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Judgment
The petitioner in this petition challenges as action of the respondents, whereby she has been debarred to compete for the post of Assistant
Professor in Anesthesiology, Institute of Medical Sciences, Soura, Srinagar and, therefore, seeks a mandamus for being considered for the post
from the date of selection i.e. 1988.
The case of the petitioner, in brief is that she is an adhoc Lecturer since July, 1986 working under the control of respondents. An advertisement
was issued by the respondent on 2061987 for certain posts in several disciplines, including the post of Assistant Professor, Anesthesiology,
prescribing the qualifications for competing the same. She also applied, but was not called for interview, when again on 1081988 another
notification was issued on the same lines for several posts, including the post of Assistant Professor in Anesthesiology. She consequently applied,
being qualified having passed postgraduation from PGI Chandigarh and having gained the required teaching experience from Alfata University in
Libya with effect from July, 1984 to 1986, then in addition as adhoc Lecturer from July, 1986 onwards, rather till date, but the petitioner was not
called for interview and dropped from selection. She, therefore, sought appointment with respondent No. 2 to ascertain the reasons. On meeting
him, she was informed that her adhoc service form teaching experience has not been taken into account therefore, excluded for the post of
Assistant Professor.
The case of the petitioner further is that there is no bar under any rue that experience on adhoc service cannot be taken into account for purposes
of eligibility, not the rules provide that only teaching experience on regular service will be taken into account for the selection for the posts under the
control of respondents. It is submitted by the petitioner that she has acquired more than four years, teaching experience on adhoc service as
Lecturer from 1936 onwards in respondent institute and while serving in Alfata University Libya from 1984 to July' 1986. The petitioner has given
in a supplementary affidavit, where the respondent in the same year of selection, orally argued, when she was excluded, having given benefit to
several candidates of experience gained from institutions outside the country: firstly, in case of Dr. Shad Saleem, having been selected due to
eligibility on account of experience gained from Benghazi University, a sister concern of Alfata University, Libya in the same selection process of
1981, where the petitioner was dropped. Then in case of some similarly situated candidates, namely Dr Shabir Ahmed, Dr. Mushtaq Ahmed and
Dr. Nisar Ahmed Mir, who had also experience from foreign institutions outside the country, but the petitioner has been made victim of hostile
discrimination, by dropping from selection, hitting the provisions of the constitution. Therefore, this petition for a writ of mandamus as indicated
above.
The respondents in a detailed counter affidavit have justified their impugned action of dropping the petitioner from selection against the post of
Assistant professor, Anesthesiology for two reasons : one on account of lacking the reaching experience of three years in the advertisement notice
from a recognized institution, firstly the teaching experience projected by the petitioner is form Alfata University, from 1984 to 1986, institution
from which the experience is projected is not recognized by Medical Council of India under the Medical Council of India Act required for
eligibility. Then the remaining teaching experience projected by the petitioner is on account of adhoc service as Lecturer in the respondent institute
which cannot be considered for selection for the post of Assistant Professor, as only teaching experience on regular service can be taken into
account. Therefore, the aggregate teaching experience gained at Alfata University and on Adhoc service in the institute cannot be taken into
account, being contrary to advertisement notice, which requires teaching experience from a recognized Institution which the Alfata University is not
under the Medical Council of India Act, not recognized by the Medical Council of India. Further, the adhoc service cannot be counted for
eligibility; only teaching experience on regular service is counted. Therefore, the petitioner is not entitled to compete for the post of Assistant Prof.
Anesthesiology and rightly dropped and not called for interview. The petition deserves to be dismissed.
The respondent, in the their counter affidavit, have attempted to justify the instances given by the petitioner where teaching experience from
institution from outside the country, not recognized by the Medical Council of India, has been considered in certain cases for selection of certain
posts by the respondents. Firstly, in case of Mr. Shad Saleem, the respondent has asserted that such experience from Benghazi University, Libya a
nonrecognized institution has been wrongly accepted and this wrong cannot justify another wrong to consider the experience gained by the
petitioner from Alfata University, a nonrecognized institute, nor the court can compel the respondents to commit a wrong it has once committed.
Regarding Dr. Shabir Ahmed, it has been submitted that he gained experience in king Faisal College Saudi Arabi, which is a teaching institution for
Royal College of Surgeons and recognized by the Medical Council of India. Similarly, Dr. Mushtaq Ahmed gained experience at king Faisal
Hospital, at Madina, which was taken as genuine being part of Royal College of Surgeons, and recognised by Medical Council of India. Dr. Nissar
Ahmed Mir, Professor of Neonatology, has gained experience from other institution, besides having experience in the Benghazi University, which
instance cannot confer any right on the petitioner to claim selection for the post of 'Assistant Professor, Anesthesiology.
I have heard the learned counsel for the petitioner. Legal Assistant, appearing on behalf of the respondents, on 4.9.1991 was given a week's time
to engage counsel for replying arguments as prayed by her, Earlier also, on 23.8.1991, the respondents were given time to engage a counsel, but
no counsel was projected till, final opportunity to file the written arguments was given vide order dated 4.9.1991, which right under that order
stands automatically closed.
The disposal of this petition now hinges only on two points: firstly, whether adhoc service of the petitioner for purposes of teaching experience as
Lecturer, will give the petitioner eligibility to compete for the post of Assistant Professor in Anaesthesiology applied by her: secondly, whether the
service put in by the petitioner in Alfata University, Libya for purposes of teaching experience, allegedly not recognised institution by the Medical
Council of India shall count towards eligibility for the post of Assistant Professor, as indicated above.
As regards the adhoc service rendered by the petitioner from 1986 till the date of filling in the application or till the date of interview for the post
applied by the petitioner, is not even disputed by the respondents, except for a fraction in the month of July, 1986 when the petitioner has
projected a certificate, she has partly gained experience m that month in Alfata University Libya and raining parts as adhoc Lecturer in the
respondentInstitute in July, 1986. The tenure regarding actual service rendered by the petitioner under the control of respondents is the subject of
the selection Committee, provided she succeeds, in eligibility on the grounds of adhoc service I teaching experience. The case of the respondents is
that it is not the adhoc service of a candidate which will count for eligibly to compete for any post, including be on regular serves by the candidate
concerned, not the adhoc as the petitioner project for her eligibility. Once we refer to the annexure 'E' to the petition, the earlier notification on the
subject dated 20th June, 1987 and subsequent notification annexure 'F' to the petition dated August 10, 1988 in question for selection of the
petitioner on the basis of experience, the relevant pinion of which is quoted hereunder:
Experience:
Should possess following minimum teaching experience m the subject in a Medical College of a recognised Institute after qualifying
postgraduate/postdoctoral degree:
Professor: Three years as Associate Professor:
Associate Prof : Three years as Assistant Professor:
Assistant Professor: Three Years as Lecturer:
Lecturer: Should have working experience of 2 years as Senior Resident /Registrar /Tutor/Post doctoral student after qualifying postgradate degree
or qualifying postdoctoral degree.
Regarding experience for purposes of Assistant Professor, the requirement is three years as Lecturer. If is also not specified whether teaching
experience of the Lecturer for three years should be on adhoc or regular service. Once the respondent in the notification consequent to which the
petitioner has applied for the post of Assistant Professor, does not indicate that such experience should be on regular service and not the adhoc. It
does not lie in the mouth of the respondent to object for purpose of selection/interview that the experience should be gained on regular service and
not the adhoc, as in the case of the petitioner. The petitioner, admittedly, has rendered service on adhoc basis ad gained experience with effect
from July 1986 onwards till she applied for the post in question. The respondents have not referred to any rule or regulation which will indicate that
it is only the regular service on which experience gained will be counted for eligibility and there is any bar for experience, gained on adhoc service.
The petitioner, without dispute, continued as adhoc lecturer from 1986, till she applied for the post and undisputedly even now and there is no
different norm for rendering service an adhoc basis or on regular basis. The nature of the service in both the cases is the same, except the
difference in tenure. The adhoc appointee is appointed for a stopgap arrangement for a specific period, while the regular service is on continued
basis, except interruption on application of rules. Further, adhoc service also can be regularised and it can also be subject to selection. Normally,
under Civil Service (Classification, Control and Appeal) Rules, adhoc appointment initially is for six months and it can be continued beyond that
period at the discretion of the appointing authority, may be due to delay in regular selection or other exigencies of administration. As observed
regarding the nature of service, there is no difference in the regular and the adhoc service. The difference only, as observed, is that of tenure and
has all other benefits of service available to regular employees, except the tenure which also can extend on confirmation by the appointing authority.
In this view of the matter, I am of the opinion that for gaining teaching experience by a Doctor,, no rules appear to have been rightly framed to put
a bar to an adhoc appointee to seek promotion or selection against a 'regular post' if he has gained experience even on adhoc service.
Regarding anhoc appointment, the Punjab and Haryana High Court in Amar Singh, Junior Analyst and other versus the State of Punjab and others,
reported in 1983 (1 SLR) have illustrated the status of an adhoc employee in these words:
Therefore, having regard to the ordinary meaning of the term, no distinction can reasonably be drawn betwixt a temporary employee whose
services are terminable without notice or otherwise and an employee characterised as an adhoc and employed on similar terms.
Indeed, it appears to us that in the gamut of service law an adhoc employee virtually stands at the lowest rung. As against the permanent,
quasipermanent, and temporary employee, the adhoc one appears at lowest level implying that he had been engaged causally or for a stopgap
arrangement for a short duration of fleeting purpose.
To my mind it is an administrative necessity or call it emergency calling for additional hands for performing administrative task of a given post lying
either vacant or created to meet the given temporary necessity or emergency. When the administration stands in such dire need of additional hands,
the strict meticulous adherence to merit, and at times even eligibility in the matter of age and qualification and also the sanctional procedures for
selection are given a go by in the public interest.
In the nature of things it is expected to be a one time act to afford to the administrative authority breathing time to select and appoint candidates in
strict compliance with the relevant rules or the executive instructions. What is, however, happening in actual practice is that filling of vacancies,
existing or newly created, through adhoc appointments has become the norm and the selection through an established mode or procedures
sanctioned by stands relegated to the position of exception.
Their lordships, as quoted above, have fully illustrated the position of an adhoc employee, but what is required in this case is the value of the adhoc
service rendered by an employee.
As observed above on the point, in my opinion for teaching experience to qualify to compete, there is no difference between the experience
acquired on regular or adhoc service because the nature of duty remaining in both the cases same. Moreover, the respondent in the notification
having not cleared to the intending applicants whether such experience should be on adhoc or regular service. My opinion is fully covered by the
observation made by the Lordships of Punjab & Haryana High Court in Dr. Ravinder Paul Kour versus State of Punjab reported in 1979 (1) SLR
page 645 wherein their lordships, in short, have held:
Experience on adhoc appointmentDetermination oftowards eligibility for promotion. Executive instructions, dated 15101975 bar the counting of
such experience towards eligibilityRules came into force in July, 1978
No provision therein that the requisite experience must be on regular appointmentGovernment not counting experience of the petitioner on adhoc
appointment towards eligibilityHeld that the experience gained by the petitioner should count towards eligibility for promotion.
This proposition has been adopted by the same Court in Dharm Singh, Superintending Engineer versus State of Punjab and others 1985 (1) SLR
page 358, where their Lordships have ruled in identical situation in these words:
Promotion/Experience in servicefor promotion to the post of Superintending Engineers seven years experience as Executive Engineer prescribed
under the rulesService rendered as an adhoc Executive EngineerRules silent about counting of such period in the total length or' service to be
treated as an experienceExecutive instructions to count period spend on adhoc appointment Executive instruction attractedpetitioner eligible for
promotion to the post of Superintending Engineer.
Thus having regard to the observations made and the rule laid, as quoted above, by Punjab and Haryana High Court, the respondents have no
justification to distinguish, rather discard, the adhoc service for purposes of experience to compete for the post of Assistant Professor by the
petitioner.
I, therefore, hold that the teaching experience gained by the petitioner on adhoc service short of any bar under the Rules or under the notification,
calling the application, will not bar the petitioner to compete for the post of Assistant Professor, Anaesthesiology under the control of respondents.
Now comes the second and the crucial point regarding eligibility of the petitioner for competing for the post of Assistant Professor, claiming the
aggregate experience firstly on account of adhoc service rendered as Lecturer from 1986 onwards i.e. till the date of filing the application and, in
addition, the teaching experience gained by the petitioner from Alfata University from July, 1984 to July, 1986, allegedly an unrecognized institution
by Medical Council of India.
The notification on the point is crystal clear that experience must be in a Medical College or a recognised Institution after qualifying Postgraduate
course. The petitioner has qualified Postgraduate degree from PGI, Chandigarh. The respondents interpret 'recognised institution' from the Medical
Council of India under the Medical Council of India Act, which does not find expressly place in the notification. The respondents object to the
teaching experience of the petitioner from Alfata University, Libya on the grounds that the institution is not recognised by the Medical Council of
India, therefore, such experience cannot be counted ""o qualify the eligibility for the post of Assistant Professor under the control of the
respondents. As I have observed, no such bar has been put under the notification calling the application from the candidates, which condition
requires to be express to debar the aspiring candidates with foreign teaching experience from competing in the examination. Whether the rules
permit or not such experience, but what is material is the notification, which is a clean chit to a candidate to apply even if he has teaching
experience from an institution outside the country, not recognised as pleaded by the respondents. The point does not come to an end here. It is
case of the petitioner, raised in the argument. That respondents have given benefit of foreign service from Bengazi University, again an
unrecognised institution, in case of Dr. Shad Saleem, for selection, which fact is admitted by the respondents in their counteraffidavit, but stated
that action taken in the shape of selection for Dr. Shad Saleem, is commission of wrong, which wrong cannot justify another wrong by considering
the teaching experience of the petitioner from an unrecognised institution of Alfata University. It is the case of the respondent that the court connot
compel the respondents to commit another wrong, once a wrong action has been taken by the respondents. Therefore, the petitioner's cafe cannot
fall within the consideration for selection. Similarly, in case of selection of Dr. Nissar Ahmad Mir, having been admitted, given benefit of experience
from an unrecognised institution, but the respondents attempted to camouflage the facts by submitting that he had teaching experience from other
recognised institutions also, not indicated in the counter affidavit. Further in case of Dr. Shabir Ahmed and Dr Mushtaq Ahmed, the respondents
again justify the teaching experience from the institutions outside the country from colleges attached to King. Faisal Institution, Saudi Arabia, having
been given benefit because of recognition to those institutions.
The stand of the respondents, if sincere, could have been accepted to reject the case of the petitioner for having gained teaching experience form
Alfata University from July, 1984 to July, 1986, an unrecognised institution, provided the respondents would not have repeatedly, in the instances
indicated, adopted the mistake which they do not want to give benefit to the petitioner regarding the similar experience, but attempted brazenly to
ignore the benefit in favour of the petitioner, which they have already afforded in case of Dr. Shabir Ahmed, Dr. Mushtaq Ahmed, Dr. Shad
Saleem and Dr. Nissar Ahmed Mir. The stand of the respondents not to commit further wrong apparently is genuine, but allow the respondents to
justify their stand against the petitioner is hit by the principle of hostile discrimination. Learned counsel for the petitioner argued that the Doctors,
whose teaching experience outside the country has been accepted pertain to the selection of the same year i.e. 1988, when the petitioner applied.
The acceptance of teaching experience from outside the country is in case of four Doctors. That means the respondents have deliberately given
benefit to those candidates and refused such benefit in case of the petitioner. Further, this stand in the counteraffidavit by the respondents regarding
teaching experience from outside the country appears an afterthought. As I have observed, no where in the notification it is indicated that the
institution for purpose of teaching experience should be recognised by the Medical Council of India. Perhaps it is under that shadow, the
respondents have accepted the teaching experience of four Doctors named from outside the country short of specifications in the notification that
such experience should be from institutions recognised by Medical Council of India. The institution, Aifata University, if not recognised by Medical
Council of India as asserted by the respondents, but it must be a recognised teaching institution in that country which has not been disputed and the
petitioner cannot be refused benefit of teaching experience from that university, when respondents have failed to indicate any notification from
Medical Council of India indicating that King Faisal Institution is a recognised institution, omitting Bengazi University in case of Dr.Mir who has
been given benefit of practice from that University. May be due to illwill, the petitioner has been refused the benefit of teaching experience from
Alfata University. It is the positive case of the petitioner that when she did not get the interview slip for selection from the respondent, she
approached respondent No. 2 the Director, who, as per affidavit of the petitioner, only objected to eligibility on account of adhoc service not the
teaching experience from an unrecognised institution which, I have already observed, is an afterthought and deliberate attempt to deprive the
petitioner to take benefit from such experience accepted by the respondents on similar situation of other candidates, who stand admittedly
selected. This is not the question of compelling the respondents to commit a wrong which they openly admit, but legally and on the principle of
natural justice, what is required that the petitioner gets a similar benefit from the respondent which they have afforded in favour of others.
Otherwise, such refusal is a deliberate attempt by the respondents to impose hostile discrimination against the petitioner on account of instances
given by her regarding the benefit of teaching experience given to others in the same selection process but not to her. Therefore, the stand taken by
the respondents that they cannot be compelled to commit any further wrong which they have committed once, is short of any genuine basis but
smells mala fide intentions of the respondents to deprive the petitioner from competing in the Examination, when she fulfills the eligibility as per
notification short of any reservations in the same.
In conclusion of the judgment, Mr. U. K. Jalali, Sr. AAG, appearing for the respondents, filed copy of the written arguments much beyond the
time, without explaining the delay to file the same, copy of which has been refused by learned counsel for the petitioner, being beyond the time
allowed by the court to file the same. The stand taken by the respondents in the writtenargument is a summary of the counter affidavit filed. Only
additional point raised in the written arguments' is that the petitioner bad continued in adhoc arrangement under the orders of the court consequent
to the verdict in another writ petition filed by the petitioner. I may observe it is immaterial whether the petitioner continued under the orders of the
court in adhoc arrangement or under the discretion of the respondent. What is material is whether she was working as a Lecturer and gained
teaching experience, not disputed by the respondents, we except that such experience should not be counted without support of any rule of law.
I, therefore, after considering, dispel the written argument of Mr. Jalali on this point that even adhoc service of the petitioner was under the orders
of the court, which argument is without foundation.
The learned counsel for the petitioner referred to a judgment of this court delivered in writ petition No. 124 of 1989 dated 18th July, 1991 seeking
identical relief in this petition to treat the petitioner appointed from the date selection for the post of Assistant Professor, Anesthesiology was held in
1986, deviating from the relief of consideration for selection against the post of Assistant Professor made in this petition. After going through the
judgment, I am of the opinion that the principle carrot be applied to this case, for the reason the petitioner was not interviewed, while in the case
referred, the petitioner had undergone the process of selection, having been interviewed, but not selected.
Now for the reasons given and observation made, I am of the opinion that the respondents have arbitrarily barred the petition to appear in
interview for the post of Assistant Professor, Anaesthesiology, due to the reason that her teaching experience on adhoc service and teaching
experience from Alfata University, Libya cannot be considered for eligibility as per notification No, 5 dated August 10, 1981.
Since vide DB. order dated 13.12.1988 in this petition, one post of Assistant Professor, Anesthesiology has been ordered to be kept vacant, I,
therefore, allow this petition holding the action of the respondents illegal and arbitrary not allowing the petitioner to compete for the post of
Assistant Professor in Anesthesiology, and, therefore, by a writ of mandamus hold the petitioner to be entitled to compete for the post of Assistant
Professor, Anaesthesiology on the basis of teaching experience on anhoc service under the control of respondents together with the teaching
experience gained in Alfata University, Libya like other candidates selected, and direct the respondents to consider the petitioner for selection for
the post of Assistant Professor, Anaesthesiology from the date the selection was held in 1988 with consequential benefits.