Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 160 (PAT)

Manju Sharma v. State Of Bihar

2003-02-10

S.N.JHA

body2003
Judgment S.N.Jha, J. 1. As the issues involved in this batch of writ petitions are common, they have been heard together and are disposed of by this common order. The petitioners, 15 in all, are aggrieved by memo No. 729(17) dated 17.9.2002 of the Health, Medical Education and Family Welfare Department, to the extent of postings of Tutors in Physiology and Preventive Social Medicine (PSM) Departments in different Medical Colleges and consequential repatriation of the petitioners from the post to the Health Service Cadre. It may be stated at the outset that the repatriation of the petitioners is on the ground of lack of the post graduate qualification in the concerned subjects i.e. Physiology and PSM. 2. The case of the petitioner is that they had exercised option for the Medical Education Service Cadre in terms of Rule 6(ga) of the Bihar Medical Education Service Cadre and Recruitment Rules, 1997 (in short 1997 Rules), as a result whereof they become members of the teaching cadre i.e. the Bihar Medical Education Service Cadre and they cannot be repatriated or transferred to any other cadre without their consent. Further case of the petitioners is that in the advertisement and/ or orders of appointment, no such condition was laid down that they should have post graduate qualification in the concerned subject. In response to the stand of the State that such a requirement was laid down under resolution of the State Government fixing the criteria for appointment on various teaching posts in 1977 itself, vide Annexure A to the counter affidavit, it has been contended that the said resolution has no legal sanctity in the face of the Regulation of the Medical Council of India (MCI) under which the minimum qualification for appointment on the post of Tutor is MBBS degree, and therefore, it was/is not open to the State Government to fix any higher qualification in derogation of the MCI Regulation. Finally, it is said that the petitioners have remained on the post of Tutor for long periods, they should not be transferred/repatriated to the Bihar Health Service Cadre especially when such action was not taken all these years. 3. It is not in dispute that the State Government framed the 1997 Rules for better functioning of the medical colleges and teaching hospitals in which the eligibility has been laid down for appointment/promotion on various teaching posts. 3. It is not in dispute that the State Government framed the 1997 Rules for better functioning of the medical colleges and teaching hospitals in which the eligibility has been laid down for appointment/promotion on various teaching posts. It is relevant to mention here that in terms of Rule 8 of the said Rules, the first point of entry in the Medical Education Service Cadre is the post of lecturer. The higher posts of Assistant Professor and Associate Professor are to be filled up by promotion. As regards the post of Professor, special provision has been made for direct appointment on the basis of open selection. It is not necessary to refer to further details in this regard. 4. It is relevant to mention here that by reason of Rule 5 (kha) of the said Rules, the posts of Resident and Registrar stand converted into post of lecturer. It was submitted on behalf of the petitioners that the Rule mentions the posts of Resident and the Registrar but there is no mention of the post of Tutor and therefore, there cannot be deemed conversion of that post into the post of lecturer. It may not be out of place to mention that the posts of Tutor are available in only nonclinical subjects such as Physiology and PSM where there are no posts of Resident and Registrar. It is not in dispute that the promotional post for Tutors even in nonclinical subjects is the post of Assistant Professor. Thus, if the erstwhile posts of Resident and Registrar stand converted into the post of lecturer for which the promotional post is Assistant Professor, the post of Tutor must be treated as equivalent to the post of lecturer, if Tutors are to be promoted as Assistant Professor. In fact even for the post of lecturer, under the 1997 Medical Education Service Cadre Rules, the minimum qualification prescribed is post graduate degree in the concerned subject. The post of Assistant Professor being the promotional post it is therefore Imperative that the person roust, have Post. graduate degree in the subject. 5. In fact even for the post of lecturer, under the 1997 Medical Education Service Cadre Rules, the minimum qualification prescribed is post graduate degree in the concerned subject. The post of Assistant Professor being the promotional post it is therefore Imperative that the person roust, have Post. graduate degree in the subject. 5. The case of the State is that continuance of non-PG doctors on the post of Tutor has given rise to serious anomaly being stumbling block in the way of promotion on the posts of Assistant/Associate Professor since Tutors are to be promoted as Assistant Professors and Assistant Professors in their turn are to be promoted as Associate Professors, but being non-PG Tutors they cannot be promoted as Assistant/Associate Professors. The Government has thus not been able to fill the posts of Assistant/Associate Professor giving rise to threat of derecognition of the Medical Colleges by the Medical Council. 6. As regards the argument that the petitioners exercised option and thereby became members of the Bihar Medical Education Cadre, it is true that by virtue of the provisions of Rule 5(ga) in the event of non-exercise of opticn by a certain date, the doctors stand reverted to their original cadre i.e. Bihar Health Service Cadre, but their absorption in the Bihar Medical Service Cadre is dependent on fulfilment of the requisite qualifications. In other words, simply because they exercised their option in favour of the Medical Education Service Cadre, they cannot be treated to be members of that Cadre if they do not possess the requisite qualification and to that exlent their option was not binding on the Government. I therefore, do not find any substance in the submission that having opted for the Bihar Medical Education Cadre, they cannot be repatriated to the original cadre in the Bihar Health Service. 7. The argument which merits consideration is one arising out of the MCI Regulations. 8. The case of the petitioner is that for the post of Tutor in Physiology (also PSM), as per the MCI Regulation, 1998, arty person holding MBBS degree is eligible for appointment. From a perusal of the relevant part of the Regulation it appears that the post of Tutor has been treated at par with Demonstrator, Residents and Registrars. 8. The case of the petitioner is that for the post of Tutor in Physiology (also PSM), as per the MCI Regulation, 1998, arty person holding MBBS degree is eligible for appointment. From a perusal of the relevant part of the Regulation it appears that the post of Tutor has been treated at par with Demonstrator, Residents and Registrars. As indicated above, in the State of Bihar the post of Tutor exists only in non-clinical subjects, and similarly the posts of Registrars and Residents exist only in clinical subjects. There is no corresponding post of Registrar/Resident in the nonclinical subjects. However, the MCI Regulations treats all these posts at par. Accepting the argument of the petitioners counsel would create anomaly in the sense that while the posts of Registrar and Resident are tenure posts having a fixed tenure of three years, the post of Tutor does not have any fixed tenure. Therefore, in my opinion, treating all these posts at par in the Slate of Bihar may not be correct. 9. Reference was made to entry 66 of List I and entry 25 of List III of the Constitution and it was submitted that erstwhile entry 11 of List II was deleted by the 42nd amendment and included in modified form as entry 25 in List III. The Regulations framed by the Medical Council in exercise of power under Section 33 of the Indian Medical Council Act, 1956, a Central Act, would be binding and the Resolution or the Rules to the extent of repugnancy would have no value. In other words, the Medical Council having laid down qualifications for appointment on the post, any contrary provision of the Resolution, Annexure-A, could be of no effect. 10. In State of Madhya Pradesh V/s. Km. Nivedita Jain, (1981) 4 SCC 296 , a question arose as to the nature and effect of the Regulations framed by the Medical Council vis-a-vis the executive orders issued by the State Government. The Supreme Court observed that the scheme of the Indian Medical Council Act, 1956 appears to be that the Medical Council will maintain a proper medical register, will prescribe minimum standards of medical education required for granting recognised medical qualifications, will also prescribe standards of post-graduate medical education and will further regulate the standards of professional conduct and equity and code of ethics for medical practitioners. These observations were noticed in Govt. These observations were noticed in Govt. of Andhra Pradesh V/s. Dr. R. Murli Babu Rao, AIR 1988 SC 1048 and it was held, "A fortiorari the recommendations made by the Council, or the Regulations framed by it are only recommendatory and not mandatory. It is not for the Council to prescribe qualifications for recruitment to posts of professors, Readers and Lecturers. It can only lay down broad guidelines therefor. Such qualifications have necessarily to be prescribed by the framing of Rules under the proviso to Art. 309". From the above decisions it is clear that the Medical Council can prescribe only minimum standards of medical education and standards of profession, it cannot prescribe qualifications for appointment. Such qualifications are to be prescribed by the Government by rules under Article ?309 of the Constitution which has been done in the State of Bihar. While the criteria of appointment laid down in 1977 vide Annexure A to the counter affidavit was under a government resolution, the 1997 Rules have been framed under proviso to Article 309 of the Constitution. 11. In Ajay Kumar Singh V/s. State of Bihar (1994) 4 SCC 401 , the nature & effect of Medical Council Regulations again came up for consideration, though in a different context. The Medical Council had issued guidelines as per which the seats in the post graduate medical course were not to be reserved for members of the reserve categories and admissions were to be made on the basis of merit and merit alone. The Government of Bihar by an executive order reserved seats for SC/ST/OBCs etc. Upholding the action of the State the Court observed, "Regulation of admission of students subject to postgraduate medical courses falls outside the purview of Entry 66 List I, which means that it continues to inhere in Entry 25 of List III. While Regulation of admission to these medical courses may be incidental to the power under Entry 66 List I, it is integral to the power contained in Entry 25 List III. The State which has established and is maintaining these institutions out of public funds must be held to possess the power to regulate the admission policy consistent with Article 14 except to the extent provided for by Entries 63 to 66 of List I. Such power is an integral component of the power to maintain and administer these institutions." 12. The State which has established and is maintaining these institutions out of public funds must be held to possess the power to regulate the admission policy consistent with Article 14 except to the extent provided for by Entries 63 to 66 of List I. Such power is an integral component of the power to maintain and administer these institutions." 12. In the above premises, contention of the counsel for the petitioners that the question of eligibility of the petitioners should be decided with reference to the prescription of the medical Council cannot be accepted. 13. It was submitted that having allowed the petitioners to remain on the post of Tutor all these years, for different periods, they should not be disturbed. Reliance was placed on Miss Shainda Hasan V/s. State of Utter Pradesh, AIR 1990 SC 1381 , and Dr. M.S. Mudhol V/s. S.D. Halegkar, (1993) 3 SCC 591 . The forrner case related to appointment of teacher after relaxing the qualification and experience. The Supreme Court held, in the facts of the case, that relaxation was unjustified in absence of statutory rules and any provision to that effect in the advertisement. However, as the selectee had remained in job for 16 years, a direction was. issued to the Vice-Chancellor to grant necessary approval to her appointment with effect from the date she was holding the post. The latter case too related to appointment. The person concerned did not possess the requisite qualification,and despite the fact that he had disclosed the qualification the Selection Committe wrongly selected him and the Director of Education approved his appointment,and thereby he continued on the post for nine years till filing of the petition and 12 years in all. On equitable considerations the Court did not upset his appointment. 14. It would appear that the cases referred to above were cases of indvidual hardship which was likely to occur if their selection/appointment were to be cancelled. No such hardship is likely to occur in the case of the petitioners on their repatria tion. They will get equivalent post in the Bihar Health Service and the same pay etc. Their seniority will also remain in Therefore, it cannot be said that their repatriation will cause them any loss or prejudice on any court. No such hardship is likely to occur in the case of the petitioners on their repatria tion. They will get equivalent post in the Bihar Health Service and the same pay etc. Their seniority will also remain in Therefore, it cannot be said that their repatriation will cause them any loss or prejudice on any court. On the other hand, continuance on the post would not be in the larger interest of the medical teaching Admittedly they do not possess postgrdu ate qualification and therefore, they can not be promoted on the post of Assistant professor or above. They will remain on the post of Tutor and retire as such. If a person is to remain on the same post, throughout his service career, he is likely to loose the interest and incentive and therefore even though the petitioners have volunteered to remain on the post of tutor during the years to come, I do not think, allowing this indulgence will be in the interest of the service or medical teaching. 15. Counsel for the State highlighted that the petitioners failed to obtain the postgraduate qualification within the stipulated five years of their appointment in terms of paragraph 5 of the resolution, memo no. 861 (1) dated 23.3.77. They have in fact, remained in their respective department for more than 10 years-some of them even 20/25 years without obtaining P.G. degree which they could have obtained in the meantime. On behalf of the petitioners it was submitted that they could have been transferred to non-teaching posts earlier. The submission does not impress me at all. It is true, strictly speaking, that in terms of said memo, if they did not acquire the requisite qualification, the petitioners could have been repatriated earlier, but if this was not done and action has now been taken, it is on account of coming into force of the 1997 Rules and therefore, the State Government cannot be accused of consciously or negligently allowed them to remain on the post of Tutor. In any view their continuance did not create any right to hold the post. 16. In CWJC No. 11445/2002 it was submitted that the petitioner was appointed in a Private Medical College on the post of Tutor and therefore his service condition could not be altered. The submission has been noticed to be summarily rejected. In any view their continuance did not create any right to hold the post. 16. In CWJC No. 11445/2002 it was submitted that the petitioner was appointed in a Private Medical College on the post of Tutor and therefore his service condition could not be altered. The submission has been noticed to be summarily rejected. In terms of the provisions of Section 6 of the Bihar Private Medical Colleges (Take Over) Act, 1978, his services were taken over on ad hoc basis subject to decision of the State Government under Sub-Sections (3) & (4). In the words of the Supreme Court, in State of Bihar V/s. Dr. Yogandra Singh, AIR 1982 SC 882 , his status under the State Government was precarious. 17. All said and done, it appears that the threat which has impelled the petitioners to approach this Court is the possibility of their being transferred/posted at remote places. Having remained in medical colleges they would find postings in Blocks etc. difficult and inconvenient. Accordingly I would observe that while posting the petitioners the State Government should give due consideration to their experience gathered during their tenure as Tutor. If it is possible, and it does not affect the rights of others, they may be considered for their posting in a Medical College. 18. In some cases, like CWJC No. 12302/2002 and CWJC No. 11533/2001, individual grievance of the petitioners were brought to the notice of the Court. I would permit the concerned petitioners to make representation in respect of their grievance. This Court has confined itself to the validity of petitioners repatriation and their claim to continue on the post of Tutor in the Medical College(s). 19. In the result, the petitioners are dismissed but with the observations made hereinabove.