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2008 DIGILAW 161 (JK)

Wajid Ali (Dr. ) v. State Of J. &K.

2008-05-03

HAKIM IMTIYAZ HUSSAIN

body2008
SWP No. 143 of 2008 1. Petitioner Dr. Wajid Ali is substantively holding the post of Additional Professor, Neonatology in the SKIMS, Srinagar (the Institute). One post of Professor in the department of Neonatology, alongwith posts in other disciplines has been advertised by the Institute vide advertisement notices no. 2 of 2006 dated 31.5.2006 and no. 2 of 2007 dated 6.10.2007. The petitioner also applied. He was asked to remain present before the Apical Selection Committee on December 27, 2007 for a decision in the matter of his candidature for the post. 2. Petitioner is aggrieved that the respondents have not found him eligible for the post as such he has not been interviewed. He has through the medium of the present petition prayed for a writ of mandamus directing the respondents to convene meeting of the Apical Selection Committee, interview and consider him and appoint him on the post. 3. The respondents have filed their reply stating therein that the qualification prescribed for the post(s) is post-graduate qualification e.g. MD/MS, as recognised by the Medical Council of India. It is stated that the petitioner was awarded Degree of MD (Paediatrics) by Kashmir University through Govt. Medical College Srinagar. He applied in response to the advertisement notice no. 2 of 2006 dated 31.5.2006 read with notice no. 2 of 2007 dated 6.10.2007. The screening committee of the Institute which screened applications for Faculty position in various disciplines observed that MD (Paediatrics) awarded to the petitioner is not recognized by Medical Council of India. Accordingly he was advised to submit recognition certificate within a weeks time failing which it will be presumed that his Degree is not recognized by the Medical Council of India. Petitioner did not respond, however, he was still advised to be available on December 27, 2007 at the venue of the interview for a decision in the matter of his candidature for the post. Heard, I have considered the matter. 4. The only issue involved in the present petition is whether the petitioner is eligible for the post as his Degree of MD (Paediatrics) has been issued by the Kashmir University through Govt. Medical College, Srinagar. 5. Learned counsel for the petitioner would submit that the petitioner was eligible under the rules for the post as such he had applied but the respondents have wrongly denied consideration to him and have refused to interview him. Medical College, Srinagar. 5. Learned counsel for the petitioner would submit that the petitioner was eligible under the rules for the post as such he had applied but the respondents have wrongly denied consideration to him and have refused to interview him. In this behalf he has relied on a judgment of this Court in Dr. Khalid Mohi-ud-din v. State (SWP NO. 930/05) decided on 2.2.2006. 6. Annexures placed on file, which are not disputed by the respondents, would show that MD (Paediatrics) was started in the Government Medical College, Srinagar in the year 1977 with the permission of Kashmir University and the first batch of students were examined in the year 1979. The course was started after the department was inspected by the MCI Inspector in 1975-76. The inspection team was headed by Professor S. S. Manchanda from Amritsar in 1975- 76 who submitted his report to MCI and the college was allowed to start MD Paediatrics. Kashmir University has recognised the course. 7. Communication No. MCI-70(22)/ 2003-Med/18270 dated 25.9.2003 addressed by the Secretary, Medical Council of India to Dr. S.K. Mittal, HOD of paediatrics, Maulana Azad Medical College, New Delhi would show that the issue of recognition of MD (Paediatrics), Govt. Medical College, Srinagar was under the active consideration of the Medical Council of India and the said HOD was appointed to conduct inspection of the college. 8. That the course had been recognized by the University of Kashmir is not even denied by the respondents. Admittedly the Degree of MD (Paediatrics) has been awarded to the petitioner by the University. 9. The case is squarely covered by Dr. Khalid Mohi-ud-Dins case (supra) where almost a similar issue was involved. In that case the Institute had started the MD course which was not recognised by the Medical Council of India but was duly recognised by the State. The Court held that since the State had recognised the Degree, objection to the validity of such Degree cannot sustain. This Court observed: - "On going through the pleadings and on considering the arguments raised I find the present petition cannot sustain on a short point. Admittedly the SKIMS has started the MD course with the permission of the Medical Council of India. This Court observed: - "On going through the pleadings and on considering the arguments raised I find the present petition cannot sustain on a short point. Admittedly the SKIMS has started the MD course with the permission of the Medical Council of India. It is however, not disputed that the Medical Council of India has not recognized the degree of DM of the SKIMS so far but that in my view cannot affect the eligibility of respondents 3 & 4 for their appointment by the Institute itself. 10. The Court while arriving at such a conclusion relied on a Supreme Court judgment in Arun Kumar Agerwal v. State, AIR 1991 SC 1514, where the Apex Court held as under: - "The controversy has been raised before us that the M.Ch. degree course in neurosurgery awarded by Rajendra Medical College, Ranchi University is not yet recognized for the purposes of Indian Medical Council Act, 1956 and a letter of Medical Council of India dated 27.2.1991 has been placed on record in this regard. Learned counsel for the respondent No.5 has tried to contend that M. Ch. degree obtained by the appellant was of no value as the same has not been recognized so far by the Medical Council of India. We find no force in this contention, as this course was started by the Ranchi University in 1980 with the consent of Medical Council of India and the State of Bihar has recognized such degree imparted by the Ranchi University and even before this Court learned counsel appearing for the State of Bihar has admitted this position. We are not concerned in this case about the value of such degree for places outside State, of Bihar, but so far as the present case is concerned which relates to the post of Assistant Professor in Patna Medical College and Hospital, Patna which post is under the Bihar Government, no such objection can be maintained by the respondent No.5." 11. It is frankly conceded by Mr. Magray that the judgment has attained finality as the respondents have not gone in appeal against the said judgment. He has stated that under the judgment the Degree awarded to a candidate by a college affiliated to the Kashmir University is a valid Degree under the provisions of various Acts applicable in the field in the State. Magray that the judgment has attained finality as the respondents have not gone in appeal against the said judgment. He has stated that under the judgment the Degree awarded to a candidate by a college affiliated to the Kashmir University is a valid Degree under the provisions of various Acts applicable in the field in the State. He, however, states that the judgment was not made applicable to the petitioner as the said case pertains to SKIMS and the candidates in the said case had undergone MD course started by the Institute. Since the present matter pertains to Govt. Medical College, Srinagar the petitioner was not given benefit of the judgment. 12. On consideration of the contentions made I find that this will not make any difference. The petitioner has been awarded degree in Paediatrics by the Kashmir University and in view of the law laid down by the Apex Court in Arun Kumar Agerwals case (Supra) I find the present case is also covered by the said judgment as such the benefit of the judgment can be extended to the petitioner also. 13. In these circumstances I find the respondents have wrongly decided not to interview the petitioner. This petition is allowed. Respondents are directed to convene meeting of the Apical Selection Committee for conducting interview of the petitioner and consider the candidature of the petitioner for the post of Professor in the discipline of Neonatology in accordance with the rules. Let the consideration be accorded within a period of four weeks from the date this order is served on the respondents. SWP No. 19/08 14. The petitioner is substantively holding the post of Additional Professor in the discipline of Neonatology in the SKIMS. He also has applied for the post of Professor in the said discipline notified vide Advertisement Notice 2 of 2006 dated 31.5.2006 read with Notice 2 of 2007 dated October 6, 2007. He was issued an interview call but when he appeared before the Apical Selection Committee, respondent No. 6 (petitioner in SWP No. 143 of 2008) raised an objection about the eligibility of the petitioner on the ground that he does not have sufficient experience as required by the said advertisement notices. The matter was considered by the Apical Selection Committee and on finding substance in the objection they did not interview the petitioner. 15. The matter was considered by the Apical Selection Committee and on finding substance in the objection they did not interview the petitioner. 15. Feeling aggrieved of the same the petitioner has through the medium of this petition prayed for a writ of mandamus directing the respondents 1 to 5 & 7 to immediately arrange and convene meeting of the Apical Selection Committee and conduct interview of the petitioner for the post, select and recommend the petitioner for his appointment on the said post. He has further prayed for a writ of mandamus directing the respondents 1 to 5 and 7 not to make any appointment to the posts of Professors in other disciplines until such time the meeting of the Apical Selection Committee is convened. He seeks writ of quo warranto that the respondent no. 6 be removed from the post of Additional Professor in the discipline of Neonatology. 16. The respondents have filed their separate replies. In the reply affidavits submitted by respondents 1 to 3 and respondent No.5 it is stated by the Director of the SKIMS that the petitioner is holding the post of Associate Professor of Neonatology and has been elevated as Additional Professor under the assessment merit promotion scheme w.e.f. 1.7.2005. He has applied for the post of Professor and when he appeared before the Apical Selection Committee, respondent No.6 raised objection about the eligibility of the petitioner for the post. The Apical Selection Committee considered the objection and found that there was due weight for the same as such the petitioner was not interviewed. 17. Respondent No.6 has in his separate objections stated that as per the petitioners own case as set up in paras 17 & 18 of the petition, he has worked in the department of Neonatology in SKIMS only from 1.1.1994 to 31.12.2007 i.e. for 13 years. He wants that 1/3 service out of 2 years & 6 months service put by him as Registrar Paediatrics in Govt. Medical College, Srinagar be counted as teaching experience of Neonatology. His plea, according to the respondents, cannot be accepted as he worked as Registrar Paediatrics in Govt. He wants that 1/3 service out of 2 years & 6 months service put by him as Registrar Paediatrics in Govt. Medical College, Srinagar be counted as teaching experience of Neonatology. His plea, according to the respondents, cannot be accepted as he worked as Registrar Paediatrics in Govt. Medical College for two years after obtaining Post Graduate Degree which cannot be considered as an experience in Neonatology which is a super specialty branch, secondly he has neither pleaded nor appended any document with his petition in support of the fact that he has put in 1/3 service out of two years and six months service as Registrar in Govt. Medical College Srinagar in the Neonatology Intensive Care Unit. The respondent further states that there is no separate department of Neonatology in Govt. Medical College Srinagar. The department of paediatrics had level 1 & 2 nursery as a part of it till 2005. In the year 2005 this nursery was upgraded to full fledged Neonatal Intensive Care Unit which is providing ICU facilities to sick neonates since then. The department was provided with ventilators monitors, ABG machines and space to start these ICU facilities. Before 2005 no neonatal ICU facilities were available in the department of Paediatrics of GMC Srinagar. These facilities were inaugurated by the Principal of that time, Professor Ashaq Hussain on 31 March 2005. After shifting the paediatrics hospital to GB Panth Hospital in 2005, these neonatal ICU facilities have improved further. 18. Heard. I have considered the matter. 19. On a careful consideration of the pleas raised by the petitioner and the reply submitted by the respondents I do not find there is any ground for admission of the present petition. 20. Under the advertisement Notices 2 of 2006 and 2 of 2007 the eligibility required for the post of Professor for which the petitioner has applied, is as under: - Professor--Qualification-essential for medical candidates: 1. A Medical qualification including in the schedule I or II of part II of the third schedule to the Indian Medical Act of 1996 (Persons possessing qualifications including in part II or third schedule also fulfill the conditions specified in Sec. 13(3) of the act). 2. A post Graduate qualification e.g. MD/MS or a recognized qualification equivalent there to in the respective discipline subject as specified by Medical Council of India for teachers in Medical Institutions regulations for various specialties. 2. A post Graduate qualification e.g. MD/MS or a recognized qualification equivalent there to in the respective discipline subject as specified by Medical Council of India for teachers in Medical Institutions regulations for various specialties. And or 3. M.Ch. for Surgical super-specialties and DM for Medical Super specialties (2 years or 3 Yrs. Or 5 years recognized course) or qualification equivalent thereto as specified by Medical Council of India for teachers in Medical Institutions regulations for various specialties. Experience - Essential for Medical candidates. 14 years of teaching and/ or research experience in a discipline subject concerned after obtaining the Doctorate degree. 21. A candidate is required to have 14 years teaching and/or research experience in discipline/ subject concern after obtaining the Doctorate Degree. Since in the present case we are concerned with the discipline of "Neonatology", a candidate to become eligible must have, besides the educational qualification prescribed, 14 years of teaching and/or research experience in the discipline of Neonatology. 22. Petitioner, as per his own pleadings has got 12 years and 1 months experience in the capacity of lecturer/ Assistant Professor/ Associate Professor/Additional Professor in the department of Neonatology in the SKIMS. He has also got 13 months experience in the capacity of Senior Resident, Department of Neonatology, SKIMS. Thus if both these experiences in the said department are considered, the total experience comes to 13 years and 2 months. 23. Petitioners case is that his experience of 2 years and 6 months in the capacity of Registrar, Department of Paediatrics, Govt. Medical College, Srinagar be also counted as teaching experience in the discipline of Neonatology. This, however, cannot be allowed as there is no provision in the advertisement notice to count such experience/ equivalent experience for the purpose. 24. Petitioner has relied on a certificate issued by Dr. A.S. Sethi, Professor and Head of the Department of Paediatrics, Govt. Medical College, Srinagar, which reads as under: - "This is hereby certified that the doctors working in the Department as Registrars have to attend one third (1/3) of their total stay in this Department, in the Intensive Care Neonatology, which is necessary for their special training in the working and procedures of the neonatal intensive care Unit(NICU.)" 25. The certificate has been produced to show that while his posting as Registrar in the Department of Paediatrics, Govt. The certificate has been produced to show that while his posting as Registrar in the Department of Paediatrics, Govt. Medical College, Srinagar he has attended 1/3 of his total stay in the department, in the Intensive Care Neonatology. Respondent No.6 has objected to it as, according to him, Neonatology Intensive Care Unit did not exist in the college at the relevant time as the same was inaugurated by the Principal in the year 2005 and that the certificate has got no legal value but even if we consider the certificate, it provides a general information that the Registrars were required to attend 1/3 of total stay, in the Intensive care Unit, it nowhere states that the petitioner has, actually, attended 1/3 of his total stay in the department, in the unit. The certificate does not pertain to the petitioner. It does not say that the petitioner has performed the work and thus gained experience (required for our purpose). It is a general certificate pertaining to the practice prevalent and a general certificate of this nature cannot be treated as an experience certificate of the petitioner for the period. Secondly the certificate is issued in the year 2001 while as the petitioner has served the department from 7.4.1992 to 15.10.1994. Whether a similar practice prevailed in the year 1992-1994 also is not clear. 26. Neonatology and Paediatrics are two different branches of medical science. Paediatrics is the branch of medicine concerned with children and their diseases, while as neonatology relates to new born children/ an infant less than four weeks old. Paediatrics is a well known branch of medical science while as neonatology can be treated as a super specialty of the same. A doctor who has worked in the field of Paediatrics cannot be treated as a super specialist in neonatology and his experience in paediatrics cannot be treated as experience in the discipline of neonatology. 27. Almost a similar issue, which arises in the present case, arose in Dr. Abdul Rashid Badoo v. State of J&K and Anr., 1997 SLJ 38. In that case advertisement was issued for making appointment to the post of Lecturer in Orthopaedics. Advertisement prescribed that candidates much have experience as Registrar for a period of two years. Petitioner Dr. Abdul Rashid projected that he discharged duties like that of a Registrar. He was denied consideration for want of requisite experience. In that case advertisement was issued for making appointment to the post of Lecturer in Orthopaedics. Advertisement prescribed that candidates much have experience as Registrar for a period of two years. Petitioner Dr. Abdul Rashid projected that he discharged duties like that of a Registrar. He was denied consideration for want of requisite experience. A writ filed by him was dismissed and it was held by this Court that the notice prescribed two years experience as Registrar and not similar as Registrar or identical as Registrar or analogous to Registrar. Gaining experience as Registrar means working on the post of Registrar after due appointment by competent authority. The Court observed: "The requirement of the advertisement notice dated 8th March 1994 was plain and simple. It prescribed two years experience as Registrar. It did not say "similar as Registrar" or "identical as Registrar" or analogous to Registrar." All it is said merely was that if you have had experience as a Registrar for a period of two years, you are eligible for consideration. Gaining experience as Registrar means working on the post of Registrar, after due appointment by a competent authority." 28. In that case one Prof. T.S. Sethi had issued a certificate stating therein that the petitioner had performed duties which may amount to the duties performed by the Registrar. The Court did not accept the certificate and observed that if some one says that he was discharging duties which are akin to those discharged by Registrar it did not make him the Registrar. 29. It is necessary to emphasise that the advertisement notices nowhere provide that the experience required shall include the experience gained as Registrar Paediatrics also who has attended Intensive Care Units. As the notices do not provide it, the experience gained by the petitioner while holding the post of Registrar, Department of Paediatrics, Govt. Medical College, if any, shall not count towards the requisite experience. The requirement under the advertisement notice is 14 years experience in the concerned discipline. If experience has been prescribed then the candidate concerned must have the experience of the nature specified. The Supreme Court has in Bhagirathdan v. State of Rajasthan AIR 1992 SC 1949 held that even a better qualification will not obviate the need for fulfilling the requirement prescribed for experience. 30. If experience has been prescribed then the candidate concerned must have the experience of the nature specified. The Supreme Court has in Bhagirathdan v. State of Rajasthan AIR 1992 SC 1949 held that even a better qualification will not obviate the need for fulfilling the requirement prescribed for experience. 30. Since the petitioner lacks the experience of 14 years qualification required for the post, the respondents have rightly refused to interview him. 31. In the circumstances I do not find any force in the petition which is hereby dismissed. Order accordingly.