Case: M. C. Gupta &amp; Others Vs. Dr. Arun K. Gupta and Others

one of the American Boards and, therefore, it is not recognised. Such a contention was not even urged before the High Court or specifically in affidavits so that factual material could have been more carefully examined. The experts aiding and advising the Commission must be quite aware of institutions in which the teaching experience was acquired by Dr. Tandon and this one is a reputed University.It was, however, contended that there is no proof in support of the submission that Dr. Tandon was working as Assistant Professor of Medicine at State University of New York at Buffalo, commencing from 29th July 1969. Dr. Tandon has produced a certificate, Annexure CA. 5 issued by Associate Professor of Medicine, Director Angiology Department, Buffalo General Hospital dated 3rd June 1971, in which it is stated that Dr. Tandon is an Assistant Professor of Medicine in the Department of Medicine on the full time staff of the Buffalo General Hospital having an annual salary of $ 15, 000. Mr. Tarkunde urged that this certificate does not show that Dr. Tandon was appointed effective from 29th July 1969. Further, exception was taken to the certificate in that it is issue d by the Buffalo General Hospital which the certificate does not show to be a teaching institution. If it was not a teaching institution, one would fail to understand how it had a post of Assistant Professor of Medicine. In a nonteaching hospital there could not be a post of Assistant Professor. Therefore, the very fact that Dr. Tandon was shown to be an Assistant Professor of Medicine, by necessary implication shows that Buffalo General Hospital was a teaching institution under St ate University of New York. In this connection reference may be made to a certificate dated 12th September 1974 issued by James P. Nolan, Professor of Medicine and Head, Department of Medicine, Buffalo General Hospital, in which it is stated that sin ce July 1969 Dr. Tandon has been a teacher in general medicine at the Buffalo General Hospital. This removes any doubt about the commencement of appointment of Dr. Tandon as Assistant Professor at the Buffalo General Hospital. Mr. Tarkunde however urged that the certificate does not appear to be genuine in view of the inquiry made by a telegram (p. 257, Vol. II of the record) from the authorities incharge of the Buffalo General Hospital and the reply received that Dr. Tandon is in India and, therefore, cannot get any information as he left instructions not to release it. Who has sent this telegram is left to mere speculation. And who sent the reply is equally unknown. It would be improper to reject the certificate on such nebulous ground and we can do no better than reject the contention of Mr. Tarkunde as unworthy of consideration as was done in A. K. Mukherjees case where in it was observed as under: There are 6 certificates now on record and the 1st respondent is stated to have taken part in teaching work as Registrar. You cannot expect to produce those surgeons in Patna in proof and unless serious circumstances militating against veracity exist fair-minded administrators may, after expert consultations, rely on them. Therefore, we see no justification for rejecting the certificates. It would appear that Dr. Tandon had the teaching experience while holding the post of Assistant Professor of Medicine for a period of four years, six months and one day. The minimum requirement is five years. 15. We would next examine one more item of experience claimed by Dr. Tandon in that he was post-doctoral teaching fellow, Department of Medicine, State University of New York at Buffalo from 1st October 1965 to 31st October 1966. Now, undoubtedly this was teaching experience in the same University where he was subsequently Assistant Professor. The grievance is that h e was a Fellow and neither a Lecturer nor an Assistant Professor. What does Fellow in the University connote ? A certificate has been produced, Annexure CA. (page 50, Vol. IV) by Dr. Tandon issued by Eugine I. Lippasch, Professor &Administrative Associate Chairman of the Department of Medicine, State University of New York at Buffalo, dated 13th October 1966, in which it is stated that Dr. Tandon completed one year teaching fellowship in the Division of Cardiology of t he Department of Medicine at the State University of New York at Buffalo and the Buffalo General Hospital on October 31, 1966. It is not very clear what is the equivalent of a Fellow in teaching Hospitals in India but Dr. Tandon has also claimed teaching experience from 5th April 1968 to 4th July 1969, being posted as post-doctoral research fellow, Department of Medicine in G. S. V. M. Medical College, Kanpur. In this connection, Annexure R-2, produced by none other than some of the contesting respondents shows that during the tenure of Fellowship, Dr. Tandon was expected to take part in the teaching and research activities of the College though he would not be treated as part of the regular establishment of the College. Now, if the certificate produced by Dr. Tandon shows that Fellowship included teaching work, it would be unwise to doubt it. Even if 50% of the time spent in these two places is given credit, Dr. Tandon had certainly more than five years teaching experience. The Court is not competent to work out figures with mathematical precision. It can broadly examine the question whether the requirement is satisfied or not. Therefore, he had the requisite teaching/research experience and the Commission was fully justified in treating Dr. Tandon as having requisite teaching/research experience.It thus clearly appears that both Dr. M. C. Gupta and Dr. R. N. Tandon had the requisite qualifications, both academic and experience, and the y were eligible for the post for which they had applied and if they were selected by the Commission and appointed by the Government, no exception can be taken to the same. The High Court was, therefore, in error in interfering with the same. 16.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The controversy centres round the connotation of the expression medicine. Does it include Cardiology or Cardiology is a separate Branch ? Section 2(f) of the Act defines medicine to mean modern scientific medicine in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery. This is too wide a definition to assist us in the problem posed for the decision of the Court. In the world of medical science there are general subjects and specialities. Medicine and surgery are general subjects. To wit, Cardiology is a speciality in medicine and orthopaedics is a speciality in surgery. Even the regulation from page 8 onwards bears the heading Specialist Branch under Medicine and Surgery. Cardiology finds its place as a specialist branch under medicine. The relevant regulation requires teaching/research experience in medicine. Contention is, if any one who has teaching/research experience in Cardiology, could he be said to have such experience in medicine ? In this context we must recall regulation 4 which provides that 50% of the time spent in recognised research after obtaining the requisite post-graduate qualification shall be counted towards teaching experience in the same or allied subject provided that 50% of the teaching experience shall be the regular teaching experience. If research in allied subject can be taken to satisfy the requisite experience, teaching experience in a speciality under the general head could not be put on an inferior footing. Undoubtedly, if the post is in a specialist department, the requisite teaching/research experience will have to be in the speciality. To illustrate, if one were to qualify for being appointed as Professor/ Associate Professor of Cardiology, his teaching experience must be in Cardiology though his research experience could as well be in Cardiology or allied subject. A person having such experience in the general subject medicine cannot qualify for the speciality. That it what distinguishes the speciality from the general subject. This becomes clear from the fact that in a number of hospitals there may not be posts in specialist branches and someone working in the general department may be assigned to do the work of specialist branches. If a particular hospital has not got Cardiology as a specialist branch, a Reader or Assistant Professor in the Department of Medicine may be required to look after Cardiology cases and teaching of Cardiology as a subject. In that event he is certainly a Reader/Assistant Professor in Medicine teaching one of the subjects, viz., Cardiology which again forms part of the general curriculum of the subject of medicine. Therefore, it is not proper to divorce a specialist branch subject from the general subject. It cannot be seriously contended that medicine does not include Cardiology. To be qualified for the specialist branch of Cardiology, the minimum academic qualification is M.D. (Medicine). This would clearly show that after acquiring the general qualification one can take the specialist branch. If any other approach is adopted it would work to the disadvantage of the person who while being posted in the Department of Medicine, is asked to teach a subject which is necessary for being taught for qualifying for M.D. but which can be styled as speciality. He would simultaneously be denied the teaching experience in the subject of Medicine. An extreme argument was urged that in adopting this approach it may be that somebody may be working in different specialist branches such as Neurology, Gastroenterology, Psychiatry, etc. and each one would qualify for being appointed as Professor of Medicine without having even a tickle of experience on the subject of general medicine. This wild apprehension need not deter us because it should be first remembered that any one going into specialist branch under medicine has to be M.D. (Medicine). Thereafter, if he wants to become a Professor in the specialist branch such as Cardiology, the academic qualification required is to hold a degree of D.M. in the Specialist Branch. This becomes clear from a perusal of the regulations. It is not necessary, therefore, to go into the dictionary meaning of the expression medicine to determine whether it includes Cardiology. The Medical Council of India, a body composed of experts have in the regulations clearly manifested their approach when they said that Cardiology is a specialist branch under medicine. Ipso facto, medicine includes Cardiology. It was not disputed that one qualifying for M.D. (Medicine) has to learn the subject of Cardiology. And it must be remembered that the four experts aiding and advising the Commission have considered teaching experience in Cardiology as teaching experience in Medicine. The counter-affidavit on behalf of the Commission in terms states that medicine is a wide and general subject an d includes Cardiology whereas for the post of Professor of Cardiology a further two years special training in Cardiology or D.M. in Cardiology after M.D. in Medicine has been laid down as a requisite qualification by the Medical Council. It is further stated that teaching experience in Cardiology will make the person eligible for the post of Professor of Medicine. That was the view of the experts who assisted the Commission.Incidentally it may be mentioned that Mr. V. M. Tarkunde, learned counsel for respondents 1, 2 and 3 took serious exception to giving any weight to thebecause it has not been sworn to by any expert aiding or advising the Commission or by any officer or Member of the Commission but by an Upper Division Assistant whose source of knowledge is the legal advice tendered to. In paragraph 1 of the affidavit the deponent says that he has been deputed by the Commission to file the counter-affidavit on their behalf and as such he is fully acquainted with the facts deposed to in the affidavit. It is our sad experience that responsible authorities avoid filing affidavits in courts when it behoves them to assist the Court and facilitate the decision of the questions brought before the Court but on this account alone we would not wholly ignore the counter affidavit.Some documents were brought to our notice showing that in State University of New York at Buffalo, U.S.A. the Assistant Professor of Cardiology is designated as Assistant Professor of Medicine. Further, in the Agra University Calendar, Cardiology is included in the Department of Medicine. Similarly it was also pointed out that the Department of Medicine in the University of Manchester includes Lecturer in Cardiology. Apart from this administrative arrangement, it could not be seriously disputed that Cardiology is a specialist branch under medicine and it could not be wholly divorced from medicine. Under the general head medicine number of subjects are to be taught, one such being Cardiology. If a teacher is asked to teach Cardiology as one of the subjects for general medicine, could he be at a disadvantage by being treated as having not acquired teaching experience in medicine ? Even under general medicine, apart from medicine as a subject, there are numerous other subjects and papers and there would be one or more persons incharge of one or more subjects and papers and indisputably each one would be gaining experience in general medicine. If general medicine is to be restricted only to the paper on medicine, it would lead to a startling as result, as startling as it was sought to be urged when it was said that a person teaching Neurology could not be said to be gaining teaching experience in medicine. The matter has to be looked at from this angle, viz., that where general subject such as medicine or surgery is being dealt with in a regulation, the specialist branch under it would be covered, though not vice versa, because if one wants to hold a post in the specialist branch he must be of necessity have teaching experience in the specialist branch. In reaching this conclusion the seniority list maintained branch wise would hardly be helpful. Therefore, it is not possible to agree with the High Court that the subject of medicine under the regulation is exclusive of the other subjects mentioned therein and, therefore, does not include Cardiology.The second contention which found favour with the High Court was that the requisite teaching or research experience must be acquired while holding the post set out in the regulation in that subject. In other words, the view of the High Court is that the teaching/research experience must be acquired while holding the post of Reader/Assistant Professor in Medicine for five years in a Medical College. The High Court placed the emphasis on the experience acquired while holding the post. The relevant regulation requires teaching/research experience as Reader/Assistant Professor (which includes Lecturer) in Medicine for five years in a Medical College. Regulation 4 has to be read along with specific regulation. Regulation 4 clearly shows that 50% of the time spent in recognised research in the same or allied subject will be given credit provided that 50% of the teaching experience shall be regular teaching experience. The specific regulation prescribing the qualification will have to be read subject to the general regulation prescribed under regulation 4 because the experience qualification prescribed in specific regulation must be calculated according to the formula prescribed in general regulation no. 4. The specific regulation requires 5 years teaching/research experience. In calculating the research experience in the light of regulation 4, 2 1/2 years experience shall be specifically teaching experience and credit can b e given to the extent of 50% of the time spent in recognised research as prescribed in the regulation, which experience can be in the same subject, viz., the subject for which the recruitment is being made or in allied subject. So far there is no dispute. The question is: while acquiring research experience, is it incumbent that the person conducting research must also hold of necessity designated post in the regulation ? Now, if general regulation 4 is properly analysed for the purposes of computing research experience, the pre-requisite is that the research must be done after obtaining requisite post- graduate qualification. It has no reference to the post held by the person engaged in research at the time of conducting the research. The heading is teaching/research experience. The dichotomy will have to be applied to teaching and research experience for the purpose of computation. So far as teaching experience is concerned, it must be acquired while holding the post specified in the regulation. But to say that holding of the post is a pre-requisite while conducting research is to read in regulation 4 what is not prescribed thereunder. The specific regulation prescribing qualification will have to be read subject to general regulation 4 and not vice versa. This also becomes manifest from the fact that general regulation 4 also provides that 50% of the teaching experience shall be regular teaching experience meaning thereby that if someone is engaged exclusively in research, he cannot claim to satisfy the teaching experience qualification prescribed in the regulation. Reading specific regulation with general regulation 4, it emerges that teaching experience shall b e acquired while holding the particular post specified therein and the research experience can be taken into account if the person is engaged in research after obtaining post-graduate qualification and it has nothing to do with the holding of the post. One may be engaged as a research scholar and holds no teaching post. The research is hardly related to post though capacity for research is directly related to academic attainment. That has been taken care of. Teaching it indisputably related to t he post because a higher post may entail greater responsibility for coaching in higher classes. This conclusion is reinforced by the language of general regulation 4 which permits recognised research under the Indian Council of Medical Research which body may not have such hierarchical posts of Lecturer or Assistant Professor or Reader. These three designations are to be found in teaching institutions and not in research institutions. If it were, therefore, to be held that even while acquiring research experience one must hold the post of either Reader or Assistant Professor, it would discourage many persons conducting research under the Indian Council of Medical Research. It is, therefore, not possible to agree with the generalisation made by the High Court that teaching/research experience to qualify for the post of Professor must be acquired while working as a Reader or Lecturer.Having cleared the ground about the interpretation of requisite regulations, we must now turn to examine the two individual casesTherefore, we see no justification for rejecting the certificates. It would appear that Dr. Tandon had the teaching experience while holding the post of Assistant Professor of Medicine for a period of four years, six months and one day. The minimum requirement is five yearsWe would next examine one more item of experience claimed by Dr. Tandon in that he was post-doctoral teaching fellow, Department of Medicine, State University of New York at Buffalo from 1st October 1965 to 31st October 1966. Now, undoubtedly this was teaching experience in the same University where he was subsequently Assistant Professor. The grievance is that h e was a Fellow and neither a Lecturer nor an Assistant Professor. What does Fellow in the University connote ? A certificate has been produced, Annexure CA. (page 50, Vol. IV) by Dr. Tandon issued by Eugine I. Lippasch, Professor &Administrative Associate Chairman of the Department of Medicine, State University of New York at Buffalo, dated 13th October 1966, in which it is stated that Dr. Tandon completed one year teaching fellowship in the Division of Cardiology of t he Department of Medicine at the State University of New York at Buffalo and the Buffalo General Hospital on October 31, 1966. It is not very clear what is the equivalent of a Fellow in teaching Hospitals in India but Dr. Tandon has also claimed teaching experience from 5th April 1968 to 4th July 1969, being posted as post-doctoral research fellow, Department of Medicine in G. S. V. M. Medical College, Kanpur. In this connection, Annexure R-2, produced by none other than some of the contesting respondents shows that during the tenure of Fellowship, Dr. Tandon was expected to take part in the teaching and research activities of the College though he would not be treated as part of the regular establishment of the College. Now, if the certificate produced by Dr. Tandon shows that Fellowship included teaching work, it would be unwise to doubt it. Even if 50% of the time spent in these two places is given credit, Dr. Tandon had certainly more than five years teaching experience. The Court is not competent to work out figures with mathematical precision. It can broadly examine the question whether the requirement is satisfied or not. Therefore, he had the requisite teaching/research experience and the Commission was fully justified in treating Dr. Tandon as having requisite teaching/research experience.It thus clearly appears that both Dr. M. C. Gupta and Dr. R. N. Tandon had the requisite qualifications, both academic and experience, and the y were eligible for the post for which they had applied and if they were selected by the Commission and appointed by the Government, no exception can be taken to the same. The High Court was, therefore, in error in interfering with the sameTherefore, we would not take into account the research experience claimed on behalf of Dr. Gupta.