Narendra Kumar Singh vs The State of Bihar and Others

Mihir Kumar Jha, J—Heard learned counsel for the parties. The prayer of the petitioner in this writ application reads as follows:--

"1A. For issuance of writ of Mandamus directing Respondents to consider petitioner for appointment to the post of Assistant Professor, Department of ENT in the Medical College & Hospital situated within the State of Bihar under Department of Health in pursuance to the Advertisement No. 23/11."

B. For a direction to the Respondents to provisionally allow petitioner to participate in the interview or in alternative to keep one post reserved till pendency of the present case."

Learned counsel for the petitioner, in support of the aforementioned prayer, has submitted that the petitioner, despite fulfilling the requirement in the advertisement published by the Bihar Public Service Commission (hereinafter to be referred as "the Commission"), has been denied opportunity of being considered for the post of Assistant Professor in the Department of Ear, Nose & Throat (ENT) for the various government medical colleges and hospitals.

Mr. Kumar Alok, learned counsel for the petitioner, in this regard has basically concentrated on the aspect that the Commission has deprived the petitioner of the points that he ought to have been given for publication in journal.

On the other hand, Mr. Sanjay Pandey, learned counsel for the Commission, has explained that the petitioner did not fulfill the requirement for grant of point/marks for publication in journal and, as such, there is no flaw in the decision of the Commission in not calling the petitioner for interview, inasmuch as, he had secured only 8 marks for his academic qualification whereas the minimum cut-off was 10 marks for the candidates who had been called for interview.

In order to appreciate the submission of the parties, it would be necessary to take note of the relevant facts. The Commission on the basis of request sent by the Health Department had published an advertisement in the month of July, 2011 bearing Advertisement No. 23/11 for appointment of the doctors on the post of Assistant Professor in the Department of ENT for medical colleges and hospitals. The petitioner also had filed his application for the post of Assistant Professor in response to the Advertisement No. 23/11 and, according to him, as per the instruction given in the advertisement, he was eligible for giving 20 points/marks for his educational qualification but, when he was not screened by the Commission on account of his being given only 8 point/marks, he had submitted his representation with all relevant papers including his articles published in the journals but, the Commission did not issue the interview call letter to the petitioner for the interview which was to be held on 9.7.2012 wherein only 7 candidates were called for interview against 8 posts.

The Commission in its counter affidavit has explained that it has followed the uniform criteria for filling up the post of Assistant Professor in all the different departments of the medical colleges and hospitals and since the petitioner had secured only 8 points in the evaluation made by the seven member experts team, he was not called for interview as the minimum cut-off fixed by the Commission was 10 point/marks. In this regard, it has been explained that the Expert Committee had awarded the petitioner 2 marks for discussion in MBBS and further 2 marks for securing more than 55% marks in the subject of his specialty and 4 marks for having M.D. ENT Degree.

In the counter affidavit filed by the Commission it has-been specifically stated that though the petitioner had submitted his 7 publications in different medical journals but, the Committee of seven Experts had not given him any marks for those publications and, in this regard, the Commission had also informed the petitioner vide letter No. 3331 dated 5.6.2012 that as he had not secured the minimum cut-off 10 points/marks for being called for interview as provided in the advertisement itself, he was not called for interview.

From the pleadings on record, it would transpire that there is no dispute on any other issue save and except the award of points/marks for publication in the journals. The Commission in fact for the post of Assistant Professor in different subjects had laid down qualification as also the mode of calculation of the points/marks for educational qualification and the same for the purpose of clarity and convenience is quoted hereinbelow:--

As noted above, there is no dispute with regard to the award of marks to the petitioner for his MBBS and MD and it is only the marks/points for publication in journals as specified in Clause No. 4, this Court has to decide as to whether the petitioner had fulfilled the requirement for award of marks/points for his seven publications in journals. Clause-4 of the advertisement as with regard to award of points/marks in the journals will leave nothing for speculation that such publication had to be made in the recognized medical journals for original publication as a main author. The expression "Main Author" had also been clarified by stating in the advertisement itself that a candidate will be treated to be the main writer if he would produce a certificate of the Professor or Head of the Department under whom he has prepared such paper.

It is this aspect of the matter which was specifically gone into by a Seven Member Team of expert doctors, who had screened the application of 32 subjects including ENT. The seven members of the Committee were doctor (i) Dr. Sohan Prasad Chaudhary, Principal, Anugrah Narayan Magadh Medical College, Gaya, (ii) Dr. S.N. Sharma, Professor in the Department of Physiology, Hospital, Patna, (iii) Dr. Gajendra Kishore Thakur, Professor in the Department of Radiology/Superintendent, Srikrishna Medical College & Hospital, Muzaffarpur, (iv) Khurshid Alam, Professor, Department of Anatomy, P.M.C.H., Patna, (v) Dr. Subodh Kumar, Associate Professor, Department of Anatomy, Nalanda Medical College, Patna, (vi) Dr. Sanjay Kumar, Associate Professor, Department of Pharmacology, P.M.C.H., Patna, (vii) Dr. Dinesh Kumar, Associate Professor, Department of Physiology, Nalanda Medical College, Patna.

Let it be noted that the petitioner along with his application had submitted certain certificate of Professor and Head of the Department of ENT. PMCH, Patna which for the sake of clarity and convenience, is quoted hereinbelow:--

"This is to certify that Dr. NARENDRA KUMAR SINGH, R.S.C. (E.N.T.), Patna Medical College & Hospital, Patna is the original author of the under mentioned topics published in different following Medical Journals:--

Sd./- (Dr. B.P. Saha) Professor & Head of the Department of E.N.T., Patna Medical College & Hospital Patna-800004 (Bihar)"

From a bare perusal of the aforesaid certificate, it would not transpire as to whether the publications of the petitioner in the journals were his original research publication. That apart, the aforesaid Seven Members Team of doctors had found that the seven publications were only a case report which could not fulfill the requirement of original research publication. It was on this ground that the Seven Member Team of experts had held the petitioner not to be entitled for grant of any points/marks for his publications in the journals and, to that extent, it would be relevant to quote the remarks given by the Seven Member Team of experts, which reads as follows:--

"The applicant has attached altogether seven publications. Five of them are in Indian Medical Journal and two are in Patna Journal of Medicine. The seven publications are "Case Report" publication and do not come under the purview of original research publication. Hence no points were awarded for Case Report publication."

Thus, the only question would be as to whether the aforesaid decision'' taken by the Expert Body of 7 members holding the petitioner to be not entitled for grant of any marks/points for his so-called 7 publications in the Medical Journals was vitiated in any manner so as to hold that the petitioner though qualified was wrongly held ineligible for appearing in interview on account of having not secured at least 10 marks/points as given in the advertisement itself.

The Commission has enclosed copies of all the seven publications of the petitioner which go to show that they are case report which cannot be held to be original research work. Mr. Sanjay Pandey, learned counsel for the Commission in fact had produced a copy of the Medical Journal to show that in every journal, there was a specific part denoting research papers by the contributors under the head of Original Research Work which was quite distinguishable to the case history or case report included in the other parts of the same journal.

As a matter of fact, the original research work or original publication was not only to be certified by the Head of the Department/Professor stating that such publications were original research work but, they have to fulfill the requirement of ''Maulik Prakashan''. All the 7 publications claimed by the petitioner, being case history, did not fulfill the requirement of original work and, as such, this Court does not find any error in the decision taken by the Commission, which had to screen the application not only on the basis of requirement laid down in the advertisement but, also in view of the report of the 7 members Expert Team. To that extent, it would be relevant to quote paragraph Nos. 11 to 15 of the counter affidavit, which reads as follows:--

"10. That it is stated that the application of the petitioner namely Dr. Narendra Kumar Singh, Roll No. 23025, was examined by the Seven Members Expert Committee of the Doctors constituted by the Department and 8 marks was allotted to him as against mandatory 10 marks. Therefore, on the ground of securing less than 10 (ten) marks (points), the petitioner was considered ineligible.

That it is evident from the above report that the Expert Committee of Doctors has awarded 2 marks to the petitioner for securing more than 55% marks in MBBS, further 2 marks for securing more than 55% marks in the subject of specialty and 4 marks for having M.D. ENT Degree, thus totaling 8 marks. It is quite clear that as per conditions mentioned in the Advertisement the petitioner had to secure minimum 10 marks for being eligible to be called for the interview. The petitioner failed to secure minimum 10 marks; therefore, he was not called for interview.

That it is stated that the petitioner with his application form submitted a certificate issued by the Head of the ENT Department, Patna Medical College & Hospital, Patna, who has certified that the petitioner is the original author of seven topics published in different medical journals. The said publications were not taken into consideration as they were case reports and no point was awarded for the said.

That it is stated that the Commission accordingly vide its letter No. 3331 dated 5.6.2012 informed the petitioner that he couldn''t secure mandatory 10 (ten) points to be eligible for being called for the interview, as prescribed by the conditions of the Advertisement.

That it is also relevant to state here that the petitioner made a representation on 21.5.2012 (Annexure-4 to the Writ Petition) before the Commission. The said representation was duly considered by the Expert Committee which opined that the petitioner has attached all together seven publications, five of them are in Indian Medical Council and two are in Patna Journal of Medicine. The said seven publications are "Case Report" publications and do not come under the purview of original research publication. Hence, no points are awarded for "Case Report" publications.

That it is humbly stated and submitted that the respondents have not acted arbitrarily and illegally but has acted in the light earnest and in a just and transparent manner. The petitioner couldn''t secure the mandatory 10 (ten) points, so his candidature has rightly been rejected."

This Court, having regard to the aforesaid in exercise of its power under Article 226 of the Constitution of India, cannot sit over the decision of the Expert Committee, consisting of 7 specialist teachers of Medical Colleges of each of the separate faculty. These teachers of Medical Colleges had full knowledge not only as to the eligibility criteria laid down in the advertisement but also scope and meaning for judging the requirement for awarding of points to the candidates for publication of their articles in the Medical Journal which, as noted above, was to be of the nature of original research publication. The body of the 7 experts however had evaluated the articles submitted by the petitioner to have been not fulfilling the requirement of its being original research publication.

The question therefore would as to what extent there could be judicial review over such assessment made by the team of experts. It is by now well settled that this Court in exercise of power under Article 226 should be slow to interfere with the opinion of the selection committee particularly when such a committee consisted of experts being men of high status and also had unquestionable integrity. Reference in this connection may be usefully made to the judgment of the Apex Court in the case of National Institute of Mental Health and Neuro Sciences Vs. Dr. K. Kalyana Raman and others, AIR 1992 SC 1806 : (1992) LabIC 1800 : (1992) 2 LLJ 616 : (1992) 2 SCC 481 Supp and of this Court in the case of Kamal Kumar Sinha Vs. Indira Gandhi Institute of Medical Sciences and Others, (1991) 1 BLJR 538 : (1990) 2 PLJR 465 .

The Supreme Court has also, in the case of The University of Mysore and Another Vs. C.D. Govinda Rao and Another, AIR 1965 SC 491 : (1964) 4 SCR 575 and in the case of Dr. J.P. Kulshreshtha and Others Vs. Chancellor, Allahabad University and Others, AIR 1980 SC 2141 : (1980) 41 FLR 318 : (1980) LabIC 692 : (1980) 2 LLJ 175 : (1980) 3 SCC 418 : (1980) 3 SCR 902 , emphasized that the Court should be slow to interfere with the opinion expressed by experts. In the case of Km. Nelima Misra Vs. Dr. Harinder Kaur Paintal and others, AIR 1990 SC 1402 : (1990) 2 JT 103 : (1990) 2 SCC 746 : (1990) 2 UJ 90 , the Apex Court has pointed out that when an appointment has been made on recommendation of experts, judicial review is limited to overseeing whether the appointment had contravened any statutory or binding rule. The Court should have due regard to the opinion expressed by the experts constituting the selection committee and its recommendation.

In any event the expression "Original Research Publication" would invariably mean some new discovery which cannot be said to be by way of a case report. A case report is based on an observation which cannot be equated with original research work. In the present case, this Court has also carefully examined all the seven case reports produced by the petitioner which have been enclosed by the Commission in the counter affidavit and from their bare perusal they do not fulfill the requirement of its being "original research work". Such publication in order to be assessed as original research work in fact has to disclose the discovery of new technology or advanced technology. The "original research work", therefore, cannot be by way of a case history.

It was in this context that on 28.6.2013, this Court had given opportunity to the petitioner to produce any authentic material to show that whatever publications were submitted by the petitioner for evaluation would amount to original research publication and that the case report will also amount to original research publication.

Mr. Kumar Alok, learned counsel for the petitioner, however could not produce any such material to show that the case history would amount to original publication. As a matter of fact, the stand taken by the respondent Commission in the counter affidavit with regard to the case history being not at par or equivalent to the original research work/original publication could also not be successfully controverted by the learned counsel for the petitioner.

Learned counsel for the petitioner however being failed to adduce any clinching evidence that seven case history of the petitioner published in Medical Journals would amount to its being original research publication had made an alternative submission that the Medical Council of India has now done away with the concept of selection and appointment on the post of teachers in Medical Colleges on the basis of evaluation of publication in Medical Journal, In this regard he has placed reliance on paragraph No. 11 of the reply to the counter affidavit of the petitioner which reads as follows:--

"That presently the requirement of publication of journal have been omitted from the qualification by the Medical Council of India and instead of that minimum experience of 6 years of hospital having 300 beds has be inducted vide amendment dated 6.8.2012. Petitioner has experienced of more than 20 years of 2500 beds hospital."

In the considered opinion of this court this alternative-submission will also be of no avail. The changed criteria since 6.8.2012 cannot be made applicable in the case of selection process undergone and completed on the basis of an advertisement of the year 2011. The law in this regard is also well settled by the Apex Court in the case of P. Mahendran and others Vs. State of Karnataka and others, AIR 1990 SC 405 : (1990) 60 FLR 103 : (1990) 1 SCC 411 : (1989) 2 SCR 385 Supp that selection has to be made on the basis of rules as prevailing on the date of advertisement.

Thus, in the light of the aforementioned discussions, this Court would not find any error in the decision of the Commission of declaring the petitioner ineligible for being called for interview as admittedly he had secured only 8 point/marks whereas the minimum cut off fixed in the advertisement itself was 10 points/marks. That being so, this application fails and is, accordingly, dismissed.