DR. R.K. GOYAL

STATE OF U.P. AND ORS.

DECEMBER 5, 1996

[S.C. AGRAWAL AND G.T. NANA VAT!, JJ.]

Se1vice Law :

Indian Medical Council Act :

Section 19-A---Appointment---Lecturer in Medical Colleges-Qualification for appointment-Regulation thereof-Recommendation of Medical Council approved by Cenb'Ol Government-Subsequem revised recommendation was pending approval by Central Government-Held, State Governments expected to comply with recommendations made by Medical Council from time to time-If such recommendations, although not approved by Central D Govemment, were complied with by State Government it was neither illegal nor arbitrary.

Appointment-Lecturer in Medical Colleges-Absence of recrnitment rules-No teaching experience prescribed in recommendation by Medical E Council superseding its earlier recontniendation-Held, reco1nntendation of Medical Council Binding on State Government-Order of appointment affinned.

The Director of Medical and Health Services invited applications for appointment as lecturers on ad hoc basis in different disciplines in Medi- F cal Colleges of the State. The appellant and Respondent No. 4 applied for the post of lecturer in Orthopaedics and were recommended for appointment. Subsequently, the State Public Service Commission (PSC) invited applications for the post of lecturers in Orthopaedics in different medical colleges of the State. A Master's degree in the speciality with three years teaching experience was the minimum required qualification. This time G also the appellant and respondent No. 4 applied for the same post but the appellant's candidature was caucelled as he did not possess any teaching experience. The PSC could not give its recommendations on account of filing of several writ petitions and court orders. Under these circumstances, the State Government appointed the appellant as a lecturer in Or- H 543

A thopaedics in the Medical College for one year on ad hoc basis. The State Government terminated the appelfant's service on expiry of the period of one year. The Medical Council of India had recommended Master's degree in the concerned specially with three year's teaching /research experience and this recommendations received the sanction of the Central Govern- B ment and thus became regulatiohs under Section 33 of the Indian Medical Council Act. The said recommendation was revised and the requirement of teaching experience was done away with. Though the Council had forwarded the revised recommendation to the Central Government for its approval they had not become regulations as they were still under the consideration of the Central Government. Before the order of termination C could be served upon the appellant, he filed a writ petition in High Court and obtained an interim order restraining the authorities from terminating his services. Jn view of this interim order the State Government continued the appellant as lecturer till further orders. Subsequently the appellant's service was regularised under Rule 4(3) of the U.P. Regularisa- D lion of Ad hoc Appointments(On posts within the purview of PSC) Rules,

1979. Jn view of these developments the appellant allowed his writ petition to be dismissed.

Respondent No. 4 filed a writ petition before the High Court chal lenging the aforesaid regularisation of the appellant's service. The High E court held that as the appellant did not possess three years' teaching experience, the State Government could not have appointed him as lecturer even on ad hoc basis. The High Court further held that as the appellant's initial ad hoc appointment was bad his services could not have been regularised by the State Government for that reason also. The High

F Court, therefore, declared the ad hoc appointment of the appellant and regularisation of his services as bad and quashed the same. Hence this appeal.

On behalf of respondent No. 4 it was contended that the recommendation of the Council regarding three years' teaching experience was G binding on the State Government as it had received the sanction of the Central Government and had become regulation under the Indian Medical Council Act; and that the subsequont recommendations of the Council had not been approved and, therefore, had no binding force.

H Allowing the appeal, this Court

R.K.GOYALv. STATE [NANAVATI, J.] 545

HELD: 1.1. Even the regulations framed by the Medical Council with A respect to the qualifications recommended for appointment as teachers in medical colleges are only directory in nature. [550-F-G]

Dr. Ganga Prashad Venna and On. v. State of Bihar & 01>·., [1995) Supp. 1 SCC 192, relied on.

1.2. It is really within the domain of the State Government to prescribe qualifications for appointment to various posts in State Services.

Though recruitment to the State medical Services falls within the purview

of the State Government, they are expected to comply with the regulations made by the Council in order to maintain high standard of medical C education. [550-H; 551-A)

Ajay Kumar Singh & Ors. v. State of Bihar & Ors., [1994) 4 SCC 401 and Government of Andhra Pradesh & Anr. v. Dr. R. Murali Babu Rao & Anr, [1983) 3 SCR 173, relied on.

2.1. Section 19A of the Indian Medical Council Act enables the Council to prescribe by making regulations 1niniI11um standards of medi .. cal education required for granting recognised medical qualifications by Universities or medical institutions in India and that would include prescribed minimum qualifications for appointment as teachers of medical education. A• State Governments are thus expected to comply with the recommendations made by the Medical Council from time to time and if the State Governments comply with such recommendation irrespective of whether they are approved by the Central Government or not, it cannot be said that in doing so they have acted arbitrarily or illegally. [551-B-D)

2.2. No Recruitment rules framed under Article 309 of the Constituti on were in existence for recruitment for the post of lecturer in the medical colleges and appointments were made on the basis of executive Orders passed from time to time. When the appellant was appointed as ad hoc lecturer, it was permissible to make such ad hoc appointments though for G a limited period. At that time teaching experience was not prescribed as the required qualification for appointment as lecturer in the State medical colleges. It was for that reason that when the Director of Medical and Health Services, U.P. issued the advertisement for appointment of ad hoc lecturers, it did not contain the condition that the candidates should have three years teaching experience. It appears that the Public Service Com- H

A mission (U.P.) committed a mistake when it issued an advertisement and mentioned therein that the minimum qualification for the posts oflecturer in medical colleges was a post-graduate degree and three years' teaching

' experience. [551-D-F]

2.3. The High Court failed to examine all the aspects and wrongly B proceeded on the basis that three years' teaching experience was also part of the prescribed minimum qualification for the post of lecturer in Orthopaedics. Therefore, the view taken by the High Court that the initial appointment of the appellant as ad hoc lecturer was quite proper and legal, the subsequent order passed by the Government regularising his services (] will have to be regarded as valid and legal. [551-G-H; 552-A]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 37 of 1994.

From the Judgment and Order dated 8.9.93 of the Allahabad High D Court in C.M.W.P. No. 8914 of 1983

Bhimrao Naik, G.K. Mathur, Bharat Sangal, Irashad Ahmad, R.B.

Misra, S.K. Misra and Navin Prakash for the appearing parties.

The Judgment of the Court was delivered by

NANAVATI, J. This appeal by special leave is directed against the judgment of the Allahabad High Court in Civil Misc. Writ Petition No 8914 of 1983.

F In February 1981, the Director of Medical and health Services U.P., invited applications for appointment as lecturers on ad hoc basis in different disciplines in Medical Colleges of the State. The appellant and respondent No. 4 applied for the post of lecturer in Orthopaedics. Both of them were interviewed by the Selection Board on 3.9.81. the Director of Medical Education prepared a panel of selected candidates and recom- G mended their names to the Government for appointment. In February 1982, the Public Service Commission U.P. (PSC for short) gave an advertisement inviting applications for the posts of lecturers in Orthopaedics and other specialities in different medical colleges of the State. A Master's Degree in the speciality with three years' teaching experience including one H year's teaching experience after post-graduation was the minimum required

• , ,

R.K.GOYALv. STATE [!-1.\NAVATI, J.) 547

qualifications. This time also the appellant and respondent No. 4 applied A for the same post. They were interviewed on 17.5.83. appellant's candidature was cancelled as it was noticed that he did not possess any teaching experience. The PSC could not give its recommendations on account of fling of several writ petitions and court orders. Under these circumstances, the Government by an order dated 2.6.83 appointed the appellant as a lecturer in Orthopaedics in the Medical College at Agra for one year or till the appointment of a properly selected candidate. The Government terminated his service on 17.4.84 as his appointment was ad hoc and for a period of one year only. It appears thaf before the order of termination could be served upon him, he filed writ petitions No. 7852 of 1984 in the Allahabad High Court and obtained an order of injunction restraining the authorities from terminating his services. In view of this interim order the State Government passed an order on 23.6.84 continuing him as lecturer

till further orders. Later on the appellant applied for regularisation of his services. On 30.10.89, the State Government, acting on the recommendations made by the Selection Committee constituted under Rule 4(3) of the D U.P. Regularisation of ad hoc appointment {on posts within the purview of the PSC) Rules 1979 regularised all those persons who were appointed on ad hoc basis uptill 1st October,1986 in various departments of the State Medical Colleges. their seniority was to be fixed later on under Rule 7 of the said rules. The ad hoc appointment of the appellant thus came to be regularised and he was given seniority from 7.8.89. In view of these E developments the appellant allowed his writ petition to be dismissed on 18.9.91. Soon after the Government had appointed the appellant as a lecturer on ad hoc basis respondent No. 4 filed Writ Petition No. 8914 of 1983 in the Allahabad High Court challenging the same. As the appellant's services were regularised during the pendency of that petition, respondent F No. 4 amended the petition and also challenged the said Order of regularisation passed in 1989.

The High Court accepted the qualification as stated in the advertisement given by the PSC as correct. As the appellant did not possess three years' teaching experience, the High Court held that the State Government G could not have appointed him as lecturer even on ad hoc basis. The High Court further held that as his initial ad hoc appointed was bad his services could not have been regularised by the Government even under the 1978 regularisation rules. The High Court was also of the view that as the interim order obtained by him and under which the Government had continued H

A him as lecturer got vacated automatically on dismissal of his petition, the order passed by the Government on 17.4.1984 terminating services got revived and for that reason also his appointment could not have been regularised by the Government under the 1979 rules. The High court also held that the conduct of the appellant in obtaining the interim relief and

then getting the writ petition dismissed was not bona fide. The High Court, therefore, declared the ad hoc appointment of the appellant made on 2.6.83 and regularisation of his services under the order dated 13.10.89 as bad and quashed the same. The High Court, however, did not grant the prayer made by respondent No. 4 that he should be appointed as lecturer w.e.f. 2.6.83 and be given seniority and consequential benefits from that date.

The decision of the High Court is challenged on the ground that the High Court has erroneously held that there was a requirement of three years' teaching experience for appointment as lecturer. It was also con- tended that the view taken by the High Court as regards the effect of the D dismissal of the writ petition and termination of the interim order is also erroneous. On the other hand it was contended on behalf of respondent No. 4 that three years' teaching experience was necessary for the appointment in view of the recommendation made to that effect by the Indian Medical Council and it was for that reason that in the advertisement issued by the PSC it was so stated.

Therefore, the real point in issue is whether in 1983 when the appellant was appointed as an ad hoc lecturer, three years' teaching experience was necessary for such appointment. We were told there were no statutory rules framed by the Government and appointments were made F on the basis of executive instructions issued from time to time. Neither in 1981 nor in 1983 there was in force any executive order passed by the Government laying down the condition of three years' teaching experience for appointment of lecturers in Medical Colleges. It was contended on behalf of the State that for that reason the Director of Medical Education and Training, when he invited applications for appointment as lecturers on G ad hoc basis in medical colleges, had stated in the advertisement that the required qualification for the posts was either M.D. or M.S. in that subject.

It was, however, contended on behalf of respondent No. 4 that since the PSC in the advertisement dated 2.2.82 given for regular recruitment of lecturers in the said medical colleges, had stated that the essential H qualification for the said posts was a post-graduate degree in the subject

R.KGOYALv. STATE [NANAVATI, J.] 549

and three years' teaching experience of which one year should be after A post-graduate qualification, this Court should also proceed on that basis, in the absence of any other material on record, and uphold the judgment of the. High Court.

' In view of this difference in the advertisements given by the Director and the PSC and the contrary ssertions made by the parties in this appeal, ·. B this Court passed an order on 13.8.96 directing the Secretary of the Medical Council of India to provide necessary information with regard to the qualification prescribed by the Medical Council of India for the post of lecturer in Orthopaedics in 1981. Pursuant to that order the appellant produced along with his affidavit a copy of the letter dated 16.8.96 written C by the Deputy Secretary of the council to the appellant stating that for the post of lecturer recommended qualification was a post-graduate degree in the subject. A~ it was noticed that the qualification mentioned in that letter was different from the qualification approved by the Medical Council in 1974 and as the said letter did not make it clear as to when the qualification D prescribed in 1974 was modified, this Court issued a notice to the Secretary of the Council on 28.8.96 directing him to let this Court know through an affidavit of responsible officer of the Council what recommendations were made by the Medical Council from time to time regarding qualifications for appointment as a lecturer in medical colleges. By the said order the E State Government was also directed to state on affidavit what qualifications were prescribed by it in 1981 for such appointment. Pursuant to that order DR. K.N. Kapoor officer on special duty.in the office of Director General of Medical Education and Training had filed an affidavit on 16.9.96 wherein he has stated that ''The State Government follows the Medical Council of India's requirement for the post and as per the Medical Council of India, the requisite qualification for the post of lecturer in Orthopaedics on 8.2.81 was as under:

(a) Academic qualifications: MS (Orthopaedics/MCA Ortho)

(b) Teaching/Research Experience : "Requisite recognised postgraduate qualification in the subject." It is also stated by him in that affidavit that the appellant did possess the essential qualifications when he was appointed on the post.

Dr. K.K. Arora, Deputy Secretary of the Council has now filed an H

A affidavit stating what were the recommendations made by the Council since

,. 1970. From that affidavit it appears that its recommendations as regards the qualifications required for appointment to the post of teachers in Medical Colleges made in 1964 were amended in 1970. They received the sanction of the Central Government and thus became regulations under B Section 33 of the Indian Medical Council Act. The qualifications recommended by the Council for the post of Assistant Professor/Lecturer was M.S. or M.Ch. and three years' teaching'research experience. The said recommendations were revised by the Council in 1974, but there was practically no change with respect to the qualifications recommended for C appointment on the post of Assistant Professor/Lecturer in Orthopaedics.

The 1974 recommendations were then revised in 1980 and this time it modified the qualifications required for the post of Assistant Professor/Lecturer by doing away with the requirement of teaching experience.

The recommendations were again revised in 1981 and 1995, but no modification was made with respect to teaching experience with the result D that since 1980 the qualifications recommended by the Council for appointment on the post of lecturer in Orthopaedics is "requisite recognised post-graduate qualification in the subject". Thus since 1980 no teaching experience is required for appointment as a lecturer in orthopaedics . . Though the Council has forwarded the recommendations made in 1974, E 1980 and 1981 to the Central Government for its approval they have not become regulations under the Act, as they are still under the consideration of the Central Government.

It was contended on behalf of respondent No. 4 that only the 1970 F recommendations can be regarded as binding as they 'have received the sanction of the Government and have become regulations under the Indian Medical Council Act. As the subsequent recommendations of the Counil have not been approved by the Central Government they cannot be said to have replaced the regulations of 1971 and, therefore, they have no binding force. We find no substance in this contention because even the G regulations framed by the Medical Council with respect to the qualifications recommended for appointment as teachers in medical colleges are only directory in nature as held by this Court in Dr. Ganga Prasad Venna and Ors. v. Siate of Bihar and Ors., reported in (1995] Supp. 1 SCC 192. It is really within the domain of the State Government to prescribed qualifica- H tions for appointment to various posts in State Services. Though recruit-

R.K. GOYALv. STATE [NANAVATI, J.) 551

ment to the State medical services falls within the purview of the State A Government, they are expected to comply with the regulations made by the Council in order to maintain high standard of medical education as held by this Court in Ajay Kumar Singh and Ors. v. State of Bihar & Ors., reported in [1994] (4) SCC 401 and Govemnit it of Andhra Pradesh and Anr. Etc. v. Dr. R. Murali Babu Rao & Anr. Etc., Ieported in [1988] 3 SCR B

173. Section 19A of the Indian Medical Council Act enable the Council to prescribe by making regulations minimum standards of medical education required for granting recognised medical qualifications by Universities or medical institutions in India and that would include prescribed minimum qualifications for appointment as teachers of medical education. As State Governments are thus expected to comply with the recommendations made C by the Medical Council from time to time. and if the State Governments Comply with such re.commendations irrespective of whether they are approved by the Central Government or not, it cannot be said that in doing so they have acted arbitrarily or illegally.

As pointed out by the State Government, no recruitment rules framed under Article 309 were in existence for recruitment for the post of lecturer in the medical colleges in 1981 and appointments were made on

the basis of executive orders passed from time to time. In 1981 and also when Dr. Goyal was appointed as ad hoc lecturer in 1983, it was permissible to make such ad hoc appointments though for a limited period. At E that time teaching experience was not prescribed as the required qualification for appointment as lecturer in the State medical colleges. It was for that reason that when the Director issued the advertisement for appointment of 8 ad hoc lecturers, it did not contain the condition that the candidates should have three years' teaching experience. It appears that the PSC com- F rnitted a mistake when it issued an advertisement in 1982 and mentioned therein that the minimum qualification for the posts of lecturer in medical colleges was a post-graduate degree and three years teaching experience.

The High Court failed to examine all these aspects and wrongly proceeded on the basis that three years' teaching experience was also a G part of prescribed minimum qualification for the post of lecturer in Orthopaedics. Therefore, the view taken by the High Court that the initial appointment of appellant as ad hoc lecturer in 1983 was illegal and bad has to be regarded as incorrect. As we hold that the initial appointment of the appellant as ad hoc lecturer in 1983 was quite proper and legal,_ the H

A subsequent order passed by the Government regularising his seiviqes will have to be regarded as valid and legal.

We, therefore, allow this appeal, set aside the order passed by the High Court and dismiss Civil Misc. Writ Petition No. 8914 of 1983 filed by respondent No. 4 However, in the facts and Circumstances of the case, B there shall be order as to costs. .

v.s.s.

Appeal allowed.