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2003 DIGILAW 529 (CAL)

SUDIP CHARAN CHAKRABORTY v. STATE OF WEST BENGAL

2003-10-30

ASOK KUMAR GANGULY, S.P.TALUKDAR

body2003
A. K. GANGULY, S. P. TALUKDAR ( 1 ) THIS application has been filed challenging the judgment and order dated 18. 12. 2001 passed by the West Bengal administrative Tribunal in O. A. No. 3879 of 1999. ( 2 ) BY the impugned judgment and order, the Tribunal allowed part of the application by setting aside the appointment of one Dr. Dilip Karmakar on the basis of a finding that the promotion of Karmakar to the post of professor, was not tenable. At the same time, the Tribunal found that the prayer of the applicant, the petitioner before us, for appointment to the post of Professor is equally not tenable. As such, the Tribunal felt that the said post of Professor is to be filled up strictly in accordance with the rules and Regulation of M. C. I. and liberty was given to the respondent to fill up the said post strictly in accordance with the provisions of Schedule to the Indian Medical Council of India Act, 1956. ( 3 ) THE said judgment of the Tribunal was not challenged either by sri Karmakar or by the State. In other words, the State accepted that the post of Professor has to be filled up in accordance with the Rules and regulations of M. C. I. The facts which have been noted in the judgment of the Tribunal have also been mostly argued before us. But, there have been certain subsequent events to which the attention of this Court has been drawn. The material facts of the case are as follows : ( 4 ) THE petitioner, after obtaining the degree of M. B. B. S. from the calcutta University in 1975, and completing Master in General Surgery from the Calcutta University in the year 1979, joined the West Bengal health Services (hereinafter referred to as the said service) as a Medical officer on 5. 2. 1982. Thereafter, the petitioner joined R. G. Kar Medical college in Urology unit as a basic teacher under the designation of R. M. O.-cum-Clinical Tutor on 9th June, 1987. He worked in the post of R. M. O. Urology from 9. 6. 1987 to 11. 7. 1990. The petitioner, competing on All India basis, succeeded in the admission test and joined All India Institute of medical Sciences, New Delhi (hereinafter referred to as AIIMS) on 12. 7. 1990 for studying the course of M. Ch. He worked in the post of R. M. O. Urology from 9. 6. 1987 to 11. 7. 1990. The petitioner, competing on All India basis, succeeded in the admission test and joined All India Institute of medical Sciences, New Delhi (hereinafter referred to as AIIMS) on 12. 7. 1990 for studying the course of M. Ch. , Urology. The petitioners candidature was sponsored by Government of West Bengal. The petitioner duly completed his studies and obtained the degree in Urology from AIIMS. Thereafter, the petitioner joined the S. S. K. M. in the Department of Urology in July, 1992. ( 5 ) IT may be stated in this connection that by virtue of a notification issued under Sections 7 and 16 of West Bengal State Health Service Act, 1990 a Rule was framed, known as he West Bengal State Medical Education service (Cadre and Age of Recruitment) Rules, 1990. Under Rule 2 (a), the pattern of teaching hierarchy has been laid down. Under the said Rules, it appears that the Basic Teaching Post would include the post of Resident medical Officer-cum-Clinical Tutor. The next teaching post is the post of lecturer of different disciplines of different under graduate and postgraduate teaching institutions. Then comes the post of Assistant Professor. Then comes the post of Reader, then comes the post of Associate Professor and then the post of Professor. This is the hierarchy as provided under the relevant Rules. Priorto the said Rule there was also another Memorandum issued by the Government of West Bengal dated 1st July, 1987. Under the said Memorandum also the teaching hierarchy was almost the same as was prescribed under the Rules. Under 1987 Memorandum to teaching experience, for different posts, which has been provided, is as follows : b. "teaching Experience : i) At least two years of Basic Teaching experience acquired before or after obtaining (as the case may be) the appropriate postgraduate qualification in the disciplines concerned in broad specialities. For appointment in higher specialities, however, Basic teaching experience in the subject may not be compulsory. ii) Assistant Professor: total teaching experience of five years of which at least three years' experience shall be as Lecturer in case of broad speciality subjects and teaching experience of only three years as Lecturer in higher speciality subjects. iii) Reader: at least two years' teaching experience as Assistant Professor. ii) Assistant Professor: total teaching experience of five years of which at least three years' experience shall be as Lecturer in case of broad speciality subjects and teaching experience of only three years as Lecturer in higher speciality subjects. iii) Reader: at least two years' teaching experience as Assistant Professor. iv) Associate Professor: at least two years' teaching experinece as Reader. v) Professor : at least two years' teaching experience as Associate Processor. " ( 6 ) ON or about 8th July, 1992, the Secretary M. C. I. wrote a letter to the Registrar, Calcutta University regarding starting of M. Ch. , Urology degree course at the Institute of Post Graduate Medical Education and research (hereinafter called I. P. G. M. E. R, Calcutta) under the Calcutta university. In the said letter of M. C. I. it was mentioned that Calcutta university can allow the Authorities of IP. G. M. E. R. to start M. Ch. degree course under the Calcutta University by admitting not more than two students annually. It was also mentioned very clearly that students should be admitted only against recognised Post Graduate Tutors. As per M. C. I. Regulations there should be no increase of seat without the prior approval of M. C. I. ( 7 ) SINCE the petitioner claims that he has the requisite qualification viz. the degree of M. Ch. from AIMS which is recognised by M. C. I. he made an application on 29th June, 1995 to the Director of Medical Education department of Health and Family Welfare, Government of West Bengal, requesting the authority to consider his application and issue necessary government Orders for posting him to the post as Reader in Urology and in the said representation, the petitioner made it clear that he passed M. Ch. , urology, from AIIMS in March, 1992 and he had already joined the Urology department in S. S. K. M. in July, 1992. It was also mentioned that the petitioner was appointed Lecturer of Urology on 16. 7. 1993 in R. G. Kar medical College, but the petitioner was entitled to be posted as Assistant professor, Urology from 11. 5. 1992 upon completion of his degree of M. Ch. (Urology ). It was also mentioned that the petitioner was appointed Lecturer of Urology on 16. 7. 1993 in R. G. Kar medical College, but the petitioner was entitled to be posted as Assistant professor, Urology from 11. 5. 1992 upon completion of his degree of M. Ch. (Urology ). The petitioner also contended that the minimum qualification for appointment to the post of Assistant Professor is three years' teaching experience in Urology in a recognised Medical College and also a requisite recognised and specialised qualification in Urology. The petitioner further asserts that since he fulfils both the eligibilities, he is entitled to be posted as Assistant Professor in Urology on 11. 5. 1992. ( 8 ) THE grievances of the petitioner are that he was promoted to the post of Assistant Professor on and from 24. 5. 1995 and there was no justification for giving a delayed promotion. The petitioner contends that he is the only candidate having requisite qualification of M. Ch. , Urology, from AIMS. The petitioner made another representation on 29. 6. 1995. ( 9 ) THOUGH, the petitioner had to join the post of Lecturer in Urology on 16. 7. 1993 and he became an Assistant Professor as mentioned in 1995 above and ultimately joined the post of Reader on 1. 6. 99 on promotion, according to the petitioner, he had acquired the right to be promoted to the post of Reader from 11. 5. 1995. In support of the said assertion, the petitioner has referred to the Regulation published by the M. C. I. Under the said Regulation for appointment to the post of Reader/associate Professor in Urology the essential qualification is M. Ch. , Urology. The experience which is required is of two years experience as Assistant Professor in urology in any recognised teaching institution. So, according to the petitioner, since he has the degree of M. Ch. in Urology from AIMS in 1992, and he was continuing as Lecturer in Urology since 1992, he should have been promoted to the post of Reader/associate Professor of Urology in 1994 but the same has been denied to him. So, according to the petitioner, since he has the degree of M. Ch. in Urology from AIMS in 1992, and he was continuing as Lecturer in Urology since 1992, he should have been promoted to the post of Reader/associate Professor of Urology in 1994 but the same has been denied to him. The petitioner further states that even if he has not been promoted to the post of Reader in 1994, he should have been promoted to that post in 1997, inasmuch as he was given promotion to the post of Associate Professor in 1995 and therefore by 1997, he completed two years of a teaching experience. Therefore, denying him promotion to the post of Reader in 1997 according to the petitioner, is wholly illegal and the respondent, instead of promoting him to the said post of Reader in 1997, promoted him to the said post on 1. 6. 99. According to the petitioner he has been subjected to discrimination and unfairness for no reason whatsoever. The petitioner, therefore, urges that though he was promoted to the post of Associate Professor on 24. 5. 2001 and there is no reason for such delayed promotion. ( 10 ) THEREFORE, when the advertisement was published in the Ananda bazar Patrika by the Public Service Commission for giving appointment to the post of Professor in West Bengal Medical Education Service, the petitioner applied on 4. 2. 1999. But the authorities did not consider the petitioner's candidature for the post of Professor in Urology as he did not have the teaching experience. Therefore, the petitioner was not called in connection with the said appointment and the petitioner filed the application before the Tribunal. ( 11 ) THE Tribunal, in its order after noting the relevant facts has come to the conclusion that respondent No. 9, Dr. Dilip Karmakar, obtained the m. Ch. degree from Benaras University which is not recognised under the relevant Schedule to M. C. I. Regulation. The Tribunal also came to the conclusion that at the relevant point of time the petitioner did not have the requisite teaching experience of four years for the post of Professor and as such the Public Service Commission rightly did not call the petitioner for interview. But the fact that the respondent No. 9, Dr. Karmakar was recommended, was also not approved by the Tribunal. But the fact that the respondent No. 9, Dr. Karmakar was recommended, was also not approved by the Tribunal. The Tribunal considered the Recruitment Rules and under the said Rules, four years' experience in the concerned subject and discipline in the post of Reader or Associate Professor, is required. The Tribunal did not accept the argument of the learned Counsel forthe petitioner that as a result of delayed appointment made to his client he has suffered and if the appellant had been promoted in time then he would have got the requisite experience. The Tribunal came to the conclusion that the petitioner accepted the post of Lecturer without any reservation. As such, the Tribunal found that his application is hit by Section 21 of the Administrative Tribunals Act. ( 12 ) THE Tribunal came to the conclusion that when properly qualified candidates are not available, the Public Service Commission could send the matter back to the M. C. I. for relaxation of qualification. But the same was not done. The Tribunal rejected the argument made on behalf of the counsel for the State that the M. C. I. Regulations are not mandatory. The tribunal found that the Regulation of M. C. I. is not to be regarded as merely guideline but its observance is necessary to control the entire infrastructure and administration of Health Department. The Tribunal also criticised the action of the State which took refuge under the plea that it accepted the recommendation by the Public Service Commission. The Tribunal came to the conclusion that there should not be any concession in the matter of selection in a vital post and observed, and in our view rightly, that a compromise in the matter of appointment to such a post amounts to a compromise over the healthcare of millions of people. Therefore, the tribunal ultimately came to the conclusion that the appointment of respondent No. 9, Dr. Dilip Karmakar in the post of Professor cannot be sustained and the Tribunal directed the filling up of the post strictly as per the Regulation of M. C. I. as mentioned above. ( 13 ) NOW so far as the question relating to the petitioner's prayer for ante-dating his promotions is concerned, this Court is of the view that such prayer cannot be entertained by this Court and the Tribunal came to the correct conclusion by not accepting the prayer. ( 13 ) NOW so far as the question relating to the petitioner's prayer for ante-dating his promotions is concerned, this Court is of the view that such prayer cannot be entertained by this Court and the Tribunal came to the correct conclusion by not accepting the prayer. The petitioner wants that his promotion to the post of Professor should be ante-dated with effect from 1998 and his claim to be promotion to the post of Associate Professor be ante-dated with effect from 1996 and that of Reader with effect from 1994. This Court finds that apart from making representation, the petitioner did not raise any objection about his delayed promotion and the petitioner accepted those promotions without any demur. The petitioner came to court only in 1999 when his candidature for the post of Professor was not accepted by Public Service Commission. From the said advertisement which was issued by the Public Service Commission, West Bengal it is clear that the Public Service Commission wanted application in the post of Professor and in various disciplines and the petitioner was interested in the discipline of Urosurgery. For the said post the essential qualification which was required was Posf Graduate degree in the discipline in question as well as four years' experience in the concerned subject/discipline as reader/associate Professor in a recognised medical institution. In 1999 the petitioner did not have four years' teaching experience in the concerned discipline as Reader/associate Professor inasmuch as, the petitioner was promoted to the Assistant Professor in 1995 and the petitioner became reader on 1. 6. 1999. ( 14 ) IN the background of these facts the finding of the learned Tribunal that the petitioner's prayer for ante-dating his promotion is barred by Section 21 of the Tribunal's Act, is a correct finding. ( 15 ) SO far as the appointment of respondent No. 10 is concerned, the Court has been addressed on that aspect of the matter both by the learned Counsel appearing for the State as also by the learned Counsel appearing for the respondent No. 10. One of the prayers made by the petitioner before the Tribunal was to consider the petitioner's case for appointment to the post of Professor in Urosurgery on the basis of the public Service Commission's advertisement dated 9th January,1999 at least on ad-hoc basis. One of the prayers made by the petitioner before the Tribunal was to consider the petitioner's case for appointment to the post of Professor in Urosurgery on the basis of the public Service Commission's advertisement dated 9th January,1999 at least on ad-hoc basis. The appointment of the respondent No. 10 to the post of Professor, according to the learned Counsel for the State, was not challenged by the petitioner before the Tribunal. This Court also does not find that there was any such challenge made before the Tribunal by the petitioner. But one thing is clear when the matter was pending before the tribunal, it was alleged by the petitioner that, an attempt was made by the respondents to make the respondent No. 10 Head of the Department of urosurgery and apprehending such an attempt an supplementary affidavit was filed by the petitioner with a prayer for restraining the State-respondents from giving such appointment. Apart from that in the rejoinder, which was filed before the Tribunal, the petitioner questioned the appointment of the respondent No. 10 also. ( 16 ) IN the supplementary affidavit which was filed before the Tribunal with the prayer for interim order, as aforesaid, it has been specifically stated in Paragraph 8 that the respondent Nos. 9 and 10 though elevated to the post of Professor, do not possess the requisite qualification as prescribed by M. C. I. regulations and a challenge has been thrown by the petitionerto such appointment which was awaiting decision by the Tribunal. In the said supplementary affidavit it has also been stated that an attempt has been made to appoint the respondent No. 10 as Head of the Department of Urosurgery, IPGMER, Calcutta and with that object he was transferred from Sushrut Nagar, Darjeeling. As such the interim prayer was made on the basis of the supplementary affidavit and the Tribunal, by an order dated 30th May, 2001 made it clear that any appointment or promotion to the impugned post shall abide by the result of the case. ( 17 ) IT may be noted that the Tribunal disposed of the petitioner's main application on 18. 12. 2001 and during that period respondent No. 10 was not appointed to the post of Head of the department of Urology, ipgmer. But soon thereafter, the appointment was made by the respondents by an order dated 4. 1. ( 17 ) IT may be noted that the Tribunal disposed of the petitioner's main application on 18. 12. 2001 and during that period respondent No. 10 was not appointed to the post of Head of the department of Urology, ipgmer. But soon thereafter, the appointment was made by the respondents by an order dated 4. 1. 2002 in favour of the respondent No. 10. By the said order, the respondent No. 10 was appointed to the post of Head of the department of Urology in terms of the Government's policy as mentioned in the order dated 26. 12. 2001. The petitioner has challenged the said appointment by filing a CAN being CANNo. 5983 of 2003 before this Court in connection with the present writ petition. ( 18 ) BOTH the learned Counsel for the State and also for the respondent no. 10 submitted that appointment of the respondent No. 10 to the post of head of the department was not a part of the lis in connection with which the petition was filed by the petitioner before the Hon'ble Tribunal. The same arises out of a separate cause of action. If the petitioner is aggrieved by the said order of appointment of the respondent No. 10 to the post of the Head of Department, he has to go again before the Tribunal and challenge the same afresh. Both the learned Counsel submitted that this court cannot entertain the said challenge being made for the first time before this Court in view of the Judgment of the Supreme Court in the case of L Chandra Kumar reported in 1997 (3) SCC 261 . ( 19 ) THIS Court is unable to accept this contention. ( 20 ) FROM the facts stated hereinabove it is clear that the impending appointment of the respondent No. 10 to the post of Head of the Department was challenged by the petitioner even before the Tribunal when his petition was pending before the Tribunal and on that petition Tribunal also passed an interim order making it clear that such appointment, if any, wilt abide by the result of the case. But since no appointment was made during the period when the matter was pending before the Tribunal, Tribunal while disposing of the matter finally, did not have any occasion to deal with the same. But since no appointment was made during the period when the matter was pending before the Tribunal, Tribunal while disposing of the matter finally, did not have any occasion to deal with the same. But immediately after the matter was disposed of by the Tribunal, the appointment was made. That does not mean that the petitioner will have to file another petition before the Tribunal if the petitioner wants to challenge the said appointment. In fact, the impending appointment of the respondent No. 10 is a part of the cause of action which was raised by the petitioner before the Tribunal. ( 21 ) IT would be unjust for this Court to take such a hyper technical view as has been advanced by the learned Counsel for the State and the respondent No. 10. This Court does not think that the ratio in L Chandra kumar (supra) compels the Court to take such a view. ( 22 ) IN L. Chandra Kumar (supra) the Constitution- Bench of the supreme Court, inter alia, held that Clauses 2 (d) of Article 323a and Clause 3 (d) of Article 323b which seek to oust the jurisdiction of High Court are unconstitutional. The Apex Court held that Articles 226/227 of-the constitution of India confers a power of ju'dicial review on the High Court and Article 32 does the same thing on Supreme Court. These provisions constitute the inviolable basic structure of the Constitution and this jurisdiction cannot be ousted. Therefore, the Apex Court held that the Writ court while exercising jurisdiction under Article 226 of the Constitution can review an order passed by the Tribunal. But in laying down the parameters of such review, the learned Judges held in L. Chandra Kumar thatthe litigants cannot by-pass the jurisdiction of the Tribunal and approach the High Court straight-way in respect of areas of law for which the Tribunal has been created. The precise observations in L. Chandra Kumar are :"we may add that the Tribunals will, however, continue to act as the only Courts of first instance in respect of the areas of law for which they have been constituted. The precise observations in L. Chandra Kumar are :"we may add that the Tribunals will, however, continue to act as the only Courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. " ( 23 ) IT is well known that the decision of a Court cannot be read as theorems of Euclid or as provisions of statute. But the decisions of the court are to be read in the background in which they have been rendered and must be read consistent with the ratio of the Judgment. The clear ratio in L. Chandra Kumar is that the jurisdiction of the High Court under Article 226 over the decision of the Tribunal is restored in all its amplitude and width. So the questions over which Tribunals have jurisdiction can also be raised before the High Court. ( 24 ) IF this Court follows the observations in L. Chandra Kumar, quoted above, in a literal and pedantic way, even then the submissions advanced by the learned Counsel forthe respondents cannot be entertained. In view of the ratio in L. Chandra Kumar, the Tribunals are Courts of first instance in respect of the areas of law for which they have been constituted. (Underlined for emphasis) ( 25 ) IN L. Chandra Kumar, the Apex Court did not, as obviously it could not, lay down that the Tribunal would be the Court of first instance in respect of all question of fact which were raised before it but on which it was not called upon to give any final decision. Therefore, if a question of fact was raised before the Tribunal, but on which the effective decision has been taken by the respondent after the disposal of the matter by the tribunal, this Court cannot refuse to examine the legality of such decision just because the Tribunal did not have the occasion to examine that question. Therefore, if a question of fact was raised before the Tribunal, but on which the effective decision has been taken by the respondent after the disposal of the matter by the tribunal, this Court cannot refuse to examine the legality of such decision just because the Tribunal did not have the occasion to examine that question. Refusal on the part of this Court to examine such question, relying on the ratio in L. Chandra Kumar, would be a misreading of its ratio apart from indulging in an unjust exercise of this Court's jurisdiction. ( 26 ) IN the instant case, the question relating to the appointment of the respondent No. 10 as Professor might not have been specifically raised before the Tribunal but the questions relating to his appointment to the post of the Head of the Department of IPGMER was specifically raised in his supplementary affidavit pointed out above, and on such questions being raised, the Tribunal passed an interim order. But the respondents, instead of passing the order of appointment of respondent No. 10 to the post of head of the Department during the pendency of the matter before the tribunal, passed the order immediately after the matter was disposed of by the Tribunal. By doing so the respondents cannot be allowed to render infructuous the challenge made by the petitioner before the Tribunal nor can the respondent be permitted to drive the petitioner to another time consuming litigation before the Tribunal. If the same is permitted to be done that would amount to multiplicity of proceedings which a Court exercising jurisdiction under Article 226 can always prevent for ends of justice. Reference in this connection may be made in the judgment of the division Bench of this Court in the case of AH Ahmed v. The State of West bengal, reported in AIR 1981 Calcutta 378. The Division Bench while deciding an appeal from a writ petition dealt with the question of Court's powerto look into subsequent event. A similar objection was raised before the Court that the Court cannot look into subsequent events. But the Court repelled that contention by making the following observation in Paragraph-18 at pages 386-387 of the report and which are extracted below :"the Court has the powerto take notice of subsequent events for the purpose of complete adjudication of disputes between the parties and for shortening litigation. But the Court repelled that contention by making the following observation in Paragraph-18 at pages 386-387 of the report and which are extracted below :"the Court has the powerto take notice of subsequent events for the purpose of complete adjudication of disputes between the parties and for shortening litigation. If we had not taken notice of the issuance of the notification, the parties would be driven to a further litigation. In our opinion, technicalities should not stand in the way of this Court in a proceeding under Article 226 of the Constitution in completely adjudicating the issue. In this connection, we may refer to an observation of the Supreme Court in Pasupuleti Venkateswarlu v. The Motor and General Traders, AIR 1975 SC 1409 . It has been observed that for making the right or remedy claimed by party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in may cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed. "therefore, this Court can, in this writ petition, entertain the challenge made to the order of appointment of respondent No. 10 as Head of the Department of Urology in IPGMER. ( 27 ) NOW coming to the question of legality, from the order itself it is clear that such appointment of Headship has been made pursuant to the government decision dated 26. 12. 2001. ( 28 ) THE learned Counsel for the petitioner has pointed out and in our view rightly, that the said Government order dated 26. 12. 2001 was previously quashed by the Tribunal in another O. A. filed at the instance of one Ajoy Kumar Gupta, a copy of the said judgment of the Tribunal in O. A. No. 56 of 2002 has been annexed with the CAN No. 5983 of 2003. This court has looked into the said judgment where the Tribunal specifically considered the legality of that notification dated 26. 12. 2001 and ultimately was pleased to quash the same holding the same to be arbitrary, unjust and unreasonable. This court has looked into the said judgment where the Tribunal specifically considered the legality of that notification dated 26. 12. 2001 and ultimately was pleased to quash the same holding the same to be arbitrary, unjust and unreasonable. ( 29 ) THE said decision of the Tribunal passed in O. A. No. 56 of 2002 (Ajoy Kumar Gupta v. The State of West Bengal) was challenged by the state of West Bengal by filing a writ petition before this Court and a Division bench of this Court after hearing the parties was pleased to uphold the same by its Judgment and Order dated 20. 5,2003. The said judgment has also been placed before this Court. ( 30 ) THEREFORE, the very basis on which the appointment was given to the respondent No. 10 to the post of Head of the Department of Urology in IPGMER is not legally sustainable inasmuch as the same has already been quashed. Apart from that the validity of the appointment of respondent no. 10 to the post of Professor on the basis of M. Ch. qualification from benaras Hindu University is highly doubtful, in fact, the Tribunal has found in its judgment dated 18. 12. 2002 out of which the present writ petition arises, that M. Ch. qualification from Benaras Hindu University is not recognised (see pages 8 to 11 of the judgment of the Tribunal ). The respondent No. 10 is claiming to be Professor on the basis of the same qualification from the same University viz. , Benaras Hindu University. ( 31 ) WHEN the matter was being argued before the Court, Mr. Dipankar dutta, the learned Counsel forthe State, wanted an adjournment from this court on the ground that he would request the Dean of the faculty of medicine of Calcutta University to ascertain whether the qualification of m. Ch. Obtained by the respondent No. 10 is recognised by the M. C. I. The court on the prayer of Mr. Dutta granted the time but ultimately Mr. Dutta could not enlighten the Court on that point when the matter was further taken up. In fact, the learned Counsel for the respondent No. 10 made a feeble attempt before this Court to show that such a degree is recognised by M. C. I. by producing some material from a web site. Dutta granted the time but ultimately Mr. Dutta could not enlighten the Court on that point when the matter was further taken up. In fact, the learned Counsel for the respondent No. 10 made a feeble attempt before this Court to show that such a degree is recognised by M. C. I. by producing some material from a web site. But it was clearthat the information given by the website cannot be relied upon forthe purpose of making or refraining from making any decision. Therefore no reliance can be placed by this Court on the material produced by the respondent no. 10 from the web site about recognition of the degree of M. Ch. obtained by the respondent No. 10. ( 32 ) THE Tribunal, while setting aside the appointment of the respondent No. 9 who never challenged the said order of the Tribunal, expressed its concern and made it clear that the State Government should not accept any qualification which has not been recognised by M. C. I. particularly in such super-speciality like Urosurgery. We also share the same concern and we also direct the State Government not to allow any person who does not have the proper qualification which is recognised by m. C. I. to continue as Professor of Urosurgery in the Department of Urology. ( 33 ) FOR the reasons aforesaid, we set aside the appointment of headship made in favour of the respondent No. 10. He cannot continue as head of the department in Urology in IPGMER as nothing has been shown to prove the qualification obtained by him has been recognised by M. C. I. and also because of the fact that the Government Order dated 26. 12. 01 which has already been quashed by this Court. He must step down from the post of the Head of Department of Urology in IPGMER forthwith. So far as the appointment of the respondent No. 10 to the post of Professor of urosurgery in the Department of Urology is concerned, he must produce relevant material before the Principal Secretary, Department of Health and Family Welfare, Government of West Bengal definitely within 15 days from today to show that the degree of M. Ch. So far as the appointment of the respondent No. 10 to the post of Professor of urosurgery in the Department of Urology is concerned, he must produce relevant material before the Principal Secretary, Department of Health and Family Welfare, Government of West Bengal definitely within 15 days from today to show that the degree of M. Ch. obtained by him from Benaras hindu University is a recognised degree by M. C. I. If he fails to show it to the satisfaction of the Principal Secretary that the same is not a recognised degree, the Principal Secretary will immediately pass an order to remove him from the post of Professor. This direction is peremptory in nature and this direction is given in the interest of improving the fastly deteriorating standards in hospitals in this State and also in teaching institutions. This court expects that the Principal Secretary will accept this direction in the right spirit. ( 34 ) SO far as the petitioner is concerned, he has already been appointed to the post of Professor for a period of one year by a notification dated 2nd June, 2003. This Court, having regard to the facts of the case and also having regard to the further fact that the petitioner has obtained a properly recognised qualification of M. Ch. , directs that the petitioner's appointment as professor should continue on a regular basis till any decision is taken to the contrary by the appropriate authority pursuant to the advertisement No. 2 of 2002 issued by the Public Service Commission, west Bengal. This Court is aware that the petitioner has applied pursuant to such advertisement but this Court makes it clear that in view of the petitioner's recognised qualification he is entitled to continue in the post of professor on a regular basis with all the facilities attached to such post unless any adverse decision is taken about his appointment io the said post pursuant to the aforesaid advertisement. ( 35 ) WITH this direction the writ petition is allowed to the extent indicated above. There will be no order as to costs. Talukdar, J. : I agree. Later Prayer for stay on behalf of the Respondent No. 10 is considered and rejected. Urgent xerox certified copy, if applied for, be given early. Ganguly, J. Talukdar, J. S. K. G.