JUDGMENT ABHAY M. NAIK, J. ( 1. ) THIS is a writ appeal preferred by the petitioner/appellant against the order dated 29-1-2008 passed by the learned Single Judge of this Court in Writ Petition No. 3269/2006 (s), dismissing thereby the writ petition containing a challenge to the selection and appointment of respondent No. 4 (Dr. Varsha Shrivastava) on contract basis to the post of Lecturer (Rachana Sharir) in Government Ayurvedic (Autonomous) College, Ujjain and for further consideration of the petitioner for appointment on the said post. ( 2. ) FACTS relevant for the purpose of writ appeal are that the Government (Autonomous) Dhanwantri Ayurvedic Mahavidyalaya, Ujjain issued an advertisement in the newspaper Rozgar Aur Nirman (11-7-2005 to 17-7-2005) inviting applications for the post of Lecturer (Rachana Sharir) on the vacant post of teacher category in post graduate course, on contractual basis. Copy of the advertisement is on record as Annexure P/3. According to the advertisement, the requisite qualifications for the said post of Lecturer were as follows :- The petitioner was having qualification of MD (Ayurved) with Rachana Sharir as subject concerned from the Vikram University having passed examination in the year 2005, as revealed in Annexure P/4 dated 21-7-2005. Respondent No. 4 was also post graduate with the degree of MD (Ayurved) with Sharir Kriya Vigyan as special subject from Jiwaji University, Gwalior, as revealed in Annexure P/5. At the outset, it is made clear that discipline of Rachana Sharir in Ayurved is known as Anatomy in medical science, whereas discipline of Sharir Kriya Vigyan in Ayurved is known as Physiology. Anatomy deals with the scientific study of physical structure of an animal or human or plant, whereas Physiology is the science which deals with the way that the bodies of living things operate. Accordingly, "Rachana Sharir" and "Sharir Kriya Vigyan" are hereinafter referred to also as 'Anatomy' and 'Physiology', respectively. ( 3. ) INITIALLY, name of respondent No. 4 was not considered because she was not having post graduate degree with Anatomy as special subject. Instead, she was having such a degree with Physiology as special subject. Since name of respondent No. 4 was cleared by the Screening Committee of Government (Autonomous) Dhanwantri Ayurvedic Mahavidyalaya, Ujjain, matter was referred to the Chairman of the Screening Committee vide Annexure R/4 dated 3-12-2005. Instead, she was having such a degree with Physiology as special subject. Since name of respondent No. 4 was cleared by the Screening Committee of Government (Autonomous) Dhanwantri Ayurvedic Mahavidyalaya, Ujjain, matter was referred to the Chairman of the Screening Committee vide Annexure R/4 dated 3-12-2005. The Chairman thought it proper to issue call letters for interview to respondent No. 4 on the ground that she was having post graduation degree with Sharir Kriya as special subject, which was an allied subject as per Kendriya Bhartiya Chikitsa Parishad, New Delhi as revealed in Annexure R/5. Interviews were accordingly conducted considering petitioner as well as respondent No. 4 and after the interviews, appointment order dated 3-1-2006 was issued, appointing thereby respondent No. 4 on the post of Lecturer in the discipline of Anatomy in the Government (Autonomous) Dhanwantri Ayurvedic Mahavidyalaya, Ujjain vide Annexure P/1. Petitioner was placed at Wait List No. 1 of the select list. A representation was made by the petitioner, which was responded by respondent No. 3 vide letter dated 24-1-2006 (Annexure P/8). Petitioner was informed thereby that his name was placed at Serial No. 1 of the Wait List and he would be considered, in case if a vacancy is created on the subject post in the college (respondent No. 3). Petitioner made a complaint to the Collector, Ujjain, who, in turn, informed that respondent No. 4 was found eligible by the Screening Committee and was, therefore, interviewed and appointed on the said post, in view of her merits. ( 4. ) LEARNED counsel for the parties made their respective submissions, which have been considered in the light of the material on record as well as the provisions of law governing the situation. It has been contended on behalf of the petitioner/appellant that the petitioner was having the post graduate degree of MD (Ayurved) with Anatomy as special subject, whereas respondent No. 4 was having the degree of MD (Ayurved) with Physiology as special subject. According to the advertisement contained in Annexure P/3, a candidate ought to have possessed of post graduation degree recognised by Indian Medical Central Council in the subject concerned. Since the respondent No. 4 was not having post graduation degree with Anatomy as special subject, she could not have been considered for the said post of Lecturer in Anatomy. According to the advertisement contained in Annexure P/3, a candidate ought to have possessed of post graduation degree recognised by Indian Medical Central Council in the subject concerned. Since the respondent No. 4 was not having post graduation degree with Anatomy as special subject, she could not have been considered for the said post of Lecturer in Anatomy. Thus, it is contended that the selection and appointment of respondent No. 4 on the said post is illegal and is liable to be quashed. It is further submitted that the petitioner, being the only qualified candidate for the said post, ought to have been considered and appointed. On behalf of respondent No. 4, it has been strenuously argued that :- (i) Vikram University, Ujjain was not empowered, at the relevant time, to grant the degree of MD (Ayurved) and accordingly the degree of MD (Ayurved) with Anatomy as special subject of the petitioner is not recognized under the provisions of Indian Medical Central Council Act, 1970. (ii) Recruitment on the post of Lecturer is provided under the MP Public Health Indian System of Medicine and Homeopathy) (Gazetted) Service Recruitment Rules, 1987 (hereinafter referred to as the Recruitment Rules of 1987). Post graduation degree in related subject is not a mandatory qualification, but is merely desirable under Schedule-Ill of the said Rules. Thus, the compulsory qualification of post graduation in, the subject concerned being contrary to said statutory provision, is liable to be ignored and the appointment of respondent No. 4, who was having a post graduate degree in Ayurved from Jiwaji University, Gwalior is quite valid. (iii) Discipline of Kriya Sharir being an allied subject to the discipline of Rachana Sharir, post graduate degree of respondent No. 4 has been rightly considered by virtue of the provisions of Indian Medicine Central Council (Minimum Standard of Education in Indian Medicine) Regulations, 1986. (iv) Society Contract Service (Appointment and Conditions of Service) Rules, 2000 are in the nature of executive instructions and cannot override the Recruitment Rules of 1987. Reliance to buttress the aforesaid has been placed on :- 1. Secretary (Health) Department of Health and Family Welfare and another vs. Dr. Anita Puri and others, (1996) 6 SCC 282 , 2. Secretary, State of Karnataka and others vs. Umadevi and others, (2006) 4 SCC 1 , 3. Reliance to buttress the aforesaid has been placed on :- 1. Secretary (Health) Department of Health and Family Welfare and another vs. Dr. Anita Puri and others, (1996) 6 SCC 282 , 2. Secretary, State of Karnataka and others vs. Umadevi and others, (2006) 4 SCC 1 , 3. Malik Mazhar Sultan and another vs. UP Public Service Commission and others, (2006) 9 SCC 507 , 4. State of M. P. and another vs. Kumari Nivedita Jain and others, (1981) 4 SCC 296 , 5. Government of Andhra Pradesh and another vs. Dr. R. Murli Babu Rao and another, AIR 1988 SC 1048 . ( 5. ) POSITION of learned Deputy Government Advocate is very precarious, in view of the plea which has been taken by the Government in the present writ petition and the contrary stand taken before the Principal Seat of this Court at Jabalpur in Writ Petition No. 11999/2006, Smt. Sunita Atulkar vs. State of M. P. and others. However, he has chosen to support the impugned order. ( 6. ) LEARNED Single Judge vide paragraph 5 of the impugned order has treated it as core question that whether post graduate degree in the subject Kriya Sharir has been recognized to the subject Rachana Sharir or not and whether respondent No. 4, who possessed post graduate degree of Kriya Sharir may be appointed as Lecturer Rachana Sharir or not (Sic). Considering explanation No. 5 (note No. 5 of Annexure P/3), learned Single Judge has observed that subject Rachana Sharir and Kriya Sharir are treated one and the same. It has been further observed that under the statutory rules, essential qualifications required for the post of Lecturer may be as per guidelines provided by Central Council of Indian Medicine (hereinafter referred to as CCIM, for brevity). Accordingly, qualification of post graduate degree with subject concerned could not have been prescribed vide Annexure P/3. LEARNED Single Judge has observed that CCIM, which is a body of experts, has recognized subjects of Rachana Sharir and Kriya Sharir as equivalent and their allied subjects described under Note 5 are also accepted for both the said subjects. Accordingly, learned Single Judge upheld the selection and appointment of respondent No. 4, who was not having degree of MD (Ayurved) with Anatomy as special subject. Accordingly, learned Single Judge upheld the selection and appointment of respondent No. 4, who was not having degree of MD (Ayurved) with Anatomy as special subject. She was having degree of MD (Ayurved) with Physiology as special subject, which has been treated by the learned Single Judge as subject alike to Anatomy. At this juncture, we feel it appropriate to mention in specific that respondent No. 4 has not challenged the advertisement contained in Annexure P/3, whereby degree of MD (Ayurved) with subject concerned was prescribed as requisite qualification for the post of Lecturer in Post Graduation Course in Anatomy. Petitioner was having degree of MD (Ayurved) with Anatomy as special subject, whereas respondent No. 4 was having the degree of MD (Ayurved) with Physiology as special subject. We make it further clear that the MP Public Health (Indian System of Medicine and Homeopathy) (Gazetted) Service Recruitment Rules, 1987 relate to the recruitment of the MP Public Health (Indian System of Medicine and Homeopathy) (Gazetted) Services, whereas the present recruitment is being made on the vacant post of Lecturer in post graduation course, on contractual basis. Respondent No. 2 was not at liberty to act in contravention of the statutory rules, meaning thereby, it could not have prescribed any qualification for a particular post lower than what is prescribed in the statutory rules. Learned counsel appearing for respondent No. 4 drew attention of this Court to Entry at Serial No. 12 of Schedule III of the Rules of 1987, which is meant for Lecturer in Ayurved. Requisite qualifications are described in the following manner :- " Essential - (1) Degree in Ayurveda from a recognized University or Board Established by the law with three years teaching experience or a post graduate degree in Ayurveda from a recognized University. (2) Knowledge of Sanskrit. (3) Registered from a Board established by law. Desirable – (1) post graduate degree in related subject. (2) Original published papers/books on the subject." Post of Lecturer (Ayurved) at Serial No. 12 is not shown to be the post of Lecturer (Ayurved) in post graduation course. Post graduate degree in related subject is shown in this entry as desirable one. In the advertisement marked as Annexure P/3, post graduation degree in related subject has been described as an essential/mandatory qualification for the subject post. Post graduate degree in related subject is shown in this entry as desirable one. In the advertisement marked as Annexure P/3, post graduation degree in related subject has been described as an essential/mandatory qualification for the subject post. This being so, we observe that respondent No. 3 was within it's powers to prescribe higher qualification in order to achieve higher standard of education from the contractual Lecturers in Post Graduation Course, which does not amount to violation of the statutory rules, more so, when the recruitment was not being made under the M. P. Public (Indian System of Medicine and Homeopathy) (Gazetted) Service Recruitment Rules, 1987. but was being made on contractual basis. Employees recruited under the Society Contract Service (Appointment and Conditions of Service) Rules, 2000 are not treated at par with the employees recruited under the said Rules of 1987. Thus, we do not find any legal infirmity in prescribing the qualification of MD (Ayurved) with the subject concerned as mandatory one for the subject post. ( 7. ) CASE of Kumari Nivedita Jain (supra) was related to admission in medical colleges. It was held that no relaxation could be permitted in the standard of medical education or curriculum of studies in medical colleges for those candidates after their admission to the colleges and the standard of examination and the curriculum remains the same for all. In the case in hand no relaxation has been given in the qualification for the post of Lecturer in post graduation courses, instead the qualification is found to have been increased for contractual Lecturers, which obviously will not lower down the standard of medical education. ( 8. ) IN the case of Dr. R. Murli Babu Rao (supra), matter of promotion with reference to qualification of the doctors in government services was being considered. It has been observed in paragraph 14 :- "14. As is manifest from the affidavit filed by the INdian Medical Council, it is only a recommendatory body. This Court has in a series of decisions defined the precise functions and duties of the Medical Council of INdia. The INdian Medical Council constituted under section 3 of the Act is an expert body intended and meant to control the minimum standards of medical education and to regulate their observance. We may only cite the case of State of Madhya Pradesh vs. Km. The INdian Medical Council constituted under section 3 of the Act is an expert body intended and meant to control the minimum standards of medical education and to regulate their observance. We may only cite the case of State of Madhya Pradesh vs. Km. Nivedita Jain, (1981) 4 SCC 296 = AIR 1981 SC 2045 where the Court had to consider the effect of the Regulations framed by the Medical Council and the various executive orders issued by the State Government. Analysing the various provisions of the Act in depth, it was observed as follows : "An analysis of the various sections of the Act indicate that the main purpose of the Act is to establish Medical Council of INdia, to provide for its constitution, composition and its functions and the main function of the Council is to maintain the medical register of INdia and to maintain a proper standard of medical education and medical ethics and professional conduct for medical practitioners. The scheme of the Act appears to be that the Medical Council of INdia is to be set up in the manner provided in the Act and the Medical Council will maintain a proper medical register, will prescribe minimum standards of medical education required for granting recognised medical qualifications, will also prescribe standards of post graduate medical education and will further regulate the standards of professional conduct and etiquette and code of ethics for medical practitioners." [Emphasis supplied] A fortiori, the recommendations made by the Council or the Regulations framed by it are only recommendatory and not mandatory. It is not for the Council to prescribe qualifications for recruitment to posts of Professors, Readers and Lecturers. It can only lay down broad guidelines there for. Such qualifications have necessarily to be prescribed by the framing of Rules under the proviso to Art. 309. Right to be considered for promotion is a condition of service and it can only be regulated by a rule framed under the proviso to Art. 309." Present case is related to contractual Lecturers. Their service conditions are different than those of the doctors Lecturers recruited under the statutory Rules of 1987, moreover, qualifications prescribed by the advertisement in the case in hand are neither in contravention of the statutory rules nor are inferior to statutory qualifications, in any manner. This being so, respondent No. 4 does not get any assistance from it. Their service conditions are different than those of the doctors Lecturers recruited under the statutory Rules of 1987, moreover, qualifications prescribed by the advertisement in the case in hand are neither in contravention of the statutory rules nor are inferior to statutory qualifications, in any manner. This being so, respondent No. 4 does not get any assistance from it. In the case of Dr. Anita Puri (supra) it has also been observed :- "7. Admittedly, in the advertisement which was published calling for applications from the candidates for the posts of Dental Officer it was clearly stipulated that the minimum qualification for the post is B.D.S. It was also stipulated that preference should be given for higher dental qualification. There is also no dispute that M.D.S. is a higher qualification than the minimum qualification required for the post and the Respondent No. 1 was having that degree. The question then arises is whether a person holding a M.D.S. qualification is entitled to be selected and appointed as of right by virtue of the aforesaid advertisement conferring preference for higher qualification? The answer to the aforesaid question must be in the negative. When an advertisement stipulates a particular qualification as the minimum qualification or the post and further stipulates that preference should be given for higher qualification, the only meaning it conveys is that some additional weight age has to be given to the higher qualified candidates. But by no stretch of imagination it can be construed to mean that a higher qualified person automatically is entitled to be selected and appointed. In adjudging the suitability of a person for the post, the expert body like Public Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. In adjudging the suitability of a person for the post, the expert body like Public Service Commission in the absence of any statutory criteria has the discretion of evolving its mode of evaluation of merit and selection of the candidate. The competence and merit of a candidate is adjudged not on the basis of the qualification he possesses but also taking into account the other necessary factors like career of the candidate throughout his educational curriculum, experience in any field in which the selection is going to be held, his general aptitude for the job to be ascertained in course of interview, extra-curriculum activities like sports and other allied subjects, personality of the candidate as assessed in the interview and all other germane factors which the expert body evolves for assessing the suitability of the candidate for the post for which the selection is going to be held. In this view of the matter, the High Court in our considered opinion was wholly in error in holding that a M.D.S. qualified person like Respondent No. 1 was entitled to be selected and appointed when the Government indicated in the advertisement that higher qualified person would get some preference. The said conclusion of the High Court, therefore, is wholly unsustainable and must be reversed." In the aforesaid case, the advertisement was issued by the Public Service Commission, giving preference for higher dental qualification. We, in the present case, are concerned with the post of Lecturer (Ayurved) in Rachana Sharir i.e. Anatomy in Post Graduation Course, on contractual basis. For Post Graduation Course, qualification of MD (Ayurved) with subject concerned was prescribed, which does not contravene the Statutory Rules of 1987. In the case of Dr. Anita Puri (supra), certain weightage was given to the candidates with higher qualification and despite such weightage, expert body of Public Service Commission had chosen another candidate. On due consideration, it was upheld. This is not the situation in the present case, because respondent No. 4 was not having degree of MD (Ayurved) in the related subject, as required mandatorily by the advertisement. ( 9. ) NO benefit may be derived by respondent NO. 4 from the decision in the case of Umadevi (supra), because of distinguishable facts of the present case. It has been observed in it :- "6. ( 9. ) NO benefit may be derived by respondent NO. 4 from the decision in the case of Umadevi (supra), because of distinguishable facts of the present case. It has been observed in it :- "6. The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily (See Basu's Shorter Constitution of India). Article 309 of the Constitution gives the Government the power to frame rules for the purpose of laying down the conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the States. That Article contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed to public posts. It is well acknowledged that because of this, the entire process of recruitment for services is controlled by detailed procedure which specify the necessary qualifications, the mode of appointment etc. If rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules. The State is meant to be a model employer. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 was enacted to ensure equal opportunity for employment seekers. Though this Act may not oblige an employer to employ only those persons who have been sponsored by employment exchanges, it places an obligation on the employer to notify the vacancies that may arise in the various departments and for filling up of those vacancies, based on a procedure. Normally, statutory rules are framed under the authority of law governing employment, it is recognized that no government order, notification or circular can be substituted for the statutory rules framed under the authority of law. This is because, following any other course could be disastrous inasmuch as it will deprive the security of tenure and the right of equality conferred on civil servants under the Constitutional scheme. It may even amount to negating the accepted service jurisprudence. Therefore, when statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed. 37. It is not necessary to multiply authorities on this aspect. It may even amount to negating the accepted service jurisprudence. Therefore, when statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed. 37. It is not necessary to multiply authorities on this aspect. It is only necessary to refer to one or two of the recent decisions in this context. In State of U. P. vs. Niraj Awasthi, (2006) 1 SCC 667 this Court after referring to a number of prior decisions held that there was no power in the State under Art. 162 of the Constitution to make appointments and even if there was any such power, no appointment could be made in contravention of statutory rules. This Court also held that past alleged regularisation or appointment does not connote entitlement to further regularisation or appointment. It was further held that the High Court has no jurisdiction to frame a scheme by itself or direct the framing of a scheme for regularisation. This view was reiterated in State of Karnataka vs. KGSD Canteen Employees Welfare Association, JT (2006) 1 SC 84." ( 10. ) CASE of Malik Mazhar Sultan (supra) was related to the recruitment to the post of Civil Judge (Junior Division) under UP Junior Service Rules, 2001, whereas the present case relates to the recruitment under contractual Rules, 2000 and not under the Rules of 1987. Attention has been drawn of this Court towards paragraph 21, which reads, as under :- "21. The present controversy has arisen as the advertisement issued by PSC stated that the candidates who were within the age on 1st July, 2001 and 1st July, 2002 shall be treated within age for the examination. Undoubtedly, the excluded candidates were of eligible age as per the advertisement but the recruitment to the service can only be made in accordance with the rules and the error, if any, in the advertisement cannot override the Rules and create a right in favour of a candidate if otherwise not eligible according to the Rules. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. The relaxation of age can be granted only if permissible under the Rules and not on the basis of the advertisement. If the interpretation of the Rules by PSC when it issued the advertisement was erroneous, no right can accrue on basis thereof. Therefore, the answer to the question would turn upon the interpretation of the Rules." Since the recruitment was under the aforesaid Rules of 2000, strict adherence to the same was to be observed. In the absence of challenge by respondent No. 4 to the advertisement, we are not inclined to accept the contention of respondent No. 4, more so, when the qualification for the post of Lecturer in Anatomy in P.G. Courses on contractual basis was not inferior to those prescribed under the Rules of 1987. Reliance on paragraph 12 of the decision in the case in Indian Institute of Technology and another vs. Paras Nath Tiwari and others, (2006) 9 SCC 670 is of no avail. For convenience, paragraph 12 is reproduced below :- "12. Learned counsel for the respondent took up the stand that there was no obligation on the part of the first respondent to produce such a licence. He repeatedly contended that there was no such requirement indicated in the advertisement of the vacancy and, therefore, the respondent was not obliged to produce any such licence. We are unable to accept this contention. In the first place, as rightly contended by Mr. Ganguli, what is required by law must be read overridingly into every contract of employment. That the Rules require a licence for a person to be employed as Maintenance Engineer of an aircraft is clear, irrespective of whether the advertisement prescribed it or not. Such a requirement must be read into the advertisement and to the contract of employment. Apart there from, the letter of appointment in clear term states (vide clause 4) that the first respondent was required to produce an AME licence for the requisite type of aircraft owned by the Institute. This was clearly understood by the first respondent, as seen from his correspondence wherein he did not deny such a requirement, but kept asking for time and extension of probation. This was clearly understood by the first respondent, as seen from his correspondence wherein he did not deny such a requirement, but kept asking for time and extension of probation. The contention of the learned counsel for the first respondent is, therefore, without merit and cannot be accepted." As already observed, respondent No. 2 having not made any contravention of the statutory rules prescribing qualifications, the advertisement containing a higher qualification for contractual employees is not shown to be opposed to the qualifications prescribed by the statutory rules. Had there been prescription of a lower qualification in comparison to the statutory qualification, there could have been a case in favour of the respondent No. 4. In the present case, the respondent No. 4 participated in the selection process of recruitment on the post of advertisement contained in Annexure P/3. No challenge has been made by her to the conditions prescribing the qualification of MD (Ayurved) in the subject matter. On the contrary, it has been the defence of respondent No. 4 that her MD in Physiology is liable to be treated as MD in allied subject. In view of this, a contention of respondent No. 4 challenging the minimum prescribed mandatory qualification of having MD (Ayurved) in the related subject is not liable to be accepted. ( 11. ) LEARNED counsel for respondent No. 4 contended that regulations making power is derived from section 36 of the Indian Medicine Central Council, 1970. Accordingly, Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) Regulations, 1986 have been framed. Relevant portion relied upon by the learned counsel is reproduced below :- The aforesaid note clearly mentions that if post graduate qualification holder in the concerning subjects are not available, post graduate qualification obtained in the subject, as noted against the concerning particular subject shall be admissible. Rachana Sharir and Kriya Sharir are mentioned at Item No. 5 with an oblique mark (/) in between. Against this entry, two disciplines of post graduation are mentioned, which are (1) Sharir and (2) basic principles. Mark of oblique has not been described as recognized punctuation by the well known grammarians Wren and Martin. Punctuation according to them means the right use of putting in Points or Stops in writing. Punctuation guides a reader to understand the sentence in proper and correct manner. Mark of oblique has not been described as recognized punctuation by the well known grammarians Wren and Martin. Punctuation according to them means the right use of putting in Points or Stops in writing. Punctuation guides a reader to understand the sentence in proper and correct manner. Though the mark of oblique is not exactly a punctuation according to the aforesaid famous grammarian, but it also serves a purpose to guide to reader to understand a sentence in meaningful manner. Mark of oblique i.e. (/) signifies 'an option or 'as the case may be'. Thus Entry No. 5 goes to show that the mark of oblique i.e. (/) signifies an option as the case may be. Accordingly, Entry No. 5 would mean that the discipline of Rachana Sharir or Kriya Sharir in post graduation (as may be applicable) may be treated as special subject of post graduate qualification and in case of non-availability of Post-graduate qualification holder in Rachana Sharir or Kriya Sharir, Post graduate qualification holder in the discipline of 'Sharir' or 'Basic Principles' would be admissible and would be considered. Thus, the subjects of 'Sharir' and 'Basic Principles' in Post graduation degree may be treated as allied subjects to 'Rachana Sharir' as well as Kriya Sharir in case of non-availability of post graduate qualification holder in Rachana Sharir or Kriya Sharir. This does not mean that the subjects Rachana Sharir and Kriya Sharir are the same or allied to each other. This is so clearly revealed in Ex.P/4 and P/5. Respondent No. 4 is shown to have passed her MD (Ayurved) with Kriya Sharir as special subject in Annexure P/5 (Paper Book Page 38) whereas, petitioner is shown to have passed MD (Ayurved) with Rachana Sharir as special subject in Ex.P/4 (Paper Book Page 37). Thus, in no case, Rachana Sharir and Kriya Sharir may be substituted for each other and cannot be treated as subjects allied to each other. Allied subjects are mentioned in third column. Accordingly, candidates possessing post graduation qualification in Ayurved with the discipline of (1) Sharir or (2) Basic Principles may be considered in case of non-availability of candidate possessing degree of MD (Ayurved) with Rachana Sharir or Kriya Sharir, as special subject, as the case may be. Allied subjects are mentioned in third column. Accordingly, candidates possessing post graduation qualification in Ayurved with the discipline of (1) Sharir or (2) Basic Principles may be considered in case of non-availability of candidate possessing degree of MD (Ayurved) with Rachana Sharir or Kriya Sharir, as special subject, as the case may be. Moreover, since we have already upheld the advertisement contained in Annexure P/3, prescribing post graduation qualification of MD (Ayurved) in the related subject and advertisement being for the post of Lecturer on contractual basis for the post of Lecturer in Ayurved in post graduation course in Anatomy, the availability of any candidate with post graduate qualification in allied subject, was not required to be gone into, because the petitioner with MD (Ayurved) with Anatomy was available. As observed earlier and even at the cost of repetition, we observe that Anatomy is the subject of scientific study of the physical structure of human, animal or plant and physiology is the science that deals with the way that the bodies of living things operate. They cannot be treated as allied subjects to each other. Dr. G. S. Kalchuri, Principal, Government Ayurved College, Jabalpur has clearly made the following statement on affidavit in the return filed on behalf of the State Government in Writ Petition No. 11999/2006 :- "4. That, it is the case of the petitioner that while admitting that she has completed her post graduation in the Physiology subject she claims that she is eligible for appointment to the advertised post. In this regard the petitioner is placing reliance on the regulation dated 15-5-2002 which has been formulated by Central Council of Indian Medicines Institute from New Delhi. The said regulation deals with the subject and qualification experience for the appointment of teaching staff. The said regulation is already on record and marked as Annexure P/1 and the petitioner places reliance on the note appended at Page 9 which states that "if the post graduation qualification holders for the following subjects are not available, the post graduate qualification obtained in the subject as noted against the subject shall be admissible". In the Chart given thereof at Sr. No 5 it is given as under :- 5. Rachna Sharir/Kriya Sharir 1. Sharir 2. Basic Principles Bare perusal of the above shall reveal that Rachna Sharir (Anatomy) and Kriya Sharir (Physiology) are two separate and distinct subjects. In the Chart given thereof at Sr. No 5 it is given as under :- 5. Rachna Sharir/Kriya Sharir 1. Sharir 2. Basic Principles Bare perusal of the above shall reveal that Rachna Sharir (Anatomy) and Kriya Sharir (Physiology) are two separate and distinct subjects. Merely because they have been placed together does not mean that they are similar subjects. There is a vast difference between the two. It is most respectfully submitted that out of these two subjects Post of Lecturer was only advertised for the subject of Anatomy and not Physiology, therefore, it is abundantly clear that the petitioner being a post graduate in Physiology did not fulfill the eligibility criteria at the very outset. It would have been a different case if the petitioner had done her post graduation in either the Subjects of Sharir or Basic Principle as is given in the chart above. The said subjects of Sharir and Basic Principle are allied subjects which can be considered for the Post of Anatomy." ( 12. ) IT is equally evident from Annexure P/17 and P/18 which are submitted with IA. No. 2393/2010 with an application of the petitioner for the post of Lecturer in subject of Kriya Sharir (Physiology) which has been rejected by the Commissioner, Indian System of Medicine and Homeopathy, Bhopal vide Annexure P/18 on the ground that the petitioner is not having the post graduate degree of MD in Kriya Sharir. Thus, it is clear that subject Rachana Sharir and Kriya Sharir are not subjects allied to each other. Accordingly, we observe that the learned Single Judge has committed an error of law in treating subject Kriya Sharir as allied subject to the subject Rachana Sharir. We further hold that the respondent No. 2 was within his powers to prescribe qualification of post graduation in subject concerned for PG Course in Rachana Sharir (i.e. Anatomy) which did not contravene the statutory rules. We further observe that on account of availability of the petitioner with degree of MD (Ayurved) with Rachana Sharir i.e. Anatomy as special subject, respondent No. 4, being not possessed of MD (Ayurved) with Anatomy as special subject, could not have been considered. Moreover, Kriya Sharir (Physiology) is not allied subject to Anatomy (Rachana Sharir) under the abovementioned Act, Rules and Regulations. ( 13. ) THE appeal was finally argued on 16-3-2011 and was reserved for orders. Moreover, Kriya Sharir (Physiology) is not allied subject to Anatomy (Rachana Sharir) under the abovementioned Act, Rules and Regulations. ( 13. ) THE appeal was finally argued on 16-3-2011 and was reserved for orders. However, before pronouncement of the judgment, respondent No. 4 submitted synopsis (additional submissions) in writing on 5-4-2011, which was objected to, in writing, by the petitioner/appellant on 6-4-2011. Certain additional documents were also submitted during this period. Therefore, the appeal was re- * fixed for further hearing on 13-4-2011. In view of the rival submissions, all the documents submitted by the parties in the intervening period (which have not been disputed before us) are taken on record, which, too, have been considered hereinafter. ( 14. ) MUCH arguments have been advanced on the plea that the Vikram University, Ujjain was not empowered to grant the degree of MD (Ayurved), as the same was not included in the Schedule to the Madhya Pradesh Ayurvedic, Unani Tatha Prakritik Chikitsa Vyavasayi Adhiniyam, 1970. The same was also not included in the Schedule to the Indian Medical Central Council Act, 1970. We are not impressed with this submission for various reasons contained in the succeeding paragraphs. Firstly, Vikram University, Ujjain, who has granted the Degree of MD (Ayurved) with Rachana Sharir as subject concerned to the petitioner/appellant in the year 2005; is not a party to the present proceedings. In its absentia, we are afraid that validity of the Degree can be adjudicated upon. Secondly, it has been admitted by the learned Deputy Government Advocate that the State Government of Madhya Pradesh has been recognizing the said Degree while making recruitment on various posts under it. Even in the return, in the present matter, the State Government has not questioned the validity of the Degree possessed by the petitioner. This being so, without granting an opportunity of hearing to the Vikram University, Ujjain, validity of the said Degree cannot be legally examined. Since the said University is not before us in the present proceedings, there may not be any propriety in deciding the validity in specific of the Degree of MD (Ayurved) obtained by the petitioner/appellant from the Vikram University, Ujjain. ( 15. ) WE have also gone through the return of respondent No. 4, which is at page 98 to 104 of the paper book. ( 15. ) WE have also gone through the return of respondent No. 4, which is at page 98 to 104 of the paper book. It does not contain any challenge to the Degree of MD (Ayurved) possessed by the petitioner/appellant, on account of the incompetence of Vikram University, Ujjain to confer the same. Even in the reply submitted by respondent No. 4 in response to the rejoinder, no such plea was raised in specific. This point is also not reflected to have been argued in the impugned order. Thus, it is not now open to respondent No. 4 to raise such an objection for the first time in the writ appeal, that too in the absence of Vikram University, Ujjain. Had it been raised earlier before the writ Court, in due manner, there would have been an opportunity to the parties to place on record the supporting factual foundation as well as the documents substantiating it. In the case in hands, since the said plea was never raised before the writ Court and has been raised for the first time in the writ appeal, the same may not now be permitted to be raised. ( 16. ) IN order to impart justice, we, despite the aforesaid constraints, gave an anxious consideration to the plea raised on behalf of respondent No. 4. Following documents have been placed before this Court in the return, which have not been disputed by any of the parties. (i) Letter sCTW t> 13-3/2002/55/ f%.%./2 dated 27-3-2002 issued by the Medical Education Department, Government of MP granting thereby permission to the Government Dhanwantri Ayurvedic Mahavidyalaya, Ujjain for MD (Ayurved) in the discipline of Rachana Sharir. (ii) Letter No. ftffe WTT:-4-l 1/2001 UM+ItU (3) dated 3rd April, 2002 issued by the INdian Medical Central Council. New Delhi, which reveals that the Central Council had granted permission for MD (Ayurved) in Rachana Sharir (Anatomy) to the Government College and Hospital, Ujjain, under the clear permission from the State Government and the affiliation with the University. (iii) Letter sFW/T/2002/131 dated 30th October, 2002 issued by the Vikram University, Ujjain granting temporary affiliation to the Government Dhanwantri Ayurvedic Mahavidyalaya, Ujjain for MD Ayurved (Sharir Rachana) with effect from the academic session 2002-03. (iii) Letter sFW/T/2002/131 dated 30th October, 2002 issued by the Vikram University, Ujjain granting temporary affiliation to the Government Dhanwantri Ayurvedic Mahavidyalaya, Ujjain for MD Ayurved (Sharir Rachana) with effect from the academic session 2002-03. It is pursuant to (1) letter No. Mm M :- 4-11/2001 HM+ItR (3) dated 3rd April, 2002 issued by the INdian Medical Central Council, New Delhi, (2) letter Wm 13-3/2002/55/ FA.%./2 dated 27-3-2002 issued by the Medical Education Department, Government of M. P., Bhopal and (3) letter 312/13/ yM??dl /2002 FArFF 2507 dated 20-8- 2002 issued by the Commissioner, Higher Education Department, Bhopal. (iv) The Gazette of INdia (Extraordinary) dated 7th July, ,2010 thereby amending the Schedule to the INdian Medical Council Act, 1970, so as to recognize the power of Vikram University, Ujjain to confer the Degree of MD (Ayurved) with effect from the year 2004. It has been strenuously argued by Shri Amit Agrawal, learned counsel appearing for respondent No 4 that the Schedule has been amended by virtue of gazette dated 7-7-2010. Therefore, the Degree of MD (Ayurved) with Rachana Sharir as the principal subject possessed by the petitioner/appellant should not have been considered for the subject post advertised in the year 2005. This submission has been buttressed on the strength of the decisions of the Apex Court reported as AIR 1953 SC 244 , State of Bombay vs. Pandurang Vinayak and others, (2005) 1 SCC 754 , K. Prabhkaran vs. P. Jayarajan and (2007) 4 SCC 54 , Ashok Kumar Sonkar vs. Union of India and others. In the case of Pandurang (supra), it has been observed :- "When a statute enacts that something shall be deemed to have been done, which in Fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion." In the case of K. Prabhakaran (supra), it has been observed :- "While pressing into service a legal fiction it should not be forgotten that legal actions are created only for some definite purpose and the fiction is to be limited to the purpose for which it was created and should not be extended beyond that legitimate field. A legal fiction presupposes the existence of the state of Facts which may not exist and then works out the consequences which flow from the state of Facts. Such consequences have got to be worked out only to their logical extent having due regard to the purpose for which the legal fiction has been created. Stretching the consequences beyond what logically flows amounts to an illegitimate extension of the purpose of the legal fiction." In the case of Ashok Kumar Sonkar (supra), it has been observed :- "20. Possession of requisite educational qualification is mandatory. The same should not be uncertain, if an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut-off date for the purpose of determining the eligibility of the candidates concerned must, therefore, be fixed. In absence of any rule or any specific date having been fixed in the advertisement, the law, therefore, as held by this Court would be the last date for filing the application." It has been further contended that prior to 7-7-2010. the petitioner could not have been admitted to the rights and privileges available to a person having the qualification of MD (Ayurved) from Vikram University, Ujjain. ( 17. ) FROM the documents placed before this Court, it is clear that the Government Dhanwantri Ayurvedic Mahavidyalaya, Ujjain was affiliated to Vikram University, Ujjain. It had the requisite permission to start MD (Ayurved) in Rachana Sharir with effect from the academic session 2002-03. The petitioner passed MD (Ayurved) Examination with Rachana Sharir as principal subject in the year 2005, as revealed in Annexure P/4. Schedule to the Indian Medical Central Council Act, 1970 was amended and, accordingly, the Vikram University, Ujjain was empowered to confer Degree of MD (Ayurved) with effect from the year 2004. Granting of recognition to the Vikram University, Ujjain to confer Degree of MD (Ayurved) with effect from the year 2004 has not been challenged. Considering the totality of the facts and circumstances of the present case, it, by no stretch of imagination, can be said that the petitioner/ appellant was not possessing a valid Degree of MD (Ayurved) with Rachana Sharir as special subject, at the time of issuance of the advertisement of the post in question and we accordingly hold so. ( 18. Considering the totality of the facts and circumstances of the present case, it, by no stretch of imagination, can be said that the petitioner/ appellant was not possessing a valid Degree of MD (Ayurved) with Rachana Sharir as special subject, at the time of issuance of the advertisement of the post in question and we accordingly hold so. ( 18. ) SHRI Amit Agrawal, learned counsel contended that the Degree of MD (Ayurved) possessed by the petitioner/appellant cannot be deemed to be effective for the purpose of advertisement in question published in the year 2005, when the gazette notification itself has been made in the year 2010. On a close scrutiny, it is abundantly clear that the recognition to the Degree in question with effect from the year 2004 is not a deeming fiction in the present case, because permission by the State Government, to start Post Graduation Course of MD with Rachana Sharir as special subject for the academic session 2002-03 was duly granted by the Higher Education Department. It had also granted the requisite permission. It is all revealed in the documents dated 27-3-2002, 3-4-2002 and 30-10-2002. The Degree of MD (Ayurved) with Rachana Sharir as special subject was, in fact, conferred during the aforesaid period and no statutory fiction is found to have been created. On the contrary, the reality of empowerment of Vikram University, Ujjain to confer Degree of MD (Ayurved) with Rachana Sharir as special subject has been recognized with effect from the year 2004 vide the gazette notification. The deeming interpretation is employed when there is no factual existence. In the present case, empowerment of the Vikram University, Ujjain to confer a Degree of MD (Ayurved) was duly made by the grant of permission, affiliation etc. at the relevant time. The recognition to the degree in question with effect from the year 2004 is mentioned in the Gazette to put beyond doubt that the degree granted by the Vikram University, Ujjain stands recognized with effect from the year 2004, since there was due permission to start PG Course in MD (Ayurved) Rachana Sharir with effect from the academic session 2002-03. The recognition to the degree in question with effect from the year 2004 is mentioned in the Gazette to put beyond doubt that the degree granted by the Vikram University, Ujjain stands recognized with effect from the year 2004, since there was due permission to start PG Course in MD (Ayurved) Rachana Sharir with effect from the academic session 2002-03. Rights and privileges under the Madhya Pradesh Ayurvedic, Unani Tatha Prakritik Chikitsa Vyavasayi Adhiniyam, 1970 are meant for the practitioners in Ayurved field, which is clear from the following preamble of the Madhya Pradesh Ayurvedic, Unani Tatha Prakritik Chikitsa Vyavasayi Adhiniyam, 1970 :- "An Act to consolidate and amend the law relating to the registration of practitioners of Ayurvedic and Unani Systems of Medicine in Madhya Pradesh, to regulate the Practice in Naturopathy and to make provisions for the constitution of the Board of Ayurvedic and Unani Systems of Medicines and Naturopathy for the State and for matters connection therewith." In view of the aforesaid discussion, the appeal is allowed. The impugned order is hereby reversed and consequently, the writ petition stands allowed. Selection as well as appointment of respondent No. 4 vide Annexure P/l is hereby quashed. Respondent No. 2 is directed to consider the name of the petitioner for appointment on the post of Lecturer (Rachana Sharir) within a period of one month from the date of order in the light of the findings and observations contained hereinbefore. Needless to say that in case the petitioner/ appellant is found eligible and entitled to the post in question, necessary orders shall be issued, forthwith. No order as to costs. C. C. as per rules. Appeal allowed.