# DR: ASIM KUMAR BOSE v. UNION OF INDIA & QTHERS

- **Citation:** [1983] 2 S.C.R. 16
- **Court:** Supreme Court of India
- **Decided:** 1982-12-15
- **Case number:** Civil Appeal No. 598 of 1980
- **Bench:** D.A. Desai, A.P. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-asim-kumar-bose-v-union-of-india-qthers-8811
- **Pages:** 29

## Headnote

Central Health Service Rules, 1963 as amended by the Central Health
Service (Amendment) Rules 1966, sub-rules (2) and (2A) of Rule 8 and paragraphs
2(b) and 3 of Annexure I to .the Second Schedule, construction of-Whether, far•
specialist grade II in a teaching hospital btlonging to the Central Health Service to
be eligible for appointment or promotion as a Professor or Associate Professor
of the concerned ,,peciality, the condition prerequi1ite is actual teaching experience
of the Specialist or the capacity in which such leaching exp_erience is gained-Wards
and Phrases-Meaning of the word "as"'-Court's role in service Jurisprudence,
pertaini~g to appointtn4nl, explatned.·
In pursuance of r. 7A(l)(b) of the Central Health Service Rules, 1963 as
amended by the Central Health Service (Amendment) Rules. 1966 and all other
powers enabling in that behalf, the President of India issued a notification dated
June 8, 1967 making the substantive appointment of the appellant Dr. Asim
Kumar Bose as Radiologist, Irwin Hospital, New Delhi. By virtue of his post
as Radiologist-cum-Associate Professor of Radiology, the appellant was· teaching
the under-gradtiate and post-graduate students as an Associate Professor .of
Radiology of the Maulana Azad Medical College for the M.D., M.S., D.M.R.T.
and M B.B.S. courses of studies of the Delhi University. In 1973 the Central
Government promoted Dr. K.P. Mittal, Lecturer in Radiology in the Maulana
Azad Medical College as Associate Professor of Radio.therapy ignoring the
claim of the appellant who thereupon made a representation. The Government
of India, Ministry of Health &: Family Planninl!, Department of Health ~ its
letter dated February 23, 1974 rejected the representation holding that the
appellant could not be considered for appointment to the post or Associate
Professor of Radiotherapy in the Mau1ana Azad Medical College inasmuch as
he did not possess at least five years' teaching experience as Reader/Assistant
Professor in the concerned speciality as required under r. 8(2A) and paragraph 3
of Annexure I to the Second Schedule of the 1966 Rules.
The appellant filed a writ petition in the Delhi High Court challetiging
the impugned order, but the High Court rejected the writ petition holding that
the requirement rules required that the requis~te teaching experience must be
the experience gained while working in a medical college or in a teaching institution i.e. as a Teacher in a teaching department.
Allowing the appeal.
HELD : (I) There was a failure on the part of the Government of India
jμ the Ministr~ of tte3ltb to 9raw n distinction between teaching and non·
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ASIM KUMAR v. UNION
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teaching hospitals under· the Central Health Service. Tho Irwiri' Hospital and
tho G.B. Pant Hospital are the two associate hospitals of the Maulana Azad
Medical College and the teaching in the medical college is undertaken by
Professors and Associate Professors as well as by the Specialists attached to the
two hospitals affiliated to the College. Thus the teaching experience gained by
the appellant while holding the post of Radiologist-cum-Associate Professor of
Radiology (ex-officio) had to be taken into consideration to determine his
eJigibility for appointment as Professor or Associate Professor of the concerned
speciality. [35 G-H, 36 A-C, 43 F-G]
(2) On a construction of r. 8(2) and paragraph 2(b) of Annexure 1 to
tho Second Schedule of the 1966 Rules, it was held that the appellant possessed
the- qualifications and experience requisite for appointment to the post of
Professor of Radiotherapy in the Maulana Azad Medical College which is a
post belonging to Specialist Grade I equivalent to Supertime Grade II carrying
a pay-scale of Rs. 1800-2250, which had fallen vacant during the pendency of
the appeal. The Union Public Service Commission must therefore re-advertise
the post of Professor and call the appellant for an interview for being considered
for appointment to the post. [38 C-D, F:H]
(3) The act

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DR: ASIM KUMAR BOSE
v.
UNION OF INDIA & QTHERS.
December 15, 1982
[D.A. DESAI AND A.P. SEN, JJ.J
Central Health Service Rules, 1963 as amended by the Central Health
Service (Amendment) Rules 1966, sub-rules (2) and (2A) of Rule 8 and paragraphs
2(b) and 3 of Annexure I to .the Second Schedule, construction of-Whether, far•
specialist grade II in a teaching hospital btlonging to the Central Health Service to
be eligible for appointment or promotion as a Professor or Associate Professor
of the concerned ,,peciality, the condition prerequi1ite is actual teaching experience
of the Specialist or the capacity in which such leaching exp_erience is gained-Wards
and Phrases-Meaning of the word "as"'-Court's role in service Jurisprudence,
pertaini~g to appointtn4nl, explatned.·
In pursuance of r. 7A(l)(b) of the Central Health Service Rules, 1963 as
amended by the Central Health Service (Amendment) Rules. 1966 and all other
powers enabling in that behalf, the President of India issued a notification dated
June 8, 1967 making the substantive appointment of the appellant Dr. Asim
Kumar Bose as Radiologist, Irwin Hospital, New Delhi. By virtue of his post
as Radiologist-cum-Associate Professor of Radiology, the appellant was· teaching
the under-gradtiate and post-graduate students as an Associate Professor .of
Radiology of the Maulana Azad Medical College for the M.D., M.S., D.M.R.T.
and M B.B.S. courses of studies of the Delhi University. In 1973 the Central
Government promoted Dr. K.P. Mittal, Lecturer in Radiology in the Maulana
Azad Medical College as Associate Professor of Radio.therapy ignoring the
claim of the appellant who thereupon made a representation. The Government
of India, Ministry of Health &: Family Planninl!, Department of Health ~ its
letter dated February 23, 1974 rejected the representation holding that the
appellant could not be considered for appointment to the post or Associate
Professor of Radiotherapy in the Mau1ana Azad Medical College inasmuch as
he did not possess at least five years' teaching experience as Reader/Assistant
Professor in the concerned speciality as required under r. 8(2A) and paragraph 3
of Annexure I to the Second Schedule of the 1966 Rules.
The appellant filed a writ petition in the Delhi High Court challetiging
the impugned order, but the High Court rejected the writ petition holding that
the requirement rules required that the requis~te teaching experience must be
the experience gained while working in a medical college or in a teaching institution i.e. as a Teacher in a teaching department.
Allowing the appeal.
HELD : (I) There was a failure on the part of the Government of India
jμ the Ministr~ of tte3ltb to 9raw n distinction between teaching and non·
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ASIM KUMAR v. UNION
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teaching hospitals under· the Central Health Service. Tho Irwiri' Hospital and
tho G.B. Pant Hospital are the two associate hospitals of the Maulana Azad
Medical College and the teaching in the medical college is undertaken by
Professors and Associate Professors as well as by the Specialists attached to the
two hospitals affiliated to the College. Thus the teaching experience gained by
the appellant while holding the post of Radiologist-cum-Associate Professor of
Radiology (ex-officio) had to be taken into consideration to determine his
eJigibility for appointment as Professor or Associate Professor of the concerned
speciality. [35 G-H, 36 A-C, 43 F-G]
(2) On a construction of r. 8(2) and paragraph 2(b) of Annexure 1 to
tho Second Schedule of the 1966 Rules, it was held that the appellant possessed
the- qualifications and experience requisite for appointment to the post of
Professor of Radiotherapy in the Maulana Azad Medical College which is a
post belonging to Specialist Grade I equivalent to Supertime Grade II carrying
a pay-scale of Rs. 1800-2250, which had fallen vacant during the pendency of
the appeal. The Union Public Service Commission must therefore re-advertise
the post of Professor and call the appellant for an interview for being considered
for appointment to the post. [38 C-D, F:H]
(3) The action of the Central Government in the Ministry of Health
ignoring the claim of the appellant for appointment to the post of Associate
Professor of Radiotherapy in the Maulana Azad Medical College in 1973 was
based on a misconstruction of r. B(2A) and paragraph 3 of Annexure I to the
Second Schedule. The word "as" in these provisions must, in the context in
which it appears, be interpreted to mean "in the capacity or". These provisions
must be interpreted in a broad and liberal sense as it would otherwise work
great injustice fo persons in Specialists Grade II like the appellant who, while
holding a non..clinical post in a teaching hospital iike the Irwin Hospital, has
.a.ctually been teaching the students of the Maulana Azad Medical College to
which it i.s affiliated. The Ministry of Health cannot be beard to say that the
appellant bad not acquired the status of an As!iociate Professor of Radiology
with effect from October 9, 1964, particularly when the Central Governm£ot have
been uti!J.zing his services as such for teaching the post-graduate and under~
graduate 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
which has conferred the designation of Associate Professor of Radiology on the
appellant presumably with the tacit sanction of the Medi.cal Council of India.
[37 F-G, 38 A-B, 42 D-F]
(4) The recruitment rules nowhere provide that the teaching experience
gained by a Specialist in a teaching hospital in the capacity of an Asso:iate
Professor (ex-officio) shall not count towards the requisite teaching experience
for purposes of sub·rs. (2) and (2A) of r. 8 and paragraph 2 (b) anci 3 of
Annexure I to the Second Schedule of .the 1966 Rules. There is no provision
made in the Rules that the teaching experience must be gained on a regtilar
appointment. There is hardly any difference so far as teaching eXperience is
concerned whether it is acquired on regular appointment or as a Specialist in
a ~achin~ hospital with the ex-officio designatio~. A! t)!e ~IJl!Utory rules do 001
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SUPIWMB COURT llBPORTS
(1983) 2 s.c.R.
provide that the teaching experience gained in an ex-officio capacity shall not
count towards the requisite teaching experience, the teaching·-experience gained
by the appellant WW!e holding the post of Radiologist-cum-Associate Profes1or
of Radiology (ex-officio) in the Irwin Hospital qan not be ignored in determining
bis eligibility for appointment as Professor or Associate Professor of the
concerned speciality. [35 C-E]
CIVIL APPELLATE JURISDICTION :
Civil Appeal No. 598 of
1980.
Appeal by Special leave from the judgment and order dated
the 9th November, 1979 of ihe Delhi High Court in CWP No.
'\-··
885 of 1974.
><
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N.C. Sikri for the Appellant.
Hardoyal Hardy, Girish Chandra and R.N. Poddar for the
Respondents.
The Judgment of the Court was delivered by
SEN, J. This appeal by special leave from a judgment and
order of the Delhi High Court dated January 9, 1979 raises a ques-.
tion of some complexity. The question is whether a Specialist
Grade II in a teaching hospital belonging ·to the Central
Health
Service is eligible for appointment or promotion as a Professor
or Associate Professor of the concerned speciality. The appeal
turns on a construction of sub-rs. (2) and (2A) of r.8 and paragraphs 2(b) and 3 of Annexure I to the Second Schedule of the
Central Health Service (Amendment) Rules, 1966.
The Central Health Service was formed more tbiln two
decades ago and was intended to replace
the Indian Medical
Service, but ~he recruitment rules were not framed till the year
1963. The Service was constituted for providing . doctors for
manning the medical, public health and medical research and teaching posts in the Central Government hospitals, dispensaries scientific research institutions and institutions of higher ~ducation. The
members of this Service are also meant to man posts in the Union
Territories and the various autonomous bodies.
In exercise of the powers conferred by the proviso to Art.
309 of the Constitution, the President on May I, 1963 made
tbe C~ntraf Jiealth Servic~ Rules, 1963 which came into force
ASIM KUMAR v. UNION (Sen, J.) .
19
on May 5, 1963. R.3 provided for the constitution of the Central
Health Service.
Under r.4 the Service was divided into two classes
viz. Class I and Class II. The rules envisaged categorization of
personnel manning the service into five different categories viz.
· Categories 'A' to 'E'.. Rule 5 provided for the authorized permanent and temporary strength of the Service. Under r.5 (3), the
controlling authority had the power to interchange any post
included in Jhe junior scale with any post included in , the senior
scale without altering the authorized strength in each category.
R.8 provided for the future maintenance of the Service.
80% of
the vacancies in Category 'B' of the supertime scale were to be
filled by promotion through Departmental Promotion Committee of
officers holding the post in the senior scale who had rendered not
less than six years of service in that scale and 20% of the vacancies thereof were to be filled by direct recruitment in the manner
prescribed in the Second Schedule. By a notification dated January
1, 1965 the initial appointments· were notified. The essential
pre-condition for the inclusion of a post in the Central Health
Service was that a medical qualification recognized under the Indian
Medical Council should be prescribed for it.
By the Central Heath Service (Amendment) Rules, 1966, the
Central Health Service was recrganized with effect from September
9, 1966 and the concept of General Duty officers and Specialist
,
Grade Officers was introduced for the first time.
R.3 provides that
there shall be a Service constituted to be known as the "Central
Health Service" consisting of (a) persons appointed to the Service
under r.7 or r.7A, and (b) persons appointed to the Service under
r.8. R.4 classifies the Service into four categories viz. Category (I)
Supertime Grade, apart from the post of (i) Director-General of
Health Services on a fixed pay scale of Rs. 2750/· and (ii) Additional Director·General of Health Services on a fixed pay of
Rs. 2250/·; a Supertime Grade I carrying a pay-scale of Rs. 18002250; Supertime Grade II with a pay-scale of Rs. I 300·1800; Cate·
. gory (2) Specialists' Grade with a pay-scale of Rs. 600-1300; Cateaory (3) General Duty Offi;ers Grade I with a pay-scale of
Rs. 450-1250; and Category (4) General Duty Officers Grade II on a
scale of Rs. 350-900. Under r 5 the authorized strength of the
various categories was to be as specified in the First Schedule. R. 7
provides for the initial appointment to the S(\l"vice.
R.7A 'provides
for the appointment of departmental candiclates,
R,.71\ is in two
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SUPllEllE COURT llBPOl.TS
. (1983) 2 s.c.a.
parts. Part A deals with· the departmental candidates who were
initially appointed in Categories 'A' and 'B' of the Service prior
to the 1966 Rules. All of them are to be appointed to the corresponding Supertime Grade I and Supertime Grade II of the new ,
Categories. Part B provides that e'l'ery departmental candidate
who was initially appointed to a category "other than Categories
'A' and 'B' shall be appointed to the newly-formed appropriate
Category "after selection". That had to be so because the new
Categories were different and the conditions of eligibility had also
been revised. Accordingly, officers from Category 'C', Category 'D'
and Category 'E' and were selected by the Departmental Promotion
Committee for appointment to the Specialists' Grade-General Duty
Officers Grade I and General Duty Officers Grade II-after taking
into account the qualification, experience and
conditions of
eligibiity. Several Officers who were in former Category 'C' were
placed in General Duty Officers Grade I.
R.8. provides for the future maintenance of the
Service.
After appointments have been made to the Service under rs. 7
and 7A, future vacancies have to be filled in the manner provided
therein. R.8 (2) prov'ides that every vacancy in the Specialists'
Grade shall be filled by direct recruitment in the manner provided
by the Second Schedule. through the Union Public Service Commission, subject to the exception made in r.8(2A) with regard to
Associate Professors and Assistant Professors. R.8(3) provides for
50% of the vacancies in Supertime Grade II to be filled by promotion of General Outy Officers Grade I and, Specialists' Grade
Officers in the ratio of 2 : 3 on the basis of merit and seniority
and the remaining 50% of the vacancies are to be filled by direct
recruitment in the manner specified in the Second Schedule. '
It would therefore appear that there is 50% direct recruitment
in Supert;me Grade II which practice is in the public interest and
is essential for the maintenance of efficiency. Further, Supertime
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Grade II serves as a promotion avenue to GDOS Grade I also.
In view of this, the Third Pay Commission found it difficult to
recommend the merger of the Specialists' Grade with the Supertime
Grade II, but at· the same time it appreciated present difficulties
in promotion of Specialists to Supertime Grade II. It' accordingly
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recommended a structural reorganization of the cadre of Specialists
to get over these difficulties and to ensure that the GOOS Grade
I, Hospital Specialists and Teaching';!Specialis~ !J~ve reasonable
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ASIM KUMAR •. UNION (Sen, /.)
21
promotional opportunities in their respective fields.
It therefore
directed taking of the following steps ;
"The administrative posts in
Supertime Grade II
should be reserved for GDOS Grade I except where
GDOS Grade I with the required specialists qualifica,
tions are not available.
The posts which cannot be
filled by direct recruitment through the Union Public Service
Commission and it would be open to the Specialists' grade
officers to compete for such posts. These posts should not
be filled by hospital specialists or teaching specialists by
promotion in the normal course. The Supertime Grade
II will thus consist only of administrative posts in future
for which the revised scale will be Rs. 1500-2000.
The teaching posts (Professors) and hospital specai
lists' posts (comprising other than admininistrative and
teaching posts) at present included in Supertime Grade II
should be placed in the revised scale of Rs. J 800-2250. This
new grade may be called Specialists' Grade I and the
existing Specialists' Grade may be called Specialists' Grade
II.
50% of the vacancies in the new grade (i.e., Specialists
Grade I) should be filled by direct recruitment as at present,
the remaining 50% being filled by promotion from the
new Specialists' Grade I/. There could be interchange bet
ween hospital specialists and Professors in the higher
grade subject to the candidates satisfying the prescribed
quafifications. We notice that at
present out
of 27
clinical specialities only a few have posts in Supertime
Grade, IL We would suggest that
there should be at
least one post in the higher grade of Rs. 1800-2250 for
every speciality. The proportion of hospital specialists'
posts in the new grade should not exceed 20% of the
number of hospital specialists' posts in the lower grade
(Specialists Grade II) and additional number of posts as
may be necessary to make up the 20% may be created."
(Emphasis supplied)
As a result of the recommendation of the Third Pay Com
mission, the Specialists' Grade is now bifurcated into specialists
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SUPllBliiE couitr REPORTS
tI 983 l i s.c.a..
,,
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Grade I or Supertime Grade II carrying a pay-scale of Rs. 18002250 and Specialists Grade II carrying a pay-scale of Rs. 1!001800.
As at present constituted, the Central Health Service has
the following grade structure as per the recommendations of the
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Third Pay Commission :
S. No.
Grade
Pay (Rs.)
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1.
(a)
Supertime Grade I
(i) Director-General Health Services
3500
(ii) Commissoner of Rural Health
3000
(iii) Additional Director General
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Health Services
3000
(iv) Other post (a) Level I
2500-2750
(b) Level II
2250-2500
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(b) Supertime Grade II & Specialists
Grade I
1800-2250
2.
Specialist Grade II
1100-1800
3.
General Duty Officers Gr~~e I
1100-1600
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General Duty Officers Selection Grade
1500-2000
Generai Duty Officers Grade II
700-1300
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The Commission also recommended a scheme of special merit
promotion for the medical services on the following lines :
"Doctors in Specialists' Grade I in the revised grade
of Rs. 1800-2250 and Supertime Grade II (Rs. 1500-2000)
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who have outstanding performance to their credit, deserving the recognition, may be promoted to Supertime Grade
I scale, while continuing in their original posts, without
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ASIM KUMAR v. UNION (Sen, J.)
23
having to wait until a vacancy arises in the Supertime
A
Grade I. Such upgradations of the post consequent upon
merit promotions will be personal to the individuals concerned.
Eminent specialists and doctors in Suprertime Grade I
should be considered for merit promotion to the grade
B
Rs. 3000·3500. There will be no non-pratical allowance in
addition."
Such being the infra-structure of the Central Health Service,
the question is as to the promotional prospect of a Specialist
Grade II in a teaching hospital to Specialists Grade I. The whole
controversy turns on the question whether such a person is el.igible
for appointment as a Professor or Associate Professor of the concerned speciality, and that depends on whether for purposes of sub-rs.
(2) and (2A) of r. 8 and paragraphs 2 (b) and 3 of Annexure I to
the Second Schedule, the condition prerequisite is actual teaching
experience of the Specialist or the capacity in. which such teaching
experience is gained.
It is common ground that the 11ppellant has the requisite
essential qualifications for appointment as a Professor or an Asso·
ciate Professor of Radiology. After.obtaining his M.B.B.S. degree
from Calcutta University in the year 1955, the appellant went for
further studies to the United Kingdom. There he studied Radiotherapy for two years at
the
Liverpool Radium
Iostitute
and obtained the Diploma in Medical Radiology & Therapy
(D.t<i.R.T.) from the University of Liverpool in 1958. During the
course of his studies there, he held the appointment of Registrar in
Radiotherapy at the Liverpool Radium Institute from August 1957
to December 1958. Besides gaining teaching experience in that
post which under Indian Medical Council Rules is a teaching post,
he also had the privilege of visiting some important London hospitals
like Mt. Verman and Hammersmith which institutions have a unique
and distinguished
position in the area of Cancer-therapy by
irradiation.
On his return to India, the apP._ellant worked as Junior Lecturer
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and Clinical Assistant in the Department of Radiology at the
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Christian Medical College & Hospital, Vellore from February 6, 1959
to December 26, 1960. This post required the appellant to take up
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SUPkEME COURT REPOR'l'S
[1983] 2 s.c.tt.
teching classes in Radiotherapy for the Master of Surgery (M.S.),
Diploma in Gynaecology & Obstetrics (D.G.O.) and M.B.B.S.
courses. During his stay there he was placed in charge of the
Department of Radiotherapy
during the absence of Professor
Scudder, and as he had considerable experience in the United
Kingdom in the practical aspect of handling such cases, he proved
to be extremely useful to the institution. The certificate of the
renowned Neuro-Surgeon Dr. Jacob Chandy, Medical College &
Hospital, Vellore pays high encomiums to the services rendered by
the appellant and records that his work there was well appreciated
by colleagues and teachers both as a surgeon and as a teacher.
As a consequence of a successful academic career as a teacher
of post-graduate courses in the Christian Medical College &
Hospital, Vellore, the appellant was appointed as a Lecturer in
Radiology under the West Bengal Health. Scheme and held that post
from January 2, 1961 to January 12, 1963.
During this period as a
Lecturer in the Medical College, Calcutta, he had the privilege of
teaching post-graduate classes in Diploma in Medical Radiology &
Electrology (D.M.R.E.). While he was employed in that capacity, he
was
asked
by the authorities
of the
ChriStian
Medical College, Vellore, bis erstwhile employers, to assist them in
organizing the newly installed Tele-Cobalt Therapy Unit under the
Colombo Plan Aid from Canada in that institution. The State
Government of West Bengal were pleased to depute him for
~
the task and he apparently performed and fulfilled his duties to the
entire satisfaction of the authorities.
On January 14, 1963 the appellant was appointed as a Lecturer
in Radiology in Maulana Azad Medical College, New Delhi, a post
placed in Category 'E' of the Central Health Service and continued
to work in that capacity till October 8, 1964. He was also employed
as a part-time Lecturer in Delhi University with effect from 1963
and eyen now continues to be employed as such. On October 9,
1964 he was appointed as a Radiologist in the Irwin Hosnital
which was a post in Category 'C' of the Central Health SerVice.
By Letter dated April 6, 1965, the Delhi Administration informed the
Principal, Maulana Azad Medical College in answer to a communication made by him, that conseq.uent upon the appointment of the
appellant in Category 'C' of the Central Health Service, the
Administration had no objection to designating him as Associate
Professor of Radiology (ex-officio) in the Maulana Azad Medical
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ASIM KUMAR v. UNION (Sen, J.)
25
College provided it was not detrimental to bis normal duties as a
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Radiologist and no financial implications were involved.
In pursuanee of r. 7A (1) (b) of the Central Health Service
Rules, 1963, as amended by the Central Health Service (Amendmed)
Rules, 1966 and all other powers enabling him in that behalf, the
President of India issued a notification dated June 8, 1967 making
snbstantive appointments of 80 officers to the Specialists' Grade with
effect from September 9, 1966. The appellant was listed at
Sr. No. 80 and the entry giving his name and designation reads :
"80. Dr. Asim Kumar Bose
Radiologist, Irwin Hospital,
New Delhi."
As a result of this, the appellant has continued to hold the post of
Radiologist in the Irwin Hospital which is attached to the Matilana
Azad Medical College and treated as an Associate Professor of
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of Radiology (ex-officio) both by the University of Delhi as well
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as by the Maulana Azad Medical College.
By the early 70s, the appellant had acquired the requisite
teaching experience of an Associate Professor of Radiology as well
as acquired higher academic qualification. On August 19/20, 1968
the Principal, Maulana Azad Medical College addressed a letter to
the appellant conveying that the Vice· Chancellor ·of the Delhi
University in exercise of his emergency powers, had granted him
recognition as an Associate Professor of Radiology for teaching the
post-graduate and under-graduate students for the D.M.R.T. and
M.B.B.S. courses of studies. In 1970, the appellant was conferred
the degree of Doctor of Philosophy (Medicine) in Radiotherapy by·
the Calcntta University. The Faculty of Medical Sciences, Univer·
sity of Delhi by its letter dated July I 0, 1972 informed the appel·
la,nt that the Board of Research Studies for Medical Sciences had
at its meeting held on January 15, 1972 appointed him as a Supervisor for the post-graduate students for the M.D. (Radiotherapy)
course of study. It would therefore appear that the appellant was
not only holding the post of Radiologist in the Irwin Hospital, but
was also actively associ.ated with teaching the under-graduate and
post-graduate students as an Associate Professor of. Radiology of
the. Maulana Azad Medical College for the M.D., D.M.R.T. and
M,B.B.S. courses of studies of the Delhi University.
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SUl>RBMS COURT REPORTS
[1983] 2 S.C.R.
· It appears that subsequent to his substantive appointment by
the President to Specialists' Grade with effect from September 9,
1966, the appellant was called by the Banaras Hindu University for
an interview on August 7, 1972 for the post of Professor of Radiotherapy but since the post of Associate Professor of Radiotherapy
in Maulana Azad Medical College was falling vacant in 1973, he
did not appear for the interview.
In 1973, the Government of India
promoted and appointed Dr. K.P. Mittal, Lecturer in Radiology in
the Maulana Azad Medical College as Associate Professor of
Radiotherapy ignoring the claim of the appellant.
The appellant accordingly made
a: representation to the
Government of India but the same was rejected.
The Government
of India, Ministry of Health & Family Planning, Department of
Health by its letter dated February 23, 1974 informed the Delhi
Adminisration that the appellant could not be considered for
appointment to the post of Associate Professor of Radiotherapy
in the Maulana Azad Medical College inasmuch as he did not
possess at least five years' teaching experience as Reader/Assistant
Professor in the concerned speciality as required under the Central
Health Service (Amendment) Rules, 1966. The Ministry of Health
was of the view that although the appellant bad the essential qualification prescribed for teaching post, the teaching experience gained
by him while holding the post of Radiologist-cum-Associate
Professor of Radiology (ex-officio) in the Irwin Hospital since
October 9, 1964 cannot be taken into considration.
The appellant assailed the impugned order by filing a writ
petition in the Delhi High Court on July 24, 1974 complaining that
the action of th"e Government of India in the Ministry of Health
disregarding his claim fvr appointment to the post of Associate
Professor of Radiotherapy was in denial of equal opportunity in
matters of employment and thus violative of Arts. 14 and 16 of the
Constitution. The contention upon which the writ petition was based
was that on a true construction of r. 8 (2A) and paragraph 3 of
Annexure I to the Second Schedule, he was clearly eligible for
appointment to the post of Associate Professor as he bad the
essential educational qualification and bad also the requisite teaching
experience while holding the post of Radiologist-cum-Associate
Professor of Radiology (ex-officio) in the Irwin Hospital which is a
teaching hospital attached to the Maulana Azad Medical College.
The respondents Nos. I and 2 filed· a return reiterating the .tand
ASIM kUMAR v. UNION (Sen, J.)
taken by the Government of India in the Health Ministry that the
experience gained by th~ appellant ·as an' Associate Professor of
Radiology (ex-officio) by virtue of his holding the post of Radiologist
in the Irwin Hospital cannot be taken into conside.ration for the
purpose of determining the question of his eligibility for appointment as Associate Professor. It was pleaded that the impugned
order was thus perfectly legal and valid and bad been issued on a
correct interpretation of the Central Health Service Rules, I 963 as
amended by the Central Health Service (Amendment) Rules, 1966.
In support of the plea, .it was averred :
"The teaching experience gained by the petitioner
while holding the post of Radiologist in the Irwin Hospital,
New Delhi by virtue of his having ex-officio status of
Associate Professor of
Radiotherapy from the 9th of
of
October, 1964 cannot be counted
as requ1sne
teaching experience under the Central Health Service
Rules."
It appears that while the writ petition was pending in the High
Court, the appellant was in 1976 selected by the Haryana Public
Service Commission for the post of Professor of Radiology (Radiotherapy) in the Medical College, Rohtak, but was not relieved of his
duties by the Government of India in the Ministry of Health &
Family Planning. A letter of the Registrar of the Rohtak University
dated December 9, 1976 requesting the Central Government to
place his services on deputation with the Rohtak University for a
period of three years in the first instance as the appellant, having
put in 17 years' service, was not inclined to resign his post as
Radiologist in the Irwin Hospital. The Ministry of Health by its
letter dated January 17, 1976 however informed the Secretary
(Medical), Delhi Administration that it was not possible to· relieve
the appellant of bis duties or place bis services on deputation with
a lien on his post as Radiologist in the Irwin Hospital, and if he
wanted to join as Professor of Radiology (Radiotherapy) in the
Medical College, Robtak, be should "give up all connections with
the Central Health Service".
A
B
D
E
G
By the judgment under appeal, the High Court, while observing ·
H
that the appellant admittedly holds high academic and professional
qualifications and has also good teaching experience to his credit,
A
B
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28
SIJPRBMB COURT RB9QRrS
(1983] 2 s.c.R.
rejected his writ petition on its construction of the Rules. It
.observed that the recruitment rules requi~ed that the requisite
experience must be the experience gained while working in a medical
college or in a teaching institution i.e. as a teacher in a teaching
department. ·It also observed that "it is a well-known fact
that after acquiring
the requisite medical qualifications t!:iere
are different careers open
to a medieal graduate,
and in
fact it is so ill all professional careers." According to the
High Court, "some people opt for
11 teaching career while
others opt for a regular professional career a1 Doctors. The
medical graduates who opt for a teaching career, join a cadre
different from that of the career of Doctors." In the words of the
High Court, "they tie down their fate to the teaching career and
expect promotions· to various posts in their channel of promotion
i.e. in the cadre of teachers." While rejecting the claim of the
appellant, the High Court observed :
"It is a fortuitous circumstance that a medical graduate
regularly working as a doctor is also permitted by the
authorities to take up a teaching assignment. The normal
duty of such a doctor is in the hospital and in the cadre of
doctors in hospital. If the person who is working as a
doctor is allowed to compete, with teachers in the teaching
cadre, such.teachers are at a disadvantage. Their chances of
promotions are adversely affected by recruitment of people
who do not initially opt for a teaching career. This being
the rationale behind the respondents' ·decision, we do not
find that there is any illegality or arbitrariness in the.
decision of the respondent."
It is difficult to support the reasoning or the conclusion reached by
the High Court ou a construction of the Rules.
The appellant has placed on record a· number of documents
emanating from the University of Delhi as well as from the Dean, · ~
Maulana Azad Medical College showing that his services were
ut.ilized as an Associate Professor of Radiology (ex-officio) for
delivering lectures to the post-graduate and under-gradate students
for tbs M.D., M.S., D.M.R.T. and M.B.B.S. courses during the last
17 years.
In response to a query from the Court, tile Ministry of Health
prepared a note on the structure of the Central Health Service
ASJM KUMAR v. UNION (Sen, J)
. 29
drawing our particular attention to r. 8 (2A) and paragraph 3 of
A
Annexure I to the Second Schedule and Sr. No. 4 of Annexure II to
the Second Schedule and on the b'asis of these provisions it is
asserted that for promotion to the post of Associate Professor at
least five years' experience as Reader/ Associate Professor in the
concerned speciality in a medical college/teaching institution after
the requisite post-graduate qualification is absolutely essential. It
is said that in response to an advertisement of the Union Public
Service Commission for the non-teaching post of Radiologist in the
former Category 'C' the appellant who had joined the Central
Health
Service in Category 'E' as Lecturer in Maulana Azad
Medical College with effect from January 14, 1963 on selection to
that post, switched over from teaching to non-teaching post of
Radiologist. After setting out his teaching experience as a Lecturer
of Radiology in Maulana Azad Medical College from January 14,
1963 to October 8, 1964 and elsewhere, it is said that· the appellant
was not eligible for appointment as Associate Professor as he was
not holding the post of Reader/Assistant Professor. In trying
to refute the appeallnt's allegation that there was denial of equal
opportunity, it is asserted :
"In the absence of the particular advertisement for
the post of Associate Professor, it is not possible to indicate
as to when the applications were first called for the appointment to the post of Associate Profes.sor of Radiology
in a teaching institution participating in the CHS.
According to the provisions of the CHS Rules, all posts of
Lecturers, Assistant Professors and Associate Profesaors
were required to be filled through the UPSC before the
rules came to be amended w.e.f: 18.09.1971. After the
amendment of the CHS Rules, only Assistant Professors
possessing five years exeperience were eligible for appoint·
ment as AssoCiate Professor. Since Dr. Bose was holding
the clinical post of Radiologist, he was not in direct line
of and eligible for promotion to· the post of Associate
Professor."
It is somewhat strange that alongwith the aforesaid note, the
Ministry had produced a letter of the Dean, Maulana Azad Medical
College dated January 25, 1982
addressed to the Secretary,
Ministry of Health & Family Welfare which tends to show that
T
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8
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30
SiJPR.EMB COUllT R.EPORTS
(198312 s.c.11.
A
the appellant as Radiologist-cum-Associate Professor of Radiology
(ex-officio) was not actually teaching the post-graduate and undergraduate students of the Maulana Azad Medical College. The
letter is self-explanatory and reads :
B
c
"With reference to the telephonic conversation with
Sri R. N. Tewari with respect to the question received from
the Supreme Court regarding Dr. A. K. Bose I have to
state that Dr. Bose while performing his duties as Radiologist was not lecturing to the students as an Associate
Professor is required to do."
It is rather difficult to act on the letter of the Dean particulary
when it runs counter to his own affidavit sworn in February, 1982
the relevant extracts of which are given below :
· "That since 1964 the Appellant continues to be a
Radiologit and is not holding any teaching designation
assigned by the Central Health Service and is not is receipt
D
of the teaching allowance of Rs. 200.00 which is admissible
in the case of an Associate Professor. Dr. Bose has
never worked as Assistant Professor/Reader to become
eligible for promotion as Associate Professor. He is working in the Radiology Department. The Head of the
E
F
G
H
Radiology Department, uses the services of some of the
Radiologists who do not have any teaching designation to
take lectures. Over the years as an internal arrangement
the non•teacbing Radiologists such as Dr. I. Sahai, Dr. D.P.
Garg, Dr. A.R. Dar, Dr. B.L. Jain, Dr. S. C. Gupta etc.,
in addition to Dr. A.K. Bose, have been assigned lectures
to under-graduate students.
Dr. A.K. Bose has been delivering lectures to post graduates of Delhi University and has guided some thesis.
Delhi University has recognised him as a Supervisor of
Thesis and a teacher.
However in the matter of post-graduate teaching the Delhi University also recognises and
ultilises the services of Specialists of non-teaching hospitals
like Safdarjang Hospital, Army Hospital and Dr. R.M.L.
Hospital (Willingdon).
The Specialist in Safdarjang Hospital and Dr. R.M.L.
Hospital do not have teaching designation assigned by
---..
ASI¥ KUMAR v. UNION (Sen, J.)
31
the Central Health Service.
The Army Hospital is not
A
nuder the Central Health Service."
_,
As regards the documents placed on record by the appellant,
the Dean goes on to aver in the affidavit :
''That the Appellant bas produced the. Under-graduate
lecture programme, the post~graduate lecture programme,
prospectus of Maulana· Azad Medical College for the year
1966-67 and Annual Report of Maulana Azad Medical
College for the year 1980. The Under-graduate teaching programme is· only an internal arrangement of the
Radiology Department
The post-graduate programmes
.have been drawn up by the Delhi University. The prospectus and the Annual Report are informative bulletins
only. All that they state is that Dr. A. K. Bose is an exofficio Associate Professor."
The Ministry bas also filed the affidavit of Sb.ri N.S. Bakshi,
Deputy Secretary to the Government of India, Ministry of Health
& Family Welfare to the effect :
"That according
to the Central Health Service
(Amendment) Rules, 1966, atleast 5 years experience as
Reader/ Assistant Professor in the concerned speciality in
a medical college/teaching institution .is after the requisite
post-graduate qualification is absolutely essential for promotion to the post of Associate Professor.
That the appellant does not fulfil the above mentioned
requirement and thus cannot be considered for promotion
to the post of Associate Professor as per CHS Rules.
That according to the provisions of the CHS Rules, all
posts of Lecturers, Assistant Professors and Associated
Professors were required to be filled through the UPSC
before the Rules came to be amended with effect from
18-9-1971. After the amendment of the CHS Rules, only
Assistant Professors possessing five years experience were
eligible for appointment as Associate Professor.
Since Dr.
Bose was holding the Clinical post of Radiologist, he was
. not in direct line of and eligible for promotion to th~
8
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32
SUPRBMB COURT RBPOllTS
(1983) 2 S.C.ll
post of Associate Professor. As such the question of the
Appellant becoming due for promotion to the post of
'---
Associate Professor does not arise."
After the conclusion of the hearing, the Health Ministry
at our behest prepared a note on the pattern of teaching and
non-teaching staff as laid down in the Central Health .Service Rules,
1963 amended from time to time. It would be convenient to re produce the note in its entirety and it reads :
TEACHING POSTS
C
Specialists' Grade (new Specialist Grade II)
D
E
F
Lecturers
All vacancies in this Grade are filled by direct recruitment
through the UPSC at the level of Lecturers in the scale of pay of
Rs. II 00-1800 plus NPA at graded rates.
Assistant/ Associate Professors
All vacancies in the posts of Assistant Professor and Associate Professor are filled by promotion through the Departmental
Promotion Committee from amongst officers holding the posts of
Lecturers and Assistant Professor 'resp~ctively. The officers are
required to possess the qualification and experience prescribed
for· the post in question. The officers promoted to the posts of
Assistant Professor and Associate Professor are allowed a special
pay of Rs. JOO/- p. m. and Rs. 200/- p.m. respectively
In case no departmental officer is available for promotion
to the posts of Assistant/Associate Professor, such vacancy is filled
by direct recruitment through the U.P.S.C.
G
Composite Supertime Grade II (Revised Specialist Grade /)
Professor
On the recommendation of the Third Pay Commission, the
Composite Sureprtime Grade II has been bifurcated into Specialist
ff
Grade I (Rs. 1800-2250) and Supertime Grade II revised (Rs. 15002000). Vacancies in the Specialist Grade I posts of Professor are
filled by direct recruitment and promotion in the ratio of 1 : I.
ASl!of KUMAR v. UNION (Sen, J.)
33
For promotion to the posts of Professor,
Associate Professor/
A
Asssistant Professor with 8 years service are eligible.
Supertime Grade I (Level 11) -
Rs.