Research › Search › Judgment

J&K High Court · body

2010 DIGILAW 562 (JK)

Shyam Singh v. J&K Public Service Commission, J&K

2010-11-10

Sunil Hali

body2010
1. Vide advertisement notification No.03-PSC of 2006, applications were invited by the Public Service Commission for making appointment to the post of Lecturer in Cardio Thoracic Surgery under RBA category. However, subsequently, the above said notification was withdrawn and vide notification No.02-PSC of 2007, dt. 6th of March’07, applications were invited afresh in the open merit category for filling up three posts of Lecturers one each in the discipline of Cardiology, Cardio Thoracic Surgery and Cardio Thoracic Anaesthesia respectively. Petitioner along with private respondents 3 and 4 applied for the post of Lecturer in cardio Thoracic Surgery in pursuance to the above notification. It is not in dispute that the selection process has not yet concluded as no appointment order has been issued. As there is a dispute with regard to the eligibility of private respondents, a decision has been made by the respondent-Public Service Commission in favour of private respondent No.4, considering him eligible to compete in the selection process. Pre-empting the said move of the respondents, the present petition has been filed by the petitioner questioning the said decision made in favour of the private respondent No.4, by the Public Service Commission, on the ground that the qualification acquired by the said respondent is not recognized by the Medical Council of India (here-in-after referred to as the Council). This is the sole issue involved in the present petition. 2. Before proceeding further, it would be apt to notice the essential qualification as prescribed for the post of Lecturer, Cardio Thoracic Surgery, which is as under:- "M.Ch in Specialty concerned after MS/FRCS or an equivalent qualification in Surgery with three years special training in the specialty concerned or specialty board (USA) in the specialist concerned after post graduation". 3. In addition to the above qualification, the candidate seeking consideration for appointment against the aforementioned post was also required to possess the experience as Registrar/Tutor, or an equivalent post in the respective subject for three years in a Medical College or a recognized teaching medical Institution such as AIIMS New Delhi, PGI Chandigarh; JIMER Pondichery and such other Institutions, as are recognized by the Medical Council of India. 4. So far as the petitioner is concerned, no such assertion is made in the objections filed by the respondents that he is lacking the said eligibility. 4. So far as the petitioner is concerned, no such assertion is made in the objections filed by the respondents that he is lacking the said eligibility. He has undergone M.Ch super Specialty qualification from University of Mumbai which is a recognized qualification as prescribed by the Council. Petitioner has also given the details of teaching experience in para 4 of the writ petition. As indicated above, there is no dispute raised with respect to his eligibility, as such, he is eligible to seek appointment for the aforementioned post. 5. Regarding respondent No.3, who was initially called by the Public Service Commission, his candidature has been found to be in-eligible as his M.Ch degree in CVTS from JIPMER is said to be not recognized by the Council. 6. So far as private respondent No.4 is concerned, he has obtained M.Ch degree in the concerned specialty from SKIMS, which degree has been considered to be a valid degree by the respondent Public Service Commission for the purposes of seeking appointment against the afore referred post and it is on the said basis, a decision, as noticed above, has been made in his favour considering him to be an eligible candidate to compete in the selection process. 7. It is not in dispute that the degree obtained by the respondent No.4 is not recognized by the Council under Sections 11 and 13 of the Indian Medical Council Act, 1956 (here-in-after called the Act). There is, however, no dispute regarding the teaching experience possessed by the said private respondent. Non recognition of his M.Ch degree by the Council did not prevent the respondents in treating him to be an eligible candidate. It is this recommendation made in favour of the aforementioned respondent which is the subject matter of challenge in the present petition. 8. The case set out by the petitioner is that any degree obtained from a University or Institute which is not recognized by the Council under the provisions of the Act does not make the person who has obtained the said degree eligible to seek appointment in the State or anywhere else. The degree obtained by respondent No.4 is not recognized by the Council, as such, any recommendation made in his favour by the official respondents for considering his candidature and allowing him to participate in the selection process is not in accordance with the law. 9. The degree obtained by respondent No.4 is not recognized by the Council, as such, any recommendation made in his favour by the official respondents for considering his candidature and allowing him to participate in the selection process is not in accordance with the law. 9. On the other hand, the stand of respondent No.4 is that the post of Lecturer Cardio Thoracic Surgery is a post borne on the cadre of the J&K Medical Education Gazetted Service and is required to be filled in accordance with the mandate of J&KJ Medical Education (Gazetted) Service Recruitment Rules, 1979. Placing reliance on a judgment of the Apex Court reported in AIR 1991 SC 1514 , Arun Kumar Agrawal v. State of Bihar, it is contended that the course has been started by the SKIMS, Srinagar, from where he has obtained the degree concerned, with the consent of the Council and the State of J&K has recognized the said degree. It is, thus, stated that since the post in question is required to be filled up in accordance with the Recruitment rules, referred to above, as such, there is no issue regarding recognition of his degree. 10. I have heard learned counsel for the parties and perused the record. 11. The issue that is required to be determined in the present case is as to whether the degree obtained by a person from a local University or Institute is required to be recognized by the Council before such a person can seek appointment in the State service. 12. In order to appreciate this controversy, it is important to understand the relevant constitutional scheme on the subject. The Union of India as also the States have the power to legislate on education including the medical education, subject, inter alia, to Entry 66 of List I which deals with laying down the standards in institutions for higher education or research and scientific and technical institution as also the coordination of such standards. The State has, therefore, the right to control the education including medical education so long as the field is not occupied by any Union legislation. The State has, therefore, the right to control the education including medical education so long as the field is not occupied by any Union legislation. The power vested in the State in view of Entry 25 of List III is also subject to Entry 66 of List I and the State cannot while controlling the education lay down standards of higher education and frame rules and regulations which are in conflict with or adversely impinge upon the regulations framed by the Council as this is exclusively within the purview of Union list. In the State of Jammu and Kashmir, the State can also legislate upon the subjects which are in the concurrent list but the rules and regulations in this regard should not be in conflict with those as laid down by the Union of India. If the State has not made any legislation in this behalf, then the one laid down by the Union of India will hold the field. 13. The Act has been enacted as per entry 66 of List I. There is no corresponding legislation enacted by the State Legislature in this regard. It is in the area of laying down the standards for institutions for higher education or research, the Council exercises its power in this behalf. 14. In terms of Section 11 of the Act, the medical qualifications granted by the Universities or medical institutions in India, which are included in the First Schedule shall be recognized medical qualifications for the purposes of this Act. Schedule 1st deals with the recognized medical qualifications which are granted by various medical institutions as well as the Universities. Section 13 of the Act is an exception to the aforementioned provision which provides that in addition to the qualifications granted by the medical institutions or Universities which are not included in the First Schedule but are included in Part I of the Third Schedule, shall also be recognized medical qualifications for the purposes of this Act. 15. Section 15 prescribes that a person possessing the qualifications as prescribed in the Schedules, would be entitled for enrolment on any State Medical Register. 15. Section 15 prescribes that a person possessing the qualifications as prescribed in the Schedules, would be entitled for enrolment on any State Medical Register. Clause (2) of the aforementioned Section clearly debars a person who is not enrolled in the State Medical Register (a) to hold the office as a Physician or surgeon or any other office in Government or in any institution maintained by a local or other authority; (b) to practice medicine in any State; (c) to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner; and (d) to give evidence at any inquest or in any court of law as an expert under Section 45 of the Indian Evidence Act, 1872 on any matter relating to medicine. 16. What transpires from the aforementioned discussion is that the medical qualifications granted by a medical institution or University in India, which are included in the First Schedule or in Part I of the Third Schedule of the Act, by a subsequent notification, would be a recognized medical qualification and any one in possession of a medical qualification other than those as stated above, cannot be said to be in possession of a recognized medical qualification under the Act. Secondly, any person whose medical qualification is not recognized in terms of the provisions of the Act, cannot be registered on the State Medical Register, and as such, would be in-eligible to hold the office as Physician or a Surgeon or any other office in Government or in any institution maintained by a local or other authority and would also not be eligible to practise medicine in the State. 17. It is in the light of above legal position, the controversy in the present case has to be resolved. 18. In terms of the advertisement notification, for seeking appointment to the post of Lecturer in Cardio Thoracic Surgery, one is required to have obtained M.Ch in Specialty concerned after having done MS/FRCS or an equivalent qualification in Surgery with three years special training in the specialty concerned or specialty board (USA) in the specialist concerned after post graduation. As noticed above, the controversy in the present case relates only to the question that a person must have attained M.Ch in specialty concerned. As noticed above, the controversy in the present case relates only to the question that a person must have attained M.Ch in specialty concerned. The said qualification possessed by the private respondent No.4 from SKIMS is not included in the First Schedule or in Part I of the Third Schedule. It is, however, not in dispute that the said Institute was permitted to open the Specialty in M.Ch but no formal recognition has been conferred as prescribed by Sections 11 and 13 of the Act. Vide order No.72-PSC of 2008 dt. 18th of Dec’08, the Public Service Commission while considering the case of respondent No.3 and 4 has observed as follows: "Whereas, the eligibility of all candidates was discussed in the Commission and it was found that Dr Arvind Kohli has obtained M.Ch degree in CVTS from JIPMER and other candidate Dr Ishtyak Ahmad Mir has obtained his M.Ch degree in CVTS from SKIMS, Srinagar. The post doctoral degrees of both the doctors are not recognized by the MCI." 19. However, on the basis of the legal opinion sought from the Standing Counsel of J&K, PSC, and in terms of the provisions of Sher-i-Kashmir Institute of Medical Sciences (Grant of Degrees) Act, 1983, a view was taken that the degree possessed by respondent No.4 is a valid degree. In this regard, the relevant observations made by the Commission are as under:- "The M.Ch degree in CVTS granted by SKIMS can be considered as valid degree for purposes of any appointment within the State of Jammu and Kashmir and degrees granted by any other institution from outside the J&K State requires recognition of Medical Council of India for its validity with the State of Jammu and Kashmir." 20. On the basis of the above, the respondent No.3 was found to be ineligible as according to the stand of the Public Service Commission, he has obtained his degree in M.Ch from an Institute/University which was not recognized by the Council. In the case of respondent No.4, reliance has been placed on a judgment passed by this court in case of Dr Khalid Mohi-ud-Din v. SKIMS as also on the provisions of SKIMS (Grant of Degrees) Act, 1983. It has been observed that the said degree can be considered to be a valid degree for the purposes of seeking appointment in the State. 21. It has been observed that the said degree can be considered to be a valid degree for the purposes of seeking appointment in the State. 21. In view of the above position as emanated from the record as also the stand taken by the respondent authorities, the question that arises is as to whether the degree obtained by the respondent No.4 from SKIMS Srinagar, which is not a recognized degree in terms of the provisions of the Act, would render him eligible to seek appointment against the post aforementioned within this State. 22. In order to understand the stand of respondents, it is necessary to observe that the Scheme as envisaged under the Act, does not give an option to the Universities to follow or not to follow the standards laid down by the Council. The Medical qualifications granted by the Universities or Institutes have to be recognized under the Act. Unless the said qualifications are recognized under the provisions of the Act, the person holding such a qualification will not be eligible to practice medicine, to hold the office as a Physician or Surgeon or any other office in the Government or in any institution. 23. It be seen that in terms of Section 16 of the Act, the information is required to be furnished to the Council by the University or Medical Institution who grants a recognized medical qualification regarding the course of study and the examination conducted by it. The Medical Inspectors are appointed under Section 17 of the Act to inspect any medical institution, college, hospital or other institution which impart the medical education, for the purposes of recommending to the Central Government for recognition of medical qualifications granted by the said Universities/Institutes. In terms of provisions of Section 19 of the Act, if the report of the concerned Committee is unsatisfactory, the Council has the right to withdraw the recognition. 24. The Council is also authorized to prescribe minimum standards of education required for granting recognized medical qualifications other than the post graduate medical qualifications, by the Universities or medical institutions. 25. A conjoint reading of the aforementioned provisions of the Act, shows that recognition of medical qualification which is imparted by a University or an Institute is an essential feature under the Act. 25. A conjoint reading of the aforementioned provisions of the Act, shows that recognition of medical qualification which is imparted by a University or an Institute is an essential feature under the Act. The power to prescribe the standards by the Council to be observed by the Universities or the medical institutes is laid under the Statute. It does not conceive of a situation where a degree or qualification obtained from a local University or Institute which is not recognized by the Council can be accepted as a valid degree for the purposes of seeking appointment in the State. The recognition of medical qualification is sine-qua-non for any person to be registered on the State Medical Register, which authorizes him to practice medicine or surgery in the department concerned. The recognition is an important aspect of maintaining standards of education which power exclusively lies with the Council. There is no statutory authority in the State, which is empowered to grant such a recognition. Unless and until, the degree obtained by a person is not recognized by the Council under the provisions of the Act, he cannot be considered to be eligible for appointment if such a degree is an essential condition of eligibility. I am fortified in this view by a judgment of the Apex Court reported in (1999)7 SCC 120 , Dr Preeti Srivastva and another v. State of M.P. and others. What has been observed in this regard by the Apex Court in the above case, may be noticed as under:- "Under the Indian Medical Council Act of 1956 the Indian Medical Council is empowered to prescribe, inter alia standards of postgraduate medical education. In the exercise of its powers under Section 20 read with Sect/on 33 the Indian Medical Council has framed regulations which govern postgraduate medication education. These regulations, therefore, are binding and the State cannot, in the exercise of power under Entry 25 of List III, make rules and regulations which are in conflict with or adversely impinge upon the regulations framed by the Medical Council of India for postgraduate medical education. Since the standards laid down are in the exercise of the power conferred under Entry 66 of List I, the exercise of that power is exclusively within the domain of the Union Government. Since the standards laid down are in the exercise of the power conferred under Entry 66 of List I, the exercise of that power is exclusively within the domain of the Union Government. The power of the States under Entry 25 of List III is subject to Entry 66 of List I. Secondly, it is not the exclusive power of the State to frame rules and regulations pertaining to education since the subject is in the concurrent list. Therefore, any power exercised by the State in the area of education under Entry 25 of List III will also be subject to any existing relevant provisions made in that connection by the Union Government subject, of course, to Article 254...... Under the Indian Medical Council Act, 1956, the Medical Council of India has been set up as an expert body to control the minimum standards of medical education including postgraduate medical education and to regulate their observance. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. There is, under the Act, an overall vigilance by the Medical Council to prevent sub standard entrance qualifications for medical courses. The universities must necessarily be guided by the standards prescribed under Section 20(1) if their degrees or diplomas are to be recognized under the Medical Council of India Act. The scheme of the Indian Medical Council Act, 1956, does not give an option to the universities to follow or not to follow the standards laid down by the Indian Medical Council." 26. After having said so, it be noted that M.Ch (CVTS) degree from SKIMS, Srinagar, which has been obtained by the respondent No.4, is not recognized by the Council as is clear from the letter dt. 1st of Sept’2008, of the Registrar (Academics) of the SKIMS, which forms part of rejoinder filed by the petitioner. 27. In view of the above, the respondent No.4, having obtained the degree concerned from the Institute, which is not recognized by the Council under the provisions of the Act, cannot be held eligible to seek appointment in the State. The judgment of the Apex Court in Arun Kumar Agrawal’s case (supra), on which reliance has been placed by the said respondent is not applicable to the facts of the present case. The judgment of the Apex Court in Arun Kumar Agrawal’s case (supra), on which reliance has been placed by the said respondent is not applicable to the facts of the present case. In the case before the Apex Court, the issue involved was regarding preference to be given to a candidate having a degree in superspecialty along with research work and experience over another candidate who was having degree in M.S. but no degree in super-specialty. The issue before the Apex Court was that the basic qualification provided was post-graduate and only preference was required to be given to qualification of super-specialty in Neuro-Surgery. Even though, the degree of M.Ch in the super specialty of Neuro Surgery was not recognized by the Council, it was held that as the basic qualification is possessed by the candidate concerned, the said degree can be taken into consideration only for the purposes of giving preference. 28. In the case in hand, the basic eligibility provided is M.Ch in Specialty concerned after MS/FRCS or an equivalent qualification in Surgery. Therefore, keeping in view the said eligibility criteria, only those persons who have obtained the said degree from a University/institute recognized by the Council under the provisions of the Act, are eligible to seek appointment in the State service. As noticed above, the Apex Court in the above case was only examining the eligibility set out where the basic qualification was post graduation and preference would be given to those who had obtained super specialty. It was only a matter of giving preference to the person possessing the said qualification and not a matter of eligibility. It was not that the person concerned was lacking the basic eligibility as is the case in hand. In the present case, the private respondent No.4 has obtained the degree concerned from an Institute which is not recognized by the Council, and thus, cannot be said to be possessing the basic eligibility. 29. The other contention raised by the respondent No.4 is that under the Regulations framed by the Council namely "Minimum qualifications for Teachers in Medical Institutions Regulations, 1998", which deal with the minimum qualification for appointment as a teacher in various departments of a medical college or institution imparting graduate and post graduate education, the matter regarding relaxation of qualification and experience can be taken up by the authority concerned with the Council. 30. 30. In this regard, it be seen that so far as relaxation of qualification or experience is concerned, the same is not the issue before this court as there is no such recommendation made by the authority concerned in this behalf. 31. In view of the above discussion, following things are concluded:- 1/ that the medical qualification granted by a Medical institute or University in India, which is included in the First Schedule or in part I of the Third Schedule of the Act, would be a recognized medical qualification for the purposes of the Act; 2/ that no candidate can be registered on any State Medical Register unless he/she possesses the qualification from any University or Medical Institute which is recognized by the Council under the provisions of the Act; 3/ that in absence of any such recognition, no person can be held eligible to seek appointment on the basis of the medical qualification acquired by him from a University/medical institute, which is not recognized by the Council. 32. For the reasons mentioned above, this petition is allowed. Respondent No.4 is held to be not possessing the basic eligibility in terms of the advertisement notification, and thus, would not be eligible to seek consideration for being appointed as Lecturer in Cardio Thoracic Surgery on the basis of M.Ch (CVTS) degree, obtained by him from SKIMS, Srinagar, which degree is not recognized by the Council. Any recommendation made in his favour regarding treating his degree as a valid degree shall not be acted upon for the purposes of allowing him to compete in the selection process for the aforementioned post. The respondent authorities shall initiate the process of selection for the above post in terms of the notification issued by them by allowing only those candidates to compete in the said process who possess the basic eligibility i.e. M.Ch degree in CVTS from a Medical Institute/University, which is recognized by the Council. 33. Disposed of accordingly along with connected CMPS, if any.