SWP/658/2011 of DR.ARUN SHARMA Vs STATE TH.MEDICAL EDUCATION AND ORS. on 31 December 2012

1. Controversy running through weft and warp of five|petitions, on hand, relates to eligibility of a|candidate with Master in Hospital Administration|degree (MHA) awarded by TATA Institute of Social|Sciences, Mumbai (for short, TATA Institute) to the|post of Deputy Medical Superintendent in GMC,|Jammu/Srinagar. The petitioners have to their|

credit Master in Hospital Administration degreefrom the aforesaid Institute and are not being)allowed to participate in the selection process forthe post of Deputy Medical Superintendent in GMC,|Srinagar/Jammu initiated by the Jammu andKashmir Public Service Commission (for short,|respondent-Commission) on the ground that theTATA Institute is not recognized Institute under|Indian Medical Council Act, 1956 and, therefore, thepetitioners do not satisfy the eligibility criteria laid|down in Jammu and Kashmir Medical Education|(GazettedService) RecruitmentRules,1979(hereinafter, Rules of 1979).

9. First an overview of the background facts.

3. Four of the five writ petitions awaiting disposal are|filed by Dr. Arun Sharma. The petitioner responded|to Advertisement Notification No.16-PSC of 2005)issued by the Jammu and Kashmir Public Service|Commission (for short, respondent-Commission) 1n|the year 2005, inviting applications from eligible|

candidates for the available vacancy of DeputyMedical Superintendent in Government Medical|College, Jammu. The petitioner was not consideredon the ground that he did not possess experience|prescribed under Rules of 1979. The respondent-Commission, however, did not raise any dispute as|regards his qualification, 1.e. Master in HospitalAdministration degree obtained by the petitioner|from TATA Institute. The petitioner appears tohave felt satistied with his non-selection and waited|for the next chance, expecting to have gainedprescribed experience by the time, next selection|process for the post was initiated. The opportunitycame his way when the respondent-Commission|vide Notification No. 02-PSC of 2009 dated 30[th]January, 2009 invited applications for two posts of|Deputy Medical Superintendents in Open Merit and|RBA Category in Government Medical College,|Jammu and Srinagar (back-log). The petitioner|responded to the Advertisement Notice. However,|the respondent-Commission did not proceed with|

the selection process, because of litigation over thematter.

4. The respondent-Commission through its Deputy)secretaryvideNo.PSC/DR/28/2008'7[th]March, 2011 addressed to Principal Secretaryand Secretary to the Government, Health andMedical Education Department, requesting him to)clarify whether the candidates possessing Master in.Hospital|AdministrationdegreetromTATAInstitute are eligible for the post of Deputy MedicalSuperintendent in Government Medical College,|Srinagar/Jammu.|The|DeputysecretarytoGovernment,Health.andMedical.EducationDepartment in his reply dated 23[rd]March, 2011 to|the Secretary, Public Service Commission, Jammu)clarified that the candidates possessing Master in|Hospital|AdministrationdegreetromTATAInstitute are not eligible for the post of Deputy)Medical Superintendent. The reason given was that|the TATA Institute was an un-recognized Institute.The|petitionerWaSabletolayhands dated On

dated

On the communication addressed by _ respondenCommission to the respondent no.1 on 16[th]March,2011 and the reply of respondent no.1 dated-:[rd]March, 2011. The petitioner without waiting forthe Commission to take a decision in the matter|rushed to this Court with SWP No.658/2011 seeking|quashment of both the communications and adirection to the respondent-Commission to allow)the petitioner to participate in the selection processand also restraining it from withdrawing/cancelling|the Advertisement Notification No.o2-PSC of 2009|dated 30[th]January, 2009 or issuing any freshadvertisement notice for filling up the posts ofDeputy Medical Superintendents advertised vide)notification No.o2-PSC of 2009. The petitioner|pleaded that as Dr. Manoj Kumar Chalotra with)Master in Hospital Administration degree fromTATA Institute was selected by the respondent-Commission and appointed as Deputy Medical)Superintendent vide order no.03-PSC of 2008 dated|'7[th]January, 2008, there was no reason for the Commission to deny consideration to the petitioner. |To reinforce his claim, petitioner further pleads thatvide No.02-G of 2009 dated 2[nd]January, 2009, he)was given in-situ promotion after putting 1n seven|years of service as Assistant Surgeon on the basis ofMaster in Hospital Administration degree from|TATA Institute; that the respondent no.1 1s to betaken to have accepted and acted upon the said)degree and, therefore, there 1s no reason for therespondent-Commission to treat the petitioner|ineligibleforthepostotDeputyMedicalSuperintendent on the ground that Master in|Hospital Administration Degree is granted by anunrecognized Institute. The Court as an interim)measure asked the respondent-Commission not tofinalize the selection process for the post of Deputy|MedicalSuperintendent, GovernmentMedicalCollege, Jammu, till next date of hearing before the|Bench. The interim direction 1s in force as on date. |One Dr. Dara Singh claimed to be beneficiary of the|

alleged manipulations, was arrayed as respondent no.9 on 6[th]August, 2011.

5]The respondent-Commission vide AdvertisementNotificationNo.18-PSC.otIOIdated |'6[th]November, 2011 invited applications from theeligible candidates for one post of Deputy MedicalSuperintendent in Government Medical College,|Jammu (Ist Special Drive) under RBA Category. |The petitioner aggrieved with the Advertisementnotice 1n question rushed to the Court with onemore writ petition being SWP No.2407/2011. The)case set up in the second writ petition is that thepost of Deputy Medical Superintendent under RBA|Category in Government Medical College, Jammuhavingbeen|advertisedvideAdvertisementNotification No.02-PSC of 2009, the respondent-Commission was neither justified nor had authority|to withdraw said post, more so, in face ofad-interim order passed in the earlier writ petition|(SWP No.658/2011) and re-advertise the post vide|advertisement notification impugned in the writ)

dated |

petition. The petitioner alleged that the exercisewas to benefit Dr. Dara Singh, claimed by the)petitioner to be a protege oi Minister for MedicalEducation, Technical Education Service, Youth|Services and Sports arrayed as respondent no.3 1nthe petition. The petitioner sought quashment of|Advertisement Notitication No.18-PSC of 2011 dated '6[th]November, 2011 and also a direction to the respondents to de-reserve and fill up the posts advertised vide impugned AdvertisementNotification treating it as a part of AdvertisementNotification to 02-PSC of 2009 dated 30[th]January,2009. The matter came up on 27[th]December, 2011and the selection process pursuant to impugned|Advertisement Notice was directed not to be|finalized till next date of hearing. The ad-interim|direction is in force till date. Dr. Dara Singh was)arrayed as respondent no.5 on 8[th]February, 2012.

6. The respondent Commission vide Advertisement NotificationNo.o1-PSCotIOI 19[th]January,2011 invited applications from the dated |

eligible candidates for two vacancies of DeputyMedical Superintendents in Government Medical|College, Srinagar under Open Merit and ScheduledCaste Category. Petitioner, Dr. Bharat Bhushan and_|Dr. Major Kumar Bhagat were amongst thecandidates, who responded to the AdvertisementNotice.

VEThe respondent-Commission vide Notices dated-A[th]November, 2011 and 9[th]December, 2011)published in local dailies declared amongst others,petitioner-Dr. Arun Sharma, Dr. Bharat Bhushan)and Dr. Manoj Kumar Bhagat ineligible for theadvertised posts on the ground that they had Master|in Hospital Administration degree from TATA|Institute - not recognized under Indian Medical|Council Act, 1956. The petitioner was joined by Dr.Bharat Bhushan and Dr. Manoj Kumar Bhagat in|throwing challenge to the aforestated notices. The)petitioners after filing of SWP Nos.658/2011 and_2407/2011laidhandsOT]acommunicationaddressed by Secretary, Medical Council of India|

bearing No.MCI-23(1)/2006-Med./1788 dated 20[th]April, 2006 to the Under Secretary of the)respondent-Commission informing him that MasterinHospital|Administrationdegree“un-recognized TATA Institute of Social Sciencescannot be treated as equivalent to Master in|Hospital Administration degree obtained tromrecognized medical institutions’. The petitioners,|therefore, in the fresh writ petition — SWP.No.2529/2011 also sought quashment of the)aforesaid communication. The petitioners againsucceededinpersuading|the.CourtTostayfinalization of the selection process initiatedpursuant to the impugned notification till next date.The interim order is in operation.

trom |

8. The petitioner — Dr. Arun Sharma in SWPNo.233/2012 questions the Government OrderNo.134-HME of 2010 dated 26[th]February, 2010whereby respondent no.5 1n the petition (Dr. Dara|Singh) has been appointed as Incharge Deputy)Medical Superintendent in Government Medical|

College, Jammu. The petitioners apprehending thatexperience gained by respondent no.5 while working|as.InchargeDeputyMedicalSuperintendent,Government Medical College, Jammu may be)considered by the respondent-Commission whilecomputing the experience in terms of Rules of 1979|also)seeks.adirection:tothe.respondent-Commission not to count such experience and not to|consider the experience certificates issued byPrincipal Government Medical College, Jammu vide|his Nos. GMC/PS/C/50 dated 13[th]January, 2009,and AHJ/PS/915 dated 10[th]December, 2011 andexperiencecertificateissuedDyMedicalSuperintendent and HOD, Hospital Administration|SKIMS -—respondent no.4 dated 2[nd]May, 2010while making selection for the post advertised vide|Advertisement Notification No.18-PSC of 2011 dated'6[th]November, 2011.

Q.Dr. Manoj Kumar Bhagat, who joined Dr. Arun)Sharma in filing SWP No.2529/2011, in a separatepetition registered as SWP No.2044/2011 has)

thrown challenge to the communications dated _'7[th]March, 2011 and 23[rd]March, 2011 alsoimpugned in SWP No.2529/2011 filed by Dr. ArunSharma. The petitioner in SWP No.2044/2011 also.seeks a direction to the respondent-Commission |to allow the petitioner to participate in the selection|forthe.otMedicalPITOCESSpostDeputySuperintendentadvertisedvideAdvertisementNotificationNo.02-PSC)ot2009|dated |:;[th]January, 2009 as also a Writ of Prohibitionrestraining that the respondent-Commission tromwithdrawing/cancellingAdvertisement.noticeNo.02-PSC of 2009 dated 30[th]January, 2009 or'|issuing any fresh notification. The petitioner as an)interim measure was directed to be allowed to'participate in the selection process at his own risk)and cost without any rights flowing out of his)participation in the selection process.

dated |

10. The stand taken by the respondents in opposition to|all the writ petitions is identical. Without repeating|the averments made in opposition to the individual|

writ petitions, 1t may be appropriate to sum upsalient/broad features of their case to resist thepetitions.

ll.The stand taken by the official respondents is thatMaster in Hospital Administration degree granted|by TATA Institute does not satisfy the eligibilitycriteria laid down under Rules of 1979 for the reasonthat the TATA Institute is not an_ Instituterecognized under Indian Medical Council Act, 1956)and the degree awarded is not equivalent to onesranted by an Institute recognised by Indian)Medical Council. Attention 1n this regard is invitedto the Communication No.MCI-23(1)/2006 —MED/1788dated|20.04.2006addressedDySecretary, Medical Council of India to Secretary,|respondent Commission. It 1s pleaded that as thepetitioners in the writ petitions on hand have)obtained Master in Hospital Administration degree|from TATA Institute, they are not eligible for the|POst)of|DeputyMedicalSuperintendentInGovernment Medical College, Srinagar/Jammu and_

have been rightly excluded from the selectionprocess. The respondent-Commission denies that|selectionPITOCESSpursuantTO|AdvertisementNotificationNo.02-PSC.ot.2009,:;[th]January, 2009 was delayed to favour theprivate respondent. It is clarified that the aforesaid|Advertisement Notice was withdrawn to the extent,it notified posts available in Government Medical|College, Srinagar because of contempt proceedingsIn case titled “Dr. Jameel Ahmed Mir and ors. Vs.|State’ and ad-interim order in SWP No.1718/2008titled “Dr. Rabinder Rattan Pal and anr. Vs. State|and ors. and that the selection process as regardsposts notified in Government Medical College)Jammu, was initiated once SWP No.1718/2008 wasdismissed as withdrawn on 2[nd]August, 2010. Therespondent-Commission,whileadmittingDr. Manoj Kumar Chalotra with Master in Hospital|Administration degree was appointed as Deputy)Medical Superintendent, pleads that once suspicion|was raised as regards eligibility of the candidates|

dated |

that

equipped with Master in Hospital Admunistrationfrom TATA Institute for the post of Deputy Medical|Superintendent in light of Rules of 1979, the |matter was taken up with the Government and ©the(sovernment(respondentno.1)videME/Gaz/215/2010 dated 23[ra]March, 2011 informed|the Commission that such candidates were not!eligibleforthepostoftDeputyMedicalSuperintendent and also conveyed mode, methodand eligibility criteria for appointment to the post of|Deputy Medical Superintendent as per Rules of1979. It is pleaded that in view of the aforesaid|Communication, the petitioners and all othercandidates with Master in Hospital Administration|degree from TATA Institute were declared ineligible|vide notice dated 14[th]October, 2011 and as only one|candidate (Private respondent) was found eligible|for the post of Deputy Medical Superintendent|under Reserved Backward Area Category, the post)under said Category was re-notified/advertisedvidenotificationNo.18-PSCof|IOI

dated |

Arguments

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'6[th]November, 2011. The respondents insist that theprivate respondent had requisite qualification and_was eligible for the post of Deputy MedicalSuperintendent.

12. The private respondent-Dr. Dara Singh in his reply|has clariied that he has applied for the post ofDeputy Medical Superintendent under “Reserved|Backward Area Category and as none of thepetitioners claim to belong to Reserved Backward|Area Category and eligible under said Category,their challenge to his eligibility and participation in|the selection process 1S unwarranted. It 1s deniedthatselection processinitiatedpursuantToAdvertisement notification No.o2-PSC of 2009)dated 30[th]January, 2009 was delayed to benefit theprivate respondent or that the respondent no.3 1Sinterfering in the selection process or ever made an|effort to benefit the private respondent. Denying)the allegations of mala fides or favouritism, the)private respondent insists that he has necessary|qualification and experience to his credit and cannot|

be deprived of his right to be considered for the post.of Deputy Medical Superintendent under Reserved|Backward Category. The private respondent joinsthe official respondents in pleading that the)selection and appointment for the post of DeputyMedical Superintendent is to be made in accordance|with the Rules of 1979 and that the petitionersarenot.eligibleforthe.postot.Medical Superintendent as Master in HospitalAdministrationdegreereliedupon|bythepetitioners 1s granted by an unrecognized Institute. |In reply to challenge thrown in SWP No.233/2012|questioning his appointment as Incharge DeputyMedical Superintendent and the experience gained|by working as such, the private respondent insiststhat the official respondents are fully competent to make appointment on Incharge basis and that such|appointment and the experience gained 1s not open|to challenge.

Deputy

13. I have gone through the pleadings and have heard|

learned counsel for the parties.

14. It is admitted position of the parties that the post ofDeputy Medical Superintendent is borne on Jammu)and Kashmir Medical Education (Gazetted) Serviceand the post is to be filled up having regard to the)Rules of 1979 and minimum qualification andexperienceprescribedunderatoresaldrules.Schedule -I to Rules of 1979 divides the posts borneon the service into three parts, namely, (A) Teaching|Wing, (B) Administrative Wing (C) General Wing. |The post of Deputy Medical Superintendent - a|Clause-II post, 1s included in Administrative Wing. |Schedule ‘II’ to the Rules of 1979 prescribes|minimum qualification and experience for posts 1ndifferent subjects/disciplines. The post of Deputy)Medical Superintendent figures at Serial no.29 (b).The minimum qualification and experience for the|post is laid down in columns-IV and V of Schedule-II against Serial No.29 (b). It would be appropriate|to extract hereunder the relevant part of Schedule ITto the Rules of 1979. It reads:

SCHEDULE Il

OF J&K MEDICAL EDUCATION (GAZETTED) SERVICE RECRUITMENT RULES, 1979

15. A bare look on Serial No.29 (b), Schedule II would|reveal that an aspirant for the post of Deputy)

Medical Superintendent must have MBBS Degree orotherrecognizedmedicalqualificationfromUniversity/InstitutementionedInIst/IIndSchedule/Part II of the IIIrd Schedule, IndianMedical Council Act, 1956. In the last case, such|degree must also fulfil the conditions stipulated in|Section 13(3) of the Act. In addition to the aforesaid|MBBSOTMedical.recognizedDegree,candidate must also have Post-graduation insurgery/gynaecology/medicine and other clinical)subjects/Hospital Administration. Rule-7 of theRules of 1979 1s required to be noticed, it reads; >

a |

/ “Etigibility -—

(1) A person shall not be eligible forrecruitment/promotion to a post mn theService|unlesshe|POSSESSESthequalifications and fulfils the requirementsof recruitment prescribed for that post nSchedule IT:

Provided that the Commission mayrecommend, for consideration ofthe Government that appointmentof a person to a post in the servicewho otherwise not eligible underthese rules is, in the opinion of theCommission,possessingexceptionalmeritaswellasprofessionalexperienceofhighorder in his speciality, such a casewrtbeconsideredbytheGovernment after obtaining theviews of the Medical Council ofIndia.

(2) Without prejudice to the conditionsof the eligibility prescribed in Schedule IT,every person appointed to a post in theservice shall be a permanent resident of theState:

Provided|thatwhere.QTvypermanent resident is not availablefor appointment to any post, theGovernment may appoint a non-permanentresident|otherwiseeligible for holding such post, oncontract basis or on deputation fora term not exceeding three years asit may specify in the order:

ProvidedfurtherthattheGovernment shall have the powerto renew the contract/deputationup to a maximum period of fiveyears in suitable cases.”|

It follows that a candidate aspiring for the post of Deputy Medical Superintendentmust have the qualification and experienceas.prescribedinScheduleTT||Serial No.29 (b)|.

16. In the present case, the petitioners have MBBS trom.a university mentioned in the Ist Schedule, Indian|

Medical Council Act, 1956. They admittedly donothave.Post-graduationDegreeinSurgery/Gynaecology/medicine and other clinical)subjects to their credit. The petitioners claim to)have Master in Hospital Administration degree from|TATA Institute. The respondent-Commission and|

other official respondents are not ready to treat thepetitioners eligible for the post of Deputy Medical|Superintendent on the ground that the TATAInstitute is not an Institute recognized under Indian|Medical Council Act, 1956. The petitioners denythat the Rules of 1979 make it mandatory to have)Master in Hospital Administration degree from an.Institute recognized under Indian Medical Council|Act, 1956. It 1s pointed out that the MinimumQualifications For Teachers In Medical Institutions|Regulations, 1998 (for short, Regulations of 1998)do not prescribe any academic qualification and_teaching/research experience for the post of DeputyMedical Superintendent and, therefore, requirement|of|“recognized,Post-graduationmedicalqualification from a recognized institution” as)prescribed under Regulations of 1998 is not!attracted in case of Deputy Medical Superintendent.It is further argued that in terms of Schedule-I to)Rules of 1979, the post of Deputy Medical|Superintendent is a part of Administrative Wing and|

Regulations of 1998 apply to teachers in medicalinstitutions and not to the administrative posts like|that of Deputy Medical Superintendent.

17. The Indian Medical Council Act, 1956 has been|enacted to provide for the reconstitution of theMedical Council of India and the maintenance of aMedical Register for India and matters connected|therewith. Section 2 (h) defines “recognized|medical qualification” as any of the medical)qualifications included in the Schedules. Section 3.provides for constitution of Medical Council of India|and Section 10-A empowers the Council to makerecommendations to the Central Government for|establishmentothnewmedicalcollegeOTintroduction of new course of study in colleges setup with permission of the Central Government. In|terms of Section 10-B, where any medical college is established except with the previous permission of|the Central Government in accordance with |the provisions of Section 10-A, no medical!

qualification granted to any student of such medical college would be recognized medicalqualification for the purposes of the Act. In terms of|Section 11, the medical qualifications granted by anyUniversity or medical institution in India included|in the First Schedule shall be recognized Medicalqualificationsforthepurposesot.the.Act. |Section 11 (2) makes room for amendment of theFirst Schedule from time to time, so as to include|medical qualifications granted by a University orMedical Institution with the permission of the)Central Government after consulting the Council. |Schedule II includes the recognized medical|qualifications granted by Medical Institutionsoutside India and Schedule III includes recognized|medical qualifications by medical Institutions)within India but not included in the Schedule-l. |Schedules I, II, and III of the Act catalogue)Universities and Medical Institutions and the'degrees granted by such Universities recognized|under the Act. In case of Part-I of the Schedule-IITI, such recognition 1s subject to the conditions laiddown in Section 13 of the Act. |

18. The TATA Institute admittedly does not find place|in Schedule I or Schedule III ot the Act. The!communication addressed by Secretary, Indian}Medical Council to respondent no.1 under No. MCI-23(1)/2006-Med./1788 dated 20[th]April, 2006,therefore, reflects correct position as regards MasterinHospital Administrationdegree awarded by TATAInstitute. It 1s, therefore, beyond doubt that Masterin Hospital Administration degree to the credit of|the petitioners is not from a recognised Institute.

19. Let us now proceed to see whether Master in|Hospital Administration degree from an Institute)recognized under Indian Medical Council Act, 1956)is necessary qualification for Deputy MedicalSuperintendent in Government Medical College,|Jammu/Srinagar. |

PORIt is well settled by now that the Indian Medical|Council Act, 1956 has overriding effect and a State|

Act or Rules and Regulations made there under areto give way to the Indian Medical Council Act, 1956)and the Regulations made under the Act to theextent, these are in-conflict with the Act. The!Medical Council of India under Section 33 of the|Act, 1956 is clothed with the power to make)regulations, with the previous sanction of theCentral Government, generally to carry out the)purpose of the Act. The Medical Council of India in,exercise of aforesaid powers has made “Minimum|Qualification for Teachers in Medical Institutions|Regulations, 1998”. The Objective Clause of the)Regulations emphasises that the appointment ofmedical teachers, with minimum qualification and_experience in various departments of medicalcolleges and institutions imparting graduate and)post-graduate medical education is a necessary)requirement to maintain standard of teaching. The)Supreme Court in “Medical Council of IndiaVs. State ofKarnataka and ors.” (1998) 6 SCC)131, while commenting upon the Indian Medical|

Council Act, 1956 and Regulations made under the Act observed;

Council Act, 1956 and Regulations made under the Act observed; “The Indian Medical Counal Act 1s.relatable to Entry 66 of List I (Union List). It|prevatls over any State enactment to _ thextent the State enactment ts repugnant to the|provision of the Act even though the State Actsmay be relatable to Entries 25 or 26 ofList IIT|(Concurrent List). Regulations framed under|Section 33 of the Medical Council Act with the|previous sanctions of the Central Government|are statutory. These regulations areframed to|carry out the purposes of the Medical CouncilAct and for various purposes mentioned in|Section 33. If a regulation falis within the|purposes referred under Section 33 of theMedical Council At, 1t will have mandatory|force.”

The Constitution Bench of the Supreme Court 1n“Dr. Preeti Srivastava and ors. Vs. State of)M.P. and ors.” (1999) 7 SCC, 120, held that the|regulations made by Medical Council of India in|exercise of 1ts powers under Section 20 read withSection 33 are binding and the States cannot, in|exercise of power under Entry 25 of List III, make)rules and regulations which are in-conflict with or|adversely impinge upon regulations framed by)Medical Council of India for postgraduate medical|education. The Division Bench of this Court in|“Aruind Kohli (Dr.) Vs. Sham Singh (Dr.)|

and ors.” 2011 (3) JKJ 328 [HC], rejecting theargument that a distinction was to be made between|the concept of education and employment and thatwhileMedicalCouncil oftIndia.regulationsregulatingmedicalEducationhave.alloverriding force, same may not be true about the)regulations relating to employment or prescribingqualification for teachers in a medical college or|medical institution held; “Even accepting the said argument ofthe learned senior counsel for the sake ofargumen|\,whenWeEexaminethesaid.contention and apply the same to the facts of|the case on hand, at the risk of repetition 1itwill have to be stated that by Jammu and|KashmirState’sOUwTrulesof1979,as|stipulated under Rule 7 read along with Entry24 to Schedule II and paragraph no.2 of the|General Note, the satisfaction of a recognizedmedical qualification as prescribed under the|MedicalCouncilofIndiaAct,wwWaUNPCLAMVE.....cc The Division Bench proceeded to observe; —

“Having regard to our earlier detaileddiscussions, since we have held that the|recognition of a medical qualification by|including the same under the First Schedule ofthe Medical Council of India Act would alone|entitle a person to validly claim to be in|possessionoftherequiredmedicalqualification as defined under Section 2(h) of|the Medical Council ofIndia Act, we are not in|a position to countenance the argument of|learned senior counsel in derogation of whathas been stipulated in 1979 Rules.”

The Bench emphasizing that mere permission toset up of a new medical college or a new course ofstudy granted under Section 10-A of the Indian)Medical Council Act, 1956 would not suffice and the|degree awarded must satisfy the requirement of|inclusion in any one of the three Schedules to the Act,observed; “Having regard to the scheme of|the Act it cannot be held that merelygoing by the permission granted underSection 10A in complete derogation oftheother|provisionscontainednmSection 11(2) read along uith Section2(h) and Schedule I to the IndianMedical Council Act, 1t cannot be heldthat such qualification can be taken as“recognized medical qualification.”

It follows that Schedules I, II and III do not.onlymentionthe.Universities”OT|MedicalInstitutions but also the degrees awarded/grantedby such Institutions. In other words reference is to|the degree awarded. To illustrate, while a college or,medical institution may find place in one of the|Schedules, yet a particular degree awarded by itmay not find place in such schedule. It 1s pertinent|to point out that the Rule makers by appending|

General Note 2 to the Rules of 1979 have, as pointedout in Dr. Arvind Kohli’s case, provided for|adherence to the provisions of Indian MedicalCouncil Act, 1956 while assessing the qualification|of an aspirant for the post of a teacher, borne on)Jammu and Kashmir medical Education (Gazetted|Service).

D1,It may be argued that General Note 2 to the Rules of1979 refers to the basic qualifications and,|therefore, requirements of Indian Medical CouncilAct, 1956 are to be satisfied only as regards “basic|qualifications’ or “MBBS degree’ to the credit of an.aspirant for a _ teaching position in MedicaEducationDepartment.However,suchallargument 1s not available in view of the Division|Bench judgment in (Dr.) Arvind Konhlts case(Supra). It is pertinent to point out that Lecturer inCVTS appearing at Serial No.24(b) in Column 4|whileprescribingthequalification(M.ch_inspeciality concerned, etc.) did not as 1n the present|case, specifically lay down the requirements of its|

recognition under Indian Medical Council <Act,1956. The Division Bench nonetheless held theappellants ineligible for the advertised posts, 1.e..Lecturer — Thoracic Surgery. In the said case, the|appellants were aspirants for the post of Lecturer 1n|Thoracic Surgery. Dr. Arvind Kohli had M.ch|degree in CVIS trom JIPMER, Pondicherry whereas|Dr. Ishtiaq Mir had M.ch degree in CVTS from|SKIMS, Srinagar. The doctors though having M.ch)degrees in the speciality concerned to their credit|were declared ineligible for the post of Lecturer in)CVTS. After challenge to their eligibility was|allowed by learned Single Judge in a petition filed.by Dr. Sham Singh, the appellants contended beforethe Division Bench that both JIPMER and SKIMS|were recognized under the Indian Medical Council|Act, 1956 and that M.ch Course in CVTS was.commenced.withpermission|ot.theCentralGovernment. The Division Bench rejecting the plea|observed that not only recognition in terms of|Section 10-A was necessary but compliance with|

Sections 2(h), 10-B, 11, 12 and 13 of the Indian.Medical Council Act, 1956 was also necessary. It is,therefore, now beyond dispute that an aspirant for ateachingPOst.borneOlMedical.Education.(Gazetted) Service is to satisfy the requirements ofIndian Medical Council Act, 1956, Regulations|made there under as also the Rules of 1979.

99|It 1s important to point out that the hospitalsassociated with Government Medical College,Jammu and Srinagar are teaching hospitals. The)students enrolled for MBBS and other courses 1n|two Medical Colleges as part of their teaching)programme are required to attend the hospitals andare taught by the doctors, who man the posts like)Medical.Superintendentand|DeputyMedicalSuperintendent, in the administrative hierarchy of|the hospital. This is the reason, post of Medical|Superintendent and Deputy Medical Superintendent|is borne on Medical Education (Gazetted) Serviceand not Health and Family Welfare (Gazetted)|

Service and also that advertised post 1s shown inMedical Colleges (GMC, Jammu/Srinagar) and not!inThe|ale|hospitals.teachinghospitalsdistinguishable and different from non-teaching|hospitals. Every hospital may not necessarily be ateaching hospital. In case of non-teaching hospitals,|the Medical Superintendent or Deputy MedicalSuperintendent may have no role to play in|teaching/training the students enrolled for MBBS orother programmes in a Medical College. In case of|teaching hospitals, they have a significant role toplay in teaching/training the students as is also)disclosed by duty rosters submitted by therespondents for perusal. This is the reason that the|Regulations of 1998 in Table no.1_ prescribeacademicqualificationsandadministrative experience for the post of Medical Superintendent of|the “affihated teaching hospital” and expressly make|distinction between “affiliated teaching hospitals”|and other hospitals. It would be profitable to)

extract hereunder the relevant part of Regulations of 1998; TABLE 1

REQUIREMENTS OF ACADEMIC QUALIFICATIONS, TEACHINGAND RESEARCH EXPERIENCE

Regulation 3 and norm 3 of Schedule-I of Regulations, 1998 also needs to be noticed;|

“9,Minimum Qualifications for appointment as ateacher- Minimum qualificationsfor appointmentas a teacher in various departments of a medicalcollege or institution twmparting graduate andpost-graduate education shall be as specified inthe Schedules [I and [I annexed with theseregulations.”

“2,Medical teachers in all Medical Colleges exceptthefutors,Residents,RegistrarsandDemonstratorsMmuUuPOSsesstherequisiterecognised Postgraduate Medical qualificationmn|their|respectivesubject.[Dean/Principal/DirectorofMedicalcollege/institution, who is head of the instituteand the Medical Superintendent who is head ofthe affiliated teaching hospital can be incharge ofa Unit but cannot be HOD in the medicalcollege/institution. However, they can teach andpractice in the Department concerned. |”

2‘.It follows that an aspirant for the post of Medical|Superintendent of “affiliated teaching hospital”|must possess a recognized post-graduate medical|

qualification from a “recognized institute’ and that aMedical.SuperintendentCaf}teach.inthe.department concerned. The “recognized post-eraduate medical qualification” and “recognized|institution’ obviously have reference to Sections2(h), 10-B, 11, 12 and 13 and Schedules I, II and III|of the Act. The qualification possessed by thepetitioners is, therefore, not in accordance with)Regulations of 1998. The plea that Dr. Mano] KumarChalotra having Master in Hospital Administration|DegreeWadaappointedaSDeputyMedicalSuperintendentinthe.year.9008Onthe.recommendation of the respondent-Commissionand continues to discharge his duties or that the)petitioner — Dr. Arun Sharma on the strength of|Master in Hospital Administration Degree from|TATA Institute earned in-situ promotion does not in|any manner strengthen petitioners’ case. The)question of pivotal importance is whether the)petitioners satisfy the requirements of Rules of 1979|against the backdrop of Regulations of 1998 and not whether any lapses were committed or concessionsextended by the official respondents in the past as|any irregularities committed would not justifyrepetition of such irregularities.

24,However, the Regulations of 1998 do not include)post of Deputy Medical Superintendent of suchhospitals. The question may arise as to whether|qualification prescribed under Regulations of 1998would be attracted in case of Deputy Medical)Superintendent. The answer has to be in|affirmative. The reason being that the Rules of 1979|prescribe same qualification for the post of MedicalSuperintendent of teaching hospital as for the)Deputy Superintendent. The difference, if any, 1s 1n|administrative experience. In case of MedicalSuperintendent, the aspirant must have a minimumof eight years of administrative experience (5 years|as Deputy Medical Superintendent + 3 years of|running a hospital after post graduation) whereas|an aspirant for the post of Deputy MedicalSuperintendent must have a minimum of three)

years of experience of “running a hospital after post:eraduation’. The duties to be discharged including|the role played in teaching/training the students ofthe Medical College with which teaching hospital is affiliated are similar. This apart, the post of MedicalSuperintendent of a teaching hospital is to be filled|up by Deputy Medical Superintendent of a teachinghospital having five years experience as such. It!would be self-contradictory to conclude that while a.Medical Superintendent must have “recognized post|eraduate medical qualification’ from a “recognizedinstitution” in terms of Regulations of 1998, it may)not be necessary for an aspirant for the post ofDeputy Medical Superintendent to have “recognized|POst)eraduatemedicalqualification”froma.“recognized institution”. In case, such a view 1s)taken, a Deputy Medical Superintendent cannot beeligible even after having experience of five years for|the post of Medical Superintendent of a teaching)hospital. The post of Medical Superintendent of a|teaching hospital, therefore, will remain unfilled|

because of the non-availability of the DeputyMedical Superintendent having requisite experience|butnotthe.qualificationprescribedunderRegulations of 1998. Such an interpretation could|lead to irrational conclusions and would be contraryto the spirit and scheme envisaged under the Rules|of 1979 in the context of recruitment of Medical|Superintendent and Deputy Medical Superintendent|of teaching hospitals.

25. From the above discussion, it emerges that thepetitioners are not eligible for the post of Deputy)Medical Superintendent in Government MedicalCollege,Jammu/Srinagar. The|petitioners,therefore, cannot maintain the writ petitions,|wherein the primary question involved is their|eligibilityforthePOst)oftDeputyMedical.Superintendent advertised vide Notification No.02-PSC of 2009 dated 30[th]January, 2009 and othernotifications impugned in the petitions. In the said}background, their challenge as regards competence|of respondent-Commission to issue Public Notices|

dated 28[th]November, 2011 and 9[th]December, 2011and Notification No. 18-PSC of 2011 =dated |'6[th]November, 2011 as also the appointment of|respondent — Dr. Dara Singh as Incharge Deputy)Medical Superintendent is also to fail. Whether |Dr. Dara Singh would be equipped with necessary|experience, 1n case, he continues to participate inthe selection process and whether he would be)eligible for the advertised post 1s for the respondent-Commission to determine and decide, of course, on|the anvil of Rules of 1979 and MCI Regulations of1998.|

96. Forthe.TeaSons|discussed,thebearing SWP Nos,658/2011, 2407/2011, 2529/2011,233/2012 and 2044/2011 are devoid of any meritand are, accordingly, dismissed.

petitions

Jammu

(Hasnain Massod1)

Judge|

31.12.2012Varun Bedi]