DR.PURSHOTAM KUMAR KAUNDAL Vs STATE OF H.P
Bench: RANJANA PRAKASH DESAI,MADAN B. LOKUR
Case number: C.A. No.-001956-001956 / 2014
Diary number: 4546 / 2012
Advocates: YASH PAL DHINGRA Vs
CAVEATOR-IN-PERSON
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTON
CIVIL APPEAL NO.1956 OF 2014 (Arising out of S.L.P. (C) No.7729 of 2012)
Dr.Purshotam Kumar Kaundal ....Appellant
Versus
State of H.P. and Others ....Respondents
J U D G M E N T
Madan B. Lokur, J.
Leave granted.
2. The only question for consideration is whether respondent
No.5 Dr. D.D. Gupta was eligible for being considered for
promotion to the post of Assistant Professor in accordance with
the Himachal Pradesh Medical Education Service Rules, 1999. In
our opinion, the question should be answered in the affirmative
and against the appellant Dr. Purshotam Kumar Kaundal.
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3. The eligibility criteria for promotion to the post of Assistant
Professor, as laid down in the Service Rules is as follows:-
“By promotion from amongst the lecturers who possess three years regular service or regular combined with continuous ad hoc (rendered upto 31.3.1998) service, if any, in the grade in the concerned specialty failing which by appointment (by selection from amongst the members of H.P. Civil Medical Service (General Wing) having recognized post-graduation degree or its equivalent qualification in the concerned specialty and possess at least three years teaching experience as Lecturer/Registrar/Demonstrator/Tutor/Sr. Resident/Chief Resident in the concerned specialty after doing post-graduation in the concerned specialty failing which by direct recruitment.”
4. Dr. Gupta had obtained a post graduation degree in
Pharmacology from the Maharishi Dayanand University, Rohtak on
31st December, 1991. He believed that he met the eligibility
criterion as per the Service Rules and ought to have been
considered for promotion to the post of Assistant Professor.
5. However, when his case came up for consideration for
promotion before the Departmental Promotion Committee on 28th
August, 2001 he was not considered apparently on the ground
that he did not possess an M.D. degree in Pharmacology duly
recognized by the Medical Council of India (for short the MCI). We
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were told that this decision was based on a letter dated 8th July,
2001 issued by the Deputy Secretary in the MCI to the Director of
Medical Education and Research, Himachal Pradesh in which it is
stated as follows :-
“Kindly refer to your letter No. HFW (DME) H(1)A- 20/99, dated 1.9.2001, this is to inform you that MD (Pharmacology) qualification granted by Maharishi Dayanand University in respect of students being trained at Pt B.D. Sharma Postgraduate Institute of Medical Science is not recognized by the Council for purposes of IMC Act, 1956.”
6. Dr. Gupta challenged the failure of the Departmental
Promotion Committee to consider him for promotion by filing an
original application before the State Administrative Tribunal. The
original application was transferred to the High Court of Himachal
Pradesh and registered as CWP (T) No.7948 of 2008.
7. By a judgment and order dated 9th August, 2010 a learned
Single Judge of the High Court rejected the writ petition filed by
Dr. Gupta. The learned Single Judge held that Section 11(1) of the
Indian Medical Council Act, 1956 (for short the Act) provides that
only those medical qualifications granted by any university or
medical institution in India which are included in the First
Schedule to the Act shall be recognized medical qualifications for
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the purposes of the Act. The learned Single Judge held that since
an M.D. in Pharmacology from the Maharishi Dayanand University
was not included in the First Schedule to the Act, Dr. Gupta was
not eligible for being considered for promotion to the post of
Assistant Professor in Pharmacology. It was also held that since
Maharishi Dayanand University did not apply for recognition of the
qualification to the Central Government in terms of Section 11(2)
of the Act, Dr. Gupta was also not entitled to the benefit of that
sub-section of Section 11 of the Act. The learned Single Judge
also referred to Section 2(h) of the Act which defines a recognised
medical qualification as meaning any of the medical qualifications
included in the schedules of the Act. It was held that the
qualification obtained by Dr. Gupta from the Maharishi Dayanand
University did not fall under any schedule to the Act. Accordingly,
the writ petition was dismissed by the learned Single Judge.
8. Feeling aggrieved, Dr. Gupta preferred LPA No.176 of 2010 in
the High Court. By its judgment and order dated 19th October,
2011 the High Court agreed with Dr. Gupta and allowed the letters
patent appeal and set aside the judgment and order of the
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learned Single Judge. The official respondents were directed by
the High Court to hold a review departmental promotion
committee for the post of Assistant Professor within a period of
eight weeks. It was also held that Dr. Gupta would be entitled to
all consequential benefits in case he is found suitable by the
review departmental promotion committee for appointment to the
post of Assistant Professor in 2001.
9. The High Court was of the view that the eligibility criteria
only required a recognized post graduation degree. It did not
require a post graduation degree recognized by the MCI. The
degree obtained by Dr. Gupta was a recognized post graduation
degree inasmuch as it was conferred by a recognized statutory
university. Therefore, Dr. Gupta was eligible for being considered
for promotion to the post of Assistant Professor in Pharmacology.
10. The High Court also noted that in a later departmental
promotion committee held on or about 25th November, 2012 Dr.
Gupta was found eligible for being considered for promotion to
the post of Assistant Professor and was in fact so promoted, while
holding the same qualifications.
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11. We are of the opinion that no fault can be found with the
view taken by the High Court in the letters patent appeal filed by
Dr. Gupta. The Service Rules mainly concern themselves with a
recognized post graduation degree. There is nothing to suggest
that recognition of the post graduation degree must be by the
MCI. On the contrary, we have gone through the Service Rules
and find that wherever recognition by the MCI is postulated, there
is a specific reference to it in the Service Rules.
12. Rule 2(n) of the Service Rules defines a post graduate
qualification as meaning a qualification as specified in Appendix
C-I and II. We are concerned with Appendix C-II which contains a
list of post graduate qualifications. Some of the post graduation
degrees that require recognition by the MCI are specifically
mentioned therein. These are as follows:
Sl. No. Subject Part A Part B
23. Cardiology D.M. Cardiology 2/3 years course as recognized by M.C.I. after M.D.Medicine, or M.B.B.S. and 5 years direct course leading
-
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to D.M. Cardiology.
24 Gastro-
Entrology
D.M.Gastro-enterology 2/3 years course as recognized by M.C.I. after M.D. Medicine, or M.B.B.S. and 5 years direct course leading to D.M. Gastro- enterology.
_
25 Theoracic
Surgery
M.Ch.C.T.S. 2/3 years course as recognized by M.C.I. after M.S. Surgery, or M.B.B.S. and 5 years direct course leading to M.Ch. C.T.S.
_
26. Urology M.Ch. Urology 2/3 years course as recognized by M.C.I. after M.S. Surgery, or M.B.B.S. and 5 years direct course leading to M.Ch. Urology
_
31 Nephrology D.M. Nephrology 2/3 years course as recognized by M.C.I. after M.D. Medicine, or M.B.B.S. and 5 years direct course leading to D.M. Nephrology
_
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32. Neo-Natology D.M. Neo-Natology 2/3 years course as recognized by M.C.I. after M.D. Medicine, or M.B.B.S. and 5 years direct course leading to D.M. Neo-Natology.
_
33. Paediatric
Surgery
M.Ch.Paediatric Surgery 2/3 years course as recognized by M.C.I. after M.S. Surgery, or M.B.B.S. and 5 years direct course leading to M.Ch.Paediatric Surgery.
_
34. Neuro-Surgery M.Ch.Neuro Surgery 2/3 years course as recognized by M.C.I. after M.S. Surgery, or M.B.B.S. and 5 years direct course leading to M.Ch. Neuro Surgery.
_
35. Plastic Surgery M.Ch.Plastic Surgery 2/3 years course as recognized by M.C.I. after M.S. Surgery, or M.B.B.S. and 5 years direct course leading to M.Ch. Plastic
_
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Surgery.
36. Surgical Gastro- Enterology
M.Ch.Surgical Gastro- enterology 2/3 years course as recognized by M.C.I. after M.S. Surgery or M.B.B.S. and 5 years direct course leading to M.Ch. Gastro- Enterology.
_
13. It is quite clear from a perusal of the above chart that except
the post graduation degrees specified therein the Service Rules
merely require a recognized post graduate degree for meeting the
eligibility criteria.
14. Learned counsel for Dr. Kaundal submitted that if the appeal
is dismissed, rights that have accrued or vested in his client,
including his seniority over Dr. Gupta, will be disturbed and this is
not permissible. The submission is stated only to be rejected. In
view of the fact that Dr. Gupta was wrongly not considered for
promotion to the post of Assistant Professor in Pharmacology, he
deserves to be now considered and if found suitable, entitled to
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all consequential benefits. In this context, we may note that the
State of Himachal Pradesh has not challenged the decision of the
High Court directing reconsideration.
15. It was also contended that the post graduation degree
obtained by Dr. Gupta was subsequently recognized by the MCI by
a Notification issued in 2004 and that the Notification would not
have retrospective effect so as to make Dr. Gupta eligible for
consideration for promotion. It is not necessary for us to deal
with this contention since we have held that Dr. Gupta’s post
graduation degree did not require any recognition by the MCI.
16. Finally, it was contended that if Dr. Gupta is promoted it
would be contrary to the Minimum Qualifications for Teachers in
Medical Institutions Regulations, 1998. This submission was not
made by Dr. Kaundal at any point of time and was only raised in
passing by his learned counsel in his rejoinder submissions. We
are not inclined to entertain this submission at this stage.
17. We find no merit in this appeal and it is accordingly
dismissed.
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…………………………….J (Ranjana Prakash Desai)
…………………………….J (Madan B. Lokur)
New Delhi; February 11, 2014
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