Sheikh Mohd.Saleem vs Sher-i-Kashmir Institute of Medical Sciences

O.P. Sharma, J.—The petitioner, Dr. Sheikh Mohd. Saleem, was appointed Lecturer in SheriKashmir Institute of Medical Sciences,

Srinagar (hereinafter, the Institute) in July, 1989. At the time of his appointment, he was possessing Postgraduate degree in Medicines. He

improved his academic qualification when he was admitted to the degree of Doctor of Medicines (D.M.) Neurology by the All India Institute of

Medical Sciences, New Delhi (hereinafter AIIMS) in March, 1996. In 1993, while he was still pursuing the course in AIIMS, the Institute invited

applications for different faculty positions in various disciplines. The petitioner applied for the position of Assistant Professor in General Medicines

and was selected for the Post of Assistant Professor in General Medicines and appointed accordingly in 1993.

By advertisement notice dated 15.3.1997, the Institute again invited applications from eligible candidates for various faculty positions in different

disciplines including Neurology.

The qualifications and experience necessary to determine eligibility for each teaching position was also indicated in the advertisement notice. The

petitioner who was already holding the position of Asstt. Professor General Medicines applied for the position of Asstt. Professor in Neurology.

He was, however, not invited for the interview because he did not satisfy the eligibility criteria prescribed for the post requiring three years teaching

experience as Lecturer in Neurology. This view of the Selection Committee has been questioned by the petitioner mainly on the ground that it is not

necessary to gain the teaching experience by holding the position of Lecturer Neurology and same gained in any other capacity could not be

ignored to determine eligibility. Since the Selection Committee ignored the evidence furnished by him in support of the teaching experience, the

petitioner approached this court for determining his eligibility and the grant of consequential relief to which he may be found entitled.

Mr. R.A. Jan, appearing for the petitioner, argued that the expression ""experience"" appearing in the Advertisement notice must be interpreted in

a broad and liberal sense otherwise it would work injustice to persons who were sponsored by the Institute to improve academic qualification for

augmenting the patient care in the discipline of Neurology. Three years as Lecturer of Neurology, he argued, must be read in the capacity of and

notion in the cadre post of Lecturer, since the petitioner possessed the requisite teaching experience as certified by the Dean of the Institute and

Dean of Neurosciences Centre, All India Institute of Medical Sciences, New Delhi, he is eligible for the post.

Mr. Z.A. Shah, appearing for the respondent No. 6, while adopting the arguments of Mr. Jan, made a reference to Govt. order No. 53IMS of

1980 dated 27.10.1980 under which experience of any faculty position could be relaxed by the Competent authority. Petitioner and Dr. Abdul

Salam Bhat having been sponsored by the Institute for D.M. Neurology, the experience, it is argued, ought to have been relaxed for utilising their

service for improving patient care which is grievously suffering due to this avoidable litigation.

Mr. M.A. Qayoom, appearing for the private respondent5, has maintained that neither the petitioner nor Dr. Abdul Salam Bhat are eligible for

the post because they do not satisfy the eligibility criteria, prescribed in the Advertisement notice.

Mr. A.M. Magrey, appearing for the Institute, submitted that in order to be eligible for the post three years' teaching experience must be gained

as a Lecturer in Neurology. Since the petitioner did not possess the requisite experience for the post of Asstt. Professor, he could not be invited

for the interview. The decision of the Selection Committee, therefore, argued the learned counsel, was in according with the rule position.

However, the petitioner and respondent No. 6 had to be interviewed in compliance to the court orders, which, however, is subject to the outcome

of this petition.

The question is whether teaching experience as a Lecturer in Neurology is a sine qua non to determine eligibility for the post of Asstt. Professor

? To put it differently is it necessary that the teaching experience must be gained on a regular appointment as Lecturer in Neurology ?

In the advertisement notice qualification and experience prescribed for each faculty position is as follows :

Qualification

Postgraduate/PostDoctoral degree in respective/relevant discipline as prescribed by Medical Council of India.

State/Central Registration

Experience

The candidate should have the following minimum teaching experience in the subject in a Medical College or a recognised teaching Institute after

qualifying Postgraduate/Post Doctoral Degree.

Professor = Three years' as Associate Professor.

Associate Professor = Three years' as Asstt. Professor

Assistant Professor = Three years as Lecturer

Lecturer = The candidate must have worked as a Sr. Resident/Registrar/Tutor/Post Doctoral student for a period of two years after qualifying

Postgraduate degree.

or

Qualifying the Post Doctoral Degree.

Note: Experience on ad hoc basis shall not be counted.

The question is whether three years experience as Lecturer is a precondition to determine the eligibility for the post of Assistant Professor.

Three years experience as Lecturer has to be read with the note, which mandates that experience on ad hoc basis shall not be counted.

In Asim Kumar Bose v. Union of India, AIR 1983 SC 509, the decision relied by Mr. Jan, while considering the Central Health Services Rules,

1963, it was held that :

It is necessary to emphasise that the recruitment rules nowhere provide that the teaching experience gained by a Specialist in a teaching hospital in

the capacity of an Associate Professor (exofficio) shall not count towards the requisite teaching experience. There is no provision made in the

Rules that the teaching experience must be gained on a regular appointment. There is hardly any difference so far as teaching experience is

concerned whether it is acquired on regular appointment or as Specialist in a teaching hospital with the exofficio designation. As the statutory rules

do not provide that the teaching experience gained in an exofficio capacity shall not count towards the requisite teaching experience, the teaching

experience gained by the appellant while holding the post of RadiologistcumAssociate Professor or Radiology (exofficio) in the Irwin Hospital

cannot be ignored in determining his eligibility for appointment as Professor of Radiology in Maulana Azad Medical College.

However, the advertisement notice specifically provided that experience on adhoc basis shall not be counted. So the conclusion is inescapable that

the candidate must have taught the subject for three years after his regular appointment as Lecturer in Neurology. Not otherwise. The ratio of the

decision in Asim Kumar's case (supra), therefore, does not advance the petitioner's case.

Mr. Jan, however, argued that since in Asim Kumar's case (supra) it was held that the expression, ""three years experience as lecturer"" must be

interpreted in its ordinary sense as meaning teaching experience gained in the capacity of the note in the Advertisement notice must be held as

nonest being contrary to the law laid down in Asim Kumar's case (supra), holding that :

We are inclined to the view that the word ""as"" in the collocation of the words used ""at least six years' experience as Associate Professor/Assistant

Professor/Reader"" in paragraph 2(b) and of the words ""at least five years' experience as Reader/Assistant Professor"" in paragraph 3 and subrule

(2A) of Rule 8 must be interpreted in its ordinary sense as meaning teaching experience gainst (gained ?) ""in the capacity of"". In Black's Legal

Dictionary, 5th Edn. p. 104, the meaning of the word ""as"" as given is : ""used, as an adverb, etc, means like, similar to, of the same kind, in the same

manner, in the manner in which"". In Shorter Oxford Dictionary, 3rd Edn. p. 111, the word ""as"" is stated to mean : ""The same as, in the character,

capacity, role of"". In Parently wrong in assuming that the word ""as"" in paragraphs 2(b) and 3 of Annexure 1 to the Second Schedule and subrule

(2A) of Rule 8 makes holding of a post in the cadre a condition precedent to the appointment of a Professor or an Associate Professor.

However, this is subject to what is stated in para 29 of the judgment, holding that :

There is no provision made in the Rules that the teaching experience must be gained on a regular appointment.

and

As the statutory rules do not provide that teaching experience gained in ex officio capacity shall not count towards the requisite teaching

experience"".

Since the advertisement notice expressly provided that ""experience on ad hoc basis shall not be counted"" to hold otherwise will be de hors the

eligibility criteria prescribed therein.

There is thus no difficulty in holding that experience gained on regular appointment alone was determinative of the eligibility for the post of

Asstt. Professor Neurology. So the certificates issued by Professor M.S. Khurana, the then Head of the Department of Medicines and Dr. Abdul

Wahab, Associate Professor and Head of the Department of General Medicines certifying that the petitioner had been teaching Neurology in the

Institute, do not count for experience because he was neither qualified to be appointed Lecturer, Neurology nor held the said post. Assuming that

he had taught Neurology, it is an experience gained on ad hoc basis, which could not counted and was rightly not taken into consideration. Even

the expression ""in the capacity of"" as interpreted by their Lordships as a reference to the following observations, in Asim Kumar's case, becomes

necessary, which read :

...As already stated, the word ""as"" in these provisions must, in the context in which it appears, be interpreted to mean ""in the capacity of"". The

Ministry of Health cannot be heard to say that the appellant has not acquired the status of an Associate Professor of Radiology with effect from

October 9, 1964, particularly when the Central Government have been utilizing his services as such for teaching the postgraduate and

undergraduate students of the Maulana Azad Medical College for the M.D; M.S; D.M.R.T and M.B.B.S. courses of studies for the last 17 years.

The arrangement has continued for all these years with the approval of the Delhi University and presumably with the tacit sanction of the Medical

Council of India. In our opinion, the provisions contained in Rule 8(2A) and paragraph 3 of Annexure 1 to the Second Schedule must be

interpreted in a broad and liberal sense as it would otherwise work great injustice to persons in Specialists Grade II like the appellant who, while

holding a nonclinical post in a teaching hospital like the Irwin Hospital, has been actually teaching the students of the Maulana Azad Medical

College to which it is affiliated....

Since Dr. Bose was holding the post of Associate Professor Radiology (ex officio) in the capacity of Radiologist and was teaching the subject as

Associate Professor, his experience was counted. But the expression ""in the capacity of"" substituted for the expression ""as Lecturer"" has to be read

subject to the essential qualification for gaining teaching experience ""in the capacity of"" which cannot include experience gained without having

requisite qualification in the said discipline.

Mr. Z.A. Shah, however, argued that as per the Advertisement notice, a Postgraduate can be appointed as Lecturer in Neurology also,

therefore, his experience as Lecturer makes him eligible for the post of Assistant Professor Neurology. But it is not so because the first requirement

for the post is qualification as prescribed by the Medical Council of India, followed by the experience prescribed in the Advertisement notice.

So the submission of Mr. Shah is without substance because the minimum qualification for the post of Lecturer Neurology by the Medical Council

of India is Degree in Doctor of Medicine Neurology, which neither the petitioner nor the respondent possessed. So neither of them are eligible for

the post of lecturer Neurology as per the qualification prescribed and, therefore, did not possess the requisite experience. This has been the view

of the Selection Committee also as envinced by the minutes when the petitioner and private respondents were interviewed in 1993. The

observations of the Selection Committee are as under :

Dr. Bhat Adbul Salam was interviewed for the post of Assistant Professor, General Medicine. As Dr. Salam is holding his DM in Neurology for

which he is sponsored by the Institute and he is likely to complete his DM Neurology by December, 1993, so the Committee asked for his option

whether he would like to pursue his future in General Medicine or in the speciality of Neurology for which he will be eligible for a faculty position

on successful completion of his DM course. The Committee recommended him to be appointed as Assistant Professor, General Medicine. The

Committee decided that in case Dr. Salam wants to pursue Neurology as his future speciality, he be offered the post of lecturer, Neurology on

completion of his DM course.

Sheikh Mohd. Saleem was interviewed for the post of Asstt. Professor, General Medicine and on the basis of his academic records, publications

and performance in the interview, he was recommended to be appointed as Assistant Professor, General Medicine. The Committee also wanted to

know the option of Dr. Mohd. Saleem about his future speciality in (which ?) he wants to pursue as he is doing his DM in Neurology and is likely

to complete the same in December, 1993. Dr. Saleem consented before the Committee that he wanted to pursue General Medicine rather than

Neurology as his future speciality.

So the argument of Mr. Shah that the experience as Lecturer in General Medicine counts for the post of Assistant Professor Neurology is

negatived.

It was next argued that having been sponsored by the Institute the requirement of experience should be relaxed by the Competent authority in

terms of Govt order dated 27.10.1980 and since that has not happened, this court should hold them eligible. However, under this order,

experience could be relaxed only by two years and that too in case of a person having additional qualification as DM or M.C.H. Rule 8(iv) of the

order reads :

iv. Experience relaxable by 2 years in the case of additional qualification such as D.M.M.Ch. Ph.D. etc. in the respective discipline. iv. Experience

relaxable by 2 years in the case of additional qualification such as D.M.M.Ch. Ph.D. etc. in the respective discipline.

(b) (For NonMedical staff :

i. Ph.D. in the respective discipline. i. Ph.D. in the respective discipline.

ii. Six years' experience in the respective discipline after the prescribed qualification. ii. Three years' experience in the respective discipline after the

prescribed Ph.D. qualification.

Such a relaxation is possible only when the qualification for the post is less than D.M. or M.Ch. Since the minimum qualification for the post of

Lecturer Neurology is Degree in D.M. Neurology, application of the rule is not attracted. So any interference by the court to enlarge the scope of

the rule will tantamount to amending the rule, which is not permissible because the court on a true construction of the rule can only determine the

question of eligibility for such promotion or appointment.

In view of the above, neither the petitioner nor Dr. Abdul Salam Bhat are eligible for the post Assistant Professor Neurology and the Apical

Selection Committee had rightly not invited them for the interview. The petition is dismissed accordingly without any order as to costs.