AI Drafter 
TaxTMI 
TaxTMI 
1982 (12) TMI 224
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....3. The Service was constituted for providing doctors for manning the medical, public health and medical research and teaching posts in the Central Government hospitals, dispensaries scientific research institutions and institutions of higher education. The members of this Service are also meant to man posts in the Union Territories and the various autonomous bodies. 3. In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the President on May 1, 1963 made the Central Health Service Rules, 1963 which came into force on May 5, 1963. Rule 3 provided for the Constitution of the Central Health Service. Under Rule 4 the Service was divided into two classes viz. Class I and Class II. The rules envisaged categorization of personnel manning the service into five different categories viz. Categories 'A' to 'E'. Rule 5 provided for the authorized permanent and temporary strength of the Service. Under Rule 5(3), the controlling authority had the power to interchange any post included in the junior scale with any post included in the senior scale without altering the authorized strength in each category. Rule 8 provided for the future maintena....
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....39;A' and 'B' shall be appointed to the newly-formed appropriate Category "after selection". That had to be so because the new Categories were different and the conditions of eligibility had also been revised. Accordingly, officers from Category 'C', Category 'D' and Category 'E' and were selected by the Departmental Promotion Committee for appointment to the Specialists' Grade-General Duty Officers Grade I and General Duty Officers Grade II-after taking into account the qualification, experience and conditions of eligibility. Several Officers who were in former Category 'C were placed in General Duty Officers Grade I. 5. Rule 8. provides for the future maintenance of the Service. After appointments have been made to the Service under Rules 7 and 7A, future vacancies have to be filled in the manner provided therein. Rule 8(2) provides that every vacancy in the Specialists' Grade shall be filled by direct recruitment in the manner provided by the Second Schedule through the Union Public Service Commission, subject to the exception made in Rule 8(2A) with regard to Associate Professors and Assistant Professors. Rule 8(3) provides for....
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....s in the higher grade subject to the candidates satisfying the prescribed qualifications. We notice that at present out of 27 clinical specialties only a few have posts in Supertime Grade II. We would suggest that there should be at least one post in the higher grade of Rs. 1800-2250 for every speciality. The proportion of hospital specialists posts in the new grade should not exceed 20% of the number of hospital specialists' posts in the lower grade (Specialists Grade II) and additional number of posts as may be necessary to make up the 20% may be created. (Emphasis supplied) As a result of the recommendation of the Third Pay Commission, the Specialists' Grade is now bifurcated into specialists Grade I or Supertime Grade II carrying a pay-scale of Rs. 1800-2250 and Specialists Grade II carrying a pay-scale of Rs. 1100-1800. 7. As at present constituted, the Central Health Service has the following grade structure as per the recommendations of the Third Pay Commission: S.No. Grade Pay (Rs.) 1. (a) Supertime Grade I (i) Director-General Health service 3500 (ii) Commissioner of Rural Health 3000 (iii) Additional Director - G....
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....o December 1958. Besides gaining teaching experience in that post which under Indian Medical Council Rules is a teaching post, he also had the privilege of visiting some important London hospitals like Mt. Verman and Hammersmith which institutions have a unique and distinguished position in the area of Cancer-therapy by irradiation. 11. On his return to India, the appellant worked as Junior Lecturer and Clinical Assistant in the Department of Radiology at the Christian Medical College & Hospital, Vellore from February 6, 1959 to December 26, 1960. This post required the appellant to take up teaching classes in Radiotherapy for the Master of Surgery (M.S.), Diploma in Gynaecology & Obstetrics (D.G.O.) and M.B.B.S. courses. During his stay there he was placed in charge of the Department of Radiotherapy during the absence of Professor Scudder, and as he had considerable experience in the United Kingdom in the practical aspect of handling such cases, he proved to be extremely useful to the institution. The certificate of the renowned Neuro-Surgeon Dr. Jacob Chandy, Medical College & Hospital, Vellore pays high encomiums to the services rendered by the appellant and records that his ....
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....39; Grade with effect from September 9, 1966, The appellant was listed at Sr. No. 80 and the entry giving his name and designation reads: 80. Dr. Asim Kumar Bose Radiologist, Irwin Hospital, New Delhi. As a result of this, the appellant has continued to hold the post of Radiologist in the Irwin Hospital which is attached to the Maulana Azad Medical College and treated as an Associate Professor of Radiology (ex-officio) both by the University of Delhi as well as by the Maulana Azad Medical College. 15. By the early 70s, the appellant had acquired the requisite teaching experience of an Associate Professor of Radiology as well as acquired higher academic qualification. On August 19/20, 1968 the Principal, Maulana Azad Medical College addressed a letter to the appellant conveying that the Vice-Chancellor of the Delhi University in exercise of his emergency powers, had granted him recognition as an Associate Professor of Radiology for teaching the post-graduate and under-graduate students for the D.M.R.T. and M.B.B.S. courses of studies. In 1970, the appellant was conferred the degree of Doctor of Philosophy (Medicine) in Radiotherapy by the Calcutta University. The Faculty of Me....
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....he Government of India in the Ministry of Health disregarding his claim for appointment to the post of Associate Professor of Radiotherapy was in denial of equal opportunity in matters of employment and thus violative of Articles 14 and 16 of the Constitution. The contention upon which the writ petition was based was that on a true construction of Rule 8(2A) and paragraph 3 of Annexure I to the Second Schedule, he was clearly eligible for appointment to the post of Associate Professor as he had the essential educational qualification and had also the requisite teaching experience while holding the post of Radiologist-cum-Associate Professor of Radiology (ex-officio) in the Irwin Hospital which is a teaching hospital attached to the Maulana Azad Medical College. The respondents Nos. 1 and 2 filed a return reiterating the stand taken by the Government of India in the Health Ministry that the experience gained by the appellant as an Associate Professor of Radiology (ex-officio) by virtue of his holding the post of Radiologist in the Irwin Hospital cannot be taken into consideration for the purpose of determining the question of his eligibility for appointment as Associate Professor. I....
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.... is so in all professional careers." According to the High Court, "some people opt for a teaching career while others opt for a regular professional career as Doctors. The medical graduates who opt for a teaching career, join a cadre different from that of the career of Doctors." In the words of the High Court, "they tie down their fate to the teaching career and expect promotions to various posts in their channel of promotion i.e. in the cadre of teachers." While rejecting the claim of the appellant, the High Court observed: It is a fortuitous circumstance that a medical graduate regularly working as a doctor is also permitted by the authorities to take up a teaching assignment. The normal duty of such a doctor is in the hospital and in the cadre of doctors in hospital. If the person who is working as a doctor is allowed to compete, with teachers in the teaching cadre, such teachers are at a disadvantage. Their chances of promotions are adversely affected by recruitment of people who do not initially opt for a teaching career. This being the rationale behind the respondents' decision, we do not find that there is any illegality or arbitrariness in the decision of the respon....
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....he rules came to be amended w.e.f. 18. 09.1971. After the amendment of the CHS Rules, only Assistant Professors possessing five years experience were eligible for appointment as Associate Professor. Since Dr. Bose was holding the clinical post of Radiologist, he was not in direct line of and eligible for promotion to the post of Associate Professor. 23. It is somewhat strange that alongwith the aforesaid note, the Ministry had produced a letter of the Dean, Maulana Azad Medical College dated January 25, 1982 addressed to the Secretary, Ministry of Health & Family Welfare which tends to show that the appellant as Radiologist-cum-Associate Professor of Radiology (ex-officio) was not actually teaching the post-graduate and under graduate students of the Maulana Azad Medical College. The letter is self-explanatory and reads: With reference to the telephonic conversation with Sri R.N. Tewari with respect to the question received from the Supreme Court regarding Dr. A.K. Bose I have to state that Dr. Bose while performing his duties as Radiologist was not lecturing to the students as an Associate Professor is required to do. It is rather difficult to act on the letter of the Dea....
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.... That according to the Central Health Service (Amendment) Rules, 1966, atleast 5 years experience as Reader/Assistant Professor in the concerned speciality in a medical college/teaching institution is after the requisite post-graduate qualification is absolutely essential for promotion to the post of Associate Professor. That the appellant does not fulfil the above mentioned requirement and thus cannot be considered for promotion to the post of Associate Professor as per CHS Rules. That according to the provisions of the CHS Rules, all posts of Lecturers, Assistant Professors and Associated Professors were required to be filled through the UPSC before the Rules came to be amended with effect from 18. 9.1971. After the amendment of the CHS Rules, only Assistant Professors possessing five years experience were eligible for appointment as Associate Professor. Since Dr. Bose was holding the Clinical post of Radiologist, he was not in direct line of and eligible for promotion to the post of Associate Professor. As such the question of the Appellant becoming due for promotion to the post of Associate Professor does not arise. 26. After the conclusion of the hearing, the Health M....
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....service and considered. Supertime Grade I (Level II) Rs. 2250-2500 Vacancies in Supertime Grade I posts of Consultants etc. are filled by promotion of officers of composite Supertime Grade II. The officers must, however, possess the requisite qualifications and experience for appointment to a particular post in this grade." The aforesaid note is in consonance with the view that there is no inflexible rule that Specialists in a teaching hospital cannot be promoted as Associate Professor or Professors of their concerned speciality. On the contrary, the note clearly brings out that vacancies in Specialists Grade I posts of Professors are filled by direct recruitment and by promotion in the ratio of 1 : 1. 27. The Health Ministry has also submitted a separate note regarding persons imparting teaching in various disciplines who are neither Professor, Associate Professor, Assistant Professor or Lecturer. The note runs as under : There is no provision in the C.H.S. Rules, whereby the officers who do not possess the requisite teaching experience is appointed to a post of Professor in CHS. However, the University College of Medical Sciences which is under the administrative c....
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....by the Central Government as a specified post in Supertime Grade II, and Dr. B.S. Jain, Chief Ophthalmologist-cum-Associate Professor of Ophthalmology, Medical College, Simla was transferred to that post. In the vacancy caused thereby, Dr. Sbingbal who was Specialist in Ophthalmology attached to the Willindon Hospital, was offered the post of Chief Ophthalmologist-cum-Associate Professor of Ophthalmology, Medical College, Simla. There may be other instances as well. 29. It is necessary to emphasise that the recruitment rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital in the capacity of an Associate Professor (ex-officio) shall not count towards the requisite teaching experience. There is no provision made in the Rules that the teaching experience must be gained on a regular appointment. There is hardly any difference so for as teaching experience is concerned whether it is acquired on regular appointment or as Specialist in a teaching hospital with the ex-officio designation. As the statutory rules do not provide that the teaching experience gained in an ex-officio capacity shall not count towards the requisite teaching experience,....
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....dependent upon "walking the wards", attending lectures and reading about the illnesses of which the cases he has seen are illustrations. The clinical unit is a far more efficient training center. The importance of the clinical years is brought out in the Encyclopaedia Britannica Macropaedia, 15th edn. p. 810: The two or more clinical years of un-effective curriculum are characterized by active student participation in small group conferences and discussions, a decrease in the number of formal lectures, and an increase in the amount of contact with patients in teaching hospitals and clinics. Through work with patients, under the supervision and guidance of experienced teachers, students learn methods of obtaining comprehensive, accurate and meaningful accounts of illness, bow to conduct physical examinations and how to develop judgments in the selection and utilization of laboratory diagnostic aids. During this period, they learn to apply the knowledge gained in their pursuit of the basic medical sciences to the study of general medicine and the medical and surgical specialities. 34. We must first deal with certain amendments in the Rules prescribing the mode in which the post....
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....tion precedent to the appointment of a Professor or an Associate Professor. 35. The question that falls for consideration is whether the appellant possessed the qualification and experience requisite for appointment to the post of Associate Professor of Radiotherapy in Maulana Azad Medical College, New Delhi, and if not, whether the appellant is eligible for appointment to the post of Professor of Radiotherapy in that College. That depends on whether he fulfilled the conditions laid down in Rule 8(2) and 2(A) and paragraphs 2(b) and 3 of Annexure I to the Second Schedule. Rule 8 provides that after appointments have been made to the Service under Rules 7 and 7A, future vacancies shall be filed in the manner provided there under. Rule 8(2) provides that every vacancy in the Specialists' Grade shall be filled by direct recruitment in the manner specified in the Second Schedule. That is to say, 100% of vacancies in the Specialists' Grade have to be filled by direct recruitment through the Union Public Service Commission. The post of Professor of Radiotherapy in the Maulana Azad Medical College is a post belonging to Specialist Grade I which is equivalent to Supertime Grade ....
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....ppellant who admittedly is a highly qualified person and has the requisite teaching experience as Radiologist-cum-Associate Professor of Radiologist (ex-officio) is clearly eligible for appointment as Professor of Radiotherapy under Rule 8(2). The Union Public Service Commission while advertising the post of Professor Radiotherapy which has fallen vacant, must, as it rightly did, invite the appellant for an interview for being considered for appointment to that post. 38. That conclusion however does not relieve us from dealing with the main question viz. whether the appellant possessed the qualifications and experience requisite for appointment to the post of Associate Professor of Radiotherapy. The question must turn on a construction of Rule 8(2A) and paragraph 3 of Annexure I to the Second Schedule of the Rules. As stated above, Rule 8(2) provides that every vacancy in the Specialists' Grade shall be filled by direct recruitment in the manner specified in the Second Schedule. Rule 8(2A) however makes an exception in the case of Associate Professors and Assistant Professors Sub-rule (2A) of Rule 8 contains a non-obstante clause and it reads : Notwithstanding anything co....
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....lant was not holding the post of an Associate Professor, he was not drawing the teaching allowance of Rs. 200/- p.m. to which he would otherwise be entitled. It is also urged that the status of Associate Professor of Radiology (ex-officio) which the appellant holds in the Irwin Hospital is akin to that of honorary Professor or Associate Professors in the Willing-don Hospital or the Safdarjang Hospital and the mere designation of the appellant as Associate Professor of Radiology (ex-officio) by the University of Delhi does not give him a right to hold the post of Professor of Radiology in Maulana Azad Medical College. It is pointed out that a similar question arose in connection with the conferral of honorary teaching designations on certain medical officers in the Willingdon Hospital and Safdarjang Hospital, New Delhi in the year 1973. It is said that the President of India was pleased to direct that the conferral of such teaching designations would not entitle the Specialists to claim seniority or eligibility for promotion merely by virtue of these honorary designations, nor would it entitle the incumbent any special benefit with regard to any teaching allowance which may be given....
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....cannot prevail. There is no order placed before us of the President of India directing that conferral of honorary teaching designations on Specialists in the Willingdon Hospital and the Safdarjang Hospital would not entitle such Specialists to claim seniority or eligibility for promotion. Even if it were so, that would hardly make any difference. The submission overlooks the distinction between a teaching and a non-teaching hospital. There cannot be a medical college without a teaching hospital as its integral and inseparable part. The mere fact that the appellant was not drawing a teaching allowance of Rs. 200/- p.m. is of no legal consequence because the allowance is attached to the post of Associate Professor. 41. We wish to make it clear that it is not for the Court to give the appellant promotion or make his appointment to the post of Professor of Radiotherapy. The Court can only on a true construction of Rule 8(2A) and paragraph 3 of Annexure I to the Second Schedule determine the question of his eligibility for such promotion or appointment. If the appellant is eligible to hold the post of Professor of Radiotherapy, he can always apply irrespective of the fact whether or ....