# Dr. Jitendra Singh Kushwaha v. State of U.P. & Ors

- **Citation:** (2024) 9 ILRA 1545
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-02
- **Case number:** Special Appeal No. 46 of 2024
- **Bench:** Mahesh Chandra Tripathi, Prashant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-jitendra-singh-kushwaha-v-state-of-u-p-ors-52570
- **Pages:** 20

## Headnote

A. Service/Education Law - Essential
qualification - The Uttar Pradesh St.
Medical Colleges Teachers' Service Rules,
1990
-

Minimum
Qualification
for
Teachers
in
Medical
Institution
Regulations, 1998.

Since the term 'equivalent qualification'
was not used in the advertisement,
whether the St. Government could have
calculated the experience of an Additional
Professor as equivalent to that of a
Professor and whether this amounted to
changing the terms of the advertisement?

(i) The Regulations, 1998 consider the
posts
of
Additional
Professor
and
Professor in a Medical College to be
equivalent.
Therefore,
any
experience
gained as an Additional Professor should
be
counted
towards
the
required
experience for the post of Professor.
Notably, it is only after the St. Government
determined the equivalency in favour of the
Petitioner that the Appellant is attempting to
change its position. This shift is not permissible,
particularly when no objections were raised
before the Hon'ble Single Judge when the
direction for determination of equivalence was
issued, and especially since the Regulations,
1998 themselves recognize the equivalency
1546 INDIAN LAW REPORTS ALLAHABAD SERIES
between the posts of Additional Professor and
Professor in a Medical College. (Para 41, 44)

(ii)
When
an
expert
body,
after
considering
the
relevant
Regulations,
working
conditions,
and
teaching
experience, decides on equivalence, this
decision should not be interfered with
unless there is a compelling reason to do
so. In matters of determining equivalence, the
appropriate regulatory authorities responsible
for setting qualifications for the posts are the
proper entities to make such decisions. Once
these authorities have made a decision on
equivalence, it should not be challenged by
others. The employer is best positioned to
decide who should be appointed, and when this
decision is supported by an expert body, it
should be respected and not interfered with.
(Para 45)

(iii) The absence of the term "equivalent
post" in the advertisement is irrelevant, as
the Regulations, 1998 framed by the MCI
already establish the equivalence of these
two posts. (Para 42)

The advertisement must be interpreted in
consonance with the Regulations, 1998. If
a candidate meets the requirements set
out in the Regulations but those in the
advertisement differ, the candidate should
still be considered eligible, and the
statutory
requirements
should
prevail
over the advertisement. (Para 43)

Since the Regulations 1998 recognized
equivalence between these positions
and the expert body, after reviewing
the relevant Regulations, interpreted
the role of Professor as equivalent to
that
of
Additional
Professor,
this
interpretation would not constitute a
change to the advertisement's terms
by any stretch of imagination. As the
Regulations 1998, framed by the MCI, duly
recognize the equivalence of the roles of
Additional Professor and Professor in a
Medical College, and this equivalence has
been validated by the expert body, the
judgment of the Hon'ble Single Judge is
justified and cannot be questioned. (Para
46)
B. Whether the rules of the game were
changed after the game had begun?

(i) The determination of the equivalency
between
the
two
posts
is
merely
clarificatory in nature. The Hon'ble Single
Judge
observed
that
the
orders
dated
10.01.2022 and 30.05.2022, issued by the St.
Government, which treated
the posts in
question as equivalent, were consistent with the
notifications, guidelines, and clarifications issued
by the expert body, i.e. the MCI and its
successor-the NMC and were merely clarificatory
in nature. (Para 47)

(ii) When a candidate participates in a
selection
process,
he/she
rightfully
expects the recruitment agency to follow
the legal requirements. The need for
clarification by the St. Government arose
because the Respondent Commission was
not
recognizing
or
considering
the
inherent equivalence prescribed in the
Regulations,

## Text

_Characters 0–39,919 of 68,179. This is a partial read: ask again with offset=39919 for what follows._

9 All. Dr. Jitendra Singh Kushwaha Vs. State of U.P. & Ors.
1545
unless
the
punishment
shocks
the
conscience of the Court.

17. As already noticed above,
since the charges on which the punishment
has been imposed are to be taken as
correct, what is now left to be considered
and examined is as to whether the
punishment imposed was commensurate
with the said charges or not."
(Emphasis supplied)

CONCLUSION AND DIRECTION

40. Considering the facts and
circumstances, we are of the considered
opinion that the orders passed by the
disciplinary
authority,
appellate
and
revisional authority as well as the judgment
passed by the learned Single Judge are not
sustainable and the same are accordingly
set aside. Consequently, the petitionerappellant is entitled for reinstatement.

41. As the matter is old, at this stage,
we are not inclined to remit the matter to
the
authority
concerned.
Since
the
petitioner's counsel has not stated on
affidavit as to whether the petitionerappellant
was
gainfully
working
somewhere else or not, we are not inclined
to accord full back wages. In view of this,
we find that the petitioner-appellant is
entitled for 25% back wages.

42. We accordingly direct that the
petitioner-appellant shall be reinstated in
service and shall be paid 25% back wages
alongwith all other consequential benefits
forthwith.

43. With the aforesaid observations,
the special appeal stands allowed.
----------
(2024) 9 ILRA 1545
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.09.2024

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE PRASHANT KUMAR, J.

Special Appeal No. 46 of 2024

Dr. Jitendra Singh Kushwaha ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Awadh Behari Singh, Gaurav Pundir

Counsel for the Respondents:
C.S.C., Kunal Shah, Sanjay Kumar Om

A. Service/Education Law - Essential
qualification - The Uttar Pradesh St.
Medical Colleges Teachers' Service Rules,
1990
-

Minimum
Qualification
for
Teachers
in
Medical
Institution
Regulations, 1998.

Since the term 'equivalent qualification'
was not used in the advertisement,
whether the St. Government could have
calculated the experience of an Additional
Professor as equivalent to that of a
Professor and whether this amounted to
changing the terms of the advertisement?

(i) The Regulations, 1998 consider the
posts
of
Additional
Professor
and
Professor in a Medical College to be
equivalent.
Therefore,
any
experience
gained as an Additional Professor should
be
counted
towards
the
required
experience for the post of Professor.
Notably, it is only after the St. Government
determined the equivalency in favour of the
Petitioner that the Appellant is attempting to
change its position. This shift is not permissible,
particularly when no objections were raised
before the Hon'ble Single Judge when the
direction for determination of equivalence was
issued, and especially since the Regulations,
1998 themselves recognize the equivalency
1546 INDIAN LAW REPORTS ALLAHABAD SERIES
between the posts of Additional Professor and
Professor in a Medical College. (Para 41, 44)

(ii)
When
an
expert
body,
after
considering
the
relevant
Regulations,
working
conditions,
and
teaching
experience, decides on equivalence, this
decision should not be interfered with
unless there is a compelling reason to do
so. In matters of determining equivalence, the
appropriate regulatory authorities responsible
for setting qualifications for the posts are the
proper entities to make such decisions. Once
these authorities have made a decision on
equivalence, it should not be challenged by
others. The employer is best positioned to
decide who should be appointed, and when this
decision is supported by an expert body, it
should be respected and not interfered with.
(Para 45)

(iii) The absence of the term "equivalent
post" in the advertisement is irrelevant, as
the Regulations, 1998 framed by the MCI
already establish the equivalence of these
two posts. (Para 42)

The advertisement must be interpreted in
consonance with the Regulations, 1998. If
a candidate meets the requirements set
out in the Regulations but those in the
advertisement differ, the candidate should
still be considered eligible, and the
statutory
requirements
should
prevail
over the advertisement. (Para 43)

Since the Regulations 1998 recognized
equivalence between these positions
and the expert body, after reviewing
the relevant Regulations, interpreted
the role of Professor as equivalent to
that
of
Additional
Professor,
this
interpretation would not constitute a
change to the advertisement's terms
by any stretch of imagination. As the
Regulations 1998, framed by the MCI, duly
recognize the equivalence of the roles of
Additional Professor and Professor in a
Medical College, and this equivalence has
been validated by the expert body, the
judgment of the Hon'ble Single Judge is
justified and cannot be questioned. (Para
46)
B. Whether the rules of the game were
changed after the game had begun?

(i) The determination of the equivalency
between
the
two
posts
is
merely
clarificatory in nature. The Hon'ble Single
Judge
observed
that
the
orders
dated
10.01.2022 and 30.05.2022, issued by the St.
Government, which treated
the posts in
question as equivalent, were consistent with the
notifications, guidelines, and clarifications issued
by the expert body, i.e. the MCI and its
successor-the NMC and were merely clarificatory
in nature. (Para 47)

(ii) When a candidate participates in a
selection
process,
he/she
rightfully
expects the recruitment agency to follow
the legal requirements. The need for
clarification by the St. Government arose
because the Respondent Commission was
not
recognizing
or
considering
the
inherent equivalence prescribed in the
Regulations,
1998.
The
orders
dated
10.01.2022 and 30.05.2022 issued by the
Principal Secretary of the Department of Medical
Education, which clarified that the posts of
Professor and Additional Professor in a Medical
College are equivalent, simply acknowledged an
existing situation that was already legally
established in the Regulations, 1998. These
orders from the St. Government did not create
any new rights but merely clarified a right that
the Service Commission had not been properly
acknowledging. (Para 48)

The orders issued by the St. Government,
which deemed the posts equivalent, are
merely clarificatory and do not alter the
rules after the game has begun; instead,
they serve as an interpretation of the rules
while the game is in progress. (Para 49, 50)

C. Whether there was a difference in the
grade pay admissible to the posts of
Additional Professor and Professor, and
whether the two posts could be equated
even if there is difference in grade-pay?

Differing pay scales do not inherently
render
two
posts
"non-equivalent."
Equivalence should be assessed based on
the similarities in the nature and duties of
9 All. Dr. Jitendra Singh Kushwaha Vs. State of U.P. & Ors.
1547
the positions, as well as the minimum
qualifications required for both roles. (Para
53)

The St. Government determined the equivalence
of the posts of Additional Professor and
Professor after considering that the teaching
experience required for both posts is identical,
the nature of work and responsibilities are the
same, and the duration for a teacher to become
a Professor in a Government Medical College
and an Additional Professor in SGPGIMS is
equal. Given these factors, the difference in
grade pay is insignificant. (Para 51, 52)
The MCI and NMC duly considered the posts of
Additional Professor and Professor to be
equivalent.
The
clarification
of
the
St.
Government
on
equivalence
was
an
interpretation of existing rules, which do not
amount to changing the rules, and the
difference in pay grade alone does not make the
posts non-equivalent if other factors are
identical, such as duties and qualifications.
Therefore, there is no infirmity in the impugned
judgment and order dated 22.12.2023, passed
by the learned Single Judge. (Para 56)

Special appeal dismissed. (E-4)

Precedent followed:

1. Ashish Kumar Vs St. of U.P., (2018) 3 SCC 55
(Para 43)

2. Anand Yadav Vs, St. of U.P., (2021) 12 SCC
390 (Para 45)

3. Praveen Kumar C.P. Vs Kerala Public Service
Commission, (2021) 17 SCC 383 (Para 49)

4. Sub-Inspector Roopal & anr.Vs Governor through
Chief Secretary, (2000) 1 SCC 644 (Para 53)

5. Vice Chancellor L.N. Mithila University Vs
Dayanand Jha, (1986) 3 SCC 7 (Para 53)

Precedent distinguished:

K. Manjusree Vs St. of A.P. & anr., (2008) 3 SCC
512 (Para 18)

Present
special
appeal
assails
the
judgment and order dated 22.12.2023,
passed by Hon'ble Single Judge in Civil
Misc. Writ Petition No. 17887 of 2022.

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.)

1. Heard Sri Awadh Behari Singh,
learned
counsel
for
the
Appellant/
respondent No.5, Sri Ashok Khare, learned
Senior Advocate assisted by Sri Kunal
Shah, learned counsel for the respondent
No.5/ petitioner, Sri Mohan Srivastava,
learned Standing Counsel for the Staterespondents
and
Sri
Sayujya
Singh,
Advocate appearing along with Sri Vivek
Kumar Singh, learned counsel for the
respondent
No.2
-
National
Medical
Commission.

2. The present intra court appeal is
directed against the impugned common
Judgment
and
order
dated
22.12.2023 passed by Hon'ble Single Judge
passed in Writ-A No.17887 of 2022, (Dr.
Sheo Kumar Vs. State of U.P. and others),
Writ-A No. 11798 of 2021, (Dr. Jitendra
Singh Kushwaha Vs. State of U.P. and
others) and Writ-A No.4236 of 2022 (Sheo
Kumar vs. State of U.P. and Others).

FACTUAL MATRIX OF THE CASE

3. Facts in nutshell essential for
disposal of the instant appeal are noted
hereinbelow.

Petitions
filed
by
the
respondent
No.5/
Petitioner
Petition filed by the
Appellant/
respondent
No.5
1. Writ-A No. 17887 of
2022 was filed by Dr. Sheo
Kumar,
whose
selection
was
canceled
by
the
Commission1 vide its order
dated 10.08.2022.
2. When the Commission
failed
to
process
the
appointment
despite
the
State
Government's
Writ-A No. 11798 of 2021
was filed by Dr. Jitendra
Singh
Kushwaha,
challenging the selection
of Dr. Sheo Kumar as
Principal (Allopathy) in
the
Department
of
Medical Education on the
ground that Dr. Sheo
Kumar did not possess the
1548 INDIAN LAW REPORTS ALLAHABAD SERIES
clarification and failed to
proceed
with
the
appointment of Dr. Sheo
Kumar
-
the
petitioner/respondent No. 5,
he filed Writ-A No.4236 of
2022 (Sheo Kumar vs. State
of U.P. and Others), praying
for a mandamus to direct
the
Respondent
Commission to process his
candidature.

requisite experience under
the relevant Recruitment
Rules.

4. The controversy involved in the
aforementioned petitions was decided by
the learned Single Judge with a common
judgment and order dated 22.12.2023. The
short question before the learned Single
Judge was whether experience as an
Additional
Professor
in
a
Medical
College would also count as experience
of a Professor, which a candidate is
required to possess to become Principal
of a Medical College under the relevant
Rules. The Commission had invited
applications for the solitary post of
Principal (Allopathy) in the Department of
Medical
Education
through
an
advertisement
dated
22.12.2020.
The
"Essential Qualification" for the said post
required a candidate to have a total
teaching experience of at least 10 years as a
Professor/Associate Professor/Reader in a
Medical College/Institution recognized by
the MCI2, of which at least 5 years should
be as a Professor in a department. As the
appellant/respondent No.5 raised questions
about the alleged experience of the
respondent No. 5/ petitioner - Dr. Sheo
Kumar, his experience is reproduced below
for ready reference:

Experience
of
the
Petitioner/Respondent No. 5:

• Associate Professor: 3 years

• Additional Professor: 4 years

• Professor: 3 years 6 months
22 days

• Total cumulative experience:
10 years, 6 months, 22 days

• Experience as Professor and
Additional Professor: 7 years, 6 months,
22 days

5. In response to the advertisement,
the Commission shortlisted the candidates
and called them for an interview. During
the
interview,
the
Respondent
No.5/Petitioner
was
asked
by
the
Commission to submit an undertaking to
the effect that within 30 days he would
produce:
(i)
certified
copies
of
the
experience certificate demonstrating that he
had 10 years of teaching experience,
including 5 years as a Professor, and (ii)
guidelines from the Medical Council of
India treating both the posts of Professor
and Additional Professor as equivalent. In
response, the Respondent No.5/Petitioner
complied
with
the
undertaking
and
submitted the requisite documents to the
Commission on 20.07.2021. The result of
the selection process was declared, and the
Respondent
No.5/Petitioner
was
provisionally
selected.
Before
the
Commission could forward the proposal for
the
appointment
of
the
Petitioner/Respondent No. 5 as Principal
(Allopathy) to the State Government, the
appellant herein preferred a Writ Petition,
which was registered as Writ A No.11798
of 2021 (Dr. Jitendra Singh Kushwaha vs.
State of U.P. and Others). In that
proceeding, the Commission initially took
the stand that the candidature of the
Respondent
No.5/Petitioner
had
been
processed
provisionally
and
that
the
Commission would not recommend his
name until adequate evidence was provided
to support his assertion that he had the
requisite
teaching
experience
as
a
Professor.
In
this
proceeding,
the
Respondent No.5/Petitioner relied upon his
9 All. Dr. Jitendra Singh Kushwaha Vs. State of U.P. & Ors.
1549
experience as an Additional Professor at
SGPGIMS3, arguing that it should be
counted as experience on the post of
Professor since both posts are equivalent.
In this backdrop, the learned Single Judge
initially observed that the controversy
could be resolved by calling the State
Government to determine the equivalence
of the post of Additional Professor and
Professor. Later, the learned Single Judge,
by order dated 08.10.2021 (as corrected on
22.10.2021), directed the Director General
of Medical Education and Training, Uttar
Pradesh, to take a decision regarding the
equivalence of the posts of Professor and
Additional Professor in consultation with
the NMC4. By letter dated 10.01.2022, the
Principal Secretary of the Department of
Medical
Education
issued
an
order
clarifying that the post of Additional
Professor at SGPGIMS and Professor in a
State Medical College are equivalent, and
the State Government also declared the
Petitioner eligible for appointment as
Principal, directing the Commission to take
further steps. The learned Single Judge, by
order dated 31.01.2022, observed that the
pendency of Writ-A No.11798 of 2021
filed by the Appellant/ respondent no.5,
would not impede the Commission from
proceeding further.

6.

Thereafter,
the
Appellant/
respondent No.5 subsequently amended his
Writ
Petition
and
challenged
the
clarificatory order dated 10.01.2022 issued
by the State Government, treating the posts
of Additional Professor at SGPGIMS and
Professor in a State Medical College as
equivalent.

7. Subsequently on 30.05.2022, the
State Government further clarified that,
regarding experience, qualifications, nature
of duty, and work, the post of Additional
Professor and Professor in a Medical
College are the same, notwithstanding the
difference in grade pay. The experience
acquired by the Petitioner/Respondent No.5
was thus liable to be counted towards the
requirement of 5 years' experience as a
Professor.

8. When the Commission failed to
process the appointment despite the State
Government's clarification and failed to
proceed with the appointment of Dr. Sheo
Kumar - the petitioner/respondent No. 5,
filed Writ A No.4236 of 2022 (Sheo Kumar
vs. State of U.P. and Others), praying for a
mandamus
to
direct
the
Respondent
Commission to process his candidature.
During pendency of the writ petition, the
Commission, by order dated 10.08.2022,
rejected
the
candidature
of
the
Petitioner/Respondent No. 5 on the grounds
that he did not have 5 years' experience as a
Professor and refused to acknowledge his
experience as an Additional Professor at
SGPGIMS as equivalent to that of a
Professor in a State Government Medical
College.

9. The respondent No.5/ Petitioner
then filed Writ-A No.17887 of 2022,
challenging the order dated 10.08.2022.
The learned Single Judge clubbed all three
matters and treated Writ-A No.17887 of
2022 (Dr. Sheo Kumar vs. State of U.P.
and Others) as the leading writ petition.

10. The issue for consideration before
the learned Single Judge was "Whether
experience as an Additional Professor in
a Medical College would also count as
experience as a Professor, which a
candidate is required to possess to
become Principal of a Medical College
under the relevant Rules." The learned
Single Judge also noted that while State
1550 INDIAN LAW REPORTS ALLAHABAD SERIES
Medical Colleges have a 3-tier hierarchical
system of teaching faculty, i.e., Assistant
Professor,
Associate
Professor,
and
Professor, institutions like SGPGIMS and
AIIMS have a 4-tier faculty designation
system, i.e., Assistant Professor, Associate
Professor,
Additional
Professor,
and
Professor.

11. In the instant matter, the relevant
Rules applicable are Rules, 19905, which
regulate the conditions of appointment and
service of teaching faculty and Principals in
State-run Medical Colleges. Rule 8 of the
Rules, 1990 provides that a candidate for
recruitment to various categories of posts in
the service must possess the qualifications
prescribed by the MCI from time to time.
The MCI has also framed the Regulations,
19986. The Regulations, 1998 prescribed
the research and teaching experience
required for both the posts, which is the
same. A minimum of 8 years of post-PG
experience is required for promotion to
either the post of Additional Professor or
Professor. In the Regulations, 1998, the
post of Associate Professor constitutes the
feeder cadre for both the posts of Professor
and Additional Professor.

12. The learned Single Judge also
took note of the essential qualifications
prescribed for the post of Professor and
Additional Professor in a Medical College
as per Regulations, 1998. For ready
reference, these are reproduced below:

Posts
A
Academic
Qualificati
on
Teaching
&
Research
Experience
Professor/Ad
dl. Professor
(8 years of
Post
PG
Experience)
A
post
graduate
qualificatio
n MD/MS
in
the
concerned
subject and
Associate Professor in the
subject for 3 years in a
permitted/approved/recog
nized
medical
college/institution with 4
Research Publications in
Indexed
Joumal
on
as per the
TEQ
Regulation
Cumulative
basis
with
minimum of 2 Research
Publication
during
the
tenure
of
Associate
Professor as 1st Author or
as corresponding author

13. It is not in dispute that when the
candidates applied for the post of Principal
as per the advertisement in question, the
required qualifications for the roles of
Professor and Additional Professor in a
Medical College, as noted by the learned
Single Judge, are as follows:

Posts
Academic
Qualificati
on

Teaching
&
Research
Experience
Professor/Ad
dl. Professor
(8 years of
Post
PG
Experience)
A
post
graduate
qualificatio
n MD/MS/
DNB in the
concerned
subject and
as per these
Regulation
s

(i) Associate Professor in
the subject for 3 years in
a
permitted/approved/recog
ni-zed
medical
college/institution
with
three
Research
publications (atleast two
as Associate Professor)
(only
original
papers,
meta-analysys,
systematic reviews, and
case
series
that
are
published
in
journals
included
in
Medline,
Pubmed Central, Citation
index, Sciences Citation
index,
Expanded
Embase,
Scopus,
Directory of Open access
journals (DoAJ) will be
considered). The author
must be amongst first
three or should be the
Corresponding
author.
(ii)
Should
have
completed
the
Basic
course
in
Medical
Education
Technology
from
Institution(s)
designated by MCI.
(iii)
Should
have
completed
the
Basic
course
in
biomedical
research
from
Institution(s) designated
by MCI.
Further provided that for
the transitory period of 2
9 All. Dr. Jitendra Singh Kushwaha Vs. State of U.P. & Ors.
1551
years w.e.f. the date of
this
notification,
the
appointment/ promotion
to the post of Professor
can be made by the
institution in accordance
with
the
"Minimum
Qualifications
for
Teachers
in
Medical
Institutions Regulations,
1998"
as
prevailing
before issuance of this
notification.

14. The record also reflects that the
Board of Governors in supersession of the
MCI, vide a letter dated 13.12.2018,
clarified
that
since
the
academic
qualifications and the teaching and research
experience required for the posts of
Professor and Additional Professor are the
same, both posts are considered equivalent
by the MCI. In the writ petition, the NMC
also filed a Counter Affidavit, wherein it
categorically stated that the experience
gained
by
Dr.
Sheo
Kumar,
the
Petitioner/Respondent No.5, while working
as an Additional Professor at SGPGIMS,
Lucknow, would be counted along with his
teaching experience as a Professor towards
his appointment as Principal.

15. The learned Single Judge, after
considering that in SGPGIMS, the position
of Associate Professor serves as a feeder
cadre for the role of Additional Professor,
logically concluded that the position of
Additional Professor is superior to that of
Associate Professor. As the expert body,
namely the NMC and its predecessor, the
MCI, had already clarified that the
positions of Additional Professor and
Professor
in
a
medical
college
are
equivalent, and had explicitly stated in their
affidavit that the experience gained by the
Petitioner as an Additional Professor at
SGPGIMS could be counted as experience
for the post of Professor towards the
appointment as Principal, the learned
Single Judge found no reason to deviate
from the view taken by the expert body.
The relevant portion of the judgment is
quoted below:

"20. Thus, for a Professor, a
candidate is required to possess eight years
teaching experience at postgraduate level
and three years teaching experience as an
Associate Professor in a regcognised
medical college/institution. As per the
Medical Council of India that frames Rules
and
Regulations
for
academic
qualifications for different categories of
posts in the field of medical education, a
Professor is required to possess experience
of teaching at postgraduate level and also
having at least three years as Associate
Professor, so essentially the requirement is
that eight years teaching experience, which
would include teaching experience of
Associate Professor for three years for
professor.

21. Now, looking to the circular
of the SGPGI, a person would be getting
promotion as Additional Professor after
three years of service as an Associate
Professor. Meaning thereby, those who are
to be promoted as Additional Professor
shall have to have three years experience of
Associate Professor. Thus, feeding cadre of
the Additional Professor is Associate
Professor. The conclusion, therefore, would
be that Additional Professor is above to the
Associate Professor and since the Medical
Council of India has defined experience of
Professor as including of Additional
Professor and the NMC has equated the
posts,
no
other
body
can
interpret
experience as to qualification otherwise.

22. Both the MCI and NMC
therefore, would be the only authorities to
define the experience and it having defined
in its wisdom the experience of a Professor
1552 INDIAN LAW REPORTS ALLAHABAD SERIES
to include the experience of an Additional
Professor,
the
essential
qualification/eligibility criterion for the two
posts to be the same, this Court cannot sit
in appeal to take a view contrary to what a
body of experts in the field, has taken."

SUBMISSIONS ON BEHALF OF
APPELLANT/ RESPONDENT NO.5:-

16. Sri Awadh Behari Singh, learned
counsel for the Appellant/respondent No.5,
vehemently submitted that the essential
qualifications
for
selection
and
appointment to the post of Principal of the
Government Medical College were clearly
prescribed
in
the
advertisement
in
accordance with the rules. He submits that
the
learned
Single
Judge
committed
manifest legal errors by modifying the
essential qualifications for the selection and
appointment to the post of Principal at the
Government
Medical
College.
This
modification was done placing reliance on
letters dated 10.01.2022 and 13.12.2018
issued by the Secretary of the concerned
Government Department, which equated
the experience of an Additional Professor
with that of a Professor. However, such
reliance is not permissible under the law.

17.

He
further
elaborated
by
submitting that the the rules, as laid out in
the advertisement dated 22.12.2020, were
clear and specific in their requirements.
The Regulations 1998, which was amended
up to 08.06.2017, explicitly mandates that
at least five years of experience as a
Professor is required for the appointment to
the post of Principal. This requirement was
a crucial aspect of the selection process,
ensuring
that
candidates
possess
the
necessary experience and expertise to lead
a medical institution. By equating the
experience of an Additional Professor with
that of a Professor, the learned Single
Judge effectively undermined the intent of
these Regulations and the standards they
were designed to uphold.

18. The learned counsel for the
Appellant
further
submitted
that
the
selection criteria and the rules of the
Commission cannot be altered or changed
afterwards. In this backdrop, he had placed
reliance on the judgment of the Apex Court
in K.Manjusree vs State Of A.P. & Anr7.

19. He also argued that the learned
Single Judge failed to appreciate that the
posts of Professor, Additional Professor,
and Associate Professor are significantly
different, as these three posts carry
different pay scales and grade pay.
Therefore,
the
specific
requirement
prescribed in the advertisement for the
selection and appointment to the post of
Principal of the Government Medical
College, which requires five years of
experience as a Professor, cannot be
equated with experience as an Additional
Professor. In support of his submission, he
also placed reliance upon the pay scales of
Professors and Additional Professors. He
referred to a letter from the Director
General of Medical Education and Training
dated 26.07.2022, which was sent to the
State Government and emphasized that for
appointment as a Principal, five years of
experience as a Professor is mandatory.
This letter does not equate the experience
of a Professor with that of an Additional
Professor.

20. He next submitted that it is a wellestablished principle of law, as upheld by
the Apex Court, that the "rules of the
game" cannot be changed once the game
has started. He elaborated that as such the
criteria for selection cannot be changed by
9 All. Dr. Jitendra Singh Kushwaha Vs. State of U.P. & Ors.
1553
the authorities in the middle of the selection
process when it has already begun. He
asserted that the learned Single Judge failed
to consider this settled legal principle. He
further argued that the issue of equivalent
qualifications only arises when the rules
explicitly provide for such consideration. In
the absence of an express provision in the
relevant rules, the court should not examine
this question, yet the learned Single Judge
wrongly treated the experience of a
Professor as equal to that of an Additional
Professor.

21. He lastly submitted that there are
two different faculty systems in medical
institutions. In the SGPGIMS, there is a
four-tier
faculty
designation
system:
Assistant Professor, Associate Professor,
Additional Professor, and Professor. An
Additional Professor becomes eligible for
promotion to Professor after four years of
service. In contrast, Government Medical
Colleges have a three-tier system: Assistant
Professor,
Associate
Professor,
and
Professor, with no position of Additional
Professor. Therefore, the requirement of
five years of experience as a Professor in
the advertisement should not have been
equated
with
the
experience
of
an
Additional Professor based on the letter
issued by the Secretary of the Government.
This letter of clarification was in fact
contrary to the rules framed by the
Government itself, which the learned
Single Judge failed to consider while
passing the impugned order.

SUBMISSIONS ON BEHALF OF THE
RESPONDENTS:

22. Per contra, Sri Ashok Khare,
learned Senior Advocate, assisted by Sri
Kunal Shah, learned counsel for the
respondent No.5/ Petitioner, Dr. Sheo Kumar,
vehemently opposed the instant appeal and
submitted that Dr. Sheo Kumar is working at
SGPGIMS, where a 4-tier hierarchical
teaching system, i.e. Assistant Professor,
Associate Professor, Additional Professor,
and Professor, exists. He submitted that the
essential qualifications for a candidate to be
appointed as an Additional Professor and a
Professor are the same, as the teaching
work/assignment for both posts is identical.

23. Sri Khare also placed reliance on
the
advertisement,
in
which
it
was
categorically mentioned that the essential
qualifications must be recognized by the
MCI; otherwise, the candidature would be
canceled.
He
submitted
that
the
advertisement prescribed the same academic
qualifications for the posts of Professor and
Additional Professor, requiring the candidate
to
have
eight
years
of
postgraduate
experience and to possess the qualification of
MD/MS/DNB in the concerned subject as per
the regulations.

24. He further relied on the earlier
notification issued by the Board of Governors
of the MCI dated 13.12.2018, which states
that, according to the MCI norms, Professors
and Additional Professors are equivalent. He
submitted that this clarification was issued
much before the advertisement. Therefore,
there is a fallacy of argument on behalf of the
appellant that the learned Single Judge has
infact substituted or diluted the essential
qualifications to some extent and any
interpretation to incorporate within it the
experience of an Additional Professor, would
amount to a legislative act which was beyond
the scope of the authority of the recruitment
and selection body.

25. He next submitted that Dr. Sheo
Kumar-the
petitioner/respondent-was
only
provisionally
selected,
and
his
1554 INDIAN LAW REPORTS ALLAHABAD SERIES
selection was subject to his furnishing the
requisite certificates of experience, which
he claimed based on the 4-tier hierarchical
teaching system prevailing at SGPGIMS.
He submitted that this factual situation was
duly modified in the Regulation, 1998 on
05.06.2017 and again on 01.11.2018.
According to the MCI norms, a Professor
and an Additional Professor are considered
equivalent, with the further stipulation that
the concerned appointing authority may
prescribe norms higher than those in the
1998 Regulation.

26. In this backdrop, he submitted that
since the advertisement clearly provides
that the essential qualification must be
recognized by the MCI; otherwise, the
candidature
will
not
be
considered.
Furthermore, for the posts of Professor and
Additional Professor, the candidate is
required
to
possess
eight
years
of
postgraduate experience and three years of
teaching
experience
as
an
Associate
Professor in a recognized medical college
or institution. Normally, the corollary
would be that a Professor is required to
have eight years experience of teaching at
the postgraduate level and also to have at
least three years of experience as an
Associate Professor, amounting to eight
years of teaching experience in total. The
4-tier
hierarchical
teaching
system
prevailing
at
SGPGIMS
clearly
demonstrates that an Additional Professor
is above an Associate Professor, and the
MCI has defined the experience of a
Professor as inclusive of the experience of
an Additional Professor. Additionally, the
NMC itself has clarified this situation.

27. He further submitted that in the
present matter, the dispute is not regarding
the substitution in additional qualifications.
This is not a case where Dr. Sheo Kumar
was lacking the necessary experience; the
dispute is solely about obtaining the correct
comments from the relevant authority on
whether experience as an Additional
Professor in a medical college would also
count as experience as a Professor. In this
matter, once the MCI and the NMC
categorically held that the experience of a
Professor includes the experience of an
Additional
Professor,
the
essential
qualification and eligibility criteria for both
positions are deemed the same. He
vehemently
submitted
that
the
said
clarification cannot be ignored and in view
of the said factual situation as there is no
challenge to the decision of the MCI and
the NMC, learned Single Judge has rightly
held that it cannot sit in appeal to take a
view contrary to what a body of experts in
the field, has taken.

28. He lastly submitted that the
learned Single has assigned unassailable
reasoning for denying the relief to the
appellant and thus the present appeal is
liable to be dismissed on merit.

29. Sri Mohan Srivastava, learned
Standing Counsel for the State-respondents
and Sri Sayujya Singh, Advocate appearing
along with Sri Vivek Kumar Singh, learned
counsel for the respondent No.2 - National
Medical
Commission,
supported
the
arguments advanced by Sri Ashok Khare,
learned Senior Advocate, assisted by Sri
Kunal Shah, learned counsel for the
respondent No.5/ Petitioner.

DISCUSSION AND FINDINGS:-

30. We have given thoughtful
consideration to the arguments advanced at
bar by learned counsels for the respective
parties, and gone through the impugned
judgment and order dated 22.12.2023
9 All. Dr. Jitendra Singh Kushwaha Vs. State of U.P. & Ors.
1555
passed by learned Single Judge and the
material placed on record.

31. Undisputably, the qualification
criteria was prescribed for the post of
Principal (Allopathy) in the advertisement
dated 22.12.2021 (Notification No.3 of
2020-21). From the record as well as the
submissions advanced by the learned
counsels for the parties at bar, the
following issues beg consideration of this
Court:

(a) Since the term 'equivalent
qualification'
was
not
used
in
the
advertisement,
whether
the
State
Government could have calculated the
experience of an Additional Professor as
equivalent to that of a Professor and
whether this amounted to changing the
terms of the advertisement.

(b) Whether the rules of the game
were changed after the game had begun.

(c)
Whether
there
was
a
difference in the grade pay admissible to
the posts of Additional Professor and
Professor, and whether the two posts could
be equated even if there is difference in
grade-pay.

Issue No.(a): Since the term
'equivalent qualification' was not used in
the advertisement, whether the State
Government could have calculated the
experience of an Additional Professor as
equivalent to that of a Professor and
whether this amounted to changing the
terms of the advertisement.

32. The equivalence between the posts
of Additional Professor and Professor in a
Medical College is prescribed in the 1998
Regulations. The underlying facts show that
while State Medical Colleges operate under a
3-tier
faculty
designation
systemcomprising Assistant Professor, Associate
Professor, and Professor-institutions like
SGPGIMS and AIIMS follow a 4-tier
system, which includes Assistant Professor,
Associate Professor, Additional Professor,
and Professor. Consequently, State Medical
Colleges do not have the post of Additional
Professor.

33. The minimum qualifications for
appointment as teaching staff in a Medical
Institution are governed by the Regulations,
1998 established by the Medical Council of
India. According to these regulations, the
qualifications required for the posts of
Professor and Additional Professor in a
Medical College are identical in terms of
research and teaching experience. Moreover,
under the Regulations, 1998, promotion to
either the post of Additional Professor or
Professor requires at least eight years of postPG experience. Additionally, the post of
Associate Professor is the feeder cadre for
both
the
positions
of
Professor
and
Additional Professor.

34. The Regulations, 1998 do not
consider the post of Additional Professor as
the feeder cadre for the post of Professor.
Instead, the Associate Professor post serves
as the feeder cadre for both Professor and
Additional Professor roles. An individual
who has served three years as an Associate
Professor is eligible for promotion to either
Additional Professor or Professor, depending
on whether the institution follows a 4-tier or
3-tier faculty designation system.

35. The MCI has consistently
maintained parity in the qualifications
required for appointment to the posts of
Additional Professor and Professor in a
Medical College.

36. The Board of Governors, in
supersession of the MCI, clarified in the
1556 INDIAN LAW REPORTS ALLAHABAD SERIES
letter dated 13.12.2018 that since the
academic qualifications and the teaching
and research experience for the posts of
Professor and Additional Professor are the
same, the MCI considers both posts
equivalent. The relevant excerpt from the
letter dated 13.12.2018 issued by the Board
of Governors is being reproduced below:

"This is with reference to your
email dated 11.12.2018 and order dated
11.12.2018 passed by the Hon'ble Court in
the above captioned matter. In this regard I
am directed to inform you that as regards
the qualification and experience prescribed
for
appointment
as
Professor/
Addl.
Professor in Broad Specialties [MD/MS] in
Minimum
Qualification
for
Teachers
Regulations, 1998 is as under:

Posts
Academic
Qualificati
on
Teaching
&
Research
Experience
Professor/Ad
dl. Professor
(8 year of
Post
PG
Experience)

A post in
graduate
qualificati
on MD/MS
the
concerned
subject and
as per the
TEQ
Regulation

Associate Professor in the
subject for 3 years in
permitted/approved/recog
nized
medical
college/institution with 4
Research Publications in
Indexed
Journal
on
Cumulative
basis
with
minimum of 2 Research
Publication
during
the
tenure
of
Associate
Professor as 1st Author or
as corresponding author.

The above position has been
notified in Minimum Qualification for
Teacher Regulations, 1998 on 05.06.2017
& again 01.11.2018 copy enclosed.

Therefore, in so far as MCI
norms are concerned Professor/ Addl.
Professor are equivalent. However, it is for
the concerned appointing authority to lay
down/prescribe norms higher than that
prescribed in Minimum Qualification for
Teachers Regulation, 1998.

This issues with the approval of
Secretary General, Board of Governors."

37. The NMC has also issued the
Assessor's Guide. In Clause 11 of these
guidelines, the issue of equating the post of
Additional Professor in a four-tier faculty
designation system with that of a Medical
College's three-tier faculty designation
system has been addressed. The NMC has
clarified that the role of Additional
Professor should be considered equivalent
to that of a Professor. The relevant excerpt
from the Assessor's Guide is provided
below:

"11. Many Institutions follow a 4tier faculty designation system - Assistant
Professor, Associate Professor, Additional
Professor and Professor. For the purposes
of our assessment, which has only 3 levels,
where does one equate the Additional
Professor?

Additional Professor is to be
equated to a Professor."

38. Faced with the situation described
above, the Hon'ble Single Judge, in
response to the Writ Petition filed by the
Appellant (Writ A No. 11798 of 2021, Dr.
Jitendra Singh Kushwaha v.