K.N.Singh and others vs State of U.P.and another

Sbobha Dikshit J.

Writ petitioners are graduates and holders of recognised degree in Homeopathy from the University of Kanpur. They had applied for the post of doctor in Homeopathy with the government of Uttar Pradesh in response to an advertisement issued by U. P. Public Service Commission (hereinafter referred to as Commission), in the year 1986 and subsequent corrigendum in the year 1987, inviting applications from such aspirants who possess a recognised degree in Homeopathy consisting of not less than 5 years academic course. Petitioners being eligible for the post in question applied alongwith others in response to the corrigendum. The Commission however rejected their applications and did not call them for interview allegedly on the ground that they did not undergo 6 months rotating internship either before obtaining the degree or till the last date for submitting the applications.

Aggrieved by the said rejection of their applications and consequent exclusion from consideration for the post of Homeopathic doctors, the petitioners have filed this writ petition on the ground that the Commission has acted arbitrarily and illegally thereby violating petitioners'' fundamental rights as guaranteed under Articles 4, 16 and 19(l)(g)of the Constitution of India. Petitioners claimed that they are eligible and their applications have been erroneously and illegally rejected by the Commission. They have also alleged discrimination by the Commission.

Facts of the case are more or less admitted. The Commission advertised for 400 posts of Homeopathic doctors in the State of Uttar Pradesh and invited applications from all such eligible candidates who possess the essential qualifications as mentioned in the advertisement published in a daily newspaper ''Pioneer'' dated 531986, a photostat copy of the same has been annexed as Annexure1 to the writ petition. 250 posts were to be filled for government Homeopathic Hospitals and 150 for Primary Health Centers and the last date for receipt of applications was 551980. Following qualifications were prescribed, the relevant portion of which reads as follows :

"(1) Such a recognised degree in Homeopathy which consists not less than 5 years academic course or such as recognised diploma in Homeopathy which consists not less than 4 years academic course. Degree holders shall be preferred to diploma holders i. e. Diploma Holders will be considered only when degree holders are not available in requisite number.

(2) The candidates must be registered as Homeopathic doctors by Homeopathic Medical Board, U. P."

Petitioners then had not graduated, hence they did not apply. However, subsequently a corrigendum was published in the newspaper dated 14111987 referring to earlier advertisement dated 531986 by which the number of total posts were increased from 400 to 540 and the last date for submission of applications was extended upto 15121987. It was further provided in this corrigendum that those who had applied earlier in response to the advertisement dated 531986 need, not apply again The essential qualifications though were provided again but were in the same terms i. e. such recognised degree in Homeopathy which consists of not less than 5 years course; Diploma in Homeopathy with not Jess than 4 years Diploma course; registered as a Homeopathic Medical Practitioner with Homeopathic Medical Board and preference to Degree Holders.

The petitioners were students of National Homeopathic College, Lucknow, an affiliated College of Kanpur University which conducted a 5 years Homeopathic course in medicine and surgery as also a diploma course of 4 years. Petitioners had duly completed five years course and their final result was also declared on 2271987. They were also awarded degree of G.H.M.S. by the University in the year I987 itself, and were registered as Homeopathic Medical Practitioners also with the Homeopathic Medical Board, U. P. Photostat copy of the degree awarded by the said University certifying the passing of the examination of 5 years degree course on 2771987, as also registration certificate have been annexed to the writ petition in support of the aforesaid averments of facts. It is not necessary to make a reference to the same because the fact that all the three petitioners had passed their 5 year degree course and were duly registered is not in dispute. Since the petitioners possessed all the essential qualifications as provided in the advertisement, hence they applied for the concerned post in the year 1987 within time Inspite of the fact that the petitioners possessed both the requisite qualifications i. e. a recognised degree in Homeopathy i. e G. H. M. S. consisting of 5 years academic course from the University of Kanpur as also were duly registered with the Homeopathic Medical Board, U. P., the Commission did not call them for interview and they were excluded from being considered for the post in question.

Petitioners made an enquiry as to why they were not called for interview from the Commission, upon which they were orally informed that since their degree course did not include 6 months rotating internship and they had not completed the same before the last date of application, hence were not found eligible for being considered for the said post. Being aggrieved by the same, petitioners have preferred this writ petition assailing the action of the Commission on the ground that it has arbitrarily excluded them from the interview because in the advertisement, it was nowhere provided that completion of 6 months rotating internship either before the award of the degree or till the last date for applying for the post in question was prescribed as an essential qualification. Petitioners have also alleged discrimination by the Commission in as much as all those who had applied pursuant to the previous advertisement dated 551986 have been called for interview when admittedly, they had also not completed the internship either prior to the award of the degree or till 551986, the last date for applying as per earlier advertisement. They also contended that once they had obtained a recognised degree from a University established under law, it is not open to the Commission to ignore the same.

This Court while issuing show cause notice to the opposite parties vide its interim order dated 23101990 permitted the petitioners, though provisionally to appear in the interview which had commenced but their results were directed not to be declared till further orders of the Court and the same was made subject to the final decision of the writ petition. This interim order was subsequently modified vide orders dated 2021991 and though the Commission was permitted to declare the results of the selected candidates but appointments, if any, made, the same shall remain subject to the final decision in the writ petition. It appears that inspite of the aforesaid interim orders, the Commission did not interview the petitioners, Therefore, they moved a fresh application when this Court passed another order on 1411992 directing the Commission to interview the petitioners for the post in question. However, it was provided that the result need not be declared till further orders of the Court.

Though the selection process for the post in question had started in the year 1986/1987 but neither the State Government opposite party no. 1 nor the Commission opposite party no. 2 bothered to file their respective counteraffidavits at an early date. Commission has filed as many as four counter and supplementary counteraffidavits, first in the series was filed on 1421992 and subsequent ones on 711994,3394 and 141994. In these circumstances, it is necessary to notice the stand taken by the Commission in each of the aforesaid affidavits.

The stand of the Commission in the first counteraffidavit is that since 6 months rotating internship is an essential part of the 5 years degree course, therefore, all the degree holders ought to have completed the same before the award of the degree. In case internship was not done prior to obtaining the degree, then atleast it should have been completed till the last date fixed for receipt of applications i e. 15121987. The Commission rebutted the allegation of discrimination made by the petitioners by stating that all such candidates who had completed internship before the last date as extended upto 15121987 were interviewed but since the petitioners did not complete the internship by the said date, hence their applications have been rejected and they were not called for interview. In the second supplementary counteraffidavit, the Commission shifted its stand by stating i that the University could not award the degree to the petitioners as they had not done the rotating internship of 6 months like M. B. B. S. doctors. Rotating internship is the part of the course of study. In the third supplementary counter affidavit filed on 331994, the stand of the Commission is that the State government had issued a G. O. dated 3031978 on the recommendation of Faculty of Kanpur University providing that such candidates who passed G.H.M.S. degree from National Homeopathic Medical College, Lucknow shall have necessarily to do internship course of 6 months. This G. O. further provides that internship of 6 months is integral part of the degree and as such, degree could be awarded only to those candidates who had completed the compulsory internship. A copy of this G.O. has been annexed to the said supplementary counteraffidavit as AnnexureSCA, 1. In support of the aforesaid contention, the Commission also filed a copy of the judgment dated 2221985 passed by a Division Bench of this Court in writ petition no. 9678 of 1982 wherein it was held as follows :

"It is not disputed that the State Homeopathic Medicine Board, U. P. came into being after the U. P. Homeopathy Medicine Act, 1951 came into effect. Colleges imparting education in Homeopathy were conferring a Degree known as ''Bachelor of Medicine and Surgery'' better known by the abbreviation B. M. S. It was a 4 years course. In 1959 it as felt in some quarters that the Board was not competent to confer a Degree and, therefore, a change was made. The B M.S. became a Diploma and was known as such from 1959. The National Homeopathy College, Lucknow was affiliated to the Kanpur University in 1971 and a new 5 years course was introduced known as G. H. M. S. and it was called a Degree course but the syllabus was said to be the same as that in a 4 years'' Diploma course The duration of the course was 5 years including internship for a period of 6 months.

It has further been stated in this supplementary counter affidavit that degree of G. H. M. S. is no longer in existence as it has been replaced by BH M S. course which is governed by the regulations of 1983 which prescribe that internship shall be an integral part of 5 year course and degree cannot be awarded unless the internship is completed. The Commission in its last counter affidavit dated 141994 annexed a copy of the agenda (AnnexureB1) of the annual meeting of the Faculty of Homeopathic Medicine of the Kanpur University alleged to have been held on 721976 as par papers annexed alongwith this agenda, there is a resolution to following effect ;

"Resolved that a period of six months compulsory internship be included in the G. H. M. S. syllabus curriculum for those students who pass their G. H. M. S. degree examinations through the National Homeopathic Medical College and Hospital, Lucknow and that passed out students be given compulsory internship at the college hospital for a period of six months,"

"Further resolved that the degree of G. H. M. S. to the successful candidates will only be awarded by the University after the successful completion of their above internship."

Thus, the stand of the Commission which emerges from these successive affidavits is that though the petitioners did possess the recognised degree of G. H. M. S. but they still lacked the essential qualification for the purpose of the post in question as internship did not form part of their course of study of 5 years of duration as provided through the aforesaid G O.

The State government also filed a counter affidavit on 841993 wherein it has been stated in paragraph 5 of the same that the petitioners could only be awarded a degree after they had completed 6 months compulsory internship. It has further been stated in this affidavit that according to the information available with the State government, there is yet another reason for excluding the petitioners from the selection in question by the Commission is that the petitioners obtained less than 60% marks in the degree course, hence were not called for interview.

The petitioners by filing rejoinderaffidavits to all the counter and supplementary counter affidavits filed by both the opposite parties controverted the facts stated therein as also the grounds for excluding them from the purview of selection process. So far as the stand of the State government that the petitioners had less than 60% marks, the petitioners have furnished their marks showing that they have obtained more than 60% marks. Regarding the contention that completion of six months compulsory rotating internship before the award of the degree was essential, the petitioners have rebutted the same by stating categorically that it is not for the State government or for that matter for the Commission to lay down the academic course for the award of the degree in question. According to the petitioners, it is the University and University alone which can provide and determine the syllabus and the course of study by issuing statutes and ordinance and once a degree is awarded by a recognised University, the same cannot be ignored by any one cite or for that matter by the Commission on the ground that the course of study was not appropriate.

It was further stated by the petitioners in their supplementary rejoinder affidavits that once the University of Kanpur which has been established under law duly declared the results of the petitioners and awarded them the degree of Homeopathy medicine and surgery (G.H.M.S.) on their successfully completing the 5 years degree course, it is not open either to the State government or the Commission not to accept the degree as such and that too on the ground that it should have included 6 months rotating internship in the 5 years course which has been prescribed by the University. It has been emphasised by the petitioners that the syllabus in Homeopathy course in medicine and surgery as set by the Kanpur University at the relevant time was not changed by issuance of an ordinance adopting G. O. dated 3031978. Whatever course was prescribed in the syllabus petitioners pursued the same and then only the said degree was awarded to them. Even the advertisement did not mention that completion of rotating internship of 6 months was also an essential qualification in addition to possessing the degree of G.H.M.S. Petitioners however asserted that in any event they have now completed the internship also on 2021988 much before they appeared for the interview and therefore stand at par with other similarly situated degree holders.

In support of their contention, the petitioners annexed a copy of a letter issued by Kanpur University dated 1761981 in favour of Dean, Faculty of Homeopathy, Royal London Homeopathic Hospital, Great Ormond Street, London, clarifying that one Dr. G. C. Gupta of Lucknow had passed G.H M.S. from this University which is a Bachelor''s degree of 5 years in Medicine and Surgery (M.B.B S.) and is reckoned to be at par with (M B.B. S.) degree as formulated by the Central Council of Homeopathy, New Delhi. It was further stated in this letter that this degree is recognised by the State government and the Central government and all other Universities in India for the purpose of seeking admission in post graduate courses. This letter is subsequent to the alleged G.O. of 1978 and the resolution of 1976.

The contention of the Commission that the University had passed a resolution on 721976 thereby resolving that degree shall be awarded only after completing internship has also been vehemently denied by the petitioners by stating that the documents annexed to show the same are not correct and genuine. Petitioners have also annexed the printed copy of the proceedings of the Kanpur University which was held on 7.2.1976. Both the documents, one filed by the Commission alleged to be proceeding of the meeting held on 721976 as also the petitioners filing a copy of the same differed considerably, specially in respect of the subject of enquiry i. e. how the compulsory internship of six months was included in the curriculum and syllabus of degree course of 5 years. In these circumstances, this Court issued a notice to the Registrar of the Kanpur University to produce before it the proceeding of the meeting held on 721976 of the Faculty of Homeopathic Medicine of the Kanpur University vide its order dated 841994. Pursuant to the aforesaid directions, University of Kanpur entered appearance and filed an affidavit through its Office Superintendent stating therein that the records available with the University show that a meeting of the Faculty of Homeopathic Medicine of the Kanpur University was held on 721976 which was also printed in the book "Kanpur Vishwavidyalaya Kanpur Karyavahian, varsh 1977 under their authority and the University had paid Elora Printers for printing the same. It has further been stated that in the meeting of Board of Studies of the University held on 2221977, the minutes of the proceedings of 721976 were confirmed and copy of the said minutes are also part of the said proceeding. Copies of both the proceedings of the meeting dated 721976 and 2221977 have been annexed to this affidavit as AnnexureX and Y. The Kanpur University through this affidavit has categorically denied that the document filed by the Public Service Commission stating it to be minutes of the meeting held on 721976 cannot be said to be the minutes of that meeting as it is not consistent with the agenda mentioned at serial nos. 5, 6 and 7 as contained in AnnexureB1 to the supplementary counter affidavit filed by opposite party no. 2 itself. According to the Kanpur University, the agenda is ''to organise and give directions in the subject assigned to the Faculty''. Our attention was drawn to the minutes against this agenda which clearly shows that the agenda shown at serial no. 5 is altogether different and so also the alleged resolution reflected in the document filed on behalf of the Public Service Commission. Other discrepancies in the said agenda and the document filed by the Public Service Commission were also brought to our notice. In paragraphs of the said affidavit, it has been categorically stated by the University that no ordinance had been issued to the effect that six months'' internship was made compulsory in order to obtain the degree of G.H.M.S, though incase of B.A.M.S. and B.U.M.S. degree, it has been issued. In these circumstances the University justified the award of degree to the petitioners without their completing six months internship.

The Commission however refuted the said stand of the University of Kanpur by filing another counteraffidavit to the affidavit filed on behalf of the University wherein in paragraph 5 it has been stated as follows :

"The degree without completing the internship could not have been granted nor the petitioners could be termed as degree holders. The issuance of ordinance is not essential nor necessary when the aforesaid resolution and notification and also Govt. Orders have been issued prescribing six months internship as compulsory for the award of the G. H. M. S. Degree."

We have heard the learned counsel for the parties at great length and have perused the documents annexed to the various affidavits filed by the parties.

The sole question for determination by us therefore is as to whether it is open to the Commission not to recognise a degree awarded by a University established by law and read or add more to the qualifications which were advertised/published for the post in question.

Learned counsel for the petitioners urged that it is not open to the Commission to read or add more qualifications to those already prescribed provided in the advertisement. Since the main requirement for being eligible for consideration for the post in question was possessing a recognised degree in Homeopathy consisting of not less than 5 years course and all the petitioners admittedly did possess a degree (G.H.M S.) after successfully completing the 5 years course as prescribed by the University of Kanpur, hence the Commission acted illegally and arbitrarily by excluding the petitioners from being considered for the said post on the ground that they have not completed 6 months rotating internship and were not entitled for the award of the degree. Learned counsel for the petitioners submitted very emphatically that degree awarded to the petitioners is a valid and recognised degree and until and unless the same is not withdrawn by the University, none else can question it and that too on the ground that the course of study provided by the University for obtaining the same was deficient and not proper as it did not include 6 months rotating internship in the same. According to the learned counsel, the courses of studies are provided by the Academic Council of a University by issuing ordinances from time to time and none else can question the correctness of the same.

In order to appreciate the aforesaid contention, it would be expedient to examine some of the relevant provisions of the U. P. State Universities Act, 1973 as amended from time to time (hereinafter referred to as the University Act).

Kanpur University was established under Kanpur and Meerut Universities Act XIII of 1965 and is now governed by the provisions of the University Act. Under Section 7(3) and (4) of the Universities Act, a University established under this Act is empowered to award degrees and diplomas and other academic distinctions. All the Homeopathic educational and institutional institutions throughout the State of Uttar Pradesh were affiliated to the Universities of Agra and Kanpur vide amendment in Uttar Pradesh Homeopathy Act, 1977 and by inserting Section 7A to the Universities Act and these Universities were empowered to hold examinations in Homeopathy and award degrees and diplomas,

Section 19 of the Act provides for various authorities of the University and Academic Council is one of them. Its role is delienated in Section 25 of the Act which reads hereunder :

"25. Academic Council. The Academic Council shall be the principal academic body of the University and subject to the provisions of this Act, the Statutes and the Ordinances

(a) shall have the control and general regulation of, and be responsible for the maintenance of standard of instruction, education and research carried on or imparted in the University ;

(b) may advise the Executive Council on all academic matters including matters relating to examinations conducted by the University; and

(c) shall have such powers and duties as may be conferred or imposed upon it by the Statutes."

The Academic Council, therefore, has to function in accordance with the provisions of the Act, statutes, ordinances and regulations which are framed under Sections 49 to 53 of the University Act on such subjects and matters as provided therein. The statutes framed under Section 49 interalia provide for constitution, powers and duties of the authorities of the University and institution of degrees and diplomas etc. Ordinances are issued under Section 52 of the Act by the Executive Council which provide for such matters as mentioned therein, one of them being to lay down the course of study for the relevant degree and diploma and other academic distinctions. Subsection (3) of Section 52 provides that no ordinance shall be made :

(a) affecting the admission of students, or prescribing examinations to be recognised as equivalent to the University examinations of the further qualifications mentioned in subsection (1) of Section 45 for admission to the degree course of the University, unless a draft of the same has been proposed by the academic council; or

(b) effecting the conditions and mode of appointment and duties of examiners and the conduct or standard of examinations or any course of study except in accordance with a proposal of the Faculty or Faculties concerned and unless a draft of such Ordinance has been proposed by the Academic Council;"

Similary, subsections (4) and (5) of Section 53 which deal with powers to frame regulations and provide that it is only the Academic Council which may subject to the provisions of the Act can make such regulations providing for the course of study for any examination, degree or diploma of the University only after the Board of Faculty concerned has proposed a draft of the same. In Chapter V of the first statutes of the Kanpur University so framed, the Academic Council has been empowered to :

(i) to scrutinise and make its recommendations on proposals submitted by the Boards of Studies through the Faculties in regard to the courses of study and to recommend principles and criteria on which examiners and the inspectors may be appointed, for the consideration of the Executive Council ;

(ii) to report on any matter referred or entrusted to it by the Court or the Executive Council ;

(iii) x x x x x

(iv) x x x x x

(v) to perform in relation to academic matters all such duties and to do all such acts as may be necessary for the proper carrying out of the provisions of the Act, the Statutes and the Ordinances."

Thus, a combined reading of these provisions of the Act, statutes and ordinances make it amply clear that it is the Academic Council of the University which prescribes the course and the syllabus of study for the award of degrees and diplomas. The Academic Council of the University of Kanpur, therefore, must have decided the 5 years course of study for the award of the degree of G.H.M.S and the same does not include 6 months rotating internship. The learned counsel for the petitioners as also the Kanpur University have rightly submitted that except on the recommendations of the Academic Council even the Executive Council could not have issued the ordinance modifying the course of study, hence the G. O. dated 3031978 issued by the State Government with the recommendation of the Homeopathy Faculty of Kanpur University would have no bearing on this issue. We have perused the affidavit filed on behalf of Kanpur University which is very clear on this aspect as it has been categorically stated therein that nodoubt the State government had issued such a G O. in the year 1978 but the Academic Council of the University neither adopted the same nor issued any ordinance amending the course of study. Academic Council is the supreme authority in this regard and recommendations or directions from none else can supersede its authority. The contrary stand taken by the Commission, therefore, is wholly untenable and cannot be sustained in view of the various provisions of the U. P. State Universities Act. We, therefore, come to the inevitable conclusion and hold that it is the University and its Academic Council which was competent to prescribe the course of study for G.H.M.S. course. The Commission, therefore, is precluded from taking any objection to its correctness, suitability, validity and recognition.

Learned counsel for the petitioners drew our attention to the provisions of the Homeopathy Central Council Act of 1973. Section 13(1) of this Act reads as follows :

"13. Recognition of medical qualifications granted by certain medical institutions in India. (1) The medical qualifications granted by any University, Board or other medical institution in India which are included in the Second Schedule shall be recognised medical qualifications for the purposes of this Act."

In schedule 2, G.H.M S. degree awarded by the University of Kanpur has been mentioned as a recognised degree from 1967 onwards Section 19 of this Act provides for withdrawal of recognition by the Central Council on certain conditions alone, like the course of study does not conform to the standard prescribed by the Central Council, the Central Council shall make a representation to that effect to the Central Government It is nobody''s case that the recognition granted to the G H M.S. course and the degree awarded by the Kanpur University was ever withdrawn by the Central Council at any stage. This further fortifies the stand of the petitioners that they hold a valid degree.

The next ground on which the action of the University has been assailed by the petitioners is that they have been discriminated qua such candidates whose 5 year course of study did not include 6 months rotating internship and they completed the same only after obtaining the degree Petitioners likewise also completed the internship but after 15121987 in February, 1988. Hence, it was submitted that assuming that completion of 6 months internship is a part of prescribed qualification even then the petitioners fulfilled the same before the interview and thus, there is substantial compliance of a technical requirement. Learned counsel for the petitioners further pointed out that even such diploma holders in Homeopathy were considered and were called for interview who had done only 4 years diploma course in Homeopathy where also internship was not included.

Learned counsel for the Commission failed to repel this argument put forward by the learned counsel for the petitioners. Hence on this count also, the petitioners have succeeded to establish that the Commission did discriminate them qua other similarly situated applicants and wrongly rejected their applications.

In the aforesaid facts and circumstances and in the light of the findings recorded by us, we hold that the Commission did act arbitrarily and illegally by ignoring the petitioners and excluding them from consideration for the post in question and thus violated fundamental rights guaranteed to the petitioners under Articles 14 and 16 of the Constitution of India. The Commission could not have excluded the petitioners firstly because it had interviewed similarly situated persons and secondly, it could not have ignored a valid degree possessed by the petitioners awarded by a University duly established under law.

Before parting with this judgment, we wish to point out that had the Commission, a Constitutional body instead of probing the matter itself from 1991 to 1994 on the issue involved in this petition and thereby rejecting the applications of the petitioners, consulted another statutory and autonomous body, University of Kanpur, this litigation could have been in all probability avoided and the petitioners would not have lost all these precious years of their life fighting for their valuable Constitutional rights. Had this course been adopted by the Commission, we have no doubt that both the authorities would have sorted out the matter in a much better manner than it has been done in this case.

In the aforesaid facts and circumstances, we allow the writ petition with costs and issue a writ of mandamus to U P. Public Service Commission to treat the petitioners as eligible for the post in question. Since the Commission had already taken the interview of the petitioners though provisionally under the directions of this Court, we, therefore, direct that the said provisional interview shall be treated as a regular interview and the result of the petitioners which is withheld under the directions of this Court shall be declared by the Commission forthwith. U. P. Public Service Commission is further directed that if on declaration of the results of the petitioners, they are found successful, it shall forward their names to the State Government for appointment to the post in question within a month from the date of presentation of a certified copy of this judgment. It is further provided that if posts/vacancies are not available and the same have been filled then in the event the petitioners are successful, supernumerary posts be created by the State Govt. and the petitioners be appointed against the same as early as possible.

(Petition allowed).