# ~ GOVERNMENT OF ANDHRA PRADESH & ANOTHER, ETC v. DR. R. MURALI BABU RAO & ANR., ETC

- **Citation:** [1988] 3 S.C.R. 173
- **Court:** Supreme Court of India
- **Decided:** 1988-03-09
- **Case number:** Civil Appeal Nos. 5723-5724 of 1985
- **Bench:** A.P. Sen, B.C. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/government-of-andhra-pradesh-another-etc-v-dr-r-murali-babu-rao-anr-etc-9912
- **Pages:** 25

## Headnote

Andhra Pradesh Medical & Health Service Special Rules 1982Challenge to panel prepared under rule 8 of-To fill up promotional
post of ProJessor of Cardiology with r~quisite five .years' teaching
experience under rule 5 having the alternate qualification specified in
cl. (b) of Annexure I1 to Rules, eligible for promotion to 'ilze post of
Professor of Cardiology.
These appeals and the special leave petitions were directed against
the judgment and order of the Andhra Pradesh Administrative Tribunal, quashing the panel of names prepared by the State Government
under r. 8 of the Andhra Pradesh Medical & Health Service Special
Rules, 1982 to fill up the promotional post of Professor of Cardiology as
on lst Joly, 1983, reckoning the teaching experience of all the Assistant
Professors in that super speciality in order of seniority, holding that the
Assistant Professors of Cardiology in different medical colleges in the
State who had the requisite five years' teaching experience under r. 5 of
the Rules having the alternate qualification in cl. (b) of Annexure II to
the Rules were eligible for promotion as such, and directing the State
Government to draw up a fresh paneI after considering the claims of all
such Assistant Professors of Cardiology treating them as possessing the
requisite teaching experience in terms of r. 5 for the promotional post of
Professor of Cardiology as on lst July, 1983.
There. were four vacancies in the post of Professor of Cardiology ..
On lst July, 1983, the State Government prepared a panel of all Assistant Professors of Cardiology in Government Medical Colleges in the
State having the requisite teaching experience under r. 5 after obtaining
A
B
c
D
E
F
the post-graduate qualification as specified in the Annexure II, and
included in the panel the· names of .Dr. G. Subramanayam, Dr. A.
G
Rajagopala Raju and Dr. Soghra Begum, Assistant Professors of
Cardiology,' who had on the crucial date-1st July, 1983--five years'
teaching experience after obtaining their post-graduation degree in DM
(Cardiology) as enjoined by r. 5 read with the first proviso thereto. and
by order dated the 17th August, 1983, promoted them to the post of
Professor of Cardiology.
H
173
·'If
174
SUPREME COURT REPORTS
[1988] 3 S.C.R.
y
A
The respondents Dr. R. Mnrali Babu Rao and Dr. G. Sai Gopal
then moved the Andhra Pradesh Administrative Tribunal assailing the
impugned order of promotion, characterising the action of the State
Government in the matter of computation of five years' teaching experience after post-graduation degree in DM (Cardiology) as being wholly
arbitrary and irrational.
B
)..
The appellant C.H. Umesh Chandra came up in appeal as the
view expressed by the Tribunal prejudicially affected him. He had
obtained his post-graduate degree in MD in Medicine in December, 1975
and his second post-graduate degree in DM (Cardiology) in April, ...
i980. In view of the fact that he had obtained his second post-graduate
\
c degree in DM (Cardiology) in April, i980, he sought to support the
stand of the Government as he had a better chance of promotion to the i
post of Professor of Cardiology.
After these matters were heard and the judgment was reserved by
this Court, a similar question came up before the Court in State of
D
Orissa v. Dr. Sivsanker Lal Bajoria & Anr.,-Civil Appeal No. 4456 of
1986 by Special Leave granted to the State Government of Orissa
against the judgment and order of the High Court, evolving a rnle of
substantial compliance, and therefore, these matters were re-listed. In
the Civil Appeal No. 4456 of 1986, the Court issued notice to the Medi-
~
cal Council of India to clarify its stand as to the eligibility of Assistant
E Professors/Readers in Cardiology to the promotional post of Associate
Professor/Professor in Cardiology and in particular to the import of the
term 'two years special training' within the meaning of Regulation
5(2)(b) of the Indian Medical Council Regulations, 1970, framed under
s. 33 of the India

## Text

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,
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GOVERNMENT OF ANDHRA PRADESH & ANOTHER, ETC.
v.
DR. R. MURALI BABU RAO & ANR., ETC.
MARCH 9, 1988
[A.P. SEN AND B.C. RAY, JJ.]
Andhra Pradesh Medical & Health Service Special Rules 1982Challenge to panel prepared under rule 8 of-To fill up promotional
post of ProJessor of Cardiology with r~quisite five .years' teaching
experience under rule 5 having the alternate qualification specified in
cl. (b) of Annexure I1 to Rules, eligible for promotion to 'ilze post of
Professor of Cardiology.
These appeals and the special leave petitions were directed against
the judgment and order of the Andhra Pradesh Administrative Tribunal, quashing the panel of names prepared by the State Government
under r. 8 of the Andhra Pradesh Medical & Health Service Special
Rules, 1982 to fill up the promotional post of Professor of Cardiology as
on lst Joly, 1983, reckoning the teaching experience of all the Assistant
Professors in that super speciality in order of seniority, holding that the
Assistant Professors of Cardiology in different medical colleges in the
State who had the requisite five years' teaching experience under r. 5 of
the Rules having the alternate qualification in cl. (b) of Annexure II to
the Rules were eligible for promotion as such, and directing the State
Government to draw up a fresh paneI after considering the claims of all
such Assistant Professors of Cardiology treating them as possessing the
requisite teaching experience in terms of r. 5 for the promotional post of
Professor of Cardiology as on lst July, 1983.
There. were four vacancies in the post of Professor of Cardiology ..
On lst July, 1983, the State Government prepared a panel of all Assistant Professors of Cardiology in Government Medical Colleges in the
State having the requisite teaching experience under r. 5 after obtaining
A
B
c
D
E
F
the post-graduate qualification as specified in the Annexure II, and
included in the panel the· names of .Dr. G. Subramanayam, Dr. A.
G
Rajagopala Raju and Dr. Soghra Begum, Assistant Professors of
Cardiology,' who had on the crucial date-1st July, 1983--five years'
teaching experience after obtaining their post-graduation degree in DM
(Cardiology) as enjoined by r. 5 read with the first proviso thereto. and
by order dated the 17th August, 1983, promoted them to the post of
Professor of Cardiology.
H
173
·'If
174
SUPREME COURT REPORTS
[1988] 3 S.C.R.
y
A
The respondents Dr. R. Mnrali Babu Rao and Dr. G. Sai Gopal
then moved the Andhra Pradesh Administrative Tribunal assailing the
impugned order of promotion, characterising the action of the State
Government in the matter of computation of five years' teaching experience after post-graduation degree in DM (Cardiology) as being wholly
arbitrary and irrational.
B
)..
The appellant C.H. Umesh Chandra came up in appeal as the
view expressed by the Tribunal prejudicially affected him. He had
obtained his post-graduate degree in MD in Medicine in December, 1975
and his second post-graduate degree in DM (Cardiology) in April, ...
i980. In view of the fact that he had obtained his second post-graduate
\
c degree in DM (Cardiology) in April, i980, he sought to support the
stand of the Government as he had a better chance of promotion to the i
post of Professor of Cardiology.
After these matters were heard and the judgment was reserved by
this Court, a similar question came up before the Court in State of
D
Orissa v. Dr. Sivsanker Lal Bajoria & Anr.,-Civil Appeal No. 4456 of
1986 by Special Leave granted to the State Government of Orissa
against the judgment and order of the High Court, evolving a rnle of
substantial compliance, and therefore, these matters were re-listed. In
the Civil Appeal No. 4456 of 1986, the Court issued notice to the Medi-
~
cal Council of India to clarify its stand as to the eligibility of Assistant
E Professors/Readers in Cardiology to the promotional post of Associate
Professor/Professor in Cardiology and in particular to the import of the
term 'two years special training' within the meaning of Regulation
5(2)(b) of the Indian Medical Council Regulations, 1970, framed under
s. 33 of the Indian Medical Council. Act, 1956. The Court desired the
~
Indian Medical Council to specify the particular institution where such
F
training was.imparted. An affidavit sworn to by Assistant Secretary on
behalf of the Medfcal Council of India was filed, placing its point of
view.
Dismissing the appeals and the special leave petitions, the Court
G
HELD : The issue involved was of far-reaching importance to
the entire medical profession as similar problem was faced by the
~.
State Governments in promoting Readers/Associate Professors in a
speciality . to the post of Professor in that speciality in the medical
colleges. ll79E-F]
H
In these cases, the entire controversy was due to the failure of the
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GOVT. OF A.P. v. DR. R. MURALI
175
State Government to give the benefit of the teaching experience gained
by the Assistant Professors after they had obtained their post-graduate
degree in MD/MRCP in Medicine under cl (b) of Column 5 in serial
No.17ofAnnexureII. [J87G]
Rule 4 of the Rules in terms speaks of the eligibility of such class of
Assistant Professors of Cardiology for promotion to the post of Cardiology who possess five years' teaching experience. The expression 'teaching experience' as defined in r. 5 speaks of 'teaching experience in the
speciality concerned in a medical college or an institute recognised by
the Medical Council of India after obtaining post-graduate qualification as specified in Annexure II'. The words used are 'after obtaining
post graduate qualification', it does not speak of the second postgraduate qualification. Rule 5, therefore, takes in both the qualifications specified in clauses (a) and (b) of Column 5 in serial No. 17 of
annexure II, namely, (a) DM (Cardiology) and (b) MD/MRCP in
Medicine with two years' training in Cardiology. On the crucial date,
1st July, 1983, d. (b) was very much there and the Government was
bound to consider the claims of the aforesaid respondents like other
officers belonging to that class before drawing up a panel under r. 8.
There was no warrant for the submission that since under r. 9(2), an
Assistant Professor with the requisite five years' teaching experience
after obtaining his second post-graduate degree in DM (Cardiology)
would have preferential claim over those having the qualification
mentioned in cl. (b) i.e. MD/MRCP in Medicine with two years' training in Cardiology, the State Government was entitled to ignore the
claims of the latter class altogether. On its plain construction, r. 9(2) is
a rule of preference and has, therefore, to be applied at the stage of
making appointments to the post of Professor of Cardiology and not
while drawing up a panel under r. 8. The Government was obviously
misled by the wrongful assumption (i) that since alternate qualification
in cl. (b) of Column 5 in serial 'No. 17 of Annexure II had been deleted
by GOMS No. 789 dated 12th December, 1983, it was not necessary for
it to consider the claims of the aforesaid respondents and others similarly situate in drawing up a list of eligible Assistant Professors of
Cardiology, and (ii) that such officers were rendered ineligible by
reason of r. 9(2) and, therefore, their claims needed not ·to be considered. The Tribunal was, therefore, justified in quashing the impugned
panel prepared by the State Government under r. 8 of the Rules and in
directing the Government to prepare a panel afresh after considering
the claims of all the Assistant Professors of Cardiol9gy with five years'
teaching experience after their post-"graduation in MD/MRCP in
Medicine with 2 years' training in Cardiology. [I89C-H; I90A-B]
A
B
c
D
E
F
.G
H

GOVT. OF A.P v. DR. R. MURALI
177
y
post-graduate degree in MD/MRCP in Medicine, ineligible for promoA
tion to the post of Professor of Cardiology even though they had the
requisite five years' teaching experience, appeared to be wholly misconceived and unwarranted. [I90G-H; 19IE-H; 192AI
The present case Was concerned with the meaning of the expression 'teaching experience' occurring in r. 5 of the Rules, and with the
B
,j
class of officers who, after their appointment as Assistant Professors of
Cardiology on having obtained post-graduate de_gree in MD/MRCP
had been teaching the subject Cardiology for yeaFs together. Indeed,
'
the alternate qualification specified in cl. (b) of column 5 iii serial No. 17
~
of Annexure II takes in this class of officers and makes them eligible
l
under r. 5. On the crucial date, 1st July, 1983, cl. (b) was still there and c
the Government was bound to consider the claims of such officers before drawing up a panel under r. 8. [193C-E]
Emphasis was laid by counsel for the State Government andpther
appellants on the words 'with two years training in Cardiology' with the
submission that none of the respondents had the reqnisite training. The
D
expression 'special training' is defined in r. 7 as the work done by an
Assistant Professor in the concerned recognised unit aild exclnsively
devoted to the speciality. The qilestion then arises for the applicability
.
.
of r. 7, there are two conditions to be fulf"Illed, firstly, there must be an
--1
institution set up either by the Medical Connell of India or by the
Government or Universities exclusively devoted to imparting teaching
E
in the different courses of Cardiology, and secondly, such an institution
should have been recognised by the Government. There was no material
on record to establish that there was any snch recognised unit either in
the State of Andhra Pradesh or elsewhere. That apart, it conld not be
-',
appreciated why the Associate Professors, Readers, Assistant Professors of Cardiology, teaching Cardiology in the medical colleges for
F
years together, should not be regarded as having special training in
Cardiology within the meaning of cl. (b) of column 5 in the serial No. 17
of Annexure II. Any other view would lead to a very anomalous situation. It would be a travesty of justice if the officers belonging to the class
like the respondents-representationists Dr. R' Murali Babu Rao and
Dr. G. Sai Gopal, Assistant Professors of Cardiolog% with five years'
G
teaching experience after their post-graduation in MD/MRCP in
,~
Medicine as on the 1st July, 1983, were not empanelled by tbe State
Govt. under r. 8 to fill up vacancies in the post of Professor of Cardiology, even though they possessed the reqnisite qualifications nuder r. 5
of the Rules. It most be remembered that the alternate qualification in
cl. (b), namely MD/MRCP in Medicine with two years' training in
H
178
SUPREME COURT REPORTS
[1988] 3 S.C.R.
A
Cardiology was still there and it was not open to the Government to
ignore the same merely because it was in conflict with the recommendation of the Medical Council of India, as conveyed in the letter of the
Secretary dated 26th April, 1976. I 193F-H; 194A-E]
B
c
There were many distinguished Assistant Professors/Readers/
Associate Professors of Medicines in the medical colleges in the different
States, teaching Cardiology as a subject, who had gained sufficient
expertise and knowledge in the different branches of Cardiology, and it
would be unfortunate if such Assistant Professors/Readers/Associate
Professors of Medicine were, merely because they were MD/MRCP in
Medicine, considered ineligible for appointment to the post of Professor
of Cardiology, even though they had the requisite teaching experience
in the many branches of Cardiology for the last 15 to 20 years in the
m~dical colleges. In view of this, the expression 'live years' teaching
experience' occurring in r. 5 of the Rules as well as the phrase 'with two
years' training in Cardiology' in cl. (b) of column 5 in serial No. 17 of
D
Annexure II of the Rules, must receive a liberal construction. The
experience gained by them while teaching in different branches of
Cardiology should be treated as sufficient to meet the requirements of
r. S of the Rules as well as of cl. (b). The Court expressed the hope that the
Medical Council of India, the Union Government and the State Governments as also the State Medical Councils would give a second thought to
E
F
G
the problem and try to evolve a solution to the problem by which the
right of such persons to be considered for promotion to the post of
Professor of Cardiology could be kept preserved without allowing any
fall in the standards offurther education. I 196H; 197 A-DI
State of Madhya Pradesh v. Km. NiveditaJain, [1981] 4 SCC 296
and Union of India & Ors. v. S.B. Kohli & Anr., [1973] 3 SCR 117,
referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
5723-5724 of 1985 etc.
From the Judgment and Order dated 22.2.1985 of the Andhra
Pradesh Administrative Tribunal, Hyderabad in Representation Petn.
No. 1041and1417of1983.
P.P. Rao, G.L. Sanghi, R. Venkataramani, R.A. Perumal,
R.K. Gupta, B. Kanta Rao, K. Ram Kumar and A. Subba Rao for the
H
appearing parties.
GOVT. OF A.P. ii. DR. R. MURALI [SEN, J.[
179
'I
The Judgment of the Court was delivered by
A
SEN, J. These three appeals and the special leave petitions are
directed against the judgment and order of the Andhra Pradesh
Administrative Tribunal, Hyderabad dated 22nd February, 1985
('
quashing the panel 0f names prepared by the State Government under
r. 8 of the Andhra pradesh Medical & Health Service Special Rules.
B
i
~ J._
1982 to fill up the promotional post of Professor of Cardiology as on
@
1st July, 1983 reckoning the teaching experience of all the Assistant
Professors in that super speciality in order of seniority, holding that
·-
the Assistant Professors of Cardiology in different medical colleges in
~
the State who had the requisite five years teaching experience under
r. 5 of the Rules having the alternate qualification in cl. (b) of Anne-
\
xure II were eligible for promotion as such and directing the State c
~-
Government to draw up a fresh panel after considering the claims of all
such Assistant Professors of Cardiology treating them as possessing
~1
the requisite teaching experience in terms of r. 5 for the promotional
post of Professor of Cardiology as on 1st July, 1983. That turns on the
meaning of the expression 'two years training in Cardiology' as speciD
fied in cl. (b) of column 5 in serial no. 17 of Annexure II to the Rules
prescribing the qualifications for the post of Professor of Cardiology.
The Tribunal was of the view that such Assistant Professors of Cardiology were entitled to have the benefit of teaching experience grained
-~ by them as such after obtaining the post-graduate degree in MD/
MRCP in that. speciality on the crucial date 1st July, 1983 when the
E
I
State Government purported to prepare a panel under r. 8 of the
Rules. The issue involved is of far-reaching importance to the entire
vmedical profession as similar problem is faced by the State Governmen ts in promoting Readers/ Associate Professors in a speciality to the
~
post of Professor in that speciality in the medical colleges.
F
The matters were heard a long time back and closed for judgment, but then a similar question arose in Civil Appeal No. 4456 of
1986 State of Orissa v. Dr. Sivsanker Lal Bajoria & Anr., and therefore
the matters. were re-listed. By order dated 12th December, 1986 this
Court granied special leave to the State Government of Orissa against
the judgment and order of the Orissa High Court evolving a rule of G
_J
substantial compliance. But learned counsel for the parties in these
matters stated that they had made their submissions on merits and
desired that the Court should proceed to judgment.
At the very outset, we wish to place on record that in Civil
Appeal No. 4456 of 1986 we had on 29th October, 1986 issued notice
H
A
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G
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180
SUPREME COURT REPORTS
11988] 3 S.C.R.
to the Medical Council of India to enable it to clarify its stand as to the
eligibility of Assistant Professors/Readers in Cardiology to the promotional post of Associate Professor/Professor of Cardiology and in
particular as to the import of the term 'two years special training'
within the meaning of Regulation 5(2)(b) of the Indian Medical
Council Regulations, 1970, framed under s. 33 of the Indian Medical
Council Act, 1956. We desired the Indian Medical Council to.specify
the particular institution where such special training is imparted.' It
would be profitable to reproduce the relevant averments in the
affidavit sworn by the Assistant Secretary on behalf of the Medical
Council of India placing its point of view:
"With reference to the question whether any syllabus has
been prescribed for further studies in Cardiology is concerned, I state that the Council is a regulatory body which
has its own rules under the Act. It does not prescribe any
syllabus which is within the jurisdiction of every University
and medical institutions. The Medical Council of India only
prescribes broad guidelines for training in post-graduate/
post doctoral courses leading to post graduation in D.M.
(Cardiology), period of study, conduct of examination etc;
true copy of the said broad guidelines which will cover post
graduation courses is annexed herewith. It may be submitted that there are no special guidelines for Cardiology.
However it is submitted that some Universities/ Institutions
might have prescribed the syllabus.
With reference to the second question whether
further training/instructions are imparted in any college/
institution/university or hospital, I submit that various
departments attached to various colleges have started
imparting post graduation courses after obtaining permission from the Medical Council of India. Till this day, a list
of such institutions which are imparting such recognised
post doctoral training in Cardiology is given below:
1. Madras Medical College, Madras (Madras University)
2. Post Graduate Institute of Medical Education and
Research, Chandigarh (P.G.I., Chandigarh)
3. All India Institute of Medical Science, New Delhi.
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GOVT. OF A.P. v. DR. R. MURALI [SEN, J.[
181
4. G.B. Pant Hospital (Delhi University}
5. G.S.V.M. Medical College, Kanpur (Kanpur
University)
Colleges/Institutions which have already been approved for
A
conducting D.M. courses in Cardiology are as under:
B
Permission accorded (STILL TO BE RECOGNISED}
L Osmania Medical College, (Osmania University,
Hyderabad)
2. Gandhi Medical College, (Osmania University,
Hyderabad)
3. Armed Forces Medical College, Pune (Poona
University)
D
4. Kasturba Medical College, Manipal (Mangalore
University)
5. Bangalore Medical College; Bangalore (Bangalore University)
E
6. S.C.B. Medical College, Cuttack (Utkal University) (Permitted in Sept., 86)
7. Grant Medical College, Bombay (Bombay University)
F
8. Seth G .S. Medical College, Bombay (Bombay
University)
9. T.N. Medical College, Bombay (Bombay University)"
Emphasis supplied
The affidavit sworn by the Assistant Secretary to the Medical Council
G
of India is admirably vague and reveals a sad state of affairs. It is quite
manifest that when the Secretary to the Medical Council of India
addressed a letter dated 26th April, 1976 conveying the recommendaH
182
SUPREME COURT REPORTS
119881 3 S.C.R.
A tions of the Medical Council of India purporting to lay down that after
31st May, 1977 for. all teaching appointments to posts higher than
Tutor in higher speeialitles i.e. Cardiology/ Neurology/Gastro-Enterology / Thoracic Surgery I Neuro-Surgery I Plastic Surgery I Paediatric
Surgery/Urology, the candidates must possess post graduate degree
qualifications in 'the speciality concerned i.e. DM/M. Ch. ~fter MD/
B MS or other equivalent qualifications as may be approved by the
Council from time to time. There was no prospectus for a course of
study for post-graduation in a super speciality nor were there any
institntions for imparting post doctoral training in all the subjects.
There was also a Note added that the already existing qualifications
with 'two years special training' in a recognized training centre in the
C speciality concerned, shall cease to be sufficient qualification for
appointment to the aforesaid teaching posts from that date. For the
sake of completeness, we think it necessary to set out the aforesaid
letter of the Secretary, which runs as follows:
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"After 31st May, 1977, for all teaching appointments to
posts higher than Tutor in higher specialities i.e. Cardiology, Neurology I Gastro-Enterology I Thoracic Surgery I
Neuro-Surgery I Plastic Surgery / Paediatric Surgery I
Urology, the candidates must possess post-graduate degree
qualifications in the speciality concerned i.e. D.M./M.Ch.
after M.D./M.S. or other equivalent qualification as may
be approved by the Council from time to time. The existing
alternative qualifications i.e. M.D./M.S. or an equivalent
qualification with two years special training in a recognised
training centre in the speciality concerned, shall cease to be
sufficient qualification for appointment to aforesaid teaching posts from that date.
Provided that the requirements of possessing postgraduate degree qualification in the concerned higher speciality shall not be applicable for higher appointments in
the case of existing teachers holding regular teaching posts
whose appointment was initially made on the basis of two
years special training in the speciality after the requisite
M.D./M.S."
It would be noticed that the affidavit does not disclose the date
or dates from which the institutions listed above, namely, Madras
Medical College, Madras, Post Graduate Institute of Medical EducaH
tion & Research, Chandigarh, All India Institute of Medical Sciences,
>-··
GOVT. OF A.P. v. DR. R. MURALI [SEN, J:]
183
New .Delhi, G.B. Pant Hospital, Delhi and G.S.V.M. Medical
College, Kanpur were recognised for imparting post-graduate/post
doctoral" training. Nor. does it specify the Universities/Institutions
which have prescribed a syllabus for the post-graduate/post doctoral
courses leading to post graduation in DM (Cardiology), period of
study, conduct of examination etc.
A
B
It is not necessary to set out the facts in any detail and it is
sufficient to give only the salient facts to elucidate the points in controversy. On 1st July, 1983 the State Government purported to prepare a panel of all Assistant Professors of Cardiology in Government
Medical Colleges in the State having the requisite teaching experience
under r. 5 after obtaining the post-graduate qualification as specified
C
in Annexure II. There existed on that date four vacancies in the post of
Professor of Cardiology which occu~red on 1st November, 1982, 1st
March, 1983, 1st May, 1983 and in June 1983. According to the
Government, the teaching experience contemplated by r. 5 of the
Rules was the teaching experience gained by the Assistant Professor in
the concerned speciality after obtaining the second post-graduation
D
degree in that speciality. The Government therefore included in the
penal the names of Dr. G. Subramanyam, Dr. A. Rajagopala Raju
and Dr. Soghra Begum, Assistant Professors of Cardiology, who had
as on the crucial date 1st July, 1983 five years teaching experience after
obtaining their post-graduation degree in DM (Cardiology) as enjoined by r. 5 read with the first proviso there\o, and accordingly by
E
order dated 17th August, 1983 promoted them to the post of Professor
of Cardiology. Thereupon, the respondents Dr. R .. Murali Babu Rao
and Dr. G. Sai Gopal moved the Andhra Pradesh Administrative
Tribunal assailing the impugned order of promotion. The claim of the
respondent Dr. R. Murali Babu Rao was that he having obtained his
degree in MD/MRCP in Medicine was posted as Assistant Professor of
F
Cardiology w.e.f. 18th January, 1978 and while continuing to work as
such, he was selected to undergo a super speciality course in Cardiology i.e. DM and was deputed for that purpose on 18th January, 1980.
After completing his DM (Cardiology) in April, 1981, he was posted as
Assistant Professor of Cardiology from 12th June, 1981. Upon that
basis, he claimed that apart from being seniormost Assistant Professor
G
of Cardiology, he had five years of teaching experience in the Department of Cardiology .as Assistant Professor of Cardiology as on 18th
January, 1983. According to him, if a panel had been prepared on 1st
January 1983, he would have been the seniormost candidate in service
with requisite qualifications for any vacancy from 1st January, 1983 to
1st July, 1983. He characterised the action of the State Government in
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184
SUPREME COURT REPORTS
[1988] 3 S.C.R.
A
the matter of computation of five years teaching experience after posi~
graduation as required under r. 5 of the Rules only after the second
post-graduation degree in DM (Cardiology) as being wholly arbitrary
and irrational. Th€ State Government in the counter before the Tribunal repudiated his claim and contended inter alia that under r. 5 of
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the Rules, one must possess five years teaching experience in the
speciality concerned after obtaining the post-graduate qualification in
the concerned speciality i.e. after the second post-graduate course. It
was averred that after completion of his post-graduate course in DM
(Cardiology), the respondent had been posted as Assistant Professor
of Cardiology on 12th June, 1981 and thus he would complete the
three years period as Assistant Professor of Cardiology after acquiring
his post-graduate degree in DM (Cardiology) only on 11th June, 1984.
In the normal course, it was said, he would then become qualified for
promotion as Professor of Cardiology.
The claim of the other representationist Dr. G. Sai Gopal was
more or less similar. He acquired his degree in MD in Medicine in 1973
and was posted as Assistant Professor of Cardiology in September
1973. He obtained his second post-graduate degree in DM (Cardiology) on 14th December, 1981. His grievance is that he has been dis-
. criminated against by the Government. While he was working as
Assistant Professor of Cardiology after obtaining his post-graduate
degree in MD in Medicine, in 1978 he applied for study leave to join
the All India Institute of Medical Sciences, New Delhi for undergoing
further studies for the second post-graduation degree in DM (Cardiology). It was refused and he was asked to resign from service while the
Government granted such leave to respondent no. 3 Dr. Soghra
Begum and therefore he should have been treated at par with her as if
leave had been granted, and thus he would have completed his DM
(Cardiology) course in the year 1980 itself. During the year 1979 the
Government however relented and granted him leave to study DM
course in Cardiology in the All India Institute of Medical Sciences, New
Delhi where he completed his DM (Cardiology) on 13th December,
1981. As he had put in 1 year 6 months 27 days after his post-graduate
degree in DM (Cardiology) and even after giving credit for 2 years 4
months and 18 days i.e. the second post-graduation course period, he
was short of the requisite five years teaching experience and thus the
Government considered him ineligible for promotion.
Of the three Assistant Professors of Cardiology promoted as
Professors, the Government placed before the Tribunal a tabular chart
H
showing that Dr. A Rajagopala Raju had a teaching experience of
y
GOVT. OF A.P. v. DR. R. MURALI [SEN, J.[
185
about 3 years 3 months as on 1st January, 1983 and with the gaining of
teaching experience during the second post-graduation degree of
about two years, he had a total teaching experience of over five years.
As regards Dr. Soghra Begum, it was averred that she already had 3
years 2 months and 16 days teaching experience as Assistant Professor
of Cardiology after obtaining her post-graduate degree in MD/MRCP
in Medicine, when the Government deputed her to undergo further
studies for the second post-graduate course in DM (Cardiology) and
therefore the Government, as in the case of Dr. A Rajagopala Raju,
decided to count the period when she was undergoing the second
post-graduate course in DM (Cardiology) towards her teaching
experience.
It would appear from the tabular chart that Dr. G. Subramanyam who had also been promoted to the post of Professor of . _
Cardiology was not a party to the proceedings before the Tribunal and
had in fact been promoted to that post in November, 1982. In view of
this, and as he was admittedly senior to the respondent Dr. R. Murali
Babu Rao, he did not press his claim against Dr. G.-Sai Gopal.
The appellant C.H. Umesh Chandra has come up in appeal as
the view expressed by the Tribunal prejudicially affects him. ·He
obtained his post-graduate degree in MD in Medicine in December,
1975 and his second post-graduate degree in DM (Cardiology) in April,
1980. He had put in as Assistant Professor of Cardiology 3 years and 2
mouths. Even after giving credit for 1 year and 9 months i.e. the period of
his second post-graduation course in OM (Cardiology), the Govern-_
ment was of the view that he was aot eligible. In view of the fact that
he obtained his second post-graduation degree in OM (Cardiology) in
April, 1980, he seeks to support the stand of the Government as he has
a better chance for promotion than the others to the promotional post
of Professor of Cardiology.
To appreciate the contentions advanced, it is necessary to set out
the relevant provisions of the Andhra Pradesh Medical & Health
Service Special Rules 1982, as amended from time to time. They are
A
B
c
D
E
F
extracted below:
G
"3. Clinical and Non-Clinical Specialities: The Clinical
and Non-Clinical Specialities shall be as shown in Annexlire-I to these rules."
"( 4). Teaching experience for promotions:
H
186
A
'B
c
D
E
F
G
H
SUPREME COURT REPORTS
I 1988] 3 S.C.R.
(a) Professors-Clinical, Non-Clinical and Dental: A
Deputy Civil Surgeon or an Assistant Professor shall be
eligible for promotion as Professor after putting in a total
teaching experience of 5 years in either or both categories
in the concerned specialities.
y
(b) Deputy Civil Surgeon (Clinical, Non-Clinical,
J.__
Dental):****
(c) The teaching experience specified in sub-rules (a)
and (11) above, shall be computed as on the 1st January or
the 1st July of the year in which panels for promotions are
prepared."
"(5) Teaching experience: Teaching experience specified
in rule 4 shall mean teaching experience in the speciality
concerned in a Medical College or an institute recognised
by the Medical Council of lridia after obtaining postgraduate qualification as specified in Annexure II.
Provided that the teaching experience during second
post-graduation in a recognised College or Institute within
the country or abroad in the concerned speciality of those
who are:
(i) Holding teaching appointments; or
(ii) Holding beds under their charges or
(iii) Doing tutorial work;
shall count towards teaching experience for purposes of
this rule.''
"7. Special Training: Special training specified in these
rules shall mean the work done by an Assistant Professor or
Deputy Civil Surgeon in the concerned recognised unit and
exclusively devoted to the speciality. Teaching experience
during the special training period in the speciality shall
count twoards the training."
"(8) Preparation of panels: (1) The Government shall
prepare a panel to fill-up all the promotional posts included
A
.
.\
-·
.
--~
"S.
No.
(1)
17.
GOVf. OF A.P. v. DR. R. MURALI [SEN, J.]
187
in Class-I available on 1st January and 1st July of the year
A
based on the eligibility of the persons including the teaching experience as on lstJ anuary and 1st July of the year."
"(9) Qualification:(!) No person shall be eligible for
promotion to the posts specified in column (3) of Annexure
II unless he/she possesses the qualifications specified in the
B
corresponding entry In-column (5) thereof.
(2) Preference shall be given to persons who possess the
qualifications specified in item (a) over those who possess
the qualifications in item (b) of.Column (5) of Annexure II
for the posts of Professors and Deputy Civil Surgeons beC
longing to the specialiti.es specified in Annexure III."
ANNEXURE II
. (NON-CLINICAL SPECIALITIES) See Ruies 5 & 9
D
Name of
Post
Qualifications
Degrees
Speciality
(2)
(3)
(4)
(5)
Cardiology Professor/ Must possess one (a) D.M.
Dy. Civil
of the following
(Cardiology)
E
Surgeon
post-graduate
(b) M.D./M.R.C.P.
qualifications in
in
the concerned
Medicine
speciality from
with2
a recognised
years
University/Board/
training
F
Body.
in
Cardiology."
The entire controversy is due to the failure of the State Government to give the benefit of the teaching experience gained by Assistaot
Professors after they obtained their post-graduate degree in MD/ G
MRCP in Medicine under cl. (b) of column 5 in serial no. 17 of Annexure II. In the proceedings before the Tribunal, the State Government
i'n the counter revealed that there was correspondence between the
Directorate of Medical & Health Department with Secretary to the
Medical & Health Department since the year 1981 for deletion of the
alternate qualification prescribed in cl. (b) of column 5 in serial no. 17
H
188
SUPREME COURT REPORTS
11988] 3 S.C.R.
A of Annexure II, namely MD/MRCP in Medicine, as amended from
time to time, for all teaching appointments in the super specialities, as
per the recommendations of the Medical Council of India. On the
recommendation of the Directorate, it was said that the State Government had decided to· delete the alternate qualification prescribed in
B
c
r. 5 of the Rules for eligibility to the higher post of Professor in a super
speciality, and had sent a draft amendment to the Special Rules for
concurrence to the Andhra Pradesh Public Service Commission and
the same was awaited. The recommendations of the Indian Medical
Council had not by then i.e. till the hearing before the Tribunal, been
translated into aetion. The judgment of the Tribunal however reveals
that the alternate qualification in cl. (b) of column 5 in serial no. 17 of
Annexure II i.e. MD/MRCP in Medicine with two years training in
Cardiology stood deleted w.e.f. 12th December, 1983. On the crucial
date however i.e. on !st July, 1983, when the impugned panel was
prepared, the alternate qualification in cl. (b) was still there.
The contention on behalf of the State Government and the other
1 '
'D appellants before us, as was before the Tribunal, is that the rules made
under the proviso to Art. 309 of the Constitution, are subject to the
recommendations made by the Medical Council of India which is
invested with statutory power under s. 19A of the Indian Medical
Council Act, 1956 insofar as they relate to coordination and determination of standards for medical education and in particular to prescrip-
}--
E
tio.n of qualifications for appointment to teaching posts in higher
specialities. It is said that the directions of the Council, as conveyed by
the Secretary by his letter dated 26th April, 1976 were mandatory,
notwithstanding any provision to the contrary contained in the Andhra
Pradesh Medical & Health Service Special Rules, 1982 and must therefore prevail and were binding on the Government. The Government
'}..
F
duly considered the claims of the respondents aforesaid and came to
the decision that they were ineligible for promotion to the post of
Professor of Cardiology inasmuch as they did not possess the requisite
five years teaching experience in the speciality concerned after obtaining their post-graduation qualification within the meaning of r. 5 of the
Rules i.e. second post-graduation degree in DM (Cardiology). The
G
further contention is that, at any rate the alternate qualification in
cl. (b) of column 5 in serial no. 17 of Annexure II, namely, MD/MRCP
,,>..
in Medicine with two years training in Cardiology, having been deleted
by GOMS No. 789, Medical & Health Department, dated 12th
December, 1983, it was not necessary for the Government to comply
with the direction made by the Tribunal to draw up a panel of the
H
eligible candidates afresh under r. 8 of the Rules. The contention,
I
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\
GOVT. OF A.P. v. DR. R. MURALI [SEN, J.]'
189
in the alternative, was that the Tribunal failed to appreciate that the
teaching experience gained by Assistant Professors of Cardiology before obtaining the second post-graduate degree in the speciality concerned. i.e. after the post-graduate degree in MD/MRCP in Medicine,
could not be taken into consideration inasmuch as under r. 9(2) preference has to be given to persons who possess the qualifications specified
in cl. (a) over those who possess the qualifications specified in cl. (b)
for the post of Professor belonging to the speciality specified therein
and therefore it was not justified in quashing the panel prepared by the
State Government under r. 8. We are afraid, these contentions cannot
prevail.
The fallacy underlying the arguments is obvious. Rule 4 in terms
speaks of the eligibility of such class of Assistant Professors of Cardiology for promotion to the post of Professor of Cardiology who possess
five years teaching experience. The expression 'teaching experience'
as defined in r. 5 speaks of 'teaching experience in the speciality con-
. cerned in a medical college or an institute recognised by the Medical
Council of India after obtaining post-graduate qualification as specified in Annexure II'. The words used are 'after obtaining postgraduate qualification'; it does not speak of the second post-graduate
qualification. Rule 5 therefore takes in both the qualifications
specified in els. (a) and (b) of column 5 in serial no 17 of Annexure II,
namely, (a) DM !Cardiology) (b) MD/MRCP in Medicine with two
years training in Cardiology. On the crucial date 1st July, 1983, cl. (b)
was very much there and the Government was bound to consider the
claims of the aforesaid respondents like other officers belonging to
that class before drawing up a panel under r. 8. There is no warrant for
the submission that since under r. 9(2) an Assistant Professor with the
requisite five years teaching experience after obtaining his second
post-graduate degree in DM (Cardiology) would have preferential
claim over those having qualification mentioned in cl. (b) i.e. MD/
MRCP in Medicine with two years training in Cardiology, the State
Government was entitled to ignore the claims of the latter class
altogether. On its plain construction, r. 9(2) is a rule of preference
and has therefore to be applied at the stage of making appointments to
the post of Professor of Cardiology and not while drawing up a panel
under r. 8. The Government was obviously misled by the wrongful
assumption (i) that since the alternate qualification in cl. (b) of column
5 in serial no. 17 of Annexure II had been deleted by GOMS No. 789
dated 12th December, 1983, it was not necessary for it to consider the
claims of the aforesaid respondents and others similarly situate in
drawing up a list of eligible Assistant Professors of Cardiology to fill up
A
B
c
D
E
F
G
H
A
B
190
SUPREME COURT REPORTS
I 1988] 3 S.C.R.
the promotional post of Professor of Cardiology, and (ii) that such
officers were rendered ineligible by reason of r. 9(2) and therefore
their claims m~ed 'not be considered. The Tribunal was therefore
justified, in. our ?Pinion, in quashing the impugned panel prepared by
the State Government under r. 8 of the Rules and in directing the
Government to prepare a penal afresh after considering the claims of
all Assist.ant Professors of Cardiology with five years teaching experience after their post-graduation in MD/MRCP in medicine with two
years training in Cardiology.
There is no substance whatever in the contention that the
alternate qualification in cl. (b) being in conflict with the recommendation of the Medical Council of India, must be deemed to have been
C repealed by implication and was non-set w.e.f. 31st May, 1977.