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Judgment
In these two appeals common challenge is to the order of the learned Single Judge dated 10.11.2010 passed in SWP no. 513/2007. The writ
petitioner is the 1st respondent in both these appeals. The appellant in LPA no. 175/2010 was the 3rd respondent in the writ petition and the
appellant in LPA no. 181/2010 the 4th respondent in the writ petition.
The appellants and the 1st respondent are in the medical profession and they applied for the post of Lecturer in Cardio Thoracic Surgery
pursuant to notification issued by the 3rd respondent, Jammu and Kashmir Public Service Commission (hereinafter called the Commission), in
notification No. 02-PSC of 2007 dated 06.03.2007. The essential qualification prescribed for the post as set out in the notification reads as under:
M.Ch in Specialty concerned after MS/FRCS or an equivalent qualification in Surgery with three years special training in the specialty concerned
or specialty board (USA) in the specialist concerned after post graduation.
The appellants and the 1st respondent submitted their applications pursuant to the said notification. When the applications were processed and
in that process the applications of the appellants were also accepted by the 3rd respondent-Commission for consideration, the 1st respondent
came forward with the present writ petition with a prayer to quash the criteria applied by the Commission in entertaining the applications of the
appellants and the Commission and other State respondents to be directed to follow the criteria for filling up of said post strictly in compliance to
Indian Medical Council Act and J&K State Medical Council Act and apply the criteria as prescribed under the rules. The sum and substance of
the stand of the 1st respondent before the Writ Court was that for the post of Lecturer in Cardio Thoracic Surgery, qualification has been
prescribed under the Jammu and Kashmir Medical Education (Gazetted) Service Recruitment Rules, 1979, that both the appellants failed to satisfy
the said prescribed qualification and that the 1st respondent alone satisfied the said qualification and, therefore, the Commission ought not to have
entertained the applications of the appellants herein. The contention of the 1st respondent having been accepted by the learned Single Judge and
the learned Judge having declared that the appellants are not possessing the basic eligibility in terms of the advertisement notification and any
recommendation made in their favour, treating the degree as valid degree, should not be acted upon for the purpose of allowing them to compete in
the selection process for the post of Lecturer Cardio Thoracic Surgery. The learned Single Judge further directed the authorities to initiate the
process of selection for the said post in terms of the notification by allowing only those candidates who possess the basic eligibility i.e. M.Ch
degree in CVTS from Medical Institutes/ Universities which are recognized by the Medical Council of India. Aggrieved against the above order of
the learned Single Judge the appellants have come forward with these appeals.
The grievances of the appellants though are common in nature, the variation in their respective cases have to be necessarily pointed out at the
very out set.
In the case of appellant in LPA no. 175/2010, the said appellant holds a degree of M.Ch of CVTS from JIPMER, Pondicherry. According to
the Commission the degree held by the appellant was not recognized by the Medical Council of India and, therefore, he was not eligible to
compete in the selection. The appellant filed a writ petition in SWP no. 151/2009 before the Jammu Wing and an order of stay was granted by the
Writ Court in the said writ petition and the writ petition is stated to be still pending. When the present writ petition was filed in SWP no. 513/2007,
an interim order was passed by the Writ Court, directing the Commission to go ahead with the selection process but refrain from declaring the
result. Therefore, the appellant was also considered and was called for viva voce test and the interview. According to the appellant, by an Act of
the Parliament called the Jawaharlal Institute of Post-Graduate Medical Education and Research, Puducherry Act, 2008, Act No. 19 of 2008,
which came into force by Gazette notification dated 14.07.2008 contained a provision in Section 24 by which the medical degrees, diplomas,
dental degrees and nursing degrees granted by JIPMER, Pondicherry are recognized medical qualifications for the purposes of Indian Medical
Council Act, 1956, the Dentist Act, 1948, the Indian Nursing Council Act, 1947 and should be deemed to have been included in the schedule to
the respective Acts. It was further contended by the appellant that he fulfilled the prescribed qualification both under the Indian Medical Council
Act as well as 1979 Rules of the Jammu and Kashmir State and his candidature cannot be restricted from consideration.
The stand of the appellant in LPA no. 181/2010 is that he is holding M.Ch Degree in Thoracic Surgery issued by the Sher-e-Kashmir Institute
of Medical Sciences, SKIMS, that this Court in the case of Dr. Khalid Mohi-ud-Din vs. SKIMS held that the M.Ch degree granted by the
SKIMS was a valid degree for the purposes of any appointment within the State of Jammu and Kashmir and only the degrees granted by other
institutions out side the State of Jammu and Kashmir require the recognition by the Medical Council of India for its validity within the State of
Jammu and Kashmir, that the Public Service Commission after getting the legal opinion based on the said decision choose to accept the application
of the appellant and, therefore, the candidature of the said appellant cannot be rejected. One other contention raised on behalf of the said appellant
was that by a communication dated 01.03.2009 the Medical Council of India itself approved the recommendations of its Post Graduate
Committee as per which the M.Ch (CVTS) qualification granted by SKIMS (deemed University) should be recognized and included in the 1st
Schedule of the Indian Medical Council Act, 1956 and that the said recognition was to take effect from 1995 and, therefore, the qualification of
the said appellant was well within the prescribed rules of 1979 and consequently his application was rightly entertained by the Commission.
As against the above stand of the respective appellants, the stand of the 1st respondent is that both the appellants do not possess the required
M.Ch qualification in CVTS which had the recognition of the Medical Council of India which is the sine qua non on the cut off date, namely,
19.04.2007 which was the last date for receipt of the application forms and, therefore, the order of the learned Single Judge, in having declared
them ineligible to participate in the selection for the post of Lecturer in CVTS, is well justified and the same does not call for interference.
Before examining the respective stand of the parties, it will be necessary to set out the post for which the State issued the notification, the
qualification required for the said post and the relevant provisions under the various statutes and rules which are to be applied.
By notification dated 06.03.2007 the Commission notified calling for applications from the eligible candidates amongst other posts, for the post
of Lecturer in Cardio Thoracic Surgery. It was meant for open merit category and the number of post was one. The essential qualification as
prescribed therein was M.Ch in Specialty concerned after MS/FRCS or an equivalent qualification in Surgery with three years special training in
the specialty concerned or specialty board (USA) in the specialist concerned after post graduation. It also prescribed the required experience in
fulfillment for eligibility. It is common ground that the above said selection was made based on the Jammu and Kashmir Medical Education
(Gazetted) Service Recruitment Rules, 1979. Rule 7 of the 1979 rules specifies that a person shall not be eligible for recruitment to a post in the
service unless he possesses the qualifications and fulfils the requirements of recruitment prescribed for that post in Schedule II. The proviso to rule
7 (1) however, states that the Commission may recommend for consideration of the Government the appointment of a person to a post in the
service who otherwise not eligible under these rules who, in the opinion of the Commission, possessing exceptional merit as well as professional
experience of high order in his specialty and such a case would be considered by the Government after obtaining the views of the Medical Council
of India. It is not the case of any one that they are governed by the proviso to Rule 7(1).
The post of Lecturer falls under serial no. 24 (d) of Schedule II to the 1979 Rules. The qualification which has been notified in the notification
dated 06.03.2007 has been specified as against the post of Lecturer in the said serial No. 24 of Schedule II. Schedule II also contains a general
note. General note no. 2 is very relevant for our consideration and therefore it will be useful to extract the said note, which reads as under:-
EXCEPT in the case of Non-Clinical Departments of Anatomy, Physiology, Pharmacology, Bio-Chemistry and Micro-Biology, where non-
medical teachers to the extent of 30% may be appointed to posts other than the head of the departments (who must necessarily hold a recognized
medical qualification), all other teachers must possess the following basic qualifications in addition to Post-Graduate qualifications mentioned in the
above schedule, namely:
Recognized qualifications included in the First or Second Schedule; or Part II of the Third Schedule (other than licentiate qualifications) to the
Indian Medical Council Act, 1956. Holders of Educational qualifications mentioned in Part II of the Third Schedule should fulfill the conditions
stipulated in sub-section (3) of section 13 of the Indian Medical Council Act, 1956.
However, a Non-Medical Teacher in Bio-Chemistry is a Medical College with Doctorate qualifications in Bio-Chemistry may also be considered
for the post of the Head of the Department of Bio-Chemistry.
General note no. 10 states that in all cases the qualifications and experience should be as mentioned in the above schedule. However, in case,
candidates with the requisite experience are not available, a reference be made to the Medical Council of India for consideration on merits and
Government may relax the experience qualification on the recommendation of the Council in consultation with the Commission.
Having regard to general note no. 2, which makes specific reference to the prescription contained in the Indian Medical Council Act of 1956, it
will be relevant to refer to salient features of the said Act for better appreciation of the issue involved in these appeals.
Section 2(h) of the Indian Medical Council Act defines ""recognized medical qualification"" to mean, any of the medical qualifications included in
the Schedules. Section 2(i) defines the ""regulation"" to mean a regulation made u/s 33. Section 10A prescribed the manner in which a new Medical
College can be established or a new course of study in an existing Medical College can be introduced. u/s 10A(1)(b) it is specifically provided that
no Medical College should open a new or higher course of study or training, including a post-graduate course of study or training, which would
enable a student of such course or training to qualify himself for the award of any ""recognized medical qualification"", except with the previous
permission of the Central Government obtained in accordance with the provisions of the said section. Under Sub-sections 2 to 8 of Section 10A,
various procedures to be adhered to for establishing a new course of study in an existing medical institution have been set out.
Since at the instance of the appellants stress was laid on Section 10B(2), it would be appropriate to make a reference to the said provision in
order to enable us to consider their contentions at the relevant stage.
u/s 10B(2), it is stipulated that where any medical college opens a new or higher course of study or training except with the previous
permission of the Central Government in accordance with the provisions of Section 10A, no medical qualification granted to any student by any
such college on the basis of such study or training should be a ""recognized medical qualification"" for the purposes of the Indian Medical Council
Act.
Here and now it will be better to note the submissions made on behalf of the appellants to the effect that if once a new or higher course of
study was established by following the procedure prescribed by Section 10A, by virtue of the prescription contained in Section 10B(2) it should
be conversely held that that would suffice to hold that person acquiring such a qualification from the institution who had complied with Section
10A, would be holding a ""recognized medical qualification"" for the purposes of the Act. The detailed consideration of the said submission can be
made at the appropriate stage in our order.
Proceeding with the other statutory provisions, u/s 11(2) it is stipulated that any Medical Institution or University which grants a medical
qualification not included in the First Schedule, may apply to the Central Government to have such qualification recognized and the Central
Government after consulting the Council may, by a notification in the official Gazette, amend the First Schedule so as to include such qualification
therein and any such notification may also direct that an entry shall be made in the last column of the First Schedule against any such medical
qualification declaring that it should be a ""recognized medical qualification"" only when granted after a specified date. u/s 16 power is vested with
the Medical Council of India to call for information that it may require from every University or Medical Institution in India which grants
recognized medical qualifications"" as to the course of study and examination to be undergone in order to obtain such qualification and other
details. u/s 17 the Committee constituted under the provisions of the Act by the Medical Council is empowered to appoint medical inspectors to
inspect any medical institution, college hospital or other institution where medical education is given, to attend any examination held by any
University or medical institution for the purposes of recommending to the Central Government for recognition of medical qualification, though the
said section restricts such medical inspectors not to interfere with the conduct of any training or examination but only to report to the Committee on
the adequacy of the standards of medical education etc. Apart from medical inspectors, u/s 18 the Medical Council of India has been empowered
to appoint such number of visitors as it may deem requisite to visit any medical institution or college etc. where medical education is given or to
attend any examination held by any University or medical institution for the purposes of granting ""recognized medical qualifications"". Here again it is
stipulated that such visitors should not interfere with the conduct of training or examination but should only submit their report to the President of
the Council on the adequacy of the standards of medical education etc. u/s 19 powers are vested with the Council based on the report of the
Committee which the visitors had submitted to withdraw recognition of any course of study and based on such decision of the Council, it is for the
Central Government to make further enquiry and notify in the Official Gazette as to from which specified date such course can be held to be a
recognized medical qualification"".
u/s 33 of the Medical Council of India Act, powers have been vested with the Council with the previous sanction of the Central Government to
make regulations generally to carry out the purposes of the Act. In pursuance of the said powers vested with the Council, the Medical Council of
India framed its regulations which was notified in the Gazette of India dated 05.12.1998. Under paragraph 3 of the said Regulations, it is
prescribed that minimum qualification for appointment as a teacher in various departments of medical college or institution imparting graduate and
post-graduate education shall be as specified in Schedule I and II annexed with the Regulations. In Table I of Schedule I, for the post of Lecturer
in CVTS it is specified as ""requisite recognized specialization qualification in the subject"".
In the State of Jammu and Kashmir there is a separate Act for the registration of medical practitioners, called the Jammu and Kashmir Medical
Registration Act, 1988, Act. No. IV of 1988. u/s 4(5) of the said Act registered practitioners means, any person registered under the provisions of
the said Act. Section 5 of the said Act prescribes the privileges of the medical practitioners which inter alia contains that except with the general or
special sanction of the Government, no one other than a registered practitioner shall be competent to hold any appointment as Physician, Surgeon
or other medical officer in any hospital etc. for the purposes of medical treatment. Section 14 prescribes the persons who may be registered as
practitioners under the Act. u/s 15, if any registered practitioner obtains a new title or qualification, should on the payment of prescribed fee be
entitled to have such entry regarding such title or qualification made in his register either in substitution or in addition to any entry already made.
Since the appellant in LPA no. 175/2010 acquired his qualification from the JIPMER University of Pondicherry, it is also relevant to make a
reference to the Jawaharlal Institute of Post-Graduate Medical Education and Research, Puducherry Act, 2008, under which the Jawaharlal
Institute of Post-Graduate Medical Education and Research, Pondicherry (JIPMER) was declared as an institution of national importance and
provide for its incorporation. The said Act was notified and came into force with effect from 14.07.2008. u/s 23 of the said Act, the JIPMER was
empowered to grant medical, dental, nursing degrees, diplomas and academic distinctions and titles under the said Act notwithstanding anything
contained in any other law for the time being in force. u/s 24 of the said Act, which again is a non-abstante clause, which would be more relevant
for our consideration in this judgment and, therefore, the same requires to be extracted in full, which reads as under:
Recognition of medical qualifications granted by Institute:- Notwithstanding anything contained in the Indian Medical Council Act, 1956 the Dentist
Act, 1948 the Indian Nursing Council Act, 1947, the medical degrees and diplomas, dental degrees and nursing degrees granted by the Institute
under this Act shall be recognized medical qualifications for the purposes of the Acts aforesaid and shall be deemed to be included in the
Schedules to the respective Acts.
In the course of submissions learned counsel for the appellant in LPA no. 175/2010 made reference to the rules framed by the West Bengal
Government, called the West Bengal Medical Education Service (Recruitment to Teaching Posts) Rules, 2010. Rule 2 contains an explanation
which was relied upon by the learned counsel for the appellant, which is to the following effect:
Unless specified otherwise, the expression ""Recognized"", for the purposes contained in these rules, shall pertain to any medical qualification
acquired/granted from a Medical College included in the First Schedule or Second Schedule or Part-II of the Third Schedule of the Indian Medical
Council Act, 1956 ( 102 of 1956) being either permitted u/s 10A or recognized under sub-section (2) of section 11 of the Indian Medical Council
Act, 1956 (102 of 1956).
The Medical Council of India addressed a letter dated 04.08.2006 to one Dr. R. C. Sharma stating that M.Ch (CV&TS) qualification granted
by Pondicherry University was not recognized by the Council for the purposes of Indian Medical Council Act, 1956.
There is a State enactment called the Sher-e-Kashmir Institute of Medical Sciences (Grant of Degrees) Act, 1983, in short SKIMS Act,
which contains 5 Sections, which empowers the Institute to provide for instructions and research in such branches of science of modern medicines
and other allied sciences including physical and biological sciences, as it thinks fit, to hold examinations and grant degrees, diplomas and other
academic distinctions and titles, to confer honorary degrees or other distinctions etc. and u/s 4 the Institute for the purposes of Section 3 of the Act
shall deemed to be a University as if established by an Act of the Jammu and Kashmir State Legislature.
Apart from above statutory provisions, on behalf of the appellant in LPA no. 175/2010, stress was laid upon a communication dated
07.02.1992 of Pondicherry University to the Director JIPMER Pondicherry wherein it was stated that Medical Council of India considered the
inspection committee report in its Post Graduate Committee and decided to grant permission for starting of M.Ch (CVTS) course in JIPMER
Pondicherry with intake of 3 for annual admission and that the Pondicherry University was pleased to grant provisional permission to JIPMER to
conduct CVTS course for the academic year 1990-1993 with intake of not more than 3 every year subject to conditions/recommendations
stipulated in the inspection committee's report.
Apart from the above statutory prescriptions, to complete the narration of the sequence of events, it would be necessary to mention that the
Commission in its order dated 18.12.2008 communicated to the appellant in LPA no. 175/2010, informed the said appellant that his candidature
qua the post of Lecturer CVTS in Government Medical College Jammu was rejected, while based on the judgment of the learned Single Judge of
this Court in Dr. Khalid Mohi-ud-Din vs. SKIMS, the M.Ch degree granted by SKIMS in CVTS can be considered as valid degree for the
purposes of the Act within the J&K State and the degrees granted by any Institute outside the State required recognition for its validity within the
Jammu and Kashmir State. In this context it would be relevant to state that the appellant in LPA No. 181/2010 possessed M.Ch degree in CVTS
conferred by the SKIMS institute. Keeping the statutory prescription and factual matrix involved, we are ordained to consider the respective
submissions of learned counsel.
In the first instance when we consider the claim of the appellant in LPA No. 175/2010, at the very outset it would be necessary to state as to
what would be the requirement of the qualification as prescribed under the 1979 Rules of the Jammu and Kashmir State viz. a viz. the implication
of such qualification in juxtaposition with the prescription contained under the Indian Medical Council Act, in order to arrive at a just conclusion.
It is nobody's case that the case false under the proviso to Rule 7 (1) of the 1979 Rules, and therefore, either the appellants or the 1st
respondent in order to be eligible for recruitment to the post of Lecturer in CVTS must possess the qualification and fulfill the requirement of the
qualification prescribed in Schedule-II. In Schedule-II it is prescribed that for the post of lecturer in CVTS, M.Ch. in the Specialty concerned after
MS/FRCS or an equivalent qualification in surgery with three years special training in the specialist concerned or specialty board (USA) in the
specialist concerned after post graduation is necessary. Merely going by the said prescription contained in entry 24 of Schedule -II of the 1979
Rules, the appellants as well as the 1st respondent since possess the qualification of M.Ch in the specialty concerned, it may appear as though all
of them possess the necessary qualification but as part of the said Schedule II the ""general note"" prescribed there under has to be necessarily
applied.
Note 2, however, states that except in the case of Non-Clinical Departments of Anatomy, Physiology, Pharmacology, Bio-Chemistry and
Micro-Biology, where non-medical teachers to the extent of 30% may be appointed to posts other than the head of the departments (who must
necessarily hold a recognized medical qualification), all other teachers must possess the following basic qualifications in addition to Post-Graduate
qualifications mentioned in the entry to the Second Schedule, apart from the recognized qualification included in the First or Second Schedule or
part-II of the Third Schedule of the Indian Medical Council Act, 1956.
Reading the qualifications specified in entry 24 of the Second Schedule and para-2 of the general note together, the position that emerges is
that other than the non clinical departments of the five branches, all other teachers have to necessarily satisfy the ""recognized medical qualifications
mentioned in the First Schedule of the Indian Medical Council Act. As has been noted in the earlier paragraphs, u/s 2(h) of the Indian Medical
Council Act a ""recognized medical qualification"" would mean any of the qualifications included in the Schedule. In the case of the appellant in LPA
No. 175/2010 since prior to 2008 JIPMER University was affiliated with Pondicherry University, it will have to be seen whether M.Ch. (CVTS) is
one of the qualifications set out in the First Schedule of the Indian Medical Council Act. Even as on date, the said qualification has not been
included in the First Schedule. In fact, it was only after the JIPMER Act of 2008, in particular u/s 24 of the said Act, which is a non abstente
clause, the qualifications granted by JIPMER was deemed to have been included in the Schedule of the Indian Medical Council Act. When that be
so, it is impossible to hold that the appellant was holding the qualification prescribed under entry 24 of the Second schedule under 1979 Rules,
which requires a ""recognized medical qualification"" under the Indian Medical Council Act as on the cut off date of the notification dated
06.03.2007, which was 19.04.2007. To get over the said situation, learned senior counsel Mr. Bhardwaj, appearing on behalf of appellant in LPA
no. 175/2010 mainly contended that when once under the JIPMER Act, 2008, in particular u/s 24, it was stipulated that the qualification granted
by the JIPMER institute was deemed to have been included in the Schedule to the Indian Medical Council Act, it should be held that such deemed
situation should date back to the date when the appellant was granted the degree after 07.02.1992 when the permission granted by the Medical
Council of India was accredited from the year 1993 and based on which the Pondicherry University granted affiliation to JIPMER institute for
holding the said course of M.Ch (CVTS).
Apart from the above submissions, learned senior counsel also contended that when Section 10B(2) of the Indian Medical Council Act
specifies that if a medical qualification granted to any student with the previous permission of the Central Government in accordance with Section
10A can be conversely held to be a permission for the purposes of the Act and by applying the said Section also it should be held that the
appellant in LPA no. 175/2010 was holding a valid ""recognized medical qualification"" under the Indian Medical Council Act from the date of its
grant by JIPMER institute even prior to its University status and on that basis his application should be held to be a valid application.
Though such a contention put forward on behalf of the appellant in LPA no. 175/2010 looks attractive and appealing, we are not in a position
to accept the same for more than one reason. At the risk of repetition it will have to be stated that first and foremost, u/s 2(h) of the Indian Medical
Council Act, a ""recognized medical qualification"" would only mean medical qualification included in the Schedules of the Indian Medical Council
Act. On the date when the appellant acquired the qualification from JIPMER institute when it was affiliated with Pondicherry University, which is
one of the Universities mentioned in the First Schedule to the Indian Medical Council Act, M.Ch. (CVTS) was not one of the prescribed courses
of study. The expression ""recognized medical qualification"" used in Section 10A, 10B and Section 11(2) of the Indian Medical Council Act have
got some significance. Merely going by the prescription contained in Section 10B(2) of the Act it cannot be concluded that if once a course of
study in an institution had been imparted after compliance of Section 10A of the Act, that would be suffice to hold that it would satisfy the definition
of ""recognized medical qualification"" as defined u/s 2(h) of the Act. When under the Indian Medical Council Act in the foremost the definition of
recognized medical qualification"" can only mean such qualification which is specified in the First Schedule of the Act and when at the relevant point
of time when the appellant acquired the qualification from the JIPMER institute, the said qualification was not one of the qualifications included in
the First schedule nor the said institute applied for its inclusion by following the provisions contained in Section 11(2) of the Act from any date prior
to the cut off date, namely, 19.04.2007, any interpretation contrary to the said scheme of the Act will not be permissible. The contention that
Section 24 of the JIPMER Act, 2008 would validate the qualification as a recognized medical qualification under the Indian Medical Council Act,
cannot be accepted for the simple reason that the said Act was brought in to force only from 14.07.2008. Therefore, the deeming fiction accorded
u/s 24 of the Act can only have effect from the said date and cannot be anti-dated. We are not able to discern any retrospective operation by way
of legislative intention by reading the provisions of the Act. We are not, therefore, inclined to accept the said contention as propounded by learned
senior counsel.
The learned Senior Counsel, by referring to the West Bengal Rules, wanted to make a parallel reading and state that once the course was
permitted u/s 10A of the Indian Medical Council Act that would suffice for treating the qualification as a ""recognized medical qualification"". For that
purpose learned senior counsel relied upon the explanation to Rule 2 of the West Bengal Rules.
The said Rule cannot also come for the rescue of the appellant. A close reading of the said explanation also states that unless specified
otherwise, the expression ""Recognized"" should pertain to any medical qualification acquired/granted from a medical college included in the First
Schedule or Second Schedule or Part-II of the Third Schedule of the Indian Medical Council Act, 1956, being either permitted u/s 10A or
recognized under Sub-Section 2 of Section 11 of the Indian Medical Council Act, 1956. In fact the said explanation is more or less in pari materia
with General Note 2 of the 1979 Rules of the Jammu and Kashmir. In addition, it is also stated therein that such qualification mentioned in the
Schedule should have either been permitted u/s 10A or recognized u/s 11(2) of the Act. In the first place there is no such provision in the general
note 2 of the Second Schedule in 1979 Rules in order to make a parallel of the said provision to the 1979 Rules. Secondly, we have interpreted
Sections 10A and 11(2) read along with Section 2(h) of the Act and held that in order to be a ""recognized medical qualification"", first and foremost
it should satisfy the definition of Section 2(h) in order to apply the same wherever the said expression is used in the Act. Having regard to the
scheme of the Act it cannot be held that merely going by the permission granted u/s 10A in complete derogation of the other provisions contained
in Section 11(2) read along with Section 2(h) and Schedule I to the Indian Medical Council Act, it can be held that such qualification can be taken
as ""recognized medical qualification"".
It will have to be reiterated that under the scheme of the Indian Medical Council Act such a construction is an impossible one and cannot be
made. Therefore, the contention of Mr. Bashir, learned counsel appearing for the 1st respondent, is well founded. For the very same reason the
order of the Commission dated 08.12.2008 cannot also be a faulted.
Consequently, the conclusion of the learned Single Judge in the order impugned in the writ petition cannot be found fault with.
When we come to the case of the appellant in LPA no. 181/2010, according to the Public Service Commission, in a earlier order of this Court
dated 02.02.2006 passed in SWP no. 930/2005, Dr. Khalid Mohi-ud-din vs. SKIMS, when a question arose to the course started by the
SKIMS with the permission of the Medical Council of India and after there was no recognition of the said course by the Medical Council of India,
the question posed was whether that will make the holders of qualification granted by the SKIMS in-eligible for their appointment by the SKIMS
itself. In the said judgment the learned Single Judge of this Court, by relying upon the judgment of Hon'ble Supreme Court in Dr. Arun Kumar
Agrawal Vs. The State of Bihar and others, , took the view that when SKIMS started the Post-Graduate course with the permission of Medical
Council of India and awarded degrees by virtue of its status as a deemed University under the SKIMS Act, 1983, and when the said Post-
Graduate degree was recognized by the State of Jammu and Kashmir and the posts are available in the SKIMS itself, objection to the validity of
the degree cannot be sustained. By relying upon the said decision, after getting the legal opinion, the Public Service Commission in its order dated
18.12.2008, while disqualifying the appellant in LPA no. 175/2010, held that the appellant in LPA no. 181/2010 was fully eligible to apply.
Therefore, in so far as the Appellant in LPA no. 181/2010 was concerned, the sheet anchor of his case was based on the decision of the Hon'ble
Supreme Court in Arun Kumar Agrawal's case, which was followed by the learned Single Judge of this Court in SWP no. 930/2005 dated
02.02.2006.
Mr. Z. A. Shah, learned senior counsel appearing for the appellant in his submissions contended that recruitment for employment in the State
services and standards of education are two different concepts, that when an institution was permitted to start a course in compliance of Section
10A of the Medical Council of India Act, that by itself would be sufficient requirement for the purpose of recruitment under the 1979 Rules.
According to learned senior counsel, the requirement of compliance of Section 11(2) of the Medical Council of India Act will not be applicable to
an institute which started a course based on the permission granted by the Central Government in compliance of Section 10A of the Act. The
learned senior counsel contended that non-inclusion of such a course for which the permission was granted u/s 10A in the First Schedule to the
Medical Council of India Act is only a ministerial act and that would not have any adverse effect when it comes to the question of recruitment and
appointment in the State Services more particularly in the State of Jammu and Kashmir. Learned counsel would contend that even after the 42nd
amendment insofar as the State of Jammu and Kashmir is concerned, that did not cause any change in the power of the State insofar as it related to
making of appointments in its services inasmuch as the State of Jammu and Kashmir was concerned it continued to retain its power to legislate de
hors the 42nd amendment where by Entry 11 was deleted from List I and included in List 3 as Entry no. 25(III) in a modified form. The learned
counsel would, therefore, contend that applying Dr. Arun Kumar Agrawal Vs. The State of Bihar and others, , when once the State of Jammu and
Kashmir recognized the qualification conferred by the SKIMS deemed University that would suffice for the purposes of appointment in the
services of the State of Jammu and Kashmir.
The learned senior counsel contended that what was held by the Hon'ble Supreme Court about the supremacy of 1998 Regulations framed
under the Medical Council of India Act, can have no application to the case of the appellant in LPA no. 181/2010. Learned counsel also relied
upon Dr. R.K. Goyal Vs. State of U.P. and others, to support his submissions that as regards the recruitment to the State Services Medical
Council of India Regulations are only regulatory and not mandatory. The learned counsel wanted to rely upon the explanation to Sub-Section 4 of
Section 13 to explain as to what is a primary medical qualification to state that what is referred to in the basic qualification in general Note 2 of
Schedule II of the 1979 Rules, would be relatable only to the initial qualification of MBBS which alone was required for enrolment on any State
Medical Register for the purposes of registration as a Medical Practitioner. The learned counsel also relied upon State of T.N. and Another Vs.
Adhiyaman Educational and Research Institute and Others, on the effect of 42nd amendment on the State of Jammu and Kashmir.
The learned senior AAG Mr. Magray would contend that when under the SKIMS Act 1983, SKIMS was empowered to confer degrees in
respect of the courses held by it as deemed University and when such courses in the case on hand, namely, M.Ch (CVTS) was permitted by the
Medical Council of India as early as in the year 1995, merely because Medical Council of India came to issue the notification on 01.03.2009,
recognizing the said course as having been included in the First Schedule of the Medical Council of India Act, no distinction can be made with
reference to a candidate who secured the said qualification in the year 1995 and the one who secured the same qualification after the
communication of the Medical Council of India dated 01.03.2009. The learned Sr. AAG contended that since this Court in its decision rendered in
SWP no. 930/2005 dated 02.02.2006 has held in no uncertain terms that the degree conferred by SKIMS was sufficient qualification for
employment in SKIMS itself, the stand of the Commission in having applied the said decision, while declaring the appellant in LPA no. 181/2010
as an eligible candidate was perfectly justified.
As against the above submissions, Mr. B. A. Bashir, learned counsel appearing for the 1st respondent would contend that even in the case of
the appellant in LPA no. 181/2010 the cut off date set out in the notification dated 06.03.2007 would apply, that the said cut off date being
19.04.2007 and when admittedly the recognition under the Medical Council of India Act by including the M.Ch course conducted by the SKIMS
institute by including it in the First Schedule of the Medical Council of India Act came only by communication dated 01.03.2009 and, therefore, on
the relevant cut off date the said appellant cannot be said to have possessed the required qualification in order to entertain his application for
consideration.
As far as the contention as to the position of the qualification on the cut off date, namely, 19.04.2007 is concerned, whatever stated by us in
the case of the appellant in LPA no. 175/2010, would squarely apply and hold good to the case of the appellant in LPA no. 181/2010 as well.
While in the case of the appellant in LPA no. 175/2010, inclusion of the course in the First Schedule conducted by the JIPMER University was
made by JIPMER Act, 2008 with effect from 14.07.2008, in the case of SKIMS institute, though it was permitted to conduct the course right
from 1995, the inclusion of the said course in the First Schedule to the Medical Council of India Act came to be made only by communication
dated 01.03.2009. The said fact is not in dispute. Of course in the said communication dated 01.03.2009 it is stated that such inclusion would
relate back to the year 1995.
We are concerned with the question whether on 19.04.2007 the appellant was in possession of a ""recognized medical qualification"" as
stipulated under the 1979 Rules of the Jammu and Kashmir. When we apply the various principles with which we have made a detailed analysis
while considering the case of the appellant in LPA no. 175/2010, we have found that having regard to the scheme of the Medical Council of India
Act read with its supremacy by virtue of the said Act being Central Act falling under Entry 66 of List 2, unless on the cut off date, namely,
19.04.2007 a candidate was in possession of a ""recognized medical qualification"" as defined in Section 2(h) of the Medical Council of India Act,
he cannot be said to be in possession of the required qualification. When on 19.04.2007 the communication dated 01.03.2009 of the Medical
Council of India was not in existence, it cannot be held that on that date the M.Ch (CVTS) qualification was acquired by the appellant in LPA no.
181/2010, and that he was holding a ""recognized medical qualification"" under the Medical Council of India Act. In fact we wonder but for the
present litigations initiated by the 1st respondent as well as the appellant in LPA no. 175/2010, there would have been no scope at all for the
appellant in LPA no. 181/2010 to rely upon the communication dated 01.03.2009 which emerged from the Medical Council of India during the
pendency of the writ petitions. Therefore, it will not be appropriate to allow the appellant to rely upon the said communication dated 01.03.2009
for the purposes of validating the M.Ch qualification acquired by him, as a ""recognized medical qualification"" as defined u/s 2(h) of the Medical
Council of India Act.
We are not examining the position as to whether the acquisition of the said qualification based on the permission granted u/s 10A of the
Medical Council of India Act to the SKIMS institute would entitle the said appellant to rely on the said qualification for other purposes is not our
concern. For the purpose of testing the right of the appellant as to whether he was holding a ""recognized medical qualification"" under the Medical
Council of India Act on the cut off date, namely, 19.04.2007, having regard to the factors referred to above, we are convinced that the appellant
did not possess such a recognized medical qualification as on the cut off date. The contention of the appellant that the Public Service Commission
was prepared to accept the said qualification as an eligible qualification for the purposes of notification dated 06.03.2007 is concerned, it will have
to be stated that when once the appointment to the post of Lecturer in CVTS is governed by the recruitment rules of the State, which, in turn,
requires compliance of the Medical Council of India Act for the purposes of ascertaining the ""recognized medical qualification"" of a candidate, the
said ascertainment can be made only by applying the statutory rules and cannot be guided by the subjective satisfaction of the Public Service
Commission.
It was then contended that the Public Service Commission did not come to the said conclusion on its own but by relying on the judgment
rendered by a learned Single Judge of this Court.
In the first place the said decision will not bind us. Secondly we find that the learned Judge in that decision has relied upon the decision
reported in Dr. Arun Kumar Agrawal Vs. The State of Bihar and others, .
Mr. Z. A. Shah, learned senior counsel appearing for the appellant placed much reliance upon the said decision of the Hon'ble Supreme Court
and contended that when the Supreme Court has held categorically that a degree conferred by an Institution after obtaining permission from the
Medical Council of India and when such degree was also recognized by the State, at least in that State the said qualification would be a valid
qualification though the same may not be a case when it comes to the question of any employment outside the parent State, and applying the said
ratio to the case on hand it should be held that in the State of Jammu and Kashmir, as rightly held by the learned Single Judge in SWP no.
930/2005 dated 02.02.2006, the degree granted by the SKIMS for employment in its institute, was sufficient qualification and on the same line of
reasoning the claim of the appellant in LPA no. 181/2010 should also be affirmed.
The said argument is though very attractive in the first blush, we do not find good grounds to accept the same. At the very out set it will have to
be stated that the said judgment of the learned Single Judge in SWP no. 930/2005 cannot be ipso facto applied to the case on hand. In that case it
appeared that the employment was in SKIMS itself and the only question was whether the degree conferred by SKIMS will be sufficient
qualification for considering employment in its services. No other question was considered and discussed by the learned Single Judge in the said
decision, in particular the application of Rule 7 read along with Entry 24 of Schedule II and paragraph 2 of the General note of 1979 Rules was not
the subject matter of discussion at all in the said decision. Therefore, reliance placed upon the said judgment of the learned Single Judge by the
appellant as well as the Public Service Commission cannot be accepted while deciding the issue relating to the eligibility of the appellant in the case
on hand. Secondly, the judgment of the Hon'ble Supreme Court relied upon by the learned Single Judge as well as the appellant, reported in Dr.
Arun Kumar Agrawal Vs. The State of Bihar and others, , is also not helpful to the appellant. In the said decision, which related to appointment in
the State of Bihar, the Hon'ble Supreme Court held as under in paragraph no.9:
The controversy has been raised before us that the M.Ch degree course in Neuro Surgery awarded by Rajendra Medical College, Ranchi
University is not yet recognized for the purposes of Indian Medical Council Act, 1956 and a letter of Medical Council of India dated 27-2-1991
has been placed on record in this regard. Learned counsel for the respondent No. 5 has tried to contend that M.Ch. degree obtained by the
appellant was of no value as the same has not been recognized so far by the Medical Council of India. We find no force in this contention, as this
course was started by the Ranchi University in 1980 with the consent of Medical Council of India and the State of Bihar has recognized such
degree imparted by the Ranchi University and even before this Court learned counsel appearing for the State of Bihar has admitted this position.
We are not concerned in this case about the value of such degree for places outside State of Bihar, but so far as the present case is concerned
which relates to the post of Assistant Professor in Patna Medical College and Hospital, Patna which post is under the Bihar Government, no such
objection can be maintained by the respondent No. 5.
The only common feature in the case of the appellant and the one dealt with in the said decision of the Hon'ble Supreme Court was that the
Post-Graduate degree was acquired from an Institution which had the permission of the Medical Council of India. In the said decision there is no
reference to any other prescription contained in any other Rule prevailing in that State unlike the 1979 Rules in the J&K State, stipulating the
requirement of recognition by the Medical Council of India of the said degree for the purposes of eligibility to make an application. Therefore, the
said decision of the Hon'ble Supreme Court cannot also be relied upon by the appellant in support of his claim.
Mr. Z. A. Shah, learned senior counsel, in his submissions, attempted to make a distinction between the concept of education and employment
and contended that in the constitutional decision of the Hon'ble Supreme Court, reported in Dr Preeti Srivastava and Another Vs. State of M.P.
and Others, , the principle was relating to the prescription of standard of education and that what is stated in the said decision cannot be applied
when it comes to the question of employment in the services of the State of Jammu and Kashmir.
Even accepting the said argument of the learned senior counsel for the sake of argument, when we examine the said contention and apply the
same to the facts of the case on hand, at the risk of repetition it will have to be stated that by Jammu and Kashmir State's own rules of 1979, as
stipulated under Rule 7 read along with Entry 24 to Schedule II and paragraph no.2 of the General Note, the satisfaction of a recognized medical
qualification as prescribed under the Medical Council of India Act, was imperative under the notification dated 06.03.2007.
Having regard to our earlier detailed discussions, since we have held that the recognition of a medical qualification by including the same under
the First Schedule of the Medical Council of India Act would alone entitle a person to validly claim to be in possession of the required medical
qualification as defined u/s 2(h) of the Medical Council of India Act, we are not in a position to countenance the argument of learned senior counsel
in derogation of what has been stipulated in 1979 Rules. For the very same reason the reliance placed upon the decision of the Hon'ble Supreme
Court, reported in Dr. R.K. Goyal Vs. State of U.P. and others, by the learned senior counsel cannot be accepted. In paragraph no. 8 of the said
decision the Hon'ble Supreme Court has stated as under:
It is really within the domain of the State Government to prescribe qualifications for appointment to various posts in State Services. Though
recruitment to the State Medical Services falls within the purview of the State Government, they are expected to comply with the regulations made
by the Council in order to maintain high standards of medical education as held by this Court in Ajay Kumar Singh v. State of Bihar.
( Emphasis added)
Even going by the said decision, when the State of Jammu and Kashmir has prescribed the qualification in the 1979 Rules, with which we have
made an elaborate detailed reference earlier, it is not possible to hold that irrespective of the non-fulfillment of the prescription contained in 1979
Rules, the claim of the appellant can be accepted.
Learned senior counsel Mr. Z. A. Shah relied upon State of T.N. and Another Vs. Adhiyaman Educational and Research Institute and Others,
, and the statement of law made therein in paragraph no. 12 to contend that 42nd amendment has not altered the position insofar as the State of
Jammu and Kashmir is concerned, as the position relating to State's power remains the same. Paragraph no. 12 of the said decision reads as
under:
The subject ""coordination and determination of standards in institutions for higher education or research and scientific and technical institutions"" has
always remained the special preserve of Parliament. This was so even before the Forty-second Amendment, since Entry 11 of List II even then
was subject, among others, to Entry 66 of List I. After the said Amendment, the constitutional position on that score has not undergone any
change. All that has happened is that Entry 11 was taken out from List II and amalgamated with Entry 25 of List III. However, even the new Entry
25 of List III is also subject to the provisions, among others, of Entry 66 of List I. It cannot, therefore, be doubted nor is it contended before us,
that the legislation with regard to coordination and determination of standards in institutions for higher education or research and scientific and
technical institutions has always been the preserve of Parliament. What was contended before us on behalf of the Sate was that Entry 66 enables
Parliament to lay down the minimum standards but does not deprive the State legislature from laying down standards above the said minimum
standards. We will deal with this argument at its proper place.
In the case on hand, we are not concerned with the legal question as to whether 42nd amendment has created any impact on the power of the
State relating to prescription of qualification or standard of education on appointments or in the field of education. However, while considering the
said argument we find that having regard to the prescription contained in 1979 Rules, we do not find any necessity at all to consider the said
submission as irrespective of the stand of the appellant based on the said submissions, having regard to the prescription contained in the 1979
Rules the appellant is bound to satisfy that he is in possession of a ""recognized medical qualification"" under the provisions of the Medical Council of
India Act and that alone would entitle him to compete in the selection pursuant to notification dated 06.03.2007.
We, therefore, do not find any scope to countenance the said submission for granting any relief to the appellant.
In this context it will also be appropriate to refer to yet another decision relied upon by Mr. B. A. Bashir, learned counsel appearing for the 1st
respondent. Learned counsel relied upon U.P. Public Service Commission U.P., Allahabad and Another Vs. Alpana, . The Hon'ble Supreme
Court, after referring to a decision of Hon'ble Supreme Court reported in 1993 Supp (2) 611, Ashok Kumar Sharma vs. Chander Shekher, has
held in paragraph no. 6 as under:
In the facts of the present case we fail to appreciate how the ratio of the said decision of this Court can be attracted. The facts of this case reveal
that the respondent was not qualified to apply since the last date fixed for receipt of applications was August 20, 1988. No rule or practice is
shown to have existed which permitted entertainment of her application. The Public Service Commission was, therefore, right in refusing to call her
for interview. The High Court in Writ Petition No.1898 of 1991 mandated the Public Service Commission to interview her but directed to withhold
the result until further orders. In obedience to the directive of the High Court the Public Service Commission interviewed her but her result was
kept in abeyance. Thereafter, the High Court while disposing of the matter finally directed the Public Service Commission to declare her result and,
if successful, to forward her name for appointment. The High Court even went to the length of ordering the creation of a supernumerary post to
accommodate her. This approach of the High Court cannot be supported on any rule or prevalent practice nor can it be supported on equitable
considerations. In fact there was no occasion for the High Court to interfere with the refusal of the Public Service Commission to interview her in
the absence of any specific rule in that behalf. We find it difficult to give recognition to such an approach of the High Court as that would open up a
flood of litigation. Many candidates superior to the respondent in merit may not have applied as the result of the examination was not declared
before the last date for receipt of applications. If once such an approach is recognized there would be several applications received from such
candidates not eligible to apply and that would not only increase avoidable work of the selecting authorities but would also increase the pressure on
such authorities to withhold interviews till the results are declared, thereby causing avoidable administrative difficulties. This would also leave
vacancies unfilled for long spells of time. We, therefore, find it difficult to uphold the view of the High Court impugned in this appeal.
(Emphasis added)
Reliance was also placed upon 1996 (5) SLR 304, Randeep Singh v. State of J&K and others, a decision of a learned Single Judger of this
Court. The question for consideration therein was whether a candidate who was not eligible on the date fixed as last date for receiving the
applications but becomes subsequently eligible on the date of interview, could be considered for appointment or not. Dealing with the said question
the learned Single Judge has held as under in paragraph no. 8:
As such his application was not found entertainable on the last date. The law laid down by the Supreme Court is clear and unambiguous that once
conditions are laid down by the advertisement notice, whole process of selection has to be made in accordance with those conditions and it is only
in Ashok Kumar Sharma's case where the court on the basis of equities and on the basis of an order passed by the competent authority declaring
such persons to be eligible who had become qualified before the date of interview, upheld the selection
In the decision reported in Smt. Ravinder Sharma and Another Vs. State of Punjab and Others, , the Hon'ble Supreme Court in paragraph no.
12 held as under:
The appellant was directly appointed. In such a case, the qualification must be either:
(i). a Graduate/Intermediate second class or,
(ii). Matric first class.
Admittedly, the appellant did not possess this qualification.
That being so, the appointment is bad. The Commission recommended to the Government for relaxation of the qualification under Regulation 7 of
the Regulations. The Government rejected that recommendation. Where, therefore, the appointment was clearly against Regulation 7, it was liable
to be set aside. That being so no question of estoppel would ever arise. We respectfully agree with the view taken by the High Court.
The above decisions make it clear that the test for finding out the eligibility of a candidate as regards the possession of a qualification should be
in the anvil of the cut off date and not otherwise.
In one of the decisions of the Hon'ble Supreme Court reported in 1993 (2) Supp SCC 611, Ashok Kumar Sharma v. Chander Shekher, even
in the absence of the rule it was held that it would be enough for a candidate to be qualified by the date of interview even if there was no
qualification by the last date prescribed for receiving the applications. However, the said decision came to be reviewed on that question by a
subsequent reporting found in Ashok Kumar Sharma and Others Vs. Chander Shekhar and Another, In the said review petition the first question
for consideration was:
Whether the view taken by the majority (Hon'ble Dr. Thommen and V. Ramaswami, JJ) that it is enough for a candidate to be qualified by the date
of interview even if he was not qualified by the last date prescribed for receiving the applications, is correct in law and whether the majority was
right in extending the principle of Rule 37 of the Public Service Commission Rules to the present case by analogy ?
Answering the said question the Hon'ble Supreme Court has held as under in paragraph nos. 6 and 7:
The review petitions came up for final hearing on 3-3-1997. We heard the learned counsel for the review petitioners, for the State of Jammu &
Kashmir and for the 33 respondents. So far as the first issue referred to in our order dated 1-9-1995 is concerned, we are of the respectful
opinion that majority judgment (rendered by Dr. T.K.Thommen and V. Ramaswami, JJ) is unsustainable in law. The proposition that where
applications are called for prescribing a particular date as the last date for filing the applications, the eligibility of the candidates shall have to be
judged with reference to that date and that date alone, is a well-established one. A person who acquires the prescribed qualification subsequent to
such prescribed date cannot be considered at all. An advertisement or notification issued/published calling for applications constitutes a
representation to the public and the authority issuing it is bound by such representation. It cannot act contrary to it. One reason behind this
proposition is that if it were known that persons who obtained the qualifications after the prescribed date but before the date of interview would be
allowed to appear for the interview, other similarly placed persons could also have applied. Just because some of the persons had applied
notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on a preferential
basis. Their applications ought to have been rejected at the inception itself. This proposition is indisputable and in fact was not doubted or disputed
in the majority judgment. This is also the proposition affirmed in Rekha Chaturvedi v. University of Rajasthan. The reasoning in the majority opinion
that by allowing the 33 respondents to appear for the interview, the recruiting authority was able to get the best talent available and that such
course was in furtherance of public interest is, with respect, an impermissible justification. It is, in our considered opinion, a clear error of law and
an error apparent on the face of the record. In our opinion, R.M.Sahai, J. (and the Division Bench of the High Court ) was right in holding that the
33 respondents could not have been allowed to appear for the interview.
Mr. Rakesh Dwivedi, learned counsel for the 33 candidates, submitted that these 33 candidates had appeared for the B.E. Examination prior to
their applying for the post and that there was some delay in publishing the results and that these respondents cannot be punished for the delay on
the part of the authorities concerned in publishing the results. In our opinion, the said contention is beside the point. In these proceedings, we
cannot examine the reasons for delay assuming that there was delay in publishing the results. That issue is outside the purview of the writ petition.
Whatever may be the reason, the 33 persons were not qualified as on the prescribed date and, therefore, could not have been allowed to appear
for the interview. On the first issue (mentioned in the Order dated 1-9-1995), therefore, we hold in favour of the review petitioners, affirming the
opinion of Sahai,J)
(Emphasis added)
In an earlier decision reported in District Collector and Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and
Another Vs. M. Tripura Sundari Devi, , the Hon'ble Supreme Court has held in paragraph no. 6 as under:
It must further be realized by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard
of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or
even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications
mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is
clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. We are afraid that the
Tribunal lost sight of this fact.
Based on the above decisions, it will have to be held that in order to validate an application of a candidate as holding necessary eligibile
qualifications, a candidate should satisfy such requirement as on the cut off date and no other explanation can be accepted to satisfy the said
requirement.
Having regard to such overwhelming decisions, on the said point, of the Hon'ble Supreme Court as well as that of this Court and applying the
same to the facts of this case, we hold that both the appellants did not possess the ""recognized medical qualifications"", as prescribed under the
Medical Council of India Act, 1956 and as required under the provisions of the 1979 Rules of the State and, therefore, they were not eligible to be
considered for the post advertised under notification dated 06.03.2007.
Since we have in more than one place held that having regard to the supremacy of the Central Legislation, namely, the Medical Council of
India Act as regards the recognition of the qualification, we feel it appropriate to rely upon a decision of the Hon'ble Supreme Court reported in
Medical Council of India Vs. State of Karnataka and Others, . The Hon'ble Supreme Court while tracing the change of entries after the 42nd
amendment relating to education in detail in paragraph 14 has concluded in paragraph no. 24 as under:
The Indian Medical Council Act is relatable to Entry 66 of List I (Union List). It prevails over any State enactment to the extent the State
enactment is repugnant to the provision of the Act even though the State Acts may be relatable to Entry 25 or 26 of List III (Concurrent List).
Regulations framed u/s 33 of the Medical Council Act with the previous sanction of the Central Government are statutory. These regulations are
framed to carry out the purposes of the Medical Council Act and for various purposes mentioned in Section 33. If a regulation falls within the
purposes referred u/s 33 of the Medical Council Act, it will have mandatory force. Regulations have been framed with reference to clauses (fa),
(fb) and (fc) (which have been introduced by the Amendment Act of 1993 w.e.f. 27-8-1992 and clauses (j), (k) and (l) of Section 33.
In a constitution Bench decision of the Hon'ble Supreme Court reported in Dr Preeti Srivastava and Another Vs. State of M.P. and Others, ,
while dealing with the submissions made by the counsel for the Medical Council of India, it was held as under in paragraph no. 52:
Mr. Salve, learned counsel appearing for the Medical Council of India has, therefore, rightly submitted that under the Indian Medical Council Act
of 1956 the Indian Medical Council is empowered to prescribe, inter alia, standards of postgraduate medical education. In the exercise of its
powers u/s 20 read with Section 33 the Indian Medical Council has framed regulations which govern postgraduate medical education. These
regulations, therefore, are binding and the States cannot, in the exercise of power under Entry 25 of List III, make rules and regulations which are
in conflict with or adversely impinge upon the regulations framed by the Medical Council of India for postgraduate medical education. Since the
standards laid down are in the exercise of the power conferred under Entry 66 of List I, the exercise of that power is exclusively within the domain
of the Union Government. The power of the States under Entry 25 of List III is subject to Entry 66 of List I
The Hon'ble Supreme Court in the said decision also over ruled an earlier decision of the Supreme Court reported in Ajay Kumar Singh and
Others Vs. State of Bihar and Others, , wherein it was held that the power of the Medical Council u/s 20 was purely advisory and had no binding
character.
In a subsequent decision of the Hon'ble Supreme Court reported in Harish Verma and Others Vs. Ajay Srivastava and Another, , the Hon'ble
Supreme Court has summarized the legal position stated by the constitutional bench decision succinctly as under in paragraph no. 15 (ii):
(ii) The Medical Council Regulations have statutory force and are mandatory. The Act contemplates the Medical Council of India having been set
up as an expert body to control the minimum standards of medical education and to regulate their observance. It has implicit power to supervise
the qualifications or eligibility standards for admission to medical institutions. The Medical Council has to keep overall vigilance to prevent sub-
standard entrance Qualifications for medical courses. These observations apply equally to postgraduate medical courses (SCC p. 164, para 57).
Going by the above decisions of the Hon'ble Supreme Court, we are fortified in our conclusion that the statutory prescriptions contained in the
Indian Medical Council Act, 1956 have to be mandatorilly followed, more so, when such requirements prescribed under the Medical Council of
India Act have been made part of the requirement under the 1979 Recruitment Rules of the State of Jammu and Kashmir.
Mr. Bhardwaj learned senior counsel appearing for the appellant in LPA no. 175/2919 relied upon a judgment of the Hon'ble Supreme Court
reported in Government of Andhra Pradesh and Another Vs. Dr. R. Murali Babu Rao and Another, The Hon'ble Supreme Court in paragraph no.
14 of the said decision has stated as under:
A fortiori the recommendations made by the Council or the regulations framed by its are only recommendatory and not mandatory. It is not for the
Council to prescribe qualifications for recruitment to posts of Professors, Readers and Lectures. It can only lay down broad guidelines therefore.
Such qualifications have necessarily to be prescribed by the framing of Rules under the proviso to Art. 309. Rights to be considered for
promotions is a condition of service and it can only be regulated by a rule framed under the proviso to Art. 309.
The learned senior counsel, therefore, contended that 1979 Rules framed under Article 309 will be more binding than the prescription
contained in the Regulations of the Indian Medical Council Act, 1956. In fact, more or less similar such proposition was held by the Hon'ble
Supreme Court in a decision reported in Ajay Kumar Singh and Others Vs. State of Bihar and Others, . The Constitutional Bench decision of the
Hon'ble Supreme Court reported in Dr Preeti Srivastava and Another Vs. State of M.P. and Others, specifically over ruled the decision of the
Hon'ble Supreme Court reported in Ajay Kumar Singh and Others Vs. State of Bihar and Others, . In such a situation, we are inclined to follow
the decision of the Constitutional Bench as followed by the Hon'ble Supreme Court in the subsequent decision reported in Harish Verma and
Others Vs. Ajay Srivastava and Another, .
Mr. Bhardwaj, learned senior counsel also relied upon Consolidated Coffee Ltd. and Another Vs. Coffee Board, Bangalore, , to support his
contention that in the JIPMER Act, 2008 u/s 24 it was held that the courses imparted by the said Institute should be deemed to have been included
in the First Schedule of the Act and such deeming fiction would date back to the year in which the M.Ch (CVTS) course was permitted to be held
by the Pondicherry University in its communication dated 07.02.1992. The learned senior counsel relied upon paragraph 11 where the meaning of
the said expression has been dealt with. That was a case relating to usage of the expression ""deemed"" in respect of a penultimate sale to an export
sale and by deeming such a penultimate sale also to be in the course of export for the purpose of exemption under the provisions of the Central
Sales Tax Act. Dealing with the said situation the Hon'ble Supreme Court has stated the rationale relating to usage of the expression ""deemed"" as
under in paragraph no. 11:
A deeming provision might be made to include what is obvious or what is uncertain or to impose for the purpose of a statute an artificial
construction of a word or phrase that would not otherwise prevail, but in each case it would be a question as to with what object the legislature has
made such a deeming provision.
Therefore even applying the said expression ""deemed"" used in Section 24 of the JIPMER Act, 2008 we have already held that since the Act
itself came to be enacted and applied with effect from 14.07.2008, such deemed fiction would not enable the appellant to reap any benefit for any
date prior to the coming into force of the Act, namely, 14.07.2008.
We, therefore, do not find any scope to apply the said decision to grant any relief to the appellant in LPA no. 175/2010.
For all the above stated reasons, we do not find any merit in these appeals. These appeals fail and are dismissed.
No costs.