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Service matter – Promotion to Asst. Professor – one of the qualification – Post Graduation Degree – rejected as it is not recognised by M.C.I.- single judge too dismissed the writ – LPA allowed as there is at least suggestion that Postgraduate degree should be recognized by MCI for considering the promotion – Apex court confirmed the LPA and dismissed this appeal = Dr.Purshotam Kumar Kaundal ….Appellant Versus State of H.P. and Others ….Respondents = 2014 ( Feb.Part) judis.nic.in/supremecourt/filename=41214

Service matter – Promotion to Asst. Professor – one of the qualification – Post Graduation Degree – rejected as it is not recognised by M.C.I.- single judge too dismissed the writ – LPA allowed as there is at least suggestion that Postgraduate degree should be recognized by MCI for considering the promotion – Apex court confirmed the LPA and dismissed this appeal =

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.

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.

But 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 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.” 

When challenged in High court =

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.

Dismissed the petition =

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  learned  Single  Judge. =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. There  is  nothing  to  suggest   that   recognition  of  the  post

graduation degree must be by  the  MCI.

=

When challenged in Apex court = 

  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.

 

 

2014 ( Feb.Part) judis.nic.in/supremecourt/filename=41214

RANJANA PRAKASH DESAI, MADAN B. LOKUR

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.

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 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 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 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.

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 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 | |
|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 Surgery. | |
|36. |Surgical |M.Ch.Surgical |_ |
| |Gastro-Enterology |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 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.

…………………………….J
(Ranjana Prakash Desai)
…………………………….J
(Madan B. Lokur)

New Delhi;
February 11, 2014

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