Dr. Chandra Mohan Jha vs The State of Bihar and Others

Aftab Alam, J.—The Combatants are qualified doctors having post graduate degrees to their credit. The covered prize is Assistant Professorship in Nero Surgery. Driven by intense and highly competitive careerism the fight has been brought to this Court. Here the case was argued for hours at length in a no help wondering at length in a no holds barred manner. At times one could not help wondering at the state of affairs that so frequently brings to this Court such acrimonious career oriented antagonisms. The hearing of the case having concluded, however, this Court must confine and address itself to the questions of individual legal rights, their alleged infringement and their possible enforceability. The diagnosis aid the curative measures for the malady afflicting our public service system are matters for the socio-political scientists to ponder over.

By this application under Articles 226 and 227 of the Constitution, the Petitioner seeks to challenge the selection panel dated 4./8.7.1988 for appointment to the post of Assistant Professor in Neuro Surgery, Pursuant to an advertisement dated 19.2.1987 published in the Bihar Gazette of December 30, 1987, the Selection Committee prepared the panel which is said to have been approved by the State, Government or. 26.9.1988. The Petitioner questions this panel in so far as it lists him (at serial No. 4) below Respondents 5, 6 and 7 (at serial Nos. 1, 2 and 3 respectively). The challenge rests on the simple and straight forward contention that the three Respondent do not fulfil the minimum eligibility criteria laid down in the advertisement as appointment Assistant Professor, Neuro Surgery. It follow that the Selection Committee considered to empanel the three Respondents wrongly and for reasons other than their merits.

The Petitioner''s challenge to the panel is strenuously resisted by Respondents 5 and 6. Learned Advocate General, appearing for the State, also defended the impugned panel. Respondent No. 1, however, did not show any interest in the case; neither any counter-affidavit was filed on his behalf nor was be represented by anyone at the time of the hearing of the case.

Before proceeding further it will be apposite at this stage to take note of some (sic) developments in the case taking place ''outside the Court. On 25.11.1988 while the present writ application was under consideration for admission, a Bench of this Court directed that no appointments should be made on the basis of the impugned panel. Later by order dated 25.1.1989, while admitting the application, the Court, modifying the restraint order, said that any appointment made during the pendency of this application would be subject to the ultimate result of this application. This was the position in which his case rested in this Court.

In course of final hearing, however, the Petitioner has put in affidavit enclosing the copy, complete with annexure, of another writ petition being C.W.J.C. No. 4318 of 1990. The latter writ petition which is yet to be taken up for admission has been filed by Dr. Arun Kumar Agarwal (Respondent No. 5 to the present writ application) and impleads the present Petitioner as Respondent No. 5. As relief it seeks the elimination of the present Petitioner from the panel and further a direction to the State Government to appoint Dr. Agarwal to the post of Assistant Professor, Neuro Surgery on the basis 6th the selection panel dated 4.7.1983. It appears that a move by the State Government to bring the present Petitioner from serial No. 4 to the top of the panel, occasioned the filing of the second writ application. Quite remarkably this second writ application (C.W.J.C. No. 4318 of 1990) has as one of its annexures a full and complete photostat copy of the concerned government file (so much for the confidentiality of the government records 1). It shows that the panel in question was approved by the minister making the endorsement, "as proposed" on a note put by the Additional Commission-cum-Special Secretary saying that the panel was fit to be approved. This however, does not seen have concluded the controversy as even after the government''s approval to the panel, the file shows that the name of the Petitioner kept cropping up and a wrangle went on over the validity of the panel. Doubts were expressed over the criteria adopted by the Selection Committee and teaching experience not having been given due weightage in the selection process will meaning suggestions were made to improve the language of the advertisement and make it free from any confusions or ambiguities before its publication for the next batch, as regards the present controversy it was even suggested to seek the advice of the Medical Council of India. Finally the file shows the minister making an impatient and peremptory note on 2.9.3.1990 (sic) the Director-in Chief that he had already, asked for the proposal for appointment to the post of Assistant Professor, Neuro Surgery, alter making due amended in the 1987 panel giving primacy to teaching experience as per Rules. He pointed out that the Petitioner having teaching experience in Neuro Surgery had not been given due preference in the panel and directed that after making the necessary correction in the penal the proposal for appointment it should be put up before him with in three days. For some reasons this direction does not seem to have been carried out and as admitted by all concerned, neither any amendment was made in the impugned panel, nor was ANY proposal for appointment finalised.

This note by the minister gave rise to the question whether the Petitioner was left with any subsisting cause of action to maintain the present writ application? To this, Respondent No. 5 answered that in the first place the government having earlier approved the panel, it had no authority or competence to amend, modify or direct any so called correction in it and secondly as a matter of fact no amendment/modification/correction was actually made in the panel and it stood today as on the date of its approval on 26.9.1988. The Petitioner might have had reservations regarding the former contention but agreed to the latter factual position submitting that his grievance fully persisted. The counsel for Respondent No. 6 also urged that this writ petition should be heard and disposed of on merits. The learned Advocate General, after he had addressed this Court on behalf of the State, was also put this question pointedly and his attention was also drawn to the other writ petition (C.W.J.C. No. 4318 of 1990). He was requested to take a (sic) vis-a-vis the two applications in which the State Government''s actions, apparently contradictory, on the same matter, hereunder challenge before this Court. His response was that so far as the present application was concerned he would strongly resist it and defend the impugned panel. So far as the other writ petition (C.W.J.C. No. 4318 of 1990) was concerned, however, he declined to make any comment on the ground that in that regard he would not like to commit himself, a though having defended the impugned panel in this writ application, it appears to me that he has already committed himself even with regard to the other case.

This being the position and the stand taken by the concerned parities we decided that the best course would be to dispose of the present writ application on its own merits and I hereby proceed to do so.

As already noted above the Petitioner''s challenge to the panel rests on the plea that Respondents 3, 6 and 7 do not satisfy the minimum eligibility criteria as envisaged in tae advertisement. It is, thus, essential to clearly understand the advertisement''s requirement. To try to understand the terms of an advertisement may sound rather odd but one is faced here with a document of which clarity is not one of the strong points. Long and loosely worded, the advertisement has proved itself capable of being subjected to elaborate and divergent interpretations. Hence, it becomes necessary to clearly identify the terms of the advertisement against which the academic qualifications and the experience of the three Respondents is to be tasted.

The advertisement (contained in Annexure-3 to the writ application) invites applications for appointment to the post of Assistant Professor, Clinical subjects (and five other posts) in all the Medical Colleges and Hospitals of the State of Bihar. Clause 2 of the advertisement deals with minimum academic-qualification and experience. Sub-clause G of Clause 2 which is relevant for the controversy in hand is as follows :

lgk;d izk/;kid ,oa fuc/kd � jftLV�j � ds in ds fty, vkosndksa dks mlh fof''k"Vrk ftlesa vkosnu gks] ,e- Mh-] ,u- ,l-] ,Q- vkj- lh- ,l- �;w- ds-�] ,e- vkj- lh- ih- �;w- ds-�] ,e- vkj- lh- vks- th- �;w- ds-� ;k vesfjdu cksMZ vkWQ Lisfl;fyVh ;k vU; dksbZ Lukrdks�kj ;ksX;rk ftls Hkkjrh; fpfdRlk ifj"kn~ }kjk mi;qZDr miyfC/k;ksa ds lerqY; ekuk x;k gks izkIr gksuk vfuok;Z gS A fnukad 11 ucEcj 1978 ds ckn ;w- ds- ls izkIr Lukrdks�kj mikf/k;ksa dks ekU;rk ugha nh tk;sxh A

Translated into english it reads, thus:

2(c) For the post of Assistant Professor and Registrar it will be essential for candidate to have obtained in the same speciality for which the application is being made M.D., M.S., F.R.C.S (U.K), M.R.C.P. (U.K), M R.C.O.G. (U.K) or American Board of Speciality or any other post graduate qualification, considered by the Medical Council of India as equivalent to the aforesaid degrees. Post graduate qualification obtained from the U.K, after November 11, 1976 shall not be granted recognition.

Mr. Yogendra Mishra, learned Counsel for the Petitioner, insisted on reading the above clause to mean that ''any other post graduate qualification'' must, have been recognised by the Medical Council of India as equivalent to the degrees named in the clause. The use of the word ''recognised'' is plainly intended to infuse certain formality and statutory flavour into the matter of equivalence of the degrees and the next step to follow was to show from the regulations of the Medical Counsel of India that the schedule of the ''recognised'' post graduate degrees did not include ho one possessed by Respondents 5 an 6. Mr. A.B. Ojha, learned Counsel for Respondent No. 5, on the other hand, expounded on the different meanings of the Hindi words lekjzi lerqY; and ekU;rk iznku djuk and contended that mere similarity with the degrees named in the clause will qualify any other past graduate degrees as the minimum qualification required under the Advertisement.

On a consideration of the rival contentions I would stick to my own translation of the provision as given above.

The next relevant provision is contained in Clause 3 which is as follows:

�d� mlh fof''k"Vrk ds jsftMsUV @ jftLV�kj vFkok nksuksa inksa ij ftu inkf/kdkjh;ksa us ,sls ''kS{kf.kd vLirky ftls ,e- ch- ch- ,l- f''k{k.k ds fy, Hkkjrh; fpfdRlk ifj"kn~ dh ekU;rk izkIr gks esa dk;Z fd, gks os gh vkosnu ns ldrs gSa A

�[k� ftl fo"k; ds fy;s vkosnu gks mlh fo"k; esa Lohd`r vU; duh; ''kS{kf.kd inksa ij dh lsok � twfu;j ltZu @ twfu;r fQftf''k;u � dks jftLV�kj @ jsftMsUV ds led{k ekuk tk;sxk A

�x� vU; ''k�kksa ds vkyos lEcfU/kr fo"k; ds jsftMsUV @ jftLVkj vFkok nksuksa inksa dks feykdj U;wure rhu o"kksZa dk vuqHko izkIr fpfdRlk inkf/kdkjh gh vkosnu nsus ds ;ksX; gSa] fdUrq jsfM;ksayksth] jsfM;ksFksjksaih] Ldhu ,oa Hkh- Mh-] ,usLFksfl;k] U;wjksyksth] U;wjks ltZth] IykfLVd ltZjh ;k Hkfo"; esa xfBr gksus okyh fof''k"Vrkvksa esa ;g vfuok;Z ugha gksxk vkSj u rks l fo"k;ksa esa inLFkkiuki ds fy;s fu/kkZfjr 15 vad izkIr djus dh vfuok;Zrk gksxh A fdUrq bu fo"k;ksa esa ;fn ,d ;k ,d ls vf/kd oSls mEehnokj miyC/k gks] ftUgsa lEcfU/kr fo"k; fo''ks"k esa rhu o"kksZa dk ''kS{kf.kd vuqHko izkIr gks] rks oSlh fLFkfr esa ,sls vuqHko izkIr fpfdRlk inkf/kdkjh fu;qfDr esa loZizFke fopkj.kh; gksaxs rFkk mUgsa fu;qDr fd;k tk;sxk ;|fi fd mUgs oSls mEehnokj ftUgsa rhu o"kksZa dk ''kS{kf.kd vuqHko izkIr ugha gS ls de vad D;ksa u izkIr gks A

Thus as to say:

For Assistant Professor - Resident/Registrar in the same speciality or officers having worked on the two posts in an educational hospital, having obtained recognition from the Medical Council of India for conducting M.B.B.S. course alone can apply.

(b) "Service on any other no accepted/acknowledged teaching post (Jr. Surgeon/Jr. Physician in the same subject for which the application is being made shall be considered quivalent to Registrar/Resident.

(c) In addition to the other conditions Resident/Registrar in the concerned subject or Medical Officer having a minimum of three years experience on the two posts shall alone be eligible to apply. This, however, shall not be essential for Radiology, Radiotherapy, Skin & V.D. Anesthesia, Neurology, Neurosurgery, Plastic Surgery or any speciality to be constituted in future, nor shall it be essential to obtain the prescribed minimum of 15 points for being posted in these subjects. In these subjects, however, in case one or more than one such candidates are available who have obtained three years'' teaching experience. In the concerned speciality, then in that situation, the Medical Officers having such expedience shall be entitled to foremost consideration for appoint cent and they shall be appointed although they might have obtained lesser points than those candidates who do not possess three years teaching experience.

Clause 3 �N� relates to publications by the candidates and is of no relevance to the present controversy as none of the contending parties rely upon this provision.

Clause 3 �p� is as follows:

�?k� lgk;dr izk/;kid in ds fu;qfDr ds fy;s U;wUre 15 vad izkIr djuk vfuok;Z gSa fdUrq mijksDr en �x� esa mfYyf[kr fof''k"Vrk ds fy;s U;wure vad 6 gksxk A ;fn mijksDr vad izkIr djus okys vH;kFkh ;Fks"V la[;k esa myyC/k ughaa gks rks] fjDinksa dks Hkjus ds fy, U;wure vad dks f''kfFky djus dk vf/kdkj ljdkj dks jgsxk A

I read it thus

It is essential to obtain IS points for appointment to the post of Assistant Professor, however, for the specialities enumerated in the aforesaid Clause 3 the minimum point shall be 6. In case candidates obtaining the aforesaid points are not available in the desired number then the government, in order to fill up the vacancies, shall have the right to relax the minimum points.

Clause 4 of the advertisement relates to appointment to the post of Registrar and Clause 5 relates to the post of Resident Doctor. Mr. A.B. Ojha has also cited Sub-clause x and N of Clause 4 and Sub-clause ?k of Clause 5. But I do not see how these provisions have any bearing on the present controversy and, therefore, omit to record those here.

The next relevant provision is contained in Clause 19 which, however, has to be read along with Clause 18.

These two clauses are reproduced below:

18- dkfMZ;ksyksth] dkfMZ;ksFkksjsfld ltZjh] U;wjks ltZjh] xkLVks ,osVjk;ksth isfM;kfV�d ltZjjh ,oa fdMuh bdkbZ es fuca/kd vFkok vkoklh; fpfdRld ds inksa ds fy, �e''k% dafMdk 4 vFkok 5 dh ''k�kksZa dks iwjk djus dh vko'';drk ds vkykos lacaf/kr fo"k;ksa esa dk;kZuqHko ij izkFkfedrk nh tk;sxh A

19- mijksDr izeq[k lqij bdkbZ;ksa esa lgk;d izk/;kid ds in ij fu;qfDr gsrq dafMdk 3 esa mfYyf[kr mikf/k ,oa ''kS{kf.kd vuqHko ewy fo"k; esa vko'';d gksxk] fdUrq ftUgsa lqij Lis''kfyLVksa esa mikf/k] ''kks/k dk;Z vFkok dk;kZuqHko gksxk mUgsa izkFkfedrk nh tk;sxh A

Clause 18 : For the post of Registrar and Resident Doctor in the units (specialities:) of Cardiothoracic Surgery, Neuro Surgery, Gastro Entrology, Paediatric Surgery and kidney in addition to the necessity of fulfilling the conditions, contained in Clauses 4 and 6 respectively, preference shall be given for working experience in the concerned subject.

Clause 19 : For appointment to the post of Assistant Professor in the aforesaid major super specialities, the degree and the teaching experience in the related basic (parent :) subject, as enumerated in Clause 3 will be essential. However, those having, degrees, research work or working experience. shall be given preference.

Reducing the terms of the advertisement to the specifics of this case one finds that that requirements under the advertisement are three fold and can be broadly classified under three heads. First relates to the group to which the applicants must belong. This is confined to the cadre of the Medical Officers of the State Health Service and Junior Teachers and Medical Officers working in the erstwhile private Medical colleges, there is no controversy regarding this condition as all the contending parties are members of this group. The second condition relates to academic qualification and (vide Clause 2) requires the candidate to have a post graduate degree in the same clinical subject in which he applies for the post of Assistant Professor. Illustratively, a candidate for Assistant Professorship in Medicine must have a M.D. degree in Medicine a candidate for Assistant Professorship in General Surgery must have a M.S. degree in General Surgery and a candidate for Assistant Professorship in Neuro Surgery must have in Neuro surgery a post graduate degree, considered by the Medical Council of India, as equivalent to M.S. or any other degree mentioned in Clause 2. The third condition relates to experience and calls for a careful consideration. Clause 3 of the advertisement stipulates tint in all clinical subjects, with the exception of Neuro Surgery and six others, the candidate must have had a three years (sic) of working as Resident/Registrar (or on the teaching post of Jr. surgeon) in the same clinical subject in which Assistant Professorship is applied for. The stipulation that the candidate must have worked as Resident/Registrar (or on the teaching post of Jr. Surgeon) also remains unchanged in case of Neuro Surgery and the six other subjects; the relaxation, in this case, however, is that no minimum period of time is attached to it. That is to say, a candidate for Assistant Professorship in Neuro Surgery roust have worked as Resident/Registrar (or on the teaching post, of Jr. Surgeon) in Neuro Surgery, although for a period less than three years. Paramount value is given to teaching experience in Neuro Surgery and file six other subjects and it is envisaged (vide Clause 3 x. that a candidate for Neuro Surgery having teaching experience in Neuro Surgery for three years shall receive foremost consideration and shall be offered appointment even though he might score, in the selection process, lesser points than another candidate lacking in three years'' teaching experience in that subject (this equally applies to the other six subjects mentioned in Clause 3 x. In other words, three years'' teaching experience in the given subject, which is demanded as a minimum qualification for other clinical subjects, e.g. General Surgery, is of overriding value for Neuro Surgery and the six other subjects. For the purposes of the present application it is important to bear in mind that in terms of the advertisement a candidate scoring lover points would be entitled to selection in preference to one scoring higher points only in case the former had three years teaching experience in Neuro Surgery and the latter was lacking this experience.

At this stage I may state that a lot of argument has been advanced seeking to interpret Clauses 2 and 3 of the advertisement by reading in to them such distinctions as ''speciality'', ''parent speciality'' and ''super speciality''. It was contended that Neuro Surgery being a super speciality, Clause 2 of the advertisement using the expression ''speciality'' required from the candidate of Neurosurgery it post graduate degree only in General Surgery which wan said to be the speciality of which Neuro Surgery was the super speciality. On the same reasoning Clauses d and x of Clause 3 were said to require Residency/Registrarship in General Surgery only for eligibility in Neuro Surgery. I am, however, unable to accept this contention. The scheme of Clause 2 and 3 alone does not justify such construction and this will lead to quite anomalous situation. For examply Residency/Registrarship in General Surgery for not less than three years would be the minimum required experience for appointment in General Surgery (Vide Clauses 3 d and x). But working in General Surgery for a period of less than Three years, even for a dry, would suffice for appointment in Neuro Surgery (vide Clause 3 x). This clearly defies reason. It is, therefore, try considered view that Clauses 2 and 3 of the advertisement on their own are to be understood without involving any distinction of ''speciality'', ''parent speciality'', super speciality'' etc. These two clauses plainly treat all the clinical subjects at par and the requirements contained therein are equally applicable to each subject. In simple terms Clause 3 stipulates Residency/Registrarship in Neuro Surgery (and not in General Surgery) for appointment in Neuro Surgery.

In Clauses 18 and 19 of the advertisement, however, the idea of super specialities is manifested. It is to be noted that Clauses 18 and 19 mention certain clinical subjects describing them as major super specialities, Clause 19 further envisages that a candidate having the minimum required qualification in the respective parent speciality may also be "considered for appointment in any one of the ''major super speciality'' enumerates in Clauses 18 and 19. What is quite curious, however, is that the two sets of subjects mentioned in Clauses 3 and 18 are not the same. It can, therefore, be argued that the subjects mentioned in Clauses 18 and 19 alone are super specialities and those included in Clause 3 are not to be deemed as super specialities. It would be quite contrary to common knowledge and hence a converse argument can be advanced that by implication the subjects MENTIONED in Clause 3 must also be deemed to be super specialities: and the stipulation made in Clause 19 would equally apply to those subjects ALSO. In this case, however, I am not required TO decide this question as Neuro Surgery the subject matter of the present case is the only subject which is included both in Clause 3 and Clauses 18 and 19. Therefore, so far as Neuro Surgery is concerned it is considered a ''major super speciality'' and in terms of Clause 19 a candidate having the minimum required qualification in its parent speciality (i.e. General Surgery) may also be considered for appointment in Neuro Surgery.

Summing up I find that the following are the minimum qualification and preferences for appointment as Assistant professor in Neuro Surgery.

(i) M.S. degree in General Surgery.

Or,

A post graduate degree in Neuro Surgery which the Medical Council of India considers as equivalent to the M.S. degree.

(ii) Having worked as Resident/Registrar or on a junior teaching job in General Surgery for not less than three years.

Or,

having worked as Resident/Registrar or on a junior teaching job in Neuro Surgery for a period oven less than three years.

(iii) A degree, research work or working experience in Neuro Surgery shall be given preference.

(iv) Teaching experience in Neuro Surgery for not less than three years shall receive overriding preference and shall supersede other candidates securing higher points in the selection, process.

Turning now to the selection process in terms of the advertisement one finds that it is based on allotment of points under different heads Each candidate is to be allotted certain point; under six heads, namely, (I) for M.B.B.S. degree, (ii) for honours, (iii) for postgraduate qualification, (iv) for rural service, (v) for publications and (vi) for teaching experience. Details relating to allotment of points under each head is also provided. It is again curious to note that there is no provision for allotment of any points for working experience although Clause 19 of the advertisement contemplates certain preference for working experience. I fail to understand how this preference is to materialise in actual practice.

So much for the advertisement and its understanding but before parting with it t can-not refrain from observing that I earnestly wish that the authorities had some better way of expressing their requirements in simpler, more coherent and, more easily understandable way than the present advertisement.

Now a look at the qualifications of each of the contenders at the material time.

The Petitioner had a M.S. degree in General Surgery. He worked as Resident Surgeon in General Surgery for more than three years; he had also completed one year four months and four days as a Resident Surgeon in Neuro Surgery on the date he submitted the application in pursuance of the advertisement. He is thus, clearly eligible in terms of Clauses 1 and 2 as summarised above and is also entitled to some preference for his teaching and working experience as Resident Surgeon in Neuro Surgery in terms of Clause 3 herein above.

In so far as the three Respondents are concerned, the 6th Respondent had passed the M. Ch. examination on 4.12.1987 (the last date for the Submission of the application being January 31, 1988). He, however, had no working experience as a Resident Surgeon/Registrar or on any junior teaching post. All that he claims by way of working experience is a one year stint as House Surgeon in Neuro Surgery at Rajendra Medical College Hospital, Ranchi and the four years in-course-training that ho under went as a M.Ch. student. This certainly is no substitute for the working experience as Resident/Registrar as required under the advertisement and I, therefore have no hesitation, in holding that Respondent No. 6 was not eligible to be appointed as Assistant Professor, Neuro Surgery in terms of the advertisement.

I may state, at this stage, that the Medical Council''s recommendations on the qualifications required for appointment to the post of teachers in Medical Colleges have been brought to our notice. These recommendations, made in 1983, in relation to Neuro Surgery are as follows :

Post

Academic Qualification

Teaching/Research.Experience

(a) Professor

M. Ch, (Neuro Surgery)

(a) As Reader in Neuro Surgery for 5 years in a Medical College

(b) Reader

do

(b) A.s Lecturer in Neuro Surgery for 5 years in a Medical College

(c) Lecturer

do

(c) Requisite recognised postgradute qualification in the subject.

These recommendations, it appears do not envisage any working experience for appointment to the post of lecturer (equivalent to Assistant Professor). The reliance on these re-commendations (which in any event are only recommendatory (sic) nature I feel, is quite misplaced for the advertisement issued by the Bihar Government is not under challenge for not being in conformity with the recommendations of Medical Council and what is under Consideration in the instant case is the comparative merit of the contending parties on the basis of the advertisement and not the recommendations of the Medical Council.

28, As regards Respondent No. 7, he had a M.S. degree in General Surgery and had also the working experience as Resident/Registrar General Surgery for not less that three years. He also is, thus, eligible in terms of the advertisement, according to the Petitioner, however, he bad no working or teaching experience in Neuro Surety and, thus, the Petitioner claims preference over Respondent No. 7. It is contended that in case the Petitioner''s teaching experience in Neuro Surgery had been properly taken into account he should have received more points than Respondent No. 7 and the impugned panel wrongly gave him two points lesser than Respondent No. 7. Respondent No. 7 has not appeared to dispute the Petitioner''s claim.

Respondent No. 5 had a M.Ch. degree in Neuro Surgery. He also claims to have worked as a Resident in Neuro Surgery from 10.9.1987 cm the basis of notification of the same date, a copy whereof is contained in Annexure-1. The Petitioner contends that both the academic qualification and working experience as claimed by the 5th Respondent do not satisfy the terms of the advertisement, Reliance is placed up on the regulations framed by the Medical Council in 1971 to contend that the M.Ch. degree in Neuro Surgery from Ranchi University is not included in the regulation''s schedule and hence it is not a degree recognised by the Medical Council, The fallacy lies in the use the expression ''recognised'' as discussed above (in paragraph 9, 10 and 11), I understand the advertisement to m an a degree which the Medical Councilor India considers as equivalent to the M.S. degree. Now it must be borne in mind that the M.Ch. course was initiated in the Ranchi Medical College, Ranchi by the State Government only with the prior permission of the Medical Council of India. The syllabus for this course is prescribed by the candidates completing this course are also nominated by the said Council. There are also instances in the past when the Medical Council of India accorded reognition to certain degrees from certain universities retrospectively. In the face of all this it is difficult to hold that the M.Ch. degree from Ranchi University cannot be deemed to be one which the Medical Council of India considers as equivalent to the M.S. degree.

The Petitioner''s challenge to the. working experience of the 5th Respondent is similarly without much substance. First, it is factually disputed that Respondent No. 5 took, over charge in pursuance of the notification'' dated 10.9.1937 and it is stated that he was posted as Medical Officer., Central Casualty Department, P.M.C.H. under notification dated 30.6.1938. that is, after the last date for the submission of the applications. Secondly, it is instated that by notification dated 10.9.1987 Respondent No. 5, was only put on deputation as Resident in the Central Casualty Department and it was not a regular posting which alone according to the Petitioner, would satisfy the terms of the advertisement.

The first challenge, on fact, does not hold in face of Annexures-I, 1/2, 1/3 and 1/4 Annexure-I is a notification dated 10.9.1987 whereby Respondent No. 5 was deputed to work as a Neuro Surgeon on the post of Resident Medical Officer in the Central Casualty Ward of P.M.C.H from Annexure 1/2, an office order dated 16.9.1987, it appears that he assumed charge in the Central Casualty Department on 10.9.1987 itself; by notification dated 30.6.1983 Annexure I/1) his deputation was regularised with effect from the date of joining, that is, 10.9.1987 From the letter, contained in Annexure 1/3, it appears that he handed over charge of Medical Officer, Hilsa on 12.1.1988. He received his salary till 12.1.1988 as Medical Officer, Hilsa and from 13.1.1988 he got his salary for the post of Resident Neuro Surgeon from P.M.C.H.

The second challenge is also unacceptable in as much as all that the advertised terms requite i of a candidate in that he should have worked as Resident/Registrar and there is in reason to put a rider that the working experience mist be against a regular post.

Therefore, find that the Petitioner''s challenge against the academic qualifications and the'' working experience possessed by Respondent No. 5 are unsustainable and Respondent No. 5 was also eligible for the past in terms of the advertisment.

This however, is not the end of the mater. For, from the impugned panel it appears that Respondent No. 5 with 14 points has been out at serial No. 1 and the Petitioner with 28 points has been put ut serial No. 4. The Petitioner rightly submits that this is in complete disregard of the terms of the advertisement.

The reason for putting Respondent No. 5, even though with lesser point, at serial No. 1 is disclosed by the remark given in column No. 5 of the panel which states, M.Ch. in Neuro Surgery, more than four years working experience in N. Surgery" (emphasis supplied). This, I find, is wholly unjustified on two counts. First, even assuming the remark to be factually correct it is impermissible to put Respondent No. 5 (with 14 points) above the Petitioner (with 28 points) on the basis of working experience alone. As has been shown from the detailed analysis of the advertisement earlier (paragraph 17) Respondent No. 5 could have been entitled to such overriding preference in case he had teaching experience in Neuro Surgery for not less than three years. Respondent No. 5 admittedly did not have the required teaching experience and was, therefore, not entitled to this overriding preference.

Secondly, the remark that he had more than four years'' working experience in Neuro Surgery is quit incorrect and it is fallacious to assume that Respondent No. 5 had any such working experience either in Neuro Surgery. What has been described as working experience was actually the training period which he under went as a M.Ch. student and as a candidate for M.Ch. degree. A photo copy of the prospectus of Postgraduate Admission Test, 1987 has been annexed as Annexure-A/6, Clause VIII of the prospectus reads, thus:

Teaching. - Successful candidates will be registered by the universities concerned. Registered candidates will have to undergo full time training for two years for M.D./M.S. course and one year for Diploma course from the date of their admission. For M.Ch. in Neuro Surgery and Plastic Surgery training period will be of two years for such candidates who are admitted after M.Ch./General Surgery or Surgery but four years for such candidates who are admitted after M.B.B.S.

This was the training which was a precondition for Respondent No. 5 taking the final M.Ch. examination and that culminated in his obtaining the degree find merged with the degree. It was indeed not a working experience which can be taken into account separately from the degree and doing so would amount to giving double benfit for a single course, one in the from of the degree and academic qulification and another in the working experience. This to my mind, would be wholly unjustified.

Thirdly, oil excluding that in-course-training period which has been wrongly credited to his working experience, it is apparent that Respondent No. 5 has a much shorter period of teaching and working experience in Neuro Surgery than the Petitioner and it is indeed the Petitioner who is entitled to preference over Respondent No. 5 on this account. The Petitioner in addition to having worked for more t ran three years as Resident in General Surgery, has also completed one year four months as a Resident Surgeon in Neuro Surgery. Respondent, on the other hand, merely worked as Reticent Surgeon for a period of four months and twenty days from 10.9.1987 (the date of his joining) to 31.1.1988 (the last date for the submission of the application.

I am, therefore, of the opinion that the impugned panel putting the Petitioner at serial NO. 4 with 28 points is in complete derogation of the terms of the terms of the advertisment.

Respondent No. 5 having lesser points than the Petitioner, Respondent No. 6 being ineligible in terms of the advertisement and the Petitioner having preferential claim over Respondent, he must be put at serial No. 1 above Respondents 5, 6, 7, I hereby direct Respondents 1 to 4 to re-arrange the penal, accordingly.

The writ petition is, thus, allowed but without any order as to costs.

S.B. Sanyal, J.

I agree.