1. State Public Service Commission, issued two notifications bearing Nos. 16-PSC of 2005 dated 13.10.2006 and No. 07-PSC of 2007 dated 04.07.2007, inviting applications from the eligible candidates amongst others for available vacancies of Lecturers Surgery, in Government Medical Colleges, Jammu and Srinagar. The notification dated 13th October, 2005 without specifying the Government Medical College in which vacancies were available, invited applications for seven vacancies of Lecturers Surgery, two in Open Merit Category and two in RBA category and one each in Schedule Cast and PHC categories. However, the notification dated 4th July, 2007, issued in supersession of earlier notification, invited applications for the available posts of Lecturers surgery in Government Medical Colleges, Jammu and Srinagar. 2. The petitioner responded to both the notifications in Open Merit Category and offered his candidature for the post of Lecturer surgery. The respondents 3 to 13, also applied for the advertised post under Open Merit and reserved categories. The State Public Service Commission on 7th July, 2008 published the list of selected candidates for Government Medical Colleges, Srinagar and Jammu. The State Government vide order Nos. 565-HME (GR) of 2008 and No. 566-HME (GR) of 2008 dated 11.07.2008, appointed the candidates selected and recommended by the State Public Service Commission as Lecturers surgery on regular/temporary basis in the pay scale of Rs. 8000-13500/- in the Departments of Surgery, Government Medical College, Jammu and Srinagar respectively. 3. The petitioner did not find place in the select list notified on 07.07.2008 and resultantly was not appointed as Lecturer in the department of surgery, in either of the Medical Colleges. However, the respondents 3 to 5 were selected and appointed vide Government Order No. 565-HME (GR) of 2008 dated 11.07.2008 as Lecturers in the department of surgery in Government Medical College, Jammu and the respondents 6 to 8 in Open Merit Category in the department of surgery, Government Medical College, Srinagar. Respondents 9 to 13 were also selected and appointed in different reserve categories. 4. The petitioner aggrieved with his non selection and selection and appointment of respondents 3 to 13, has come up with the writ petition on hand. 5. Challenge is thrown to the selection and appointment of respondents 3 to 13, primarily on the ground of their eligibility for the advertised posts. 4. The petitioner aggrieved with his non selection and selection and appointment of respondents 3 to 13, has come up with the writ petition on hand. 5. Challenge is thrown to the selection and appointment of respondents 3 to 13, primarily on the ground of their eligibility for the advertised posts. The other ground taken in the petition relates to failure on part of the State Public Service Commission to follow and adhere to prescribed selection criteria and methodology, while making the selection. 6. Learned counsel for the petitioner during the course of arguments restricted his challenge to selection and appointment of respondents 3 and 4. In view of stand taken by learned counsel for petitioner, it is not necessary to focus on the petitioner's case as regards selection and appointment of respondents 5 to 13. The attention is to go to the case set up in the petition only against the selection and appointment of respondents 3 and 4. 7. The petitioner's case is that neither the respondent No. 3 nor the respondent No. 4 satisfied the eligibility criteria prescribed in Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979 (Recruitment Rules, 1979 hereinafter). It is pleaded that in terms of Recruitment Rules, 1979 a candidate is required to have a masters Degree (MS) in General Surgery/Surgery or equivalent qualification to his credit and also two years experience as Registrar/Tutor, Demonstrator/Tutor or a Senior Resident in a recognized teaching Medical Institution recognized by Medical Council of India or the University of Jammu/Kashmir; that neither of the respondents i.e. respondents 3 and 4 possessed the requisite experience on the relevant date and therefore, they could not be considered for the advertised posts. 8. The petitioner claims to have been eligible for the advertised post as he did not only possess the requisite qualification but also the requisite experience on the cut off date prescribed under rules. 9. The petitioner is also sour about the selection criteria and methodology followed by the State Public Service Commission, while making the selection. It is pleaded that selection has been made in violation of Recruitment Rules, 1979 and in particular Rule 8, whereby the Commission while making selection is required to have regard to the academic qualification of the candidate, teaching experience, research experience, publications and previous record of work. It is pleaded that selection has been made in violation of Recruitment Rules, 1979 and in particular Rule 8, whereby the Commission while making selection is required to have regard to the academic qualification of the candidate, teaching experience, research experience, publications and previous record of work. The Commission is said to have given preference to Rule 51 of Jammu and Kashmir Public Service Commission (Conduct of business), Rules, over the clear mandate of Rule 8 of Recruitment Rules, 1979. The Commission according to the petitioner gave a complete go bye to Rule 8 (1) (d) of Recruitment Rules, 1979, while making the selection. It is said to have ignored to consider the petitioner's previous record of work spreading over one and a half decades and his contribution in shape of research papers published in national and International Medical Journals and also as many as 18 workshops and conferences attended by the petitioner. The Commission is said to have given credit to the respondents 3 and 4 for the achievement that did not deserve any weightage in terms of Rule 8 of Recruitment Rules, 1979 and thereby helped the respondents 3 and 4 to steal march over the petitioner. 10. The respondents in their reply to the petition have- questioned the petitioner's eligibility for the advertised post, insisting that a person lacking eligibility cannot question the selection. The respondents have controverted all the factual averments made in the petition and pleaded that not only were respondents 3 and 4 eligible for the advertised post but deserved to be selected on the basis of their academic record, previous record and experience. However, the Commission having allowed the petitioner and respondents 3 and 4 to participate in the selection process does not question the eligibility of the petitioner and respondents 3 and 4. 11. The respondents plead that the selection process was conducted and the merit of all the candidates for the advertised post evaluated in an objective manner on the touch stone of selection criteria and the rules governing the matter. 12. I have gone through the pleadings and the record made available by learned counsel for the State Public Service Commission. I have heard learned counsel for the parties at length. 13. 12. I have gone through the pleadings and the record made available by learned counsel for the State Public Service Commission. I have heard learned counsel for the parties at length. 13. The controversy involved, makes it necessary to go through the Recruitment Rules, 1979 to find out the eligibility criteria for the post of Lecturer surgery in the Medical Education Department and to examine the academic and service profile of the petitioner and respondents 3 and 4 to find out whether they satisfy and fulfil the prescribed criteria and last but not least the selection criteria and methodology to be followed by the Commission to find out whether such criteria and methodology was followed by the Commission while making the selection in question in letter and spirit. 14. The Recruitment Rules, 1979 prescribe eligibility criteria for lecturer surgery as under:- Item 20 Discipline Surgery Qualification M.S (General Surgery)/F.R.C.S. Specially Board of Surgery (USA) or an equivalent qualification in the subject. Experience As Registrar/Tutor, Demonstrator/Tutor or a Senior Resident for a period of two years in a recognized teaching Medical Institution recognized by the University of Jammu/Kashmir. The teaching experience, if any, gained before or during post graduation studentship shall not be considered while determining the eligibility for the posts of lecturers. 15. There is no disagreement between the parties as regards the qualification of the petitioner and respondents 3 and 4. The dispute, if any, relates to the experience to the credit of the petitioner and respondents 3 and 4. It is necessary to point out that the experience to make an aspirant eligible for the post in terms of Recruitment Rules, 1979, must satisfy following conditions. (i) The experience should be gained as Registrar/Tutor or Demonstrator/Tutor or Senior Resident. (ii) The period of experience gained in above capacities should be for a minimum period of two years. (iii) The experience in any of the capacities i.e. Registrar/Tutor, Demonstrator Tutor, or Senior Resident must have been gained in a teaching Medical Institution recognized by Medical Council of India or the University of Jammu or University of Kashmir. (iv) The teaching experience must have been gained after post graduation and not before or during post graduation studentship. 16. Let us now proceed to examine whether the petitioner and respondents 3 and 4, possessed the experience on the relevant date. 17. (iv) The teaching experience must have been gained after post graduation and not before or during post graduation studentship. 16. Let us now proceed to examine whether the petitioner and respondents 3 and 4, possessed the experience on the relevant date. 17. The petitioner has done his masters in General Surgery in 1991 from Government Medical College, Jammu and thereafter his M.Ch (Paediatric Surgery) from Post Graduate Institute of Medical Education and Research, Chandigarh in the year 1997. The petitioner, therefore, satisfies the prescribed requirements as regards qualification. 18. The petitioner after completing his post graduation in General Surgery worked as Registrar in General Surgery in Medical College, Jammu, from April 1993 to June 1995 i.e. for two years and three months, Senior Resident in PGIMER Chandigarh from July 1997 to June 1998. The above experience apart, the petitioner claims to have gained experience as post graduate in General Surgery in Government Medical College, Jammu for two years, as Senior Resident during M.Ch programme at PGIMER,Chandigarh from July 1995 to June 1997 and as lecturer Surgery on deputation from April 2008 onwards. The petitioner, therefore, satisfies the eligibility criteria as regards qualification and experience as prescribed under the Recruitment Rules, 1979, inasmuch as the petitioner has MS General Surgery degree to his credit and has gained experience as Registrar and Senior Resident at Government Medical College, Jammu (April 1993-June 1995) and PGIMER, Chandigarh Quly 1997 to June 1998) for a total of three years and three months. There can be no dispute as regards eligibility of the petitioner for the advertised post. 19. The respondent No. 3 has done his MS in Surgery in 1993-1996 from Bangalore Medical College and therefore, fulfils the criteria as regards the qualification prescribed under the Recruitment Rules, 1979. The respondent No. 3 claims to have gained following experience after he completed the post graduation courses Non-PG Registrar Dept. of urology, CMC Vellore Feb, 1997 to Jan, 1998 1 year PG Registrar Dept. of urology, CMC Vellore Jan, 1998 to Jan 2000 Two years Lecturer Dept. of urology, CMC Vellore June, 2000 to Dec. 2001 1 and a half years Assistant Surgeon Department of Surgery, Medical College, Jammu Aug, 2003 to April 2008 5 years Lecturer Department of Surgery, Medical College, Jammu April till date 20. of urology, CMC Vellore Jan, 1998 to Jan 2000 Two years Lecturer Dept. of urology, CMC Vellore June, 2000 to Dec. 2001 1 and a half years Assistant Surgeon Department of Surgery, Medical College, Jammu Aug, 2003 to April 2008 5 years Lecturer Department of Surgery, Medical College, Jammu April till date 20. The case set up by the petitioner, makes it necessary to subject the experience claimed by the respondent No. 3 to close scrutiny. It may recalled that in terms Recruitment Rules, 1979, the emphasis is not only on the experience but the status or position in which the experience is to be acquired and the Institution in which the requisite experience is to be gained. The rule makers in their wisdom have not only placed emphasis on experience in a particular discipline, but identified the position held by an aspirant while gaining experience and also the status of the Institution in which such position is held. To illustrate an Assistant Surgeon attached with the department of Surgery in a Medical College before he is selected for MS Surgery or General Surgery, cannot claim any credit for the experience that he might have gained while working as such in said department. Similarly a candidate after he completes MS in surgery or General Surgery, may remain associated with the department for a long time but in terms of Recruitment Rules, 1979, he cannot claim credit for experience that he gained by remaining so associated or while undergoing MS Surgery/General Surgery courses. He may be better equipped and experienced than an aspirant who after completing MS Courses has joined as a Registrar, Demonstrator/Tutor/or Senior Resident in the Institution contemplated under the Rules. But in terms of Rules he cannot be held eligible for the post of Lecturer Surgery as his experience does not satisfy the statutory requirements. The rule makers intend to lay emphasis not only on the experience but also the status in which such experience is gained as well as the Institution from which the experience is gained. It may be pointed out that in case of "qualification" while the rule makers have given an alternative to MS Surgery/General Surgery by leaving room for an "equivalent qualification" in the subject, no such room or option has been left in case of experience. It may be pointed out that in case of "qualification" while the rule makers have given an alternative to MS Surgery/General Surgery by leaving room for an "equivalent qualification" in the subject, no such room or option has been left in case of experience. To sum up, it is necessary for an aspirant to the post of Lecturer Surgery to have gained experience while holding the position prescribed under Rules and holding such position in an Institution mentioned in the Rules. 21. Let us for a moment revisit the conditions, laid down in the Rules, subject to which the experience claimed by an aspirant for the Lecturer surgery is to be noticed and counted. The experience, it may be recalled must be of the duration of minimum two years gained as Registrar/Tutor, Demonstrator/Tutor or Senior Resident in an Institution recognized by Medical Council of India or the University of Jammu/Kashmir. The experience claimed by the respondent No. 3 to his credit as tabulated on page two of his reply may be extracted hereunder:- 1. Non-PG Registrar Dept. of Urology, CMC Vellore Feb, 1997 to Jan, 1998 1 year 2. P.G. Registrar Dept. of Urology, CMC Vellore Jan, 1998 to Jan, 2000 Two years 3. Lecturer Dept. of Urology, CMC Vellore June, 2000 to Dec, 2001 1 and half years 4. Assistant Surgeon Dept. of Surgery, Medical College, Jammu Aug. 2003 to April 2008 5 years 5. Lecturer Dept. of surgery, Medical College, Jammu April till date 22. Having regard to the Recruitment Rules, 1979, experience at serial No. 1 and 2 i.e. postgraduate Registrarship is only to be noticed. It may be recalled that in terms of Recruitment Rules, 1979, the teaching experience must have gained after post graduation and not before or during the post graduation studentship. The respondent No. 3 did his MS Surgery in 1993-96 and non- post graduation Registrarship from Feb. 1997 to Jan 1998 and his post graduate Registrarship in January, 1998 to January 2000 i.e. after his post graduation in surgery. It is important to note that the respondent No. 3 did his post graduate Registrarship while undergoing M. Chin Urology. Let us assume that this does not deprive him of the credit for such experience. However, the Registrarship has not been done in Surgery/General Surgery but in Urology. It is important to note that the respondent No. 3 did his post graduate Registrarship while undergoing M. Chin Urology. Let us assume that this does not deprive him of the credit for such experience. However, the Registrarship has not been done in Surgery/General Surgery but in Urology. Therefore, though the respondent No. 3 has three years Registrarship (Non- PG and PG) to his credit, still it does not make him eligible for the post of Lecturer Surgery, as the Registrarship has not been done in concerned discipline i.e. Surgery/General Surgery. It needs no emphasis that the experience prescribed must have been obtained in concerned speciality/discipline. 23. Let us for a while take it that three years Non- PG and PG Registrarship in Urology makes respondent No. 3 eligible for the post of Lecturer Surgery, still it is required to be examined whether his selection is in accordance with the Recruitment Rules, 1979 and whether he has been rightly awarded the points that when put together have persuaded the Commission) to select and recommend the respondent No. 3 for the advertised post. To consider the matter. It becomes necessary to have a look on the points awarded by the Commission to respondent No. 3. Sr. No. 2 Bio-data Sr. No. 2 Name of the candidate Elias Sharma Mir Category open Minimum Qual. (30) 30 Higher Qual (5) 5.00 Exp.(5) 0.50 Sports (3) 2.00 NCC (2) – Spl. Attributes (5) 2.00 Vivavoce (50) 32.00 Total (100) 71.50 24. The respondent no. 3 has been awarded five (05) points for the higher qualification i.e. M.Ch. Urology undergone at CMC Vellore from January, 1998 to March, 2000. The respondent No. 3 has done his PG Registrarship during the same period, he did his M.Ch. Urology. The Commission has awarded 0.50 points to the respondent No. 3 on account of experience. The respondent No. 3 could not have been awarded points twice for the degree obtained/experience gained, during the same period. In case the respondent No. 3 was to be awarded 05 points on account of higher qualification i.e. M. Ch Urology obtained during 1998 to 2000, there was no reason for the respondent Commission to award 0.50 points for the experience gained during the same period. The respondent No. 3 has been awarded points for two academic/experience achievement attained during the same period (1998-2000), a course not permissible under Rules. The respondent No. 3 has been awarded points for two academic/experience achievement attained during the same period (1998-2000), a course not permissible under Rules. In case respondent No. 3 is held entitled to credit for such experience, the petitioner was also to be awarded points for experience gained as Senior Resident in PGIMER Chandigarh from July 1995 to June 1997 while pursuing M. Ch programme. 25. The respondent No. 3 has been awarded 02 points for distinction in sports. The respondent Commission appears to have felt persuaded to award 02 points to respondent No. 3 for his participation in Basketball Inter University Tournament held at Osmania University in 1987-88, when the respondent No. 3 was an MBBS student in Osmania Medical College, Hyderabad. The respondent Commission awarded him 02 points for distinction in sports in terms of Rule 51 of Jammu and Kashmir Public Service Commission (business and procedure) Rules, 1980, recast vide notification 164-PSC of 2004 dated 25th October, 2004. In other words the respondent No. 3 was rewarded for an event that had taken place twenty years prior to the process was initiated for selection against the post of Lecturer Surgery. It would be appropriate to reproduce hereunder the relevant part of Rule 51 recast on 25th October, 2004. "D.I. Sports/Games Distinction in sports/Games (i.e. representing a University, State, or Region in any regional or national sports/games) upto 03 marks" 26. It is pertinent to point out that Rule 8 Recruitment Rules, 1979, prescribing method of Recruitment does not recognize distinction or outstanding performance in sports as one of the areas to be considered by the Commission, while making selection for Lecturer Surgery or for that matter against any of the posts of Jammu and Kashmir Medical Education (Gazetted) Service. Rule 8 needs to be reproduced. It reads:- "Method of recruitment While making selections— (1) To the posts in the Teaching wing of the service, the Commission/ Departmental Promotion Committee shall have regard to the following, namely:- a) Academic qualifications of the candidates; b) Teaching experience; c) Research experience and publication; and d) Previous record of work, if any. 2) to the post in the Administrative and General wings of the service, the Commission/Departmental Promotion Committee shall have regard to the following, namely:- a) Academic qualifications; b) Experience; and c) previous record of work, if any." 27. 2) to the post in the Administrative and General wings of the service, the Commission/Departmental Promotion Committee shall have regard to the following, namely:- a) Academic qualifications; b) Experience; and c) previous record of work, if any." 27. Rule 8 Recruitment Rules, 1979, is statutory in character and it has over riding effect on Rule 51 of Jammu and Kashmir Public Service Commission (business and procedure) Rules, 1980 that lacks statutory flavour. Had the Recruitment Rules, 1979, left room for any credit on account of distinction or outstanding performance in sports, Rule 51 Jammu and Kashmir Public Service Commission (business and procedure) Rules, 1980, would come into play and authorise the Commission to award marks for distinction or outstanding performance in sports. It would be advantageous to refer to following observation made by Supreme Court in Inder Prakash Gupta v. State of J&K (2004) 6 SCC 786 . "The Jammu and Kashmir Medical Education (Gazetted) Services Recruitment Rules, 1979 were issued under Section 124 of the Jammu and Kashmir Constitution which is in pari Materia with Article 309 of the Constitution of India. The said Rules are statutory in nature. The Public Service Commission is a body created under the Constitution by the State to meet the constitutional requirement for the purpose of discharging its duties under the Constitution. Appointment to service in a State must be in consonance with the constitutional provisions and in conformity with the autonomy and freedom of executive action. Section 133 of the J&K Constitution imposes duty upon the State to conduct examination for appointment to the services of the State. The Public Service Commission is also required to be consulted on the matters enumerated under Section 133. While going through the selection process the Commission, however, must scrupulously follow the statutory rules operating in the field. It may be that for certain purposes, for example, for the purpose of shortlisting, it can lay down its own procedure but that must be strictly in consonance with the statutory rules. It cannot take any action which per se would be viola the of the statutory rules or makes the same inoperative for all intent and purport. Even for the purpose of shortlisting, the Commission cannot fix any kind of cut-off marks.... It cannot take any action which per se would be viola the of the statutory rules or makes the same inoperative for all intent and purport. Even for the purpose of shortlisting, the Commission cannot fix any kind of cut-off marks.... The marks awarded for sports/games and NCC activities are to be excluded as they are beyond the purview of Rule 8." 28. In the present case, even if respondent No. 3 was found to have represented his University in a regional or national sports event some 20 years back and entitled to any credit, two decades after the event took place, still the Commission would not award any points on such count in view of clear and unambiguous language of Rule 8 Recruitment Rules, 1979. 29. This apart, in my opinion, an aspirant for a professional course or employment in the State can be given credit for distinction or outstanding performance in sports subject to Jammu and Kashmir (appointment of outstanding sports persons) Rules, 1998, only where an opportunity comes his way on completion of an academic course during which he acquired distinction or outstanding performance in sports. The purpose of giving extra weightage to outstanding sports personnel is not only to encourage participation in sports but also compensate the student, who is expected to have devoted time that he would have otherwise devoted to his studies, to sports and bring laurels to himself, his Institution and the State or Country. To illustrate after a MBBS student acquires distinction or outstanding performance in sports while undergoing MBBS Course, he deserves to be given extra weightage if otherwise permitted under rules, while seeking appointment as Assistant Surgeon or admission in MD or MS Course. The reason being that he devoted time that was given by his fellow students with higher merit to their studies, to sports and deserves to be compensated for the time so given. Such a candidate cannot expect any weightage, on account of distinction or outstanding performance in sports, while pursuing MBBS course, when he aspires for admission in DM or M.Ch. course or appointment against the post of Lecturer in any discipline in the Medical Education Department. 30. Such a candidate cannot expect any weightage, on account of distinction or outstanding performance in sports, while pursuing MBBS course, when he aspires for admission in DM or M.Ch. course or appointment against the post of Lecturer in any discipline in the Medical Education Department. 30. For the reasons discussed, the Commission erroneously awarded 0.50 points to the respondent No. 3 on account of experience and 02 points on account of his participation in Basketball Inter University event, two decades before the selection process. When 2.50 points are deducted from 71.50 points awarded to the respondent No. 3, his merit comes down to 69.00 points. The petitioner with 70 points obviously is to be held to be more meritorious than the respondent No. 3 and entitled to be selected for the post of Lecturer Surgery. 31. The respondent No. 4 did his Masters degree in Surgery from SKIMS in the year 1992. He worked as a Resident in the department of Surgery SKIMS from 9th October, 1992 to 7th July, 1993 and the Senior Resident in the department of Surgery SKIMS from 8th July, 1993 to 30th July, 1996. This is in addition to his Junior Residency from 1989-92 and Senior Residency in CVTS from 2004 to 2007. The Junior Residency and Senior Residency in CVTS, in the background of Recruitment Rules, 1979 is of no benefit to the respondent No. 4. However, his Residency in the department of Surgery from 9th October, 1992 to 7th July, 1993 and Senior Residency in the department of Surgery from 8th July, 1993 to 30th July, 1996, makes him eligible for the post of Lecturer Surgery against which he stands selected and thereafter appointed. It is pertinent to point out that respondent No. 4's status as Senior Resident in the department of Surgery is duly certified by Registrar academics (annexure R-4 and R-5) to the reply. There is in the circumstances no merit in the petitioner's case that the respondent No. 4, lacked eligibility for the post of Lecturer Surgery. 32. This takes us to the marks awarded by the Commission to the respondent No. 4 that lead to his selection and appointment. The respondent No. 4 has been awarded 71.25 points by the Commission with the following breakup:- Sr. No. Bio-data Sr. No. Name of the candidate Category Minimum Qual. (30) Higher Qual (5) Exp. 32. This takes us to the marks awarded by the Commission to the respondent No. 4 that lead to his selection and appointment. The respondent No. 4 has been awarded 71.25 points by the Commission with the following breakup:- Sr. No. Bio-data Sr. No. Name of the candidate Category Minimum Qual. (30) Higher Qual (5) Exp. (5) Sports (3) NCC (2) Spl. Attributes (5) Viva-voce (50) Total (100) 25 25 Ishtiyaq Ahmad Mir open 30 5.00 4.00 - - 5-00 27.25 71-25 33. The petitioner questions award of 05 points to respondent No. 4 on account of higher qualification. It is contended that as the higher qualification viz M.Ch (CVTS) was not recognized by Medical Council of India. The Commission was not justified in awarding any points on account of such qualification to the respondent No. 4. The petitioner's case is that once 05 points awarded on account of M.Ch (CVTS) are subtracted, the respondent No. 4's merit comes down to 66.25 i.e much below the last selected candidate as also the points scored the petitioner. 34. The respondent No. 4 was awarded M.Ch degree in CVTS by SKIMS on 17th November, 2004. The general body of Medical council of India in its meeting held on 1st March, 2009 accorded recognition to M.Ch (CVTS) course qualification (degree) granted by SKIMS and directed its inclusion in the 1st schedule to the IMC Act, 1956. The communication addressed by Secretary MCI to the Secretary government of India, Ministry of Health and Family Welfare Nirman Bhavan, New Delhi, deserves to be noticed:- "No. MCI-255(22)/2008/Med./Date: The Secretary, Govt. of India, Ministry of Health & Family Welfare Nirman Bhavan, New Delhi Kind attn: Sh. K.V.S. Rao, Deputy Secretary. Sub: Sher-I-Kashmir Institute of Medical Sciences (Deemed University)- Recognition of M.Ch. (CTVS) qualification in respect of students being trained at Sher-I-Kashmir Institute of medical Sciences. Sir, I am to state that the General Body of this council at its meeting held on 01.03.2009 considered the Council inspector report (October, 2008) on the standard of examination and other teaching facilities available at Sher-1-Kashmir Institute of Medical Sciences for purpose of recognition of M. Ch. Sir, I am to state that the General Body of this council at its meeting held on 01.03.2009 considered the Council inspector report (October, 2008) on the standard of examination and other teaching facilities available at Sher-1-Kashmir Institute of Medical Sciences for purpose of recognition of M. Ch. (CTVS) Course granted by Sher-I-Kashmir Institute of Medical Sciences (Deemed University) and the Council approved the following recommendation of the postgraduate Committee:- "The Postgraduate Committee considered the Council Inspector's report (October, 2008) and decided to recommend that M.Ch. (CTVS) Course qualification granted by Sher-I-Kashmir Institute of Medical Sciences (Deemed University) in respect of students being trained at Sher-I-Kashmir Institute of Medical Sciences be recognized and included in the 1st Schedu le to the I.M.C. Act, 1956 restricting the number of admissions to l(one) student per year" You are therefore requested to notify the above qualification at the earliest. Two copies of above inspection report are enclosed herewith. Date of starting the course- 29.01.1992 Date of examination of first batch-Jan, 1995 Yours faithfully Sd/- (Lt. CoKRetd.) Dr. ARN Setalvad) Secretary End: As above Endst. No. MCI-255(22)/2008-Med. 5729 Dated 1/05.09" (emphasis supplied) 35. The Gazette of India, August 23-29, 2009 published S.O. 2324 dated 27th July, 2009, whereby amendments in the 1st schedule to Indian Medical Council Act, 1956(102 of 1956) were notified. S.O. 23-24 related to a number of Universities/deemed Universities/Medical Institutes. The statutory order as it relates to the SKIMS reads as under:- "Magistrar of Chirurgiae (Cardio Thoracic Vascular Surgery) M.Ch (CTVS) (This shall be a recognized medical qualification when granted by Sher-I-Kashmir Institute of Medical Sciences (Deemed University) in respect of the students being trained at Sher-I-Kashmir Institute of Medical Sciences, Srinagar on or after January, 1995)" 36. It needs to be pointed out that SKIMS was permitted to by Medical Council of India to commence M. Ch and CVTS course in 1992. The communication addressed by Secretary MCI to the Registrar (academics SKIMS) vide No. MCI 255 (22) 88 Med/47921 dated 29th January, 1992 reflected the decision of post graduate Committee of MCI. It reads:- "The Registrar (Academic) Sher-i-Kashmir Institute of Medical Science, Post Bag-No. 27, Srinagar Subject:- Starting of postgraduate medical course at Sher-i-Kashmir Institute of Medical Sciences, Srinagar-Approval of. The communication addressed by Secretary MCI to the Registrar (academics SKIMS) vide No. MCI 255 (22) 88 Med/47921 dated 29th January, 1992 reflected the decision of post graduate Committee of MCI. It reads:- "The Registrar (Academic) Sher-i-Kashmir Institute of Medical Science, Post Bag-No. 27, Srinagar Subject:- Starting of postgraduate medical course at Sher-i-Kashmir Institute of Medical Sciences, Srinagar-Approval of. Sir, I am to state that the council Inspector's report (Sept., 1988) on the physical and other teaching facilities available at Sher-i-Kashmir Institute of Medical Sciences, Srinagar for purposes of approval of starting of M. Ch. (Cardiovascular & Thoracic Surgery) course under Sher-i-Kashmir Institute of Medical Sciences, Srinagar was duly placed before the postgraduate Committee of this Council at its meeting held on 31st October/November, 1991 for consideration. The postgraduate Committee decided as under which I am directed to forward herewith for your information and necessary action in the matten- "The postgraduate Committee decided to permit the authorities of Sher-i-Kashmir Institute of Medical Sciences, Srinagar to start M.Ch. (Cardio-Vas-cular & Thoracic Surgery) degree course restricting the number of admission to one student per year and the attention of the authorities be drawn towards implementation of the various recommendations and suggestions made by the Inspector in the inspection report." Two copies of the above inspection report are enclosed herewith for your information and necessary action in the matter. Encl: as above Yours faithfully, Sdl- (MRSM. Sachdeva) Secretary Endst: No. MCI-255(22)88-Med/Dated the" 37. The aforesaid communication explains the decision taken by General body of MCI to make the recognition operational w.e.f. 1995 as reflected in the communication dated 1st May, 2009 addressed by Secretary MCI to the Secretary Government of India Health and Family Welfare Nirman Bhavan New Delhi. In the said background the communication specifically incorporates expression "date of starting course 29-01-1992 and date of examination of the first batch- January, 1995" at its foot. It is for the said reason that in the Gazette of India, the M.Ch (CVTS) qualification granted by SKIMS Srinagar, on or after January, 1995 is recognized and amendment made in Schedule 1st Medical Council of India Act, 1956 (102 of 1956), accordingly. The respondent No. 4 obtained M. Ch (CVTS) from SKIMS in the year 2004. It is for the said reason that in the Gazette of India, the M.Ch (CVTS) qualification granted by SKIMS Srinagar, on or after January, 1995 is recognized and amendment made in Schedule 1st Medical Council of India Act, 1956 (102 of 1956), accordingly. The respondent No. 4 obtained M. Ch (CVTS) from SKIMS in the year 2004. The degree awarded to respondent No. 4 against the above backdrop cannot be held to have not been recognized by the Medical Council of India so as to disentitle him from 05 points due to him on account of higher qualification. The plea raised by the petitioner as regards award of 05 points on account of M.Ch. degree (CVTS) to the respondent No. 4, is therefore, without any merit and so is the case set up against the eligibility of respondent No. 4 for the post of Lecturer Surgery. The argument that as this Court in case titled Dr. Sham Singh v. J&K PSC and others (SWP 513/2007) upheld in Dr. Ishtiyak Ahmad Mir v. Dr. sham Singh and others (LPA 181/2010) held the M.Ch degree (CVTS) obtained by the respondent No. 4 not recognized by MCI. The respondent No. 4 not eligible for the post of Lecturer (CVTS), he could not have been given any credit for such degree, does not sound convincing. It needs to be pointed out that in the aforesaid case, the degree in question was the basis of eligibility for the advertised post. In the present case, the respondent No. 4 has MS Surgery and necessary experience to his credit making him eligible for the post of Lecturer Surgery. The M.Ch degree is only to help him earn some extra points/preference because of qualification higher than the minimum prescribed under Recruitment Rules, 1979. The facts of the present case, therefore, are markedly different and distinguishable from the facts of Dr. Sham Singh's case. The difference between a case where a degree is condition of eligibility and a case where it merely earns some extra points but does not constitvite condition of eligibility, was notified and emphasised by the Writ Court in Dr. Shams case (supra). Sham Singh's case. The difference between a case where a degree is condition of eligibility and a case where it merely earns some extra points but does not constitvite condition of eligibility, was notified and emphasised by the Writ Court in Dr. Shams case (supra). The Court referring to Apex Court Judgment in Arun Kumar Aggarwal v. State of Bihar AIR 1991 SC1514 observed:- "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 superspecialty. 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 superspecialty 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. 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." 38. 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." 38. The petitioner as stated above, participated in the selection process and as per the record has been awarded a total of 70 points with the following breakup:- Sr. No. 17 Biodata Sr. No. 17 Name of the candidate Narinder Singh Category open Minimum Qual. (30) 30 Gigher Qual (5) 5.00 Exp. (5) 0.25 Sports (3) – NCC (2) – Spl. Attributes (5) 5-00 Vivavoce (50) 29.75 Total (100) 70.00 The petitioner, therefore, is superior in merit and has more points as compared to respondent No. 3 Dr. Elias Sharma, who as against of 70 points of petitioner has scored only 69.00 points. The petitioner, therefore, deserves to be selected against the post of Lecturer Surgery in Open Merit Category in place of respondent No. 3. 39. The argument that the petitioner after participating in the selection process cannot question the eligibility or selection criteria to throw challenge to the selection of respondent No. 3 is devoid of any substance. The legal proposition that a candidate after participating in the selection process cannot on his failure to make the grade turn around and question the eligibility or selection criteria, has its edifice on the principle that the candidate being aware of the eligibility and selection criteria, should question the criteria if he believes it to be violative of rules and regulations, instead of participating in the selection process and thereafter assailing it on his favour to make the grade. In the present case, the petitioner does not question the eligibility criteria or even the selection criteria. The petitioner rather seeks adherence to the eligibility and selection criteria and questions its application to fact situation. It is nobody's case that the petitioner in view of clear and unambiguous mandate of Rule 8 Recruitment Rules, 1979 should have at the time he responded to the advertisement notice and participated in the selection process, expected the respondent Commission to give preference to Rule 51 (business and procedure) Rules, 1980 over a statutory Rule made under Section 124 of the Constitution of Jammu and Kashmir. The petitioner's challenge to the selection of respondent No. 3 therefore, cannot be rejected at the threshold on the ground of maintainability of the writ petition. 40. For the reasons discussed, the writ petition is allowed and by a writ of certiorari the selection of Shri Dr. Elias Sharma dated 07.07.2008 and his appointment vide order Nos. 565-HME (GR) of 2008 and No. 566-HME (GR) of 2008 dated 11.07.2008, are quashed. A writ of mandamus is granted in favour of the petitioner and against respondent No. 1 and 2 commanding the respondent No. 2 to treat the petitioner as selected for the post of Lecturer Surgery in place of Dr. Elias Sharma and recommend him to respondent No. 1 for his appointment as Lecturer Surgery, in Medical Education Department. The respondent No. 1 shall on receipt of the recommendation from the respondent 2 appoint the petitioner as Lecturer Surgery w.e.f. 11.07.2008. 41. The parties are left to bear their own casts.