Ashutosh Gupta vs State and others

B.A. Khan, J.—Petitioner is a candidate for the post of Lecturer in Radiotherapy in the Medical Education Department. His eligibility for the

post has come under cloud. While he considers himself eligible under the Recruit0ment Rules read with a circular of the Medical Council of India

(MCI), respondent No. 2 (Public Service Commission) has found him ineligible and has withheld his result of selection. He accordingly seeks a

direction to the Public Service Commission (PSC) to recommend him for appointment and not to readvertise the post. The record reveals that two

posts of Lecturer in Radiotherapy discipline were referred to the PSC as far back as on 22.12.1989. The PSC thereafter issued repeated

advertisement notifications in 1990 and 1991 which elicited response from a small number of candidates who were not eligible for one reason or

the other. The posts were then lately re advertised vide notification No. 17PSC of 1993 dated 17.6.1993 fixing the last date for receipt of

applications as 30.7.1993. Besides the academic qualification, experience prescribed, drawn from the Recruitment Rules (SRO 225/88) was as

under:

As Registrar/Tutor/Demonstrator or as Senior Resident for a period of two years in a medical college or a recognised techning medical institution

recognised by the Medical Council of India and the University of Jammu & Kashmir.

Two candidates including the petitioner responded to this notification. They were interviewed on 6.8.1994 and thereafter their result was not

declared.

Resisting this petition, the PSC has filed detailed objections tracing the sequence of events leading to the issuance of notification No. 17PSC of

1993. It has pointed out that considering the dearth of eligible candidates in the discipline or Radiotherapy and that two posts were lying vacant

since 1989, it resolved to call the two candidates including the petitioner, for interview provisionally under Rule 36 of the Commission's (Business

and Procedure) Rules, 1980 with a view to seek relaxation in their teaching experience, if they were found suitable. On 16.8.1994, however, it

received a representation from Dr. Ashfaq Ahmed Naqash stating that he had refrained from applying for the post even though he fell short of

teaching experience only by one month and that it would be discriminatory to accord relaxation to the candidates who had applied but were

deficient in teaching experience. Upon this, the whole matter was considered and it was resolved to readvertise the posts as two candidates,

including the petitioner, had been allowed to provisionally appear in the interview at their own risk and responsibility and as they lacked in teaching

experience. It is further submitted that no right accrued to the petitioner by calling him for the interview and the question of his selection did not

arise even if the PSC had recommended his case for relaxation of the teaching experience unless the same was sanctioned by the Government.

The first issue that requires to be examined is : Whether or not the petitioner was eligible for the post in terms of the eligibility prescribed in

notification No. 17PSC of 1993 as drawn from the Recruitment Rules (SRO 225/88). Petitioner emphatically asserts that he was eligible and for

this his counsel Mr. Thakur placed reliance on the MCI communication date 4.9.1974 and the connotation of the word ""Tutor"" occurring in the

eligibility clause. According to him, even when a candidate had held beds under his charge during his postgraduation course or had conducted

some tutorial work it was to be counted as teaching experience for purposes of appointment to the post of lecturer in the medical college. He

additionally contended that the petitioner was armed with a certificate from the PGI, Chandigarh, showing that he had worked as Resident

Teaching Fellow from January 1990 to December 1992 and had thus discharged the duties of a ""Tutor"" making him eligible for the post in terms of

the eligibility clause.

The MCI communication dated 4.9.1974, provides as under:

The executive committee resolved that the teaching experience of PG students who are holding teaching appointments, or

(2) holding beds under their charge, or

(3) doing tutorial work, may be considered as teaching experience for the purposes of appointment as lecturer in medical colleges.

As against this, the J&K Govt. Medical Education (Gazetted) Service Recruitment Rules (SRO225/88) prescribed the eligibility for recruitment to

the post of lecturer thus:

xx xx xx

QUALIFICATION M.D. (Radiotherapy) or equivalent

EXPERIENCE : As Registrar/Tutor/Demonstrator or a Senior Resident for a period of two years in a Medical College or a recognised teaching

Medical Institution recognised by the Medical Counsel of India and University of Jammu/Kashmir.

xx xx xx xx

A comparative reading of the two provisions would show that the recommendation of the MCI contained in communication dated 4.9.1974 is not

incorporated or reflected in the eligibility clause for the post of lecturer provided in the recruitment rules or for that matter contained in notification

No. 17PSC of 1988. It, therefore, remains to be seen whether the PSC was under an obligation to determine the eligibility of the petitioner by

taking into account the communication of the MCI or whether it had to do so only on the basis of the eligibility, qualification and experience

prescribed in the advertisement notification read with the recruitment rules.

The answer to this is very simple and does not require any research to be conducted for some precedent in support. It is well settled that it falls

within the domain of the employer to fix eligibility qualification for a post. Once such eligibility is prescribed by the Rules or in the advertisement

notice, it is for the candidates seeking selection to satisfy it and it is for the PSC or the selection body to feel satisfied about it. The PSC, however,

has to go by what is prescribed. It has no power to alter or modify it or to fall back upon or derive support from some other source to reach such

satisfaction. It is a different matter where such prescribed eligibility is assailed for being irrational or unreasonable or incapable of being achieved,

In that case a candidate has always a right to challenge it and to have it struck down. But so long as a candidate responds to the notification

without any reservation, he is bound to satisfy the requirements and conditions laid down therein. He cannot claim right of consideration for

selection or appointment as a matter of right and in disregard of the prescribed eligibility. Nor is the PSC under any duty or obligation to entertain

any such request or take in regard any such request or take in regard any other qualification or experience which is extraneous to the prescribed

ineligibility. The PSC may call even an ineligible candidate for interview in exercise of such power under rules and seek relaxation in the prescribed

eligibility from the Competent Authority, but that is a different matter altogether. Otherwise it has to adhere to the letter of the provided eligibility.

The logic behind is simple as it is the province of the employer to lay down the requirements for filling up a post. (See AIR 1989 S.C. 134 Dr.

N.C. Bindal v. State of U.P.)

Tested thus, the petitioner's reliance on the communication of the MCI dated 4.9.1974 which provides for taking into account the teaching

experience of the Postgradaute students also, is rather misplaced. This is so far the simple reason that it is recommendatory in nature and does not

bind the Governmentemployer in any manner whatsoever. It would be different if this recommendation was incorporated in the recruitment rules.

Therefore, so long as the prescribed eligibility clause stands as it is, both in the notification and the recruitment rules, there is no option to the

petitioner but to satisfy it and there is no choice to the PSC but to adhere to it and feel satisfied whether or not a candidate fulfils it or not.

The prescribed eligibility clause requires of a candidate to possess an experience of two years as Registrar/Tutor/Demonstrator or a Senior

Resident in a medical college or a recognised teaching medical institution, recognised by the MCI or the University of Jammu/Kashmir. It is not the

petitioner's case that he had ever worked as a Registrar or a Demonstrator or a Tutor or a Senior Resident in any medical college or institution

recognised by the MCI or the University of Jammu/Kashmir and had gained two years' experience. His only claim is that he had worked as

Resident Teaching Fellow in PGI, Chandigarh from January 1990 to December 1992 and had gained some teaching experience in that capacity

even as a ""Tutor"" and, therefore, fell within the parameters of the prescribed eligibility clause.

The submission appears to be more in despair than anything else. As would be evident, the intent of the eligibility prescribed is that a candidate

must have worked and gained two years experience as Registrar/Demonstrator/Tutor or the Senior Resident. It does not suggest that a candidate

who might have engaged himself in some kind of teaching should be regarded as ""Tutor"". Therefore, it may not be of much relevance to go into the

true connotation of the word ""Tutor"". Considering that the petitioner had never worked as a tutor in any medical college or institution and had not

gained any teaching experience as such, it would be illogical to hold in the context of the prescribed eligibility clause that even a Postgraduate

student who may hold some beds under his charge in the course of training be regarded as a Tutor merely because he had imparted some kind of

teaching in the process. That surely is not the scope and spirit of the prescribed eligibility clause which refers to the post/position like

Registrar/Tutor/Demonstrator/Senior Resident and requires that a candidate must have gained two years' experience while holding such

post/position. Any other interpretation would enable any Tom, Dick and Harry, engaged in imparting teaching of whatever type to claim the status

of a Tutor and to bring himself within the eligibility clause. Viewed thus, it is not possible to hold that the petitioner possessed that requisite teaching

experience by having worked as a Resident Teaching Fellow at PGI, Chandigarh, for two years or that he should be regarded as Tutor for the

purposes of prescribed eligibility clause.

The next question that remains to be seen is : whether any right had inhered in the petitioner to be selected and whether any corresponding

obligation was cast on the PSC to select him by reason of his having been interviewed despite his want of requisite teaching experience. The PSC

has answered this by relying upon rule 36 of its conduct of business rules. Relevant rule reads thus:

Applications received from the persons who do possess the necessary academic and technical qualification but do not possess the experience, if

any, prescribed for a particular post may be called for an interview provisionally at the discretion of the Commission,

a) If the response to the notice issued by the Commission has not been very substantial; or

b) If the candidates possess extraordinary academic and technical qualification"".

This provision empowers the PSC to call such candidates for interview provisionally who possess necessary academic and technical qualification

but do not possess the requisite experience wherever it feels that response to the advertisement notice had not been very substantial and where the

candidates who have applied possessed extraordinary academic and technical qualification. The case of PSC in this regard is that since its earlier

notifications elicited little response from the eligible candidates, it had decided to act under rule 36 to call the petitioner and other candidates for

interview provisionally and to consider their case for selection in relaxation of their teaching experience, if found suitable. But before it could do so,

it had received a representation from one Dr. Ashfaq Ahmed Naqash which persuaded it to retract and to readvertise the two posts.

The short point that arises is : whether the petitioner could claim selection merely because he was interviewed by the PSC ? Taking in regard

the explanation of the PSC which appears plausible and satisfactory on the face of it and the circumstances of the case, it cannot be held or said

that the petitioner had acquired any right to be selected. He had still to cross many more hurdles to claim selection, not to speak of the

appointment. Even if the PSC had proceeded on its original line of thinking and had recommended his case for relaxation of teaching experience to

the Government there was no certainty or guarantee that he would have been granted relaxation or offered appointment. There is many a slip

between the cup and the lip and between the consideration for selection and for appointment. Therefore, the decision of the PSC to readvertise the

posts cannot be faulted once it felt convinced that it would be discriminatory to other candidates who had not applied for these posts merely

because they fell short of experience at the relevant time.

In the result I hold that the petitioner had not acquired any right for being selected muchless for appointment to the post of lecturer in the

Radiotherapy discipline in the facts and circumstances of the case. Nor had the PSC committed any infraction of law and rules or infringed any of

his rights by deciding to readverise the post. Consequently, it is not possible to direct the PSC to declare his result or to restrain it from re

advertising the posts.

This writ petition accordingly fails and is dismissed as such.