# UNION O:F INDIA & ORS v. S. B. KOHLI & ANR

- **Citation:** [1973] 3 S.C.R. 117
- **Court:** Supreme Court of India
- **Decided:** 1972-12-20
- **Case number:** Civil Appeal No. 1943 of 1972
- **Bench:** A. ALAGilUSWAMI, I. D. Dua, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-o-f-india-ors-v-s-b-kohli-anr-5944
- **Pages:** 6

## Headnote

Central Health Scheme Ruks--Quallfications for Specialists-Whether
the deRret of F. R. C. S. is enough for the. post of a professor in Orthopaedics.
Undet Central Health Service Rules 1963 as amended, items 2 & 3
of Annexure I to the Second Schedule required "a post·graduate degree
in the concerned speciality mentioned i:n Part A of Annexure IJ or
equivale~t."
Jn the present case, the first Respondent apart from having a posl·
graduate degree in General Surgery (F. R. C. S. ) had also a degree of
M. C, H. (Arth). Liverpool; whereas the Second Respondent had a post
·graduate degree i~ General Surgery (F .R.C.S.) only.
The question that arose for decision was whether the poat·graduate
qualification which was required in the case of a direct recruitment to the
post in question was also a necessary qualification for appointment by
promotion to that post, and what was the meaning of die phrase "a
post·araduate degree in the ConcMned Speciality."
HELD : (i) Before the growth of specialised qualifications Suraeons
obtaining the F. R. C. S . in general suraory used to specialise in Orthopaedics and other specialities either by doina a diploma in Orthopaedics
or •imply by practice and experience. The regulations framed by the
Medic~! CX>uneil require that in additior to the general F.R.C.S., a
surgeon must have a diploma in Orthopaedics before
he
could be
aPl'ointed " Professor, Reader or Lecturer in Ol'thopaedics. That re,u•
latton has been accepted by the Government. This gives an indication
of what is considered a post-graduate deg'"'l in the conce110ed speciality.
Therefore, in the present case, a mere degree of F. R. C. S. as
such
cannot be deemed to be a post-gradoote qualification in the concerned
speciality of Orthopaedics. To hold otherwise would mean that a person
who has the qualification of F.R.C.S. could be deemed to be specialised
in TUberculoiis and Orthopaedics, although he is also a specialist i:n general surgery. Therefore, the second Respondent does not ho1d a post··
graduate degree in the concerned speciality, Orthopaedics and as such,
his promotion to the post of a professor in Orthopaedics was illegal
nod against the C'..entral Health Service Rules.
Appeal dismissed.

## Text

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UNION O:F INDIA & ORS.
v.
S. B. KOHLI & ANR.
December 20, 1972
(A. ALAGilUSWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.]
Central Health Scheme Ruks--Quallfications for Specialists-Whether
the deRret of F. R. C. S. is enough for the. post of a professor in Orthopaedics.
Undet Central Health Service Rules 1963 as amended, items 2 & 3
of Annexure I to the Second Schedule required "a post·graduate degree
in the concerned speciality mentioned i:n Part A of Annexure IJ or
equivale~t."
Jn the present case, the first Respondent apart from having a posl·
graduate degree in General Surgery (F. R. C. S. ) had also a degree of
M. C, H. (Arth). Liverpool; whereas the Second Respondent had a post
·graduate degree i~ General Surgery (F .R.C.S.) only.
The question that arose for decision was whether the poat·graduate
qualification which was required in the case of a direct recruitment to the
post in question was also a necessary qualification for appointment by
promotion to that post, and what was the meaning of die phrase "a
post·araduate degree in the ConcMned Speciality."
HELD : (i) Before the growth of specialised qualifications Suraeons
obtaining the F. R. C. S . in general suraory used to specialise in Orthopaedics and other specialities either by doina a diploma in Orthopaedics
or •imply by practice and experience. The regulations framed by the
Medic~! CX>uneil require that in additior to the general F.R.C.S., a
surgeon must have a diploma in Orthopaedics before
he
could be
aPl'ointed " Professor, Reader or Lecturer in Ol'thopaedics. That re,u•
latton has been accepted by the Government. This gives an indication
of what is considered a post-graduate deg'"'l in the conce110ed speciality.
Therefore, in the present case, a mere degree of F. R. C. S. as
such
cannot be deemed to be a post-gradoote qualification in the concerned
speciality of Orthopaedics. To hold otherwise would mean that a person
who has the qualification of F.R.C.S. could be deemed to be specialised
in TUberculoiis and Orthopaedics, although he is also a specialist i:n general surgery. Therefore, the second Respondent does not ho1d a post··
graduate degree in the concerned speciality, Orthopaedics and as such,
his promotion to the post of a professor in Orthopaedics was illegal
nod against the C'..entral Health Service Rules.
Appeal dismissed.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1943 of
1972.
Appeal by special leave from the judgment and order dated
May 18, 1972 of the Delhi High Court at New Delhi in Civil Writ
No. 1319 of 1971.
H
L. N. Sinha, Solicitor-General of India, G. L. Sanghi and S. P.
Nayar for the appellants.
Respondent No. 1 in person.
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11 S
SUPREME COURT REPORTS
[l 973J 3 s.c.R.
Yogeshwar Prasad, S. K. Bagga and S. Bagga for respondent
/1
No. 2.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J. This is an appeal by special leave against
the judgment of the High Court of Delhi allowing the writ petition
filed by the 1st Respondent questioning the appointment of the
2nd respondent to the post of Professor of Orthopaedic Surgery
in the Maulana Azad Medical College and reverting her as Associate Professor.
The question that arises for decis.ion in this c~'e is whether
the post-graduate qualification which is undoubtedly required in
the case of a direct recruitment to the post in question is also a
necessary qualification for appointment by promotion to. that post,
and what is the meaning of the phrase 'a post-graduate degree in
the concerned speciality'. The first resrondent possesses the following qualifications : She is M.B.B.S. of the Bombay University,
F.R.C.S. of the Edinburgh University, M.Ch. (Orth). of the
Liverpool University and aJso of F.R.C.S. (Eng.)
The second
respondent holds an M.B.B.S. degree and in addition the qualifi·
cation of F.R.C.S. of the Edinburgh University. Consequent on
the selection made by the Departmental Promotion Committee,
th~ second respondent was appointed to the post in question, as
already mentioned, and as a consequence the first respondent was
reverted as Associate Professor.
The case raises the question of interpretation of the Central
Health Service Rules, 1963, as amended in the years 1966 and
1968.
These rules are made under article 309 of the Constitution. In the earlier stages the categories into which the various
posts in the Central Health Service were divided, were fairly
simple.
In 1966 pursuant to regulations framed by the InJian
Medical Coundl the Government amended the rules creating the
category of 'Specialists'. In 1968 further amendments were made
in items 2 and 3 of Annexure I to the Second Schedule requiring
"tt post-graduate degree in the concerned speciality mentioned in
Part A of Annexure II or equivalent" for the post of a Professor,
Reader or Lecturer.
The promotion in question having been
made thereafter, the rules as amended in 1966 and 1968 will
govern the qualifications necessary for this post.
The post in question is one which falls under Supertime Grade
II in Rule 4 of the Central Health Service Rules.
Accordin~ to
Rule 8(3) fifty per cent of the vacancies in Supertime Grade II
shall be filled by the promotion of (i) General Duty Officers,
Grade I with not less than JO years' of service in that category.
or (ii) Specialists' Grade Officers with not less than 8 years of
service in the category, in the ratio of 2 : 3 on the recommendaB
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UNION v. s. B. KHOLI (Alagiriswaml, I.)
119
tion of a Departmental Promotion Committee on the basis of merit
and seniority of the officer concerned. Provided that no person
shall be eligible for appointment to any such post unless he possesses the qualifications and eXperience requisite for appointl!lllnt
to such post. The question then is : What are the qualifications
and experience reqwsite for appointment to the post of Professor
of Orthopaedics ? There is no dispute that according to the
Second Schedule, which deals with selection by the Union Public
Service Commission a professor in a medical college or teaching
institution should have a post-graduate degree in the concerned
speciality mentioned in Part A of Annexture II or equivalent. It
is not necessary to refer to the other qualifications because they
do not arise for decision in this case.
In Annexure II to that
Schedule against Item 7 (Orthopaedics), the qualifications mentioned are M.S., M.C.H. (Orthopaedics) (Liverpool), F.R.C.S.
The !st respondent, as already mentioned, has got the degree of
M.C.H. (Orth.) (Liverpool). The 2nd respondent is a F.R.C.S.
If F.R.C.S. mentioned therein can be considered to be a postgraduate degree in the. concerned speciality, Orthopaedics,_ the
first respondent's petition cannot obviously succeed. It seems to
us that the qualification of F.R.C.S. cannot be deemed to be a
post-graduate degree in Orthopaedics,
Are we to take it that because the Annexure II has the heading 'List of Post-Graduate Qualifications' and "F.R.C.S. is found
beside the item 7 (Orthopaedics), that for the purpose of the
rules it is deemed to be a qualification in Orthopaedics though
F.R.C.S. is certainly a post-graduate qualification ? As pointed
out by the High Court, F.R.C.S. (Edin.), which is the qualification the second respondent possesses, is in General Surgery. The
Edinburgh University awards F.R.C.S. in three specialities but
not in Orthopaedics.
F.R.C.S. (Canada) exists in specialitie~
including Orthopaedics.
Before the growth of specialised qualiifi.cations, surgeons obtaining the F.R.C.S. in General Surgery
used to specialise in Orthopaedics and other specialities either by
doing a diploma in Orthopaedics or simply by practice and experience. The regulations framed by the Medical Council require
that in addition to the general F.R.C.S. a surgeon must have a
diploma in Orthopaedics before he could be appointed a Professor,
Reader or Lecturer in Orthopaedics. That regulation has been
acceoted by the Government.
Though
the validity
of the
appointment to the Central Health Service does not have to be
tested by reference to the regulations framed by the Indian
Medical Council for teaching staff in medical colleges, those regulations and their acceotance by the Government give an indication of what is considered to be a nost-eraduate degree in the
concerned speciality.
Before the High Court on behalf of the
Government it seems to have been contended that the amend-
120
SUPREME COURT REPORTS
[1973] 3 S.C.R.
ments made in the Central Health Service Rules give effect to the
· regulations framed by the Indian Medical Council. Part of the
dilftculty in this case has arllien because Annexure II was not
amended when the relevant portion of Annexure I was amended
in 1968. But that does not take away the force of the argument
that F.R.C.S. as such cannot be deemed to be a post-graduate
qualification in the concerned speciality of Orthopaedics. To hold
otherwise would mean that a person who has the qualification of
F.R.C.S. could be deemed to be a Specialist in Tuberculosis and
Orthopaedics, although he is also a Specialist in General Surgery.
The various entries in Annexure II would have to be interpreted
in a reasonable manner. Otherwise how could M.D., M.R.C.P.,
F.R.C.S. and M.S. all be considered to be specialised qualifications in Tuberculosis, or a mere M.D. or M.R.C.P. and F.R.C.S.
connote a post-graduate qualification in the speciality of Paediatrics. It stands to reason that these degree must be in the subject
of Paediatrics if the holders of those degrees are to be considered
specialists in Paediatrics.
As
mentioned earlier, F.R.C.S.
(Canada) has many specialities. M.D. also can be in many
specialities as indeed Annexure II itself shows.
So also M.S.
We are, therefore, in complete agreement with the view of the
learned Judges of the High Court that F.R.C.S. by itself cannot
be said to be a post-graduate degree in Orthopaedics. The mere
fact .that a degree is _mentioned against speciality .of Orthopaedics
does not make it a post-grai:luate degree in Orthopaedics. Admittedly the second respondent does not possess the qualification of
F.R.C.S. in Orthopaedics.
In the circumstances the fact that
F.R.C.S. is also shown against the entry "Orthopaedics" in
Annexure II is not an answer to the question whether it is a postgraduate degree in orthopaedics. It was urged that the F.R.C.S.
examination has an orthopaedic content. In that sense the ho'der
of every medical degree knows something of every subject in
medicine or surgery. Nobody can contend that a mere M.B.B.S.
is a degree in surgery or opthalmology because ·it has a content
of surgery or opthalmology. We therefore hold that the 2nd
respondent does not hold a post-graduate degree in the concerned
speciality, Orthopaedics.
It is then necessary to deal with the argument that the qualifications set out in Annexure I and II of the Second Schedule were
not applicable to cases of promotion. One of the reasons advanced was that it will adversely affect oersons who entered service at
a time when the qualifications mentioned in Annexure TI to
Second Schedule were not requisite oualifications for the various
posts mentioned in Annexure I.
This aooears to be a wholly
irrelevant consideration unless it could be shown that such a rule
cannot be validly made.
Jt was then argued that Rule 8(3)
does not mention the qualifications in Annexures I and II as
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UNION v. s. B. KHOLI (Alagiriswami, J.)
121
necessary qualifications for promotion to Supertime Grade II.
We consider this argument without substance because the proviso
thereto just means that. The meaning of that proviso is that in
this case where a specialist grade officer is sought to be promo.led
to the post of a Professor in Orthopaedic Surgery he should have
a post-graduate degree in the concerned spciality mentioned in
Part A of Annexure II or equivalent, which is the qualification,
and 12 years' standing in the profession which is the experience.
If this interpretation was not to be given to this proviso it will be
wholly superlluous. The fact that that proviso does not refer to
the Second Schedule as for instance sub-rule (2A) of rule 8 does
not affect the question.
We also do not understand the argument advanced on behalf
of the appellant that the interpretation placed by the High Court
anJ accepted by us now on this part of the case would mean infraction of Article 16 of the Constitution. We do not agree that
the decision of this Court in Roshan !,al v. Union(') Jays down
any such principle.
Professors and Additional
Professors
in
teaching institutions do not stand in the same position as General
Duty'Dfficers. The argument that it would lead to discrimination
in the matter of promotion of specialist is also without substance.
To say that to be appointed a Professor in Orthopaedics a person
must have a post-graduate degree in Orthopaedics is not to make.
a classification without reference to the objectives sought to be
achieved and there can be no question of discrimination.
Another argument put forward was that the nature of the
qualifications mentioned in Annexure I are not mandatory and
tney would become mandatory in cases of promotion if the proviso
to rule 8 (3) is held to refer to the qualifications in Annexures I
and II. This argument was based on the provision in the Annexure I to the Second Schedule which states that the qualifications are relaxable at Commissions discretion in the case of candidates otherwise well qualified.
That is no doubt so.
But the
discretion is given only to the Union Public Service Commission
in cases of direct recruitment and not to the Departmental Promotion Committee in cases of promotion.
As that is the intent of
the law it has to be given effect to. Moreover, the Unlon Public
Service Commission when it proceeds to fill up a post by direct
recruitment does so by calling for aPplicatio111 by extensive advertisements and it is but reasonable that if on a consideration of all
those applications it finds that persons posses;ing the prescribed
qualifications are not available but there are persons otherwise
well qualified, they could be selected. But that is not so in the
case of Departmental promotion at least in this case. The rules
themselves contemplate that if there are no qualified candidates
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(I) [1968] 1S.C.R.185.
122
SUPREME COURT REPORTS
[1973] 3 S.C.R.
then direct recruitment could be resorted to. That question does · A
not arise here.
Another strange argument advanced was that the degree was
not the only criterion of suitability. We must also refer to the
argument advanced by Shri Yogeshwar Prasad on behalf of the
second respondent that what the Departmental Promotion Committee did was to promote the second respondent to Supertime
Grade II and his appointment as Professor of Orthopaedics was
merely a transfer and this cannot be questioned. The 2nd respondent was represented by Counsel before the High Court.
This
argument was not then put forward. But that apart, we do not
consider that there is any substance in this argument. _The parties had no doubt about what was at issue.
It was simply the
appointment of the 2nd respondent as Professor of Orthopaedics
and the consequent reversion of the 1st respondent as Associate
Professor, and it was on that basis that the whole case proceeded.
The promotion of the 2nd respondent to Supertime Grade II was
directly related to his appointment as Professor.
In the result the appeal is dismissed with the costs of the 1st
respondent to be paid by the appellants.
s.c.
AppeQl dismissed.
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