ORDER Writ petition by a person who is working as Lecturer in Department of Medical Oncology in the first respondent-Kidwai Memorial Institute Bangalore, complaining that she has been discriminated by her employer in the matter of according promotion to the post of Associate Professor in the subject of Medical Oncology. The petitioner is aggrieved by the issue of Office Memorandum dated 26-9-2002 (copy at Annexure-F to the writ petition), issued by the first respondent, according promotion to as many as 17 persons to different posts of Professor and Associate Professors insofar as it relates to the promotion given to Dr. K. Govinda Babu, figuring at S1. No. 13 of the list annexed to this office memorandum and impleaded as third respondent to this writ petition and also the promotion accorded to Dr. D. Lokanath, figuring at S1. No. 14 of the list and impleaded as second respondent to this wit petition, promoting them to the post of Associate Professors of Medical Oncology. 2. Petitioner has complained that she is also a lecturer in the department of Medical Oncology, although she is in the sub-department of paediatrics, but nevertheless a lecturer in Medical Oncology with particular focus in paediatrics; that she is an eligible candidate and also claiming to be senior to the second and third respondents, who have been promoted, but has been denied promotion, which is an action not sustainable in law and a discriminatory act on the part of the first respondent, which is state within the meaning of Article 12 of the Constitution of India, and therefore the impugned official memorandum insofar as it relates to according promotion to second and third respondents requires to be quashed and suitable directions issued to the first respondent to promote the petitioner from the date on which second and third respondents were promoted and to accord her consequential benefits, as according to the petitioner, these respondents are juniors to her. 3. Writ petition having been admitted and the respondents having been notified, the respondents have entered appearance. First respondent-institute is represented by its Counsel M/s. V.A. Mohan Rangam, Gajendra Vasu K. and Narendranath; second respondent is represented by his Counsel Sri K.K. Vasanth; Sri Pramod N. Kathavi is representing the third respondent and the fourth respondent is represented by Sri N. Khetty. 4. All the respondents have filed their statements of objections. First respondent-institute is represented by its Counsel M/s. V.A. Mohan Rangam, Gajendra Vasu K. and Narendranath; second respondent is represented by his Counsel Sri K.K. Vasanth; Sri Pramod N. Kathavi is representing the third respondent and the fourth respondent is represented by Sri N. Khetty. 4. All the respondents have filed their statements of objections. In the statement of objections filed on behalf of the first respondent-institute what is essentially contended is that there is no occasion to consider the case of the petitioner for promotion, as the petitioner had not equipped herself with the requisite qualifications for appointment to the post of Associate Professor of Medical Oncology; that a person aspiring for this post necessarily should have the super speciality qualification i.e., Doctor of Medicine CUM) (Medical Oncology) as a prerequisite; that the petitioner having not possessed this super speciality qualification of DM (Medical Oncology), her case could not be considered along with respondents 2 and 3, who admittedly possess this qualification and therefore the action of the institute in terms of the official memorandum questioned in this writ petition even with, regard to the promotion accorded to the respondents 2 and 3 is valid, sustainable and the petitioner has no case for alleging acting of discrimination against the first respondent; that the writ petition is without merit and is liable to be dismissed. 5. It is also urged that the requisite qualification for a teaching post such as post of Associate Professor of Medical Oncology as prescribed by the Regulations of Medical Council of India (MCI) known as Medical Council of India (Minimum Qualifications for Teachers in Medical Institutions) Regulations, 1998 (for short, 'the Regulations') is that a person who possesses the super speciality qualification in the particular subject; that the subject being Medical Oncology, a Doctor of Medicine in Medical Oncology and this is obvious on a perusal of the Regulations and therefore the institute could not consider the case of the petitioner for promotion along with respondents 2 and 4, who did possess this qualification; that the question of considering the case of the petitioner and according her promotion etc., did not arise and has prayed for dismissal of the writ petition. 6. 6. In his statement of objections, the second respondent, apart from reiterating the contentions urged on behalf of the first respondent also contended that certain allegations/averments in the writ petition made against this respondent is not tenable; that the petitioner who was no doubt working in the department of Medical Oncology, had nevertheless branched off the department to the department of paediatrics and she has to take her chance for promotion within the said department; that a person who is senior to the petitioner had recently been promoted to the post of Associate Professor of Paediatrics; that the petitioner if at all had to wait for her term for promotion as and when there are openings of the post of Associate Professor of Paediatrics in the department of Paediatrics; that she cannot turn back and claim or seek for promotion to the post of Associate Professor of Medical Oncology in the general stream of the department of Medical Oncology; that the answering respondent having been promoted in respect of the vacancy to the post of Associate Professor of Medical Oncology in the general department of Medical Oncology, the promotion accorded to the second respondent while is in order, the petitioner would not have even aspire for being promoted to the post in the department of Oncology (general) and therefore there is no merit in the claim of the petitioner and that the writ petition deserves to be dismissed. 7. The third respondent in his statement of objections, besides reiterating the stand taken on behalf of the first respondent as also the second respondent in respect of her qualification and branching off to the sub-department, this respondent has further joined issue on the claim of the petitioner that this respondent is not eligible at all for promotion not being a lecturer in the department; that the initial appointment of this respondent is quite proper and it is totally denial and asserted that the appointment was not in order and it is all contended that the petitioner may claim seniority over the answering respondent, but that by itself cannot fetch her appointment to the post of Associate Professor of Medical Oncology, which is though a promotion is one of selection also and therefore mere seniority does not, automatically get a person to the post of Associate Professor. 8. 8. In the light of the controversy raised with regard to the eligibility criterion for teaching post, in terms of the Regulations, and as it was asserted by the learned Counsel for the petitioner that even in terms of the Regulations, the petitioner possesses the requisite qualification viz., post-graduate qualification in paediatrics and two years' specialise training in the subject of Medical Oncology, she is a person qualified for appointment to any teaching post, whereas, the understanding of the respondents 1 to 3 on the very regulations was that the qualification of Doctor of Medicine in Medical Oncology is an indispensable qualification, without which a person cannot be appointed to a teaching post at all the notwithstanding the Notes 3 and 4 in the Schedule II t the Regulations, which read as under: "3. In the case of qualification in higher specialities (M.Ch. D.M.), the holder should have also obtained MD (General Medicine) or M.S. (Surgery) or an equivalent qualification as prescribed by the Council in its recommendations on Post-graduate Medical Education. This requirement may be relaxed in suitable cases in cases of candidates who have obtained M.Ch./D.M. after a direct 5 years course, which are recognised by the Council. 4. After 31st May, 1977, for all teaching appointments to posts higher than tutor in higher specialities i.e., Cardiology, Neurology, Thoracic-surgery, Neuro-surgery, Plastic-surgery, Paediatric-surgery, Urology, the candidates must possess post-graduate degree qualifications in the specialty concerned i.e., D.M.M. Ch. approved by the Council from time to time. Where teachers with D.M./M. Ch. qualifications are not available in respect of the Courses which have not yet been started, matter regarding relaxation of qualification and experience of post-graduate teachers may be taken up with the Medical Council of India". approved by the Council from time to time. Where teachers with D.M./M. Ch. qualifications are not available in respect of the Courses which have not yet been started, matter regarding relaxation of qualification and experience of post-graduate teachers may be taken up with the Medical Council of India". read at divergent by the petitioner and the interpretation as claimed by her and the respondents to the contrary, it was thought desirable to implead the Medical Council of India also as a party respondent and to seek clarification of the meaning of the prescribed qualifications in terms of the Regulations, the prescribed qualifications for the posts of Professor/Reader/Associate Professor etc., a indicated in the Regulation itself, which reads as under: "Requirement of Academic Qualifications Teaching and Research Experience Post Academic qualifications Teaching/research exoerience (A) Professor D.M. (Medical Oncology) (i) As Reader/Associate M.D. (Medicine) Or Professor in Medical M.D. (Radiotherapy) Or Oncology for four years in M.D. (Paediatrics) with 2 a recognised medical years special training in college/teaching institution Medical Oncology Desirable: (ii) Minimum of four Research publications indexed in index medicus/national journal and one in international journal (B) Reader/ - do- (i) As Assistant Associate Professor/Lecturer in Professor Medical Oncology for two years in a recognised medical college/teaching institution Desirable: (ii) Minimum of four Research publications indexed in Index Medicus/national journal (C) Assistant - do- (i) Requisite recognised Professor/ specialisation qualification Lecturer in the subject (ii) Three years teaching experience in Medical Oncology in a recognised Medical College as Resident/Registrar/ Demonstrator/Tutor (D) Tutor/ M.B.B.S." Residential Registrar/ Demonstrator 9. In the clarificatory statement filed on behalf of the MCI, it is indicated that the necessary qualification for the appointment as Associated Professor in Medical Oncology is either DM (Medical Oncology) or MD (Medicine) or MD (Radiotherapy) or MD (Paediatrics) coupled with two years' special training in Medical Oncology; that any person who possesses either of these qualifications is a person qualified to be appointed to a teaching post. 10. I have heard Sri N. Khetty, learned Counsel for the MCI also. 11. 10. I have heard Sri N. Khetty, learned Counsel for the MCI also. 11. While Sri Venkatachalaiah, learned Counsel for the petitioner made elaborate submissions on the stand of the petitioner that keeping out the petitioner from being considered for promotion to the post of Associate Professor of Medical Oncology is an act of gross discrimination and that submission is supplemented by Sri B.B. Bajentri, who has appeared later on for the petitioner, the learned Counsel for the respondents 1 to 3 have steadfastly contended that the petitioner does not possess the basic essential qualification of DM (Medical Oncology) and therefore no further question arises if the petitioner's case is not considered. 12. It is urged on behalf of the respondents 2 and 3 that the petitioner having opted to part way by joining Paediatrics sub-department in Medical Oncology even in the year 1992 and the post of Associate Professor in the Department of Paediatrics branch of the department was also being, available and in fact under the very official memorandum one such post having been filled up by appointing a person who was senior to the petitioner in the Paediatrics wing and therefore it is no more open to the petitioner to turn around and seek to join the main stream and aspire for promotion to the post available in the general department of Medical Oncology. 13. Submission of Sri K.K. Vasanth and Sri Pramod N. Kathavi, learned Counsels for the respondents 2 and 3, is that when these respondents cannot get into the post of Associate Professor in the branch of Paediatrics department, converse should also hold good and therefore the petitioner who was already in the Paediatrics department of the Medical Oncology cannot seek to change the course and come and join the mainstream of Medical Oncology and aspire for the promotion to the post available in the main department of Medical Oncology. 14. 14. One another contention urged is that even assuming for argument's sake that the qualifications of DM (Medical Oncology) is not must and alternative qualification of post-graduate qualification in one of the three branches namely medicine, radiotherapy or paediatrics with two years special training in Medical Oncology can be taken to be as a fulfilling qualifications for appointment to the post of Associate Professor of Medical Oncology, unless the petitioner is able to demonstrate that she has undergone two years' specialised training in Medical Oncology, she does not become eligible and the petitioner having not done so before this Court, even otherwise her case does not merit consideration for the purpose of interference with the appointment made under the impugned official memorandum. 15. Yet another contention urged on behalf of these respondents is that the petitioner has approached the Court after lapse of more than one year from the date of promotion accorded to the respondents 2 and 3 and therefore the petition deserves' to be dismissed. It is also submitted that these respondents having worked as Associate Professor of Medical Oncology for the past about four years, there is no need for disturbing their position at this point of time and if the petitioner could be accommodated it can be done otherwise also and even if it becomes necessary for a fresh selection and appointment, it an be done while retaining the present position of the respondents 2 and 3 and the promotion can be given only after the selection is made. 16. One further submission made on behalf of the second respondent is that the second respondent being the senior as between the respondents 2 and 3, if it were necessary to accommodate the petitioner, as she requires only one post, it is not necessary both the promotions to be disturbed but only one person need to be disturbed so that the post is available for consideration. 17. I have given my anxious consideration to the submissions at Bar. A perusal of the requisite qualification even de hors' the clarification given by the MCI, clearly indicates that the qualification is one in the alternative i.e., a person who possesses either DM (Medical Oncology) or MD (Medicine), MD (Radiotherapy) or MD (Paediatrics) with two years special training in Medical Oncology. A perusal of the requisite qualification even de hors' the clarification given by the MCI, clearly indicates that the qualification is one in the alternative i.e., a person who possesses either DM (Medical Oncology) or MD (Medicine), MD (Radiotherapy) or MD (Paediatrics) with two years special training in Medical Oncology. If the petitioner has the alternative qualification of MD (Paediatrics) with' two years' special training in Medical Oncology, there is no way of keeping her out of the zone of consideration. I say so because on perusal of the Cadre and Recruitment Rules of the institute, it is obvious that the post of Associate Professor while is by promotion is also one by selection, the candidates to be considered for selection are lecturers in the department. Lecturer in the department means in the department of Medical Oncology. The post is one available for appointment as Associate Professor of Medical Oncology and if so, the word 'department' can only mean the department Medical Oncology. It may so happen that in the department of Medical Oncology, there may be a further division of paediatrics - a sub-division - but even the sub-division of paediatrics is in the main department of Medical Oncology and therefore in terms of the Cadre and Recruitment Rules, the zone of consideration necessarily includes all those persons who were working as lecturers in the department of Medical Oncology, whether in the' sub-branch of paediatrics or any other branch for that matter. 18. It is not in dispute that the petitioner is part of department of Medical Oncology, but is in the sub-branch of paediatrics. But it does not take her out of the department of Medical Oncology. It is for this reason I am not inclined to accept the contentions on behalf of the respondents 2 and 3 that the petitioner's case cannot be considered or that the petitioner is not entitled to seek consideration for promotion to the post of Associate Professor or Medical Oncology, when the vacancy has arisen in the general stream of the department of Medical Oncology. 19. 19. Also the contention that the petitioner having not made good her eligibility to be considered for promotion the post of Associate Professor of Medical Oncology, in the sense she has not established that she does possess two years' special training in Medical Oncology is concerned, it cannot be entertained or accepted by this Court at this point of time for the reason that I find that the qualification for appointment to the post of Professor/Reader/Associate Professor/Assistant Professor/Lecturer is one and the same viz., DM (Medical Oncology) or MD (Medicine) or MD (Radiotherapy) or MD (Paediatrics) with two years' special training in Medical Oncology. It is not in dispute that the petitioner had been appointed to the post of lecturer in the year 1992 by the very institute and at which point of time, unless she had possessed the qualification of MD (Paediatrics) with two years special training in Medical Oncology, she could not have been appointed as lecturer in the department of Medical Oncology. 20. Be that as it may, as the petitioner has been admittedly working as lecturer in the department of Medical Oncology for the past more than 14 years and it is also the claim of the petitioner that she is herself training candidates for special training in Medical Oncology working as lecturer in the very department, it is not necessary for this Court at this point of time to examine the contention that the petitioner lacks basic qualification of even MD (Paediatrics) coupled with two years' special training in Medical Oncology. Such a stand having not been taken by the institute itself, I do not think it proper to consider or examine such contention raised only on behalf of the respondents 2 and 3. It is for this reason I reject this submission. 21. Insofar as the submission that the petition is hit by delay and laches is concerned, I do not find it is of such undue delay as to throw out the petition only on the ground of lack of diligence or belated seeking of remedy before the Court. The official memorandum impugned itself was issued on 26-9-2002 and this petition was filed in the year 2003 which cannot be termed as a petition which is unduly delayed. I am of the definite view that the petition is not one which deserves to be thrown out on the ground of delay and laches. The official memorandum impugned itself was issued on 26-9-2002 and this petition was filed in the year 2003 which cannot be termed as a petition which is unduly delayed. I am of the definite view that the petition is not one which deserves to be thrown out on the ground of delay and laches. 22. If that is the legal position, if the petitioner was very much eligible for being considered for promotion to the post of Associate Professor of Medical Oncology, denying her such opportunity is clearly in violation of the right of the petitioner guaranteed under Articles 14 and 16 of the Constitution of India. Not considering the case of the petitioner is an act of discrimination and therefore the impugned official memorandum insofar as the selection of the respondents 2 and 3 and appointing them to the post of Associate Professor of Medical Oncology by promotion at the cost of the petitioner cannot be sustained, though the respondents 2 and 3 by themselves may not have any disqualification etc. But, the selection being from the common zone of eligible lecturers in the department, unless the petitioner's case was also considered, the selection becomes defective and at any rate as it violates the right of the petitioner, the selection cannot be sustained. 23. Though the learned Counsel for the second and third respondents have fervently attempted to impress upon the Court that their position in the post of Associate Professor of Medical Oncology should not be disturbed at this point of time, particularly as they have been working in the post for the past four years or more and if the appointment is quashed, the post will also become vacant and it will be detriment to the institution also, this is a matter where the institute has to fill in the gap by following the procedure as contemplated in law and take suitable measures. It is not necessary for this Court to save the position of the respondents 2 and 3 only for such purpose. When once the official memorandum is found to be not in order and on the other hand one giving room for an act which is not sustainable on testing the same on the touchstone of the constitutional provisions, the consequences should follow. 24. When once the official memorandum is found to be not in order and on the other hand one giving room for an act which is not sustainable on testing the same on the touchstone of the constitutional provisions, the consequences should follow. 24. In the result, this writ petition is allowed and impugned official memorandum vide Annexure-F to the writ petition, insofar as it relates to the promotion accorded to the respondents 2 and 3 are concerned, stands quashed. A mandamus is issued directing the first respondent to consider the case of the petitioner along with respondents 2 and 3 for the purpose of selecting suitable candidates for promotion to the post of Associate Professor of Medical Oncology in accordance with the regulations of the institute. It is also open to the institute to take such steps as are permitted in law to make such interim arrangements to man the posts that obviously become vacant on the quashing of the appointment of respondents 2 and 3, till the selection process is completed. The selection process should be completed as expeditiously as possible, at any rate, within an outer limit of three months from today. 25. Rule made absolute. In the circumstances, parties to bear their respective costs.