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Judgment
There is a dispute between the appellant (herein after to be referred as Dr. Javed Choudhary) and respondent No.3 (hereinafter to be referred
as Dr. Rekha) with regard to their seniority.
It appears that appointment were made through Public Service Commission for the posts of Lecturers in the discipline of paediatrics. Both Dr.
Javed and Dr. Rekha were candidtes. Selection was made and an order of appointment was issued by the Government bearing Government
Order No. 41 HME of 1991 dated 911991 and both Dr. Javed and Dr. Rekha were appointed as Lecturers. In the order of appointment Dr.
Rekha was shown as number 1 and Dr. Javed as number 2. Another Dr. Kaisar Ahmed was also appointed by the same order and was shown as
No.3 in the order of appointment.
It is presumed by us and by the parties that the order of appointment was issued on the basis of the merit obtained by the candidates during their
selection.
Dr. Javed Challenged the order of appointment to the extent of his figuring at serial No.2 in the order of appointment which according to him
would be vital for his seniority in future.
The grounds taken in the petition were that in accordance with the guide lines prepared by the Public Service Commission, five additional marks
had to be given for higher qualifications than the requisite qualification. In the advertisement notice through which the applications were invited, a
person with following qualifications were declared to be eligible:
M.D. (Paediatrics); speciality Board of Paediatrics (USA).
Dr. Javed, the appellant herein, relied on Rule 51 of the guide lines of the Public Service Commission, which reads as under:
The assessment at an interview shall be based on the following principles.
A Performance of the candidate in the vivavoce test: 100 Marks
B Academic Merit:
i) Percentage of marks obtained in the basic (i.e minimum) 25 Marks qualification prescribed for the post.
ii) Higher qualification than the basic (Minimum) prescribed for the post such as Diploma or Degree in the concerned speciality/subspeciality
subject/discipline.
a) Diploma 2Marks) Subject to a
b) Degree 5 Marks) max. of 5 marks
C. Experience acquired by the candidate in the concnerned speciality/Speciality/Sub speciality/subject/discipline.
i) exceeding 1 year but not 2 years2 marks.
ii) for excess 2 years for every full year 1 mark. Subject to a total of 5 marks including those under(i).
D. Sports/Games
Distinction in sports/games (i.e. representing a University, State or Region in any sports/games), 3 Marks
E. Distinction in NCC activities (i.e having held the rank of junior under Officer or Senior under Officer ot having passed the top grade certificate
examination of NCC) 2 Marks
Total A to E 140 Marks
The appellant submitted that he had a degree obtained after M. D. in Paediatrics and, therefore, he was entitled to five (5) marks in addition to
what he got out of 125 marks. These marks were not given to him, therefore, he figured at serial No.2 in the merit list. He submitted that he has
obtained a Diploma from the National Board of Examination, and if, considered to be a degree, would entitle him to five (5) marks and if
considered as a Diploma, would entitle him for 2 marks, and in both the cases, he would have been better than that of R. Rekha.
The learned Single Judge of this Court considered the matter and dismissed the writ petition. The learned Single Judge, while considering the
qualification of Diplomate of National Board of Examination, found. The membership of the National Board of Examinations which has been styled
as Diplomate of the National Board is not an additional qualification but is only a further recognition of a qualification equivalent to the post
graduate degree or the post doctoral degree. The learned Single Judge dismissed the petition and against that order, present appeal has been filed.
We have heard the learned counsel for the parties at length.
Mr. Raina has submitted that Medical Council of India has laid down that M.A.M.S/ M.N.A.M.S. granted by National Board of Examination,
New Delhi shall be a degree at par with M.D./M.S. He submits that according to the National Counsil of India the Diploma which was earlier
known as MAMS/MNAMS was subsequently known as D.N.B. and therefore same cannot be treated as a higher qualification.
The appellant himself has relied on a Bulletin, copy of which has been annexed with the record. In the introduction of the Bulletin, it has been
stated that the MAMS/MNAMS has been changed to Diploma of National Board.
It has been further stated that the Medical Council of India has included this qualification in the 1st Schedule to the Indian Medical Counsel
Act, 1956. It has further been stated that the Diplomate qualifications awarded by the National Board of Examinations have been equated with
postgraduate degree and post doctoral level qualification of Universitites by the Government of India. The bulletin further laid down that a person
holding the qualification of Diplomate shall be liable to be considered for the post of Specialist in any hospital other than the Training/ Teaching
Institute. It further stated that such a person shall be eligible for appointment to the post of registrar/Tutor/Demonstrator, which will be counted as a
research experience. In the general information column, it has been stated that a candidate appearing for the examination for getting a certificate of
Diploma will be required to pass two seperate examinations, provisional and final. It has further been stated that a candidate holding qualifications
registered under the Medical Council of India, Act, 1956, shall be eligible to be the candidate.
In the Brochure at serial number 5.5, it has been stated that candidates possessing Post graduate degree, recognised by the Medical Council of
India, shall be granted exemption from taking the previous examination.
So it becomes clear that for getting a Diplomate from the National Board of Examination, .the basic qualification is graduation.
There are two examinations, one the previous examination and another the final examination, and for such candidates who have already MS/MD,
are exempted from prisious examination, but they have to appear in the final examination alone.
So even if this Court ventures into the area (which in our view is a prohibited area) into seeing whether the Diplomate is a higher qualification or
not, even then one comes to the conclusion that it is at best a qualification which is at par with M.D and M.S. The Medical Council of India had
also held it to be at par with M.D/M.S. but at the same time the Bulletin itself states that with this qualification of Diplomat a person shall not be
eligible for a teaching job unless he has the experinece of research with him.
This discussion has only been made to see whether infact this qualification was a higher qualification than M.D/M.S.
Mr Rama, learned counsel appearing for the Public Service Commission submits that it is not in each and every case that a Diplomate or
degree in addition to the basic qualification required, entitles a candidate to bonus marks. He submits that where the basic qualification is M.D.,
only a higher qualification of Diploma or degree, higher than the MD would entitle a candidate for bonus marks. He submits that rule 51 is a
general rule and it has no relevance in the present case. He submitted that for instance if the Public Service Commision has to select candidates as
House Surgeons where the basic qualification is MBBS and a person applied for the post of House Surgeon who has a degree of M.D./M.S. with
him, or even a Diploma with him, which is acquired after MBBS, he would be certainly entitled to bonus marks in terms of Rule 51. A qualification
lessor than the basic qualification or equivalent to the basic qualification would not entitle a person to bonus marks in terms of rule 51 . This
argument has force and we accept it and hold that in the present case there was no ground whatsoever for the appellant to claim higher marks on
account of having a certificate of Diplomate.
Mr. Raina has further contended that this Court would not go into the question of seeing whether a certain qualification was higher or lower
than M.D. and it is a question which has to be left to the experts. In this connection he has relied on a judgment of the Supreme Court reported in
AIR1 994SC777.
In the present case, as mentioned earlier, also, the Medical Council of India has laid down clearly that ""Diplomate"" shall be equivalent to
M.D./M.S.
For these reasons, we do not find any merit in this appeal and the same is accordingly dismissed.
No order as to costs.