him in the petition. 16. On 15.7.2009 direction was given to respondent No.1 to explain why on the basis of same educational qualification, the petitioner was ignored by the earlier DPC. In compliance to order dated 15.7.2009, the Additional Secretary (Health) to the Govt. of Himachal Pradesh filed supplementary affidavit dated 24.7.2009 and has stated that in all five posts of Assistant Professors (2 posts in direct quota and 3 posts in GDO quota) were lying vacant in the Department of Pharmacology, IGMC, Shimla. The eligible GDOs were not available in the feeder category, requisition to fill up 4 posts was sent to the HPPSC on 26.2.2000. The 4 posts included two posts of GDO quota also. The HPPSC vide letter dated 24.1.2002 recommended the names of three candidates namely Dr. Puroshotam Kumar Kaundal, Dr. Rajeev Kumar and Dr. Vikas Seth to be appointed as Assistant Professors (Pharmacology) to whom offers of appointments were issued on 5.3.2002. Out of these three candidates only two joined and Dr. Rajeev Kumar did not join. Therefore, three posts of Assistant Professors (Pharmacology) still remained vacant. There was no other candidate in the feeder category except the petitioner against the remaining one vacant post of promotional quota, the petitioner was proposed to be considered 9 through DPC. The petitioner was considered for promotion to the post of Assistant Professor (Pharmacology) by the DPC in its meeting held on 28.8.2001 prior to the filing of the petition. But he was found ineligible as per the MCI guidelines. Accordingly, due to non-recognition of P.G.Degree of petitioner in M.D. (Pharmacology) from MDU, the petitioner was not considered fit for appointment by the DPC as Assistant Professor (Pharmacology). 17. In the year 2002, 3 posts of Assistant Professor (Pharmacology) were available which were lying vacant since 1998, 1999 and 2001 respectively. Therefore, DPC to fill up the posts of Assistant Professors (Pharmacology) was convened again on 23.11.2002, the DPC after taking into consideration totality of facts and circumstances found that since there was acute shortage of eligible doctors in the department, the posts were required to be filled to meet the requirements of MCI. The Director Medical Education and Research, H.P. was requested to examine the eligibility of Dr. Dinesh Kansal. The Director, Medical Education and Research had informed that the PG degree possessed by Dr. Dinesh Kansal and Dr. D.D.Gupta were similarly situated. There were instances of promoting/recruiting doctors having PG degree from H.P.University but not recognized by the MCI. In these circumstances, two in service candidates (GDOs) Dr. Dinesh Kansal and Dr. D.D.Gupta who were available even though P.G. Degrees of both of them were not recognized by the MCI were recommended to be promoted/appointed to the post of Assistant Professor (Pharmacology) in anticipation of MCI recognition. As both the available candidates were similarly situated their interests were 10 protected without any bias and favour to any of them. Accordingly, Dr. Dinesh Kansal, M.D.(Pharmacology) from H.P.University and petitioner M.D.(Pharmacology) from MDU were promoted and appointed as Assistant Professors (Pharmacology). The notification was issued on 25.11.2002. Dr. Dinesh Kansal was senior to Dr. D.D.Gupta at the time of D.P.C. and they were in common cadre. After the cadre separation, Dr. Dinesh Kansal has adopted for Dr. Rajender Prasad Govt. Medical College, Tanda and Dr. D.D.Gupta has adopted for IGMC, Shimla. 18. In accordance with the instructions Annexure R-1 of MCI such promotion /appointment could not have been given effect. The State took conscious decision in November, 2002 to fill up the vacant posts from available GDOs having PG degree in respective faculty irrespective of status of degree. The DPC on 28.8.2001 considered the clarification given by the Director Medical Education and Research that M.D. (Pharmacology) of petitioner from MDU was not a recognized degree by the MCI, therefore, Departmental Promotion Committee decided not to recommend him for promotion. At that time only the name of petitioner was considered and name of Dr. Dinesh Kansal was not considered by the D.P.C. 19. The petitioner has filed reply to supplementary affidavit dated 24.7.2009 and has submitted that action of respondents not to grant benefit of promotion to petitioner on the basis of recommendation of DPC held on 28.8.2001 is patently illegal and not in consonance with law. To declare the petitioner ineligible as per MCI is not legal and valid. The MCI guidelines cannot supersede the statutory rules framed by the respondents. The 11 degree possessed by the petitioner is recognized by the MCI as per letter dated 4.10.2004 inasmuch as the degrees granted by the institution in question after August 1977 are recognized. 20. I have heard petitioner in person and Mr. P.K.Sharma, learned Additional Advocate General for respondents No.1 to 3, Mr. S.S.Sood, learned counsel for respondent No.4 and Mr. Dilip Sharma, learned counsel for respondent No.5. The petitioner has submitted that he is fully eligible for the post of Assistant Professor (Pharmacology) as per Rule 3, Annexure I attached with the Rules. The relevant part of the rules is as follows:- “Assistant Professor: (i) 50% by promotion (ii) 50% by direct recruitment in the manner specified in Appendix-B. By promotion from amongst the Lecturers who possess three years regular service or regular combined with continuous adhoc (rendered upto 31.3.98) service, if any, in the grade in the concerned speciality 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 speciality and possess atleast three years teaching experience as Lecturer/ Registrar/ Demonstrator/ Tuitor/Sr.Resident/Chief Resident in the concerned speciality after doing Post graduation in the concerned speciality failing which by direct recruitment.” 21. It is the case of the petitioner that rules nowhere provide that the post graduation degree should be recognized by MCI. Once the Post Graduate Degree has been awarded by the MDU to the petitioner such Post Graduate Degree fulfills the eligibility condition for the post of Assistant Professor under the Rules. He has submitted that in any case the Post Graduate Degree of MDU is recognized by the MCI. The post of Deputy Secretary in Medical 12 Council of India was to be filled in from amongst the persons who have passed MBBS from recognized University with recognized post graduation medical degree. The MCI after considering the degree possessed by the petitioner had called the petitioner for interview vide memo dated 12.4.2001 for the post of Deputy Secretary in its office. The petitioner has also submitted that the name of petitioner is entered in the MCI Register which is clear from certificate dated 18.10.2004 issued by the Registrar, MCI showing the additional qualification of petitioner as M.D.(Pharmacology), (U. Maharshi Dayanand), 1991. He has also submitted that the letter dated 4.10.2004 of Secretary, Medical Council of India addressed to petitioner further provides that qualification granted by the MDU in respect of students being trained at Pt. B.D.Sharma, PG Instt. of Medical Sciences, Rohtak is recognized by the Medical Council of India with the proviso: “this shall be a recognized medical qualification when granted in or after Aug.,1977.” The petitioner has submitted that in view of the reply of respondents No.1 to 3 he was not considered by the DPC in its meeting held on 28.8.2001 for the post of Assistant Professor (Pharmacology) only on the ground that petitioner has possessed MD.(Pharmacology) from MDU which is not recognized by the Medical Council of India. The objection of DPC regarding M.D.(Pharmacology) degree of petitioner was illegal, therefore, the petitioner has right of consideration and appointment as Assistant Professor(Pharmacology) on the basis of DPC meeting dated 28.8.2001. The decision dated 28.8.2001 regarding MD (Pharmacology) degree of petitioner is demonstratively wrong, illegal 13 and since there was no other objection of the DPC, therefore, the petitioner is entitled to appointment as Assistant Professor on the basis of DPC meeting dated 28.8.2001. 22. On the contrary, on behalf of the respondents, it has been submitted that the name of the petitioner was rightly not approved by the DPC in its meeting on 28.8.2001 as the M.D.(Pharmacology) degree of the petitioner from MDU was not recognized by the Medical Council of India, therefore, the petitioner was not eligible for promotion/appointment as Assistant Professor (Pharmacology) as per the rules. 23. The petitioner has passed Doctor of Medicine (Pharmacology) from M.D. University on 31.12.1991, the petitioner has placed a copy of his Doctor of Medicine (Pharmacology) degree on record as Annexure A-2. The petitioner was member of H.P.Civil Medical Services (General Wing)and for such candidates, the eligibility for the post of Assistant Professor as per the rules was recognized Post Graduate degree or its equivalent qualification in the concerned speciality with teaching experience in the concerned speciality after doing Post Graduation in the concerned speciality as provided in the rules. 24. The petitioner has submitted that the rules provide only recognized degree and the petitioner is MD (Pharmacology) from MDU, a statutory University and therefore, he has recognized Post Graduate degree in M.D.(Pharmacology). He has contended that according to the Rules it is not required that the degree given by the statutory University must be recognized by the MCI also. He has submitted that the MCI invited the applications for the post of Deputy 14 Secretary vide Annexure M/3. The petitioner applied for that post and he was called for interview by the Medical Council of India vide letter dated 14.10.1997 Annexure M-2. This indicates that the M.D. (Pharmacology) of MDU was recognized by the MCI and, therefore, the petitioner was called for interview for the post of Deputy Secretary. It is also the contention of the petitioner that on the basis of same MD (Pharmacology) degree, the petitioner has been appointed Assistant Professor by the respondent No.1 lateron, but earlier his candidature was not considered on the ground that M.D. (Pharmacology) degree of petitioner is not recognized by the MCI. 25. The sub section (1) of Section 11 of the Act provides that the medical qualifications granted by any University or medical institution in India which are included in the First Schedule shall be recognized medical qualifications for the purposes of this Act. The sub section (2) provides that 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 recognized, 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 recognized medical qualification only when granted after a specified date. 26. In First Schedule of the Act, recognized medical qualifications granted by the University or medical institution in India are listed. The M.D.(Pharmacology) of MDU is not included in 15 First Schedule of the Act. The sub section (2) of Section 11 of the Act, clearly states that any University or medical institution in India which grants a medical qualification not included in the First Schedule may apply to the Central Government for recognition of such qualification. Thereafter, the Central Government after consultation of the Medical Council of India, may by notification in the Official Gazette, amend the First Schedule so as to include such qualification therein. It is nobody’s case that the MDU had applied to the Central Government for recognizing M.D.(Pharmacology) granted by that University for recognition and thereafter Central Government after consulting the MCI, amended the First Schedule under the Act and included the M.D.(Pharmacology) of MDU in the Schedule. The minutes dated 2.9.2003 Annexure P-5/4 of MCI are also of no help to the petitioner. These minutes do not fulfill the statutory requirement of sub section (2) of Section 11 of the Act. The M.D.(Pharmacology) degree of petitioner granted by MDU does not fall either in sub section (1) or in sub section (2) of Section 11. The Clause (h) of Section 2 of the Act, defines ‘recognised medical qualification’ means any of the medical qualifications included in the Schedules. ‘ Recognised’ post graduation degree’ in the rules is to be understood in the manner recognised ‘medical qualification’ as defined in the Act. 27. In Dr. B.L. Asawa vs. State of Rajasthan and others, AIR 1982 SC 933, the Supreme Court has observed that Indian Medical Council is the paramount professional body set up by statute with authority to recognize the medical qualifications granted by any University or Medical Institution in India. The importance of 16 inclusion of degree in the Schedule of the Act can be appreciated in light of judgment Dr. Harish Bajaj vs. Rani Durgavati Vishwa Vidyalaya, Jabalpur and others AIR 2003 M.P. 114 where the dispute was with respect to nomenclature of the degree. In that case it has been observed as follows:- “….. Medical Council had indicated its willing to treat degree as one in M.D. in Pathology as same course which should have been enough for University to amend it and act like Devi Ahilya University, Indore. 9. The Medical Council of India has not given recognition to the degree of Microbiology and it has expressed no objection but the fact remains that the Schedule remains unamended and as such the stand of the M.P. Medical Council is proper that it only recognizes the degree which is in tune with the nomenclature mentioned in the Schedule. The dispute is only about the nomenclature.” 28. In the present case MD.(Pharmacology) of MDU is not included in the First Schedule