# STATE, OF BIHAR & ANR v. DR. ASIS KUMAR MUKHERJEE & ORS

- **Citation:** [1975] 2 S.C.R. 894
- **Court:** Supreme Court of India
- **Decided:** 1974-12-03
- **Bench:** V. R. Krishna !Yer, P. K. Goswami, A. C. Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-bihar-anr-v-dr-asis-kumar-mukherjee-ors-6368
- **Pages:** 13

## Headnote

A
Indian Medical Council Act, 1956-s. 2 -1'eaclzi11g instillllio11, teaching, ex·
B.
perience-Meaning of duty of Stare Government to consult the Council ill
cases of doubt-Wile11 tile Hi1<1! Court could call for Cabinet papers or other
sensitive materials for i11spectio11-Whether Srate should make a reasoned order
of appoim111e111.
Respondent No. 1, along with two others, was a candidate for one of the
two po->ts of kc'.urers in the government run medical colleges in the State.
On•e
of the importd.nt qualifications prescribed for the post was "teaching experii:nce
c·
in it kaching institution." The respondent satisfied the other a:ademic quaJifi.
cations prescribed for 'the post. The State Government rejec'.ed the contention
of respondent No. 1 that he had acql!Jred the required
~!aching expe knee
when he work!:d in United Kingdom and was. therefore. entitled to be appoin'ed
as a lecturer. The High C<1uit, in a writ petition under article 226 of the
Constitution by respoudent No. 1, quashed the dec'sion of th~ Government and
di:ec!ed it to reconsider his. case. The Government exi;mined th~ 0:a>e do novo
arid again found respondent No. I to be ineligible for the post. When the
rcsi;1ondcnt went to the High Court in a second attempt impugning the Qecisions
D·
of the tlovernment the High Court examined the Cabinet papers. and other
reports and nc>tings of the ollicers, both technical and administrative, ' and
qua1hed !he decision of th·~ Government The appellant and the respond•mts
appealed to this Court.
It was contended on behalf of the State that the "teaching experience'" in
a "teaching institution" visualised by the regulatlons must be in India and not
in a foreign .:ountry; that even assl.,ming thM the Brili'sh Med;cal Institutions
cou1tl come within the purview of the regulations, the post of Registrar held by
K
respondent No. I had not been shown to carry 'teachin~ exoerience': that the
hospitals and the Universities where respondent No. I worked were not proved
to be teaching ins'itu'.ions and that the t(~stimonials produced by the respondent were not reliable.
·
Dismissing the itppeals of the State
HELD : (I) (a) The first respondent's case for the post has not b~en considered from the legal angle. ' The orders of a:ppoin'ment of the aonellant in
F.
C.A. 1431 of )974 were bad in law. The anpetlants in C.A. 1430 of 1974 are
di·ccted to co11sider de novo the appointments to the two posts of lecturers.
Government will be free to consul! t11>:hnical au•horiti·~s of its own befnre reaching a decision. The first respondent is at :liberty to adduce materials to satiisr·
the State Government on his qualifications (or otherwise). [905G-A]
(bl While the expressions 'medical institution•' and 'npproved in~tit11tions'
a•e defined in s.2 of the Med'cal Council Act 1956, neither 'tell!:hin~ ex"1~ri·
cnce' nor 'teaching inl'itution' has be•.n defined in the Act. rn'~s or r·~ul•tirins.
G
It would be natural to expect any authority like the State Government t' call•d
upon to constnie th•!se words med in the set.ting of a m"tFci•l s11tu•e. if in doubt,
to consult !he
hi~h professional autbo-ity enjoying stittutory status namdy,
the Medical Council of India. [9dpF -F]
·
Jn the inst:int case tne State Government i:; said to have taken a pol'cv
dcci•fon not to con>ult Medic"! Counc'l of In<l;3 berrw~ on an •ea· 'e· o·~cw>ion
the Med'cal Council had given a view once bu• morliAe~ it a littl•. later .. Although there is nothing on the record to prove the allega•ions of th·' Stat-e .. if
H
it were true· that national !echnica:l bodies were shaky on c·ucial o:casions, th-.v
lend themselve!l to the 'usnicion that oressure oav,, While the appointing
authority is thr State Government and the responsibility for final choice vi:sts
A
B
c
D
E
F
G
H
BIHAR v. A. K, MUKHERJEE (Krishna Iyer, J.)
8 95
in it, it is reasonable to consult bodies or authorities of high technical level
when the points in dispute are of technical nature.
[900 G-H]
(c) Teaching

## Text

_Characters 0–39,845 of 41,539. This is a partial read: ask again with offset=39845 for what follows._

894
STATE, OF BIHAR & ANR.
v.
DR. ASIS KUMAR MUKHERJEE & ORS.
December 3, 1974
(V. R. KRISHNA !YER, P. K. GOSWAMI AND A. C. GUPTA, JJ.)
A
Indian Medical Council Act, 1956-s. 2 -1'eaclzi11g instillllio11, teaching, ex·
B.
perience-Meaning of duty of Stare Government to consult the Council ill
cases of doubt-Wile11 tile Hi1<1! Court could call for Cabinet papers or other
sensitive materials for i11spectio11-Whether Srate should make a reasoned order
of appoim111e111.
Respondent No. 1, along with two others, was a candidate for one of the
two po->ts of kc'.urers in the government run medical colleges in the State.
On•e
of the importd.nt qualifications prescribed for the post was "teaching experii:nce
c·
in it kaching institution." The respondent satisfied the other a:ademic quaJifi.
cations prescribed for 'the post. The State Government rejec'.ed the contention
of respondent No. 1 that he had acql!Jred the required
~!aching expe knee
when he work!:d in United Kingdom and was. therefore. entitled to be appoin'ed
as a lecturer. The High C<1uit, in a writ petition under article 226 of the
Constitution by respoudent No. 1, quashed the dec'sion of th~ Government and
di:ec!ed it to reconsider his. case. The Government exi;mined th~ 0:a>e do novo
arid again found respondent No. I to be ineligible for the post. When the
rcsi;1ondcnt went to the High Court in a second attempt impugning the Qecisions
D·
of the tlovernment the High Court examined the Cabinet papers. and other
reports and nc>tings of the ollicers, both technical and administrative, ' and
qua1hed !he decision of th·~ Government The appellant and the respond•mts
appealed to this Court.
It was contended on behalf of the State that the "teaching experience'" in
a "teaching institution" visualised by the regulatlons must be in India and not
in a foreign .:ountry; that even assl.,ming thM the Brili'sh Med;cal Institutions
cou1tl come within the purview of the regulations, the post of Registrar held by
K
respondent No. I had not been shown to carry 'teachin~ exoerience': that the
hospitals and the Universities where respondent No. I worked were not proved
to be teaching ins'itu'.ions and that the t(~stimonials produced by the respondent were not reliable.
·
Dismissing the itppeals of the State
HELD : (I) (a) The first respondent's case for the post has not b~en considered from the legal angle. ' The orders of a:ppoin'ment of the aonellant in
F.
C.A. 1431 of )974 were bad in law. The anpetlants in C.A. 1430 of 1974 are
di·ccted to co11sider de novo the appointments to the two posts of lecturers.
Government will be free to consul! t11>:hnical au•horiti·~s of its own befnre reaching a decision. The first respondent is at :liberty to adduce materials to satiisr·
the State Government on his qualifications (or otherwise). [905G-A]
(bl While the expressions 'medical institution•' and 'npproved in~tit11tions'
a•e defined in s.2 of the Med'cal Council Act 1956, neither 'tell!:hin~ ex"1~ri·
cnce' nor 'teaching inl'itution' has be•.n defined in the Act. rn'~s or r·~ul•tirins.
G
It would be natural to expect any authority like the State Government t' call•d
upon to constnie th•!se words med in the set.ting of a m"tFci•l s11tu•e. if in doubt,
to consult !he
hi~h professional autbo-ity enjoying stittutory status namdy,
the Medical Council of India. [9dpF -F]
·
Jn the inst:int case tne State Government i:; said to have taken a pol'cv
dcci•fon not to con>ult Medic"! Counc'l of In<l;3 berrw~ on an •ea· 'e· o·~cw>ion
the Med'cal Council had given a view once bu• morliAe~ it a littl•. later .. Although there is nothing on the record to prove the allega•ions of th·' Stat-e .. if
H
it were true· that national !echnica:l bodies were shaky on c·ucial o:casions, th-.v
lend themselve!l to the 'usnicion that oressure oav,, While the appointing
authority is thr State Government and the responsibility for final choice vi:sts
A
B
c
D
E
F
G
H
BIHAR v. A. K, MUKHERJEE (Krishna Iyer, J.)
8 95
in it, it is reasonable to consult bodies or authorities of high technical level
when the points in dispute are of technical nature.
[900 G-H]
(c) Teaching institutions abroad not being ruled out, 'it is right tci reckon as
competent and qualitatively acceptable those institutions which are linked with
ur are recognised as teaching institutions by the Universities and Organisations
in Schedule 11 and Schedule Ill and recognised by the Central Government under
s.14. Teaching institutions as such may be too wide if extended all over the
globe but viewed in the perspectlve ot the ln1fiun Medicul Council Act, 1956 certainly they cover institutions expressly embraced by the provisions of the statute.
If those institutions are good enough for the important purposes of ss. 12, 13 and
14 it is reasonable to infer they are good enough for the teaching experience gained therefrom being reckoned as satisfactory. [90!Ci-HJ
\ d) The. first respondent must make out that the institutions in which he
worked fall within the species indicated above. Prima facie there is no reason
to suspect that the testimo_nals produced by him are tmmped up.
Unless proved
to the contrary they should be taken by a public authority acting bona fide,
at
their face value.
[902 EJ
·
(e) From the certificates issued by Professors it is clear that the first
respondent who worked as Regi>trar for three years· did teach. There aN
six
certifica~es. on re;ord which slate that the first respondent had taken part in
teaching work as Registrar.
Unl·~·.\s
s~rious circumstances m;litating
against
veracity exist fairmitided administrntors may, after expert consultations. rely
on them.
[902 F-GJ
( f) While it is difficult to accept the contention that 'assisting' or 'participating' is different from 'a,:!ilal teaching' it is not for the Cou"t to finally
pronounc~ on it, the matter being esijlntially a technical one. These ma-tters
have to be decided by the appoinUng aulhority. [903 11]
(2) It was the duty of the Government to be satisfied on reasonable ma!eria's, that (a) the U.K. hQspitals relied on by the 1st respond·~nt l.b:e teaching
institutions; (b) the pos!s of Regi'3tmr in which he worked for three years
involved teaching functions, the question being looked at fai1ly, not by semantic hair splitting and qmbbling on words like 'participatmg' in teaching;
(c)
the testimonials or written testimony from any British or Indian Orthopaedic;.
Professor will be taken at
it~ face valL'.e except where grave suspicion taints
such documents, high placed academic men being assumed to. be veraciom. in
the i>lY3ence of· clear .:onlrary indications; (d) Indian experience. if any, of the
1st respondent will also be paitl attent'on, provided it satisfied the dual tests
contained in the regulations.
Jn !he instant case the State ha~ made
short
shrift of the first respondent by preliminary screening. [904 H: 905 A-Bl
(3) When a writ of certiorari is moved the Court has the power to call fo1
the record, but in cases where ma/11 fid<'s is not alleged or o'he' special c'rcumstances set out, sensitive materials in the possession of the Government may
not routinely be sent for.
Th·~ pow~r of the Court is wide but will hnv~ to be
exercised judicially and judiciously having regard to the totality of circumstances,
including the impropriety of every (lisgrunlled oarty gettini; an oppo"tunity
to pry into the file~ of governmont. Acts of nublic ;utho•iti•s must o,d;narily
be amenable lo puhlic scrutiny and not be hidden in suspicious secrecy. In
this case the Hi~h Court need not have looked into the CHbinet p.apers and
hack records.
[903 D-EJ
( 4) Although the Slate need not always make a reasoned order uf appointmen•, reasons relevant to the ru'es ml'.st animate the o·d~r. Mo•cover. an
obl'gation to consid·~r every qua'ified ,:andidate is imolici! in the· 'equal onoor·
tunitv' right en•·h•ined in Arts. 14 and 16 of -the Constitution. Sc·e•ninu. a
candidate out of coli;ideration altogether· is illeg"'l if ~he aoplicant has tli~ibirty
under the regulations end for such a drastic' step as refu<al to evaluate compa .. ativ•oly, th.at· i». exclusion from the iing of a competi!or m111n'fest g;·ound,
must anoear on the record.
l904 D-Ef
896
SUPREME COURT REP.ORTS
(1975) 2 s.C.R.
CIVIL APPELLATE JuRrSDICTION.·-<.:ivJl Appeal Nos. 1430 end
A
1431 of 1974. ·
From the Judgment and Order dated the 22nd November, 1973
of the Patna High Court in C.W.J.C. Nos. 423 and 430 of 1973.
Jagdish Swarup, Barjeshwar Mallik, Clzantlreshwar Jha and Promod
Swarup for the Appe,lants and Respondents Nos. 2 and 3 (In CA
No. 1430/74)..
.
R. K. Garg and Prarrwd Swarup for the Appellants and Respondents Nos. 2-4 (In CA No. 1431/74).
B. C. Glzose, S. B. Sanyal and A. K. Nag for Respondent No. 1
(In CA. No. 1430 and & 1431/74).
The Judgment of the Court was delivered by
KRISHN,A !YER, J.-We ma:y as well begin this judgment with a
prefatory sociological observation'. The meaning of two common expressions 'teaching experience' an.d 'teaching institution" incarna. etl
mto a iegal frame and subjected to forensic dissection and examination during three years of litigation makes up this bitter contest b~t
wcen a talented orthopaedip surgeon and two like rivals
trying to
break each other's academic bones· t<) gain the post of Lecturer in
Orthopaedics, one in each of two government medical colleges in
Bihar. Our judicial bone-setting operation cannot undo
the
social
farcture inflicted by this long exper.isive bout in court. Research and
reform of 'Im system is needed if the therupeutic value of Jaw is to
last and be not lost.
The two appeals before us, by special leave, unfold a musicalchair typ~ situation where three candidates ran for two posts in the
government-run Patna and Dharbanga Medical Colleges. Inevitably
one lost or, rather, was screened as ineligible, his British work and
cxrieri
0 nce n:itwithstanding, and, chagrined by his discomfiture, he
Dr. Mukhcrj·~e, chal'enged the whole selection by a writ petition on
the short and ambitious ground that he was not only qualified but
rnperior, with his briuht British career, to the other two India-trained
hands, Dr. Ram and Dr. Jamuar, but was illegally reiectcd as unqualified.
The main iss4e what arises· and was argued before us
by
he
State's counsel, supported by Shri Gar~ for the other candidates, is
that the Hi\!h Cotirt, which allowed the
writ p·:lition, grievously
erred in probing improperly into the concerned Cabinet papers and
unsc•tinir gnvernmen"s orders of apoointment, upholding the oetitioner's eligibility and directin~ a r·~consideration of the claims of all
the contenders on certain urtenable finding of fact and indefensible
interpretation of law. Did the petitioner possess the prescribed qualifications for the oost ? If he did, the Hiirh Court was ri~lit in directing
the appointing authority to consider his claims; and if did not. Q'QVPmmcnt ri11'1tlv il!J1ored his creden·ials for the oost as an
unqualifit~d
hand, dc:spite his impressive British testimonials and good showing
B
c
D
F
G
H
A
B
c
D
E
F
G
H
BIHAR v. A. K· MUKHl!RJl!ll (Krishna Iyer, /,)
897
otherwise. Such is the compass of the dispute which is basically a
technical question but, under our system, has to be decided by courts
.unaided by expert advice.
The case has taken three days of argument based on three heavy
volumes of appeal records-mercifully Jess than the eight days of
:1caring in the. High Court. · The colossal consumption of forensic
time, investmen! of considerable litigation expense and the diversion
of useful medical energy of three young specialists for three years in
two rounds of writ contests are the heavy social price paid by the
community for discovering through court-trained in law and not in
medicine, and called upon to adventure into 'the nature:', of actual
teaching experience and the names of approved leaching institutions
beyond Indian frontiers. The question involved is as to whether the
writ petitioner, a doctor . who worked in hospitals in Britain under
orthopaedic professors supposedly of great
repute,
had . teaching
experience in a teaching institution good enough under the Indian
statute and for the Patna College. From Olympic team selection
to
orthopaedic expertise the judicial robes are invited to exercise umpire's
jurisdiction under our system. Even were Judges angels, should they
not fear to tread where perhaps others may rush in ?
If it equally disturbing that Indian Courts, in contrast with some
other modern judicial systems, .are called upon to devote considerable
time for oral arguments to decide 1:ontroversial issues even of a
simple or. a short nature. Condensed .submissions and capsuled briefs,
familiar in certain foreign jurisdictions, and other reforms may, perlJ qns, with modifications. suit our genius. Here, in the higher Courts,
with mild exaggeration, it may be remarked that 'Time rolls his ceaseless course' and not unoften 'little fishes' .... 'talk like :whales'. The
superstitious regard for long oral hearing and long sneaking nrrlPrS
as a sacred safeguards of iustice may be counter-productive of the
efficacy of law in the solution of social iSsues, thus diminishing the
ultimate justness of legal justice.
Like in other complex modem operations, the processes of legal
ju~tice call for management techniques and methodclogical reforms,
anc1 definition of the range of operation for success. all of which must
be the oublic concern of the Bench and the Bar (and the community) alike. animated by the social mission of shortenin~ tim~ and
e:r.pense and becoming meaningful in securing iu<tice. These observaticins. made en n'lvsrmt, are orovoked by •he tricky m ·: · ~s of the
lit:gation in which the parties here are caught and the frt., -~nt phenomena these tend to l:>e.
The oetitioner b~fore the High Court. Dr. Mukherjee, is the tst
rrsoondent in both the aooeals b0fore u8 while the State of Bihar. the
Health Commissioner and the Health MiniMer are the aooellants in
C.A. 1430 of 1974. The defeated doctors Dr. Ram and Dr. Jamu~r,
w'i11~e a"'IOintments h:w~ b"en uryset bv the H;<!h Court, are the appellants in the connected appeal No. 1431 of 1974.
The ou~rrel is over whether the 1st resnondent could be consirlered
for appointment. Certain peripheral contentions apart, the core of the
898
SUPREME COURT REPORTS
fl 975) '},$.C.R.
matter is the possession by Dr. Mukherjee of teaching experience 'as
Reg;s,rar tor at least tnree years in ortaopaedics or' allied subjects in
a teaching in.stitution'. Other basic qualifications ~t.atutorily l:tuJ u0.{11,
he "Oit1J.Li:ed1y has. Prima facie he has worked for three years under
apparently outstanding British orthopaedic surgeons. Nevertheless, we
are called upon, in the absence of statutory definition, to pronounce
upon the swficiency of this experienc1! vis a vis the relevant n:gulatious. Commonsens·:i suggests th!lt such technical questions should be
judge-proof ~xcept in giaring cases, or malafide exercise. In th1:se
sp.:ciauscd areas 1egaJ too1s may not work but we are enjoined· to
decid·~ the legality of Government's order and so we shall. Art. 226
of the Constitution has come to be a universe! nostrum but judicial
robes are not omnisci~nt. The whole case turns on the precise construction of the burred expression 'teaching experience' in a 'teaching
institution' oc:curring in the regulations framed by the Medical Council of India under s. 33 of the Indian Medical Council Act,
1956
(h~reinafter c:alled the regulations and the Act, for short, respectively).
The Act has created a statutory body designated the Medic:al
Council of India, charged with technical and professional respomiibilities. Sectitm 33 vests power in the Council to make regulations,
with the approval of the Government of India, laying down qualifications required for appointment of persons to the teaching and alli1:d
posts in medical colleges! It is common ground that we are concemi:d
with two such, medicar colleges and to two such posts. Under the relevant regulation, for a lecturer's post in orthopaedics, teaching experience in a teaching institution is a sine qua non. (We ignore some
proposed chauge omitting '(teaching institution'). But w.hat is 'teaching experi·enc(~'? What is a 'teaching institution''? Too simple to
deser11e an answer, one might be tempted to think; but too abstruse,
when examined in the forensic crucible, to be disposed of in less than
59 pag.es b_y the High Court and less than several hours of argument
i11 this Court. Lega'ese makes complex what looks simplex.
Now to the further facts and the legal stances. The Government
of Bihar took the view, while appointing lecturers in Orthopaedics,
that t!:e first resoondent did no~ have the necessary teaching exp1:-
rlence in a teaching. institution whereupon he sought refuge in the
writ jurisdiction of the High Court and filed C.W.J.C. 754 of 1972
cont·ndin~ that he had acquired tl)e required teaching expcrienc:e
durim? the time he worked in the United Kingdom and was therefore
entitled to be appointed lecturer. The State met the challenge on
manv grounds. Inter aliai it urged that the rule does not recoimi2:e
teachin!'.! exPeriPnre eaired in a forl'.ie:n country. A circular Hta
is~u·d bv the Deoutv Director of Health Services, dated April 14,
1961 m<1s a1so cited We a<>ree wit'1 the Hi~h Court (vidP. para 24 'of
its judgment) . that the sairl circular though adooted bv Governm~nt
on Julv 13. 197?. ha-I nn b0 ar1n!'.! on th~ crurial i•sue nf artnol t0 0~1'1ing exoerience. The Court, however, quashed t'1e decision of Govem~
ment and directed it to reconsider the case of the 1st responrlent here'-
in toe:et'ier with th"•~ of the · otlier two. Government examined the
cases de novo in obdience to the direction of the Court but agai:n
A
B
c
E
F
G
H
A
B
c
E
F
G
H
BlliAR v. A. K. MUKHERJEE (Krishna Iyer, 1.)
899
held against th~ 1st respondent's eligibility. The aggrieved 1st respondent hurried to tile High Court again and succeeded a second time
in persuading it to. quash the order and to issu~ a writ to the State to
consiuer the claim of Dr. Mukherjee, the 1st respondent, findmg that
he did possess the requisite experience. In so doing the High Court
called for and examined the C_abinet papers and other reports and
notings of the officers, technical and admmistratlv~. The frustrated
candidates and the aggrieved State have filed the two app~als assailing
the judgment on the fol.owing principle ground~ :
(i) That the t~aching experience in teaching institutions
visualis~d by the regulations must be in India and
not abroad. If this be valid, the
1st respondent
would be clean bowled, since his qualifi~ations in this
regard were attained in England.
(ii) The post of Registrar filled by Dr. Mukherjee in
England had not been shown to carry
among its
functions teaching, so that the length of occupancy
of that office did not prove 'teaching experience' even
assuming that British Medical Institutions could
come within the purview of the regulations.
(iii) In any view, the hospitalS, the the Universities
to
which they were linked, where Dr. Mukherjee worked
were not proved to be teaching institμtions either
recognised by the Medical Council of
India
Jr·
regarded as such under the provisions of the British
National Health Service Act.
(iv) The testimonials produced by the 1st respondent or
·at least some of them were not reliable and could
not,. withodCfurther proof, be treated as probative
of their contents.
A few other arguments were addressed regarding relative seniority
or length of teaching service and allied matters which are not germane
to the determination of the issue before us. Maybe such considera ·
tion will. be pertinent when the appointing authority makes comparatiw evaluation among the candidates.
The
submission
by
Shri
Jagdish Swaroop based on the dichotomy in the National
H~alth
Service Act, 1946(') between teaching a~ non-teaching hospi'als
has no substance. It is true that under s. 11 (8) of that Act the
Minister of Health is authorised to designate as a teaching hospital
any hospital or group of hospitals which appears to him to provide
for any university faci'itie's for undergraduate or post graduate clini- .
cal teaching. We have no ma\erial to find out whether hosoitaJs not
so desienated do provide facilities for teaching nor the criteria and
purpose guiding the Minister in exercising his power.
Certainly it
will be of great lielo to the l st resoondent to orove his <:.1se that •he
hoSDitai he worked in
was a techinq hoso•tal had it come under the
notification of the Minister. The converse does not necessarily foJlow.
We are concerned with an Indian situation and called uoon to construe words which are not defined ana therefore bear their natural
(I) 9 & IOOer·rge 6 C. 81.
900
SUPREME COIJlT REPORTS
[197SJ 2 s.c.a.
meaning. In this view we do not pr~d to examine whether the
hospitals in which the 1st respondent claims to have gained teaching
experience belong to the category designated under s. 11 ( 8) of the
British Act. ·
Section 3 of the Indian Act makes it clear that the constitution
and compos.ition1 10f a high powered Council ;if
professional
men
v1.:•t~d witn the responsibility to oversee the conduct of examinations
and ensure minimum standards .of medical edu~ation is dmong tlle
objects of the statute. The Council has vast powers including the xole
of consultant in some vital matters and according recognition of
medical qual.ifications granted by institutions in India (s. 11), in
countries with which there is a scheme of reciprocity (s. 12) and of
degrees etc. granted by certain other institutions (s. 13). These three
categories of medical institutions are covered by Schedules One to
TI1ree of the Act. Section 14 relates to recogni<ion by the Government
of India of medical qualifications granted by some other countries
abroad, after consulting the Council. Inspection, collcctvm nf information, granting and withdrawing of recognitiou and the
like
are
als"o ancillary powers statutorily conferred on the Council. The regulation by the Council prescribing teac:hing experience for three years
in :i t:achfog institutions have statutory status. The provisions of he
Act form a <Conspectus and i'lurnine the meaning of the subsidiary
legislation. The Council's regulation under s. 33 must be read in this
background.
It may straightway be mentioned that while the expressions
'medical institution' and 'approved .institution' are ddin~d (vide s. 2),
_neither 'teaching experience' nor 'teaching institution' has been defined
in the Act, rules or regulations. Simple Anglo Saxon, the framers
must have presumed, must be cap11ble of easy , understanding and
interpretation. Nevertheless, counsel have argued at learned length on
th~ semantics of th0se words although we are inclined to take not a
pedantic nor artificial view of the import of these words but a simple
commonsense idea of their m
1eaning. Of course, it would be natural
to expect any authority (like the Bihar Government in
this case)
called upoti to construe these words useCI in the s~tting of a medical
statute, if in doubt, to consult the high professional authority enjoying statutory status, viz., the Medical, Council of India. It was faintly
suggessed at the bar that the Council had given a view once but modified it a Iitt'e somewhat later. We do not find any deviation nnd are
not d;s1Josed to side-tr:ick ourse·ves in'o such non germane issues. Tf it
were true that; national technical bodies were shaky on crucial occasions,. ( althougli ·we do no• find anything like that has
happeru:·d
here). thev lenct thcms<'lvr•. to the ~11«1icio11 t1>q1 nri>ssur" navs
We
are sure they will not exoose themselv1~s to this risk. In the present
case the Governl)lent of Bihar is stated to have taken a policy decision
not to con•ult th~ Medical Council of India~ While the apoointing
authority is the State Government an<I the resoonsibility for
final
choice vests in it. it is· reasonable to consult bodies or authorities of
:a high tcchnicnl level wheri .:the points in dispute are of a technical
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BIHAR v. A· K. MUKHERJEE (Krishfll' Iyer, /.)
901
nature. To consult another is not to surrender to that other, but
m.rely to seek assistance in the caretul exercise of public power. All
tlm we mean LO emp.1as1.Ze is that the plain words we have alrcad~
rt:f.::rred to, about the meaning of which the two sides have b~tut:d,
shou1d be read having due regard to their normal import, statutory
sct.1ug, prort:~s1onal ooiect ano msistence on standards.
Snri J agdish Swarup, counsel for the State, took us through the
various prov1s1ons of tne Act and empnas1sed that by and iaig~ tne
medical institutions the Act had in view and ov:::r wnich the coundl
had coutrol were Indian and uot foreign, and that thcreror.-:
the
· 'tcachmg institu~ions' and 'teaching experienc.:' specified in the regulat10ns m ques,1on also muse posess
lnd1Jn
flavour.
Patriolism
apart, it is apparent from the Act that it has recognized medical mstitut1ons in Umverslties without India (vide s. 12 and s.
14). The
qucsrion is not therefore so simple as to be solved by reference to
the Indian map. This country, while rejecting colonial reve!'ence for
British institutions has co·ntinued to accept and respect advances made
in medical specialities abroad, including the United Kingdom and the
United States, as is reflected in the Act. The India-bound construction
is untenable. Equally extreme· and unsustainable is the specious plea
of Shri Desai that any teaching experience .from any foreign teaching institution is good enough. Imagine teaching experience, acquired
from some unmentionably under-developed country which is new to
modern medicine being fobbed off on an Indian College 1 Reputed
institutions noted for their. advanced courses of teaching and training
cannot be ignored merely because they .bear a foreign badge. What
we have to look for is to find guidelines within the framework of thll
Act for fixing those foreign medical institutions. Such a nexus. mice
discernible might light up the otherwise iii-lit expressions 'teaching
experience' and 'teaching institutions'. We have therefore to look, at
the outset, for indicators in the Act . for deciding which foreign teach·
ing institutions may safely fall within the scope of regulation. The
whole object is to see that India gets highly qualified medical tC'9chers
and this is served neither by narrow swadeshi nor by neo-colonialism.
but by setting our sights on the lines of the statute. Indeed, the
argument that the teaching institutions in India alone can be taken
l'ote of had been urged and over-ruled in the first round of litigation
by the High .Court and the State Government had virtually accepted
that decision when it examined the case of Dr. Mukheriee in accor·
dance with the direction 1in writ petition C.W.J.C. No. 754 of 1972.
Teaching institutions abroad not being ruled out, we consider it
right to reckon as competent and qualitatively acceptable those institutions which are linked with, or are recognised as teachin<>. institutions by the Universities and or~anisations in Schedule II and Schedule
IIJ and recognised by the Central Government under s. t 4. Teachin~
institutions as such may be too wide if extended all over the globe but
viewed in the perspective of the Indian Medical Council Act. 1956
certainly they cover institutions expressly embraced bv the provisions
H · of the statute. If those institutions are good enoul!b for the imoortant
purposes of ss. t 2, 13 and 14. it is reasonable to infer they are J?ood
enoul!h for the teaching experience eained therefrom being rerkoned
as satisfactory. In this ~w tht~oblem is whether the institutions
902
SUPREME COURT REPORTS
[1975] 2 s.c.R.
referred to in the testimonials of Dr. Mukherjee come within the above
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recognised categories. We have also to see whether Dr. Mukhrjei:'s
service in those institutions as a Registrar, even if assumed in his
favour, amount to teaching experience. We will deal with these two
decisive ques.tions presently.
We agree that bald expressions 'teaching experience' and
'teaching institutions' with blurred contours have been at the root of
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the controversy but, as Denning, L.J., in Seaford Court Estates Ltd.
v. Asher(!) observed :
"When a defect appears a Judge cannot simply fold
his hands and b.ame the draftsman. He must set to work
on the constructive task of finding the inte.ition of Parliament ... , and then he must supplement the written words so
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as to give 'force and life'· to the intention of legislature .... A
judge should ask himself the question how, if the makers
of the Ad had themselves come across this ruck in the
texture of it, they .would have straightencu it out ? He must
then do as they wou'.d have done. A judg..! must not alter the
material of which the Act is woven, but he can and should
iron out the creases."
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We take the cue from these observations in ithe construction we have
adopted above.
The Indian teaching institutions plea having
been
over-ruled
earlier, its die-hard persistence this time is unfortunate. Even so, the
1st respondent must make out that his institutions fa!J within
the
species we have already indicated. Prima facie they do and there
is
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no reason to suspect that the testimonials ;:>roduced
by
him
are
trumped up. Unless proved to the contrary they should be taken by
a public authority acting bona fide at their face value. ·
Teaching (:xperience of the requisite period is another component
of qualifications. A Registrar, the first respondent was,
for
three
year:;. But did he teach during that term ? He did, if we read his certiF
ficates issued by professors like. Dr. Robert Roaf and Dr. . Gf:offrey
Osbrone. The aooellants however have challenged their reliability.
There are 6 certificates now on record and the 1st respondent is stated
to have taken part in teaching work as Registrar. You cannot expect
to produce those surgeons in Patna in proof and unless serious circumstances militating against veracity exist · fair-minded
administrators
may, after expert conswtatiOns, rely on them. W ~ are sure GovernG
ment will not depart from fair play in this case or stand on prestig(:
on such an issue to stick to their earlier posiiions.
The State has sug~ested that some clarificatory testimonials might
have been procured later from the professors abroad. There is nothin~·
wron~ in obtainin~ such testimonials to clarify the position and we:
see no unusual bias in these testimonials from such outstanding Pro-·
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fessors of Orthopaedics in British Universities.
(I) [1949] (2) All. E.R. 155, 164.
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BIHAR v. A. K. MUKHERJEE (Krishn~ Iyer, I.)
903
The simpb question is whether a Registrar, like the petition1:r, did
or cou,d acquire teaching experience. On the language of those . documents there is some marginal doubt, in the sense that he is stated to
have ·pdftrc1pa,e<1' or ·assisted' m teachmg. The contention of the other
siue naturaliy is that 'assisting' or 'participatmg' is
rlifferent from
'actual teaching'. While we are hesitant to swallow such a contention
it is not for us to finally pronounce on it, the matter being csswtiaiy
a technical one. Indeed we have restrained ourselves from finally
starn1g whether the institutions in which Dr. Mukh~rjee has worked
are tcac.h,ng ins_titutions and whether the Rcgistrai"s post in which he
worked gave him such teaching experience. These two matters have
to be decided by the appointing authority. Courts cannot and do not
appoint petitioners to posts they claim but lay down the legal cri•eria
and give the correct directions, the Executive being the organ of State
to exercise the power to appoint but in conformity with the legal directions. The S,ate Government being that authority has to take the ulti-
. mate decision.
· ·
There is some force in the grievance of counsel for the State that
the Court should not ordinarily call for Cabinet pr.pers
and start
scrutinising the notings and reports of the various olficers marely
because a writ petition challenging the order has been made. When a
writ of certior{JJ'i is moved, the Court has the power to call for the
record, but in case where mala {ides is not aileged or other special
circumstances set out, sel)sitive materials in the possession of government may not routinely be sent for. The power of the Court is wide
but will have to be exercised judicially and judiciously. having r~gard
to the totality of circumstances, including the impropriety of every
disgruntled party getting an opportunity to pry into the files of government. Of course, acts of public authorities must ordinarily be
amenable to pub· ic scrutiny and not be hidden in suspicious secrecy.
We are not satisfied that the High Court in this case should necessarily have looked into the Cabinet papers and back records, but the
question has not been argued, except to the extent of mentioning that
the Court was not in order although the State Government had produced the document on a direction. We leave the matter at that, for
th!s ,reason.
What do the alleged infirmities add up to ? Shri Jagdish Swaroop
rightly stressed that once the right to aP.point bclong-ed to Government the Court could not usurp it merely because it would
have
chosen a different person as better qualified or given a finer gloss or
different construction to the regulation on the score of a set formula that relevant Circumstances had been excluded, irrelevant factors had influenced and such like grounds fami1iarly
invented
by
parties to invoke the extraordinary jurisdiction under Art. 226. True,
no speaking order need be made while appointing a government
servant.
Soeakiniz in olaintitudinous terms these propositions may
deserve serious reflection. The Administration should not be thwarted
in the usual course of makin11: aooointments because
some-how it
displeases i~dicial relish or the. Court does not agree with its estimate
of the relative worth of th~ candidates. Is there violation ~f a fundamental right, illegality or akin error of law which vitiates the appoint-
904
SUPREME COURT REPORTS
(1975) 2 s.C.lll.
ment ? The overlooking of alleged superlative abilities claimed by Dr.
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Mukherjee is not of judicial concern but of public . resentment . and
inJividual injustice, if wrongly discard1:d by an 11ppomting authonty·-
in the absence of proof of bad faith or oblique ~xercise or other error
of law. Nor is the corrective judicial review but an appeal to other
deinocratic processes . which hold sanctions agair.st misdoings of any
Administration and its minions. The Court is not to evaluate coinparatively but to adjudicate on legal flaws.
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Viewed in this perspective, was th<: High Court right in issuing a
writ'! We are disposed to say 'yes'. Undoubtedly, appointments to
posts need not be accompanied ~y i:peaking orders or reasoned
grounds. Then the wheels of Government will slow down to a grinding halt, tar~y as it is even otherwise. And comity of constitutional
101ttumentalities forbids unfrie1'diy interference where jurisdiction d<1es
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not clearly dist. Granting this institutional modus vivendi, has the
Court gone away? No, and we will give our grounds.
• While officious interference with c:very wrong government .order
is not right, here the 1st respondent has complained of violation ,of
the regulations which bind State and citizen alike. Although the Stato
ne~d not alwa,ys make a reasoned
q~der of appointment, re&$OJ18
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relevant to the rules must animate the order. Moreover, an obligaticm
to consider every qualified candidate is implicit in the 'equal opport1~~
nity' right enshrined in Arts. 14 and 16 of the Constitution. Screening
a candidate out of consideration altogether is illegal if the applica11t
has eligibility under the regulations. And for such a drastic step
111
refusal to evaluate comparatively, i.e., exclusion from the ring of
~
competitor manifest grounds must appear on the record. Such being . E
the legal perspective, let us test the p1resent order of government by
those canons.
The explanatory affidavit of the a1>pellant State and· the record•
fairly produced by it before the Court disclose that Government lu11
adopted a turbid attitude. Did it disregard Dr. Mukherjee out of hand
for want of Indian teaching experience in an Indian teaching instittL·
tion? Shri Ja1:dish Swaroop's submission is that such experience ia
essential. If so,; a violation of the regulation, as interpreted by us, baa
been committed. Failing in this the State falls back on another basis
that his foreign. experience is not shown to be from an approved teaching h?spital, which may be clever but not straightforward. To b'
cute m Court may not correspond with being correct in administration. The 1st respondent's case for the pOst bas not been considered
from the legal angle.
It was the duty of Government to be: satisfied, on reasonable materials, that (a) the U.K. hosoitals relied on by the 1st respondent am
teaching institutions GD explained by us after a study of the spirit of
the statute; (b) the posts of Registrar in which he worked for 3 year11
involved teaching functions, the question being looked at fairly, not
!'Y sema.ntic hair-splitting. and quibbling on words like 'participating'
10 teachmg: (cl the testimonials or written testimony from
any
British (or Indian, for that matter) Orthopaedics Professor will
be~
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BIHAR v. A. K. MUKHERJEE (Krishna lyet, J.)
905
taken at its faee value except where grave suspicion taints such document, high-placed academic men being assumed to be veracious in
the absence of clear contrary indications; ( d) Indian experience, if
any, of the 1st respondent, will also be paid attention, provided it
satisfied the dual tests contained in the regulation. We are satisfier!
that the State has made short shrift of Dr. Mu1¢erjee by preliminary
screening. The notings and reports and vacillaμng opinions entertained
by Government, . at various stages do not detain μs as they are incidental to any administrative decision and cannot be espied with a
suspicious eye by Court. Goveriμnental ways may not be familiar for
forensic processes· b.ut for that reason cannot be suspected.
We have already observed that at the first flush the 1st respondent
looks like eligible and highly qualified but there may be more thari
meets the eye. Government may investigate and be satisfied about the
real qualifications. In the interests of justice and in view of the
ambiguous thinking on this question at administrative levels we regard
it as necessary to give the candidates tim.e till the end of January,
1_975 to produce evidence of the 1st respondent's teaching experience
in teaching institutions as interpreted by us. Government will give a
fair consideration to the qualifications and relative worth of all the
candidates. Length of teaching experience will certainly ·be a relevant-n9t necessarily dominant-factor. The quality <Jf their experience, their academic .attainments and the intellectual ability to stimulate students in the speciality and the investigative curiosity likely to
be imparted to the alumni-these weighty considex:_ations will promote
public weal in a country hungering for talented doctors. Government's
sole concern, We feel confident, will be to get the most capable, in
the public interest and in the hope that this happy wish will not fail
we proceed to issue the substantive declarations and directions.
We declare the orders of appointment of the appellants iii C.A.
No. 1431 of 1974 as bad in law and direct the appellants in C.A.
1430 of 1974 to reconsider de novo the appointments to the two
posts of lecturers. In so doing, the State will act in conformity with
the findings and observations made. above.