Holding

The word “as” means “in the capacity of”, and the appellant’s ex‑officio teaching experience counts, making him eligible for appointment as Associate Professor (and Professor) of Radiotherapy.

Summary

Dr. Asim Kumar Bose, a Specialist Grade II radiologist attached to Irwin Hospital (a teaching hospital of Maulana Azad Medical College), claimed eligibility for appointment as Associate Professor (and later Professor) of Radiotherapy based on his ex‑officio role as Associate Professor of Radiology. The Ministry of Health rejected his claim, holding that his teaching experience did not satisfy the requirement of five years as Reader/Assistant Professor in a medical college under Rule 8(2A) and Annexure I, paragraph 3 of the Central Health Service Rules. The Delhi High Court upheld the Ministry’s view. The Supreme Court held that the word “as” in the provisions means “in the capacity of”, so the experience gained while serving as Radiologist‑cum‑Associate Professor (ex‑officio) counts towards the required teaching experience. Consequently, the appellant was eligible for appointment, the impugned order was quashed, and the UPSC was directed to re‑advertise the vacant Professor post and interview the appellant.

Issues considered

Whether teaching experience gained by a Specialist Grade II in a teaching hospital in the capacity of Associate Professor (ex‑officio) satisfies the "as Reader/Assistant Professor" requirement of Rule 8(2A) and Annexure I, paragraph 3 of the Central Health Service Rules.
Interpretation of the word "as" in the said provisions – does it mean "in the capacity of"?
Whether the appellant was eligible for appointment as Associate Professor/Professor of Radiotherapy in Maulana Azad Medical College.

Legislation cited

Central Health Service (Amendment) Rules, 1966s. Annexure I, paragraph 3, s. Rule 8(2A)
Central Health Service Rules, 1963s. Annexure I, paragraph 2(b), s. Rule 8(2A)
Constitution of Indias. Article 309 (proviso)

Subjects

Central Health Serviceteaching experiencepromotionSpecialist Grade IIAssociate Professorinterpretation of "as"service jurisprudenceappointmentex‑officioUnion Public Service Commission

Judgment

16

A DR: ASIM KUMAR BOSE

v.

UNION OF INDIA & QTHERS.

December 15, 1982
B
[D.A. DESAI AND A.P. SEN, JJ.J

Central Health Service Rules, 1963 as amended by the Central Health
Service (Amendment) Rules 1966, sub-rules (2) and (2A) of Rule 8 and paragraphs
c 2(b) and 3 of Annexure I to .the Second Schedule, construction of-Whether, far•
specialist grade II in a teaching hospital btlonging to the Central Health Service to
be eligible for appointment or promotion as a Professor or Associate Professor
of the concerned ,,peciality, the condition prerequi1ite is actual teaching experience
of the Specialist or the capacity in which such leaching exp_erience is gained-Wards
and Phrases-Meaning of the word "as"'-Court's role in service Jurisprudence,
pertaini~g to appointtn4nl, explatned.·
D
In pursuance of r. 7A(l)(b) of the Central Health Service Rules, 1963 as
amended by the Central Health Service (Amendment) Rules. 1966 and all other
powers enabling in that behalf, the President of India issued a notification dated
June 8, 1967 making the substantive appointment of the appellant Dr. Asim
Kumar Bose as Radiologist, Irwin Hospital, New Delhi. By virtue of his post
as Radiologist-cum-Associate Professor of Radiology, the appellant was· teaching
the under-gradtiate and post-graduate students as an Associate Professor .of
E Radiology of the Maulana Azad Medical College for the M.D., M.S., D.M.R.T.
and M B.B.S. courses of studies of the Delhi University. In 1973 the Central
Government promoted Dr. K.P. Mittal, Lecturer in Radiology in the Maulana
Azad Medical College as Associate Professor of Radio.therapy ignoring the
claim of the appellant who thereupon made a representation. The Government
of India, Ministry of Health &: Family Planninl!, Department of Health ~ its
letter dated February 23, 1974 rejected the representation holding that the
F appellant could not be considered for appointment to the post or Associate
Professor of Radiotherapy in the Mau1ana Azad Medical College inasmuch as
he did not possess at least five years' teaching experience as Reader/Assistant
Professor in the concerned speciality as required under r. 8(2A) and paragraph 3
of Annexure I to the Second Schedule of the 1966 Rules.

The appellant filed a writ petition in the Delhi High Court challetiging
G the impugned order, but the High Court rejected the writ petition holding that
the requirement rules required that the requis~te teaching experience must be
the experience gained while working in a medical college or in a teaching institu-
tion i.e. as a Teacher in a teaching department.

Allowing the appeal.
H
HELD : (I) There was a failure on the part of the Government of India
jµ the Ministr~ of tte3ltb to 9raw n distinction between teaching and non·
ASIM KUMAR v. UNION 17
teaching hospitals under· the Central Health Service. Tho Irwiri' Hospital and A
tho G.B. Pant Hospital are the two associate hospitals of the Maulana Azad
Medical College and the teaching in the medical college is undertaken by
Professors and Associate Professors as well as by the Specialists attached to the
two hospitals affiliated to the College. Thus the teaching experience gained by
the appellant while holding the post of Radiologist-cum-Associate Professor of
Radiology (ex-officio) had to be taken into consideration to determine his
eJigibility for appointment as Professor or Associate Professor of the concerned B
speciality. [35 G-H, 36 A-C, 43 F-G]

(2) On a construction of r. 8(2) and paragraph 2(b) of Annexure 1 to
tho Second Schedule of the 1966 Rules, it was held that the appellant possessed
the- qualifications and experience requisite for appointment to the post of
Professor of Radiotherapy in the Maulana Azad Medical College which is a
post belonging to Specialist Grade I equivalent to Supertime Grade II carrying c
a pay-scale of Rs. 1800-2250, which had fallen vacant during the pendency of
the appeal. The Union Public Service Commission must therefore re-advertise
the post of Professor and call the appellant for an interview for being considered
for appointment to the post. [38 C-D, F:H]

(3) The action of the Central Government in the Ministry of Health
ignoring the claim of the appellant for appointment to the post of Associate
D
Professor of Radiotherapy in the Maulana Azad Medical College in 1973 was
• based on a misconstruction of r. B(2A) and paragraph 3 of Annexure I to the
Second Schedule. The word "as" in these provisions must, in the context in
which it appears, be interpreted to mean "in the capacity or". These provisions
must be interpreted in a broad and liberal sense as it would otherwise work
great injustice fo persons in Specialists Grade II like the appellant who, while
holding a non..clinical post in a teaching hospital iike the Irwin Hospital, has
E
.a.ctually been teaching the students of the Maulana Azad Medical College to

-
which it i.s affiliated. The Ministry of Health cannot be beard to say that the
appellant bad not acquired the status of an As!iociate Professor of Radiology
with effect from October 9, 1964, particularly when the Central Governm£ot have
been uti!J.zing his services as such for teaching the post-graduate and under~
graduate students of the Maulana Azad Medical College for the M.D., M.S., F
D.M.R.T. and M.B.B.S. courses of studies for the last 17 years. The arrange-
, ment has continued for all these years with the approval of the Delhi University
which has conferred the designation of Associate Professor of Radiology on the
appellant presumably with the tacit sanction of the Medi.cal Council of India.
[37 F-G, 38 A-B, 42 D-F]

(4) The recruitment rules nowhere provide that the teaching experience G
gained by a Specialist in a teaching hospital in the capacity of an Asso:iate
Professor (ex-officio) shall not count towards the requisite teaching experience
for purposes of sub·rs. (2) and (2A) of r. 8 and paragraph 2 (b) anci 3 of
Annexure I to the Second Schedule of .the 1966 Rules. There is no provision
made in the Rules that the teaching experience must be gained on a regtilar
appointment. There is hardly any difference so far as teaching eXperience is It
concerned whether it is acquired on regular appointment or as a Specialist in
a ~achin~ hospital with the ex-officio designatio~. A! t)!e ~IJl!Utory rules do 001
IS SUPIWMB COURT llBPORTS (1983) 2 s.c.R.

provide that the teaching experience gained in an ex-officio capacity shall not
count towards the requisite teaching experience, the teaching·- experience gained
by the appellant WW!e holding the post of Radiologist-cum-Associate Profes1or
of Radiology (ex-officio) in the Irwin Hospital qan not be ignored in determining
bis eligibility for appointment as Professor or Associate Professor of the
concerned speciality. [35 C-E]

8 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 598 of
1980.

Appeal by Special leave from the judgment and order dated
the 9th November, 1979 of ihe Delhi High Court in CWP No. '\-··
885 of 1974. >< •
c
N.C. Sikri for the Appellant.

Hardoyal Hardy, Girish Chandra and R.N. Poddar for the
Respondents.

D The Judgment of the Court was delivered by

SEN, J. This appeal by special leave from a judgment and
order of the Delhi High Court dated January 9, 1979 raises a ques-.
tion of some complexity. The question is whether a Specialist
Grade II in a teaching hospital belonging ·to the Central Health
E Service is eligible for appointment or promotion as a Professor
or Associate Professor of the concerned speciality. The appeal
turns on a construction of sub-rs. (2) and (2A) of r.8 and para-
graphs 2(b) and 3 of Annexure I to the Second Schedule of the
Central Health Service (Amendment) Rules, 1966.

F The Central Health Service was formed more tbiln two
decades ago and was intended to replace the Indian Medical
Service, but ~he recruitment rules were not framed till the year
1963. The Service was constituted for providing .doctors for
manning the medical, public health and medical research and teach-
ing posts in the Central Government hospitals, dispensaries scienti-
c fic research institutions and institutions of higher ~ducation. The
members of this Service are also meant to man posts in the Union
Territories and the various autonomous bodies.

In exercise of the powers conferred by the proviso to Art.
II 309 of the Constitution, the President on May I, 1963 made
tbe C~ntraf Jiealth Servic~ Rules, 1963 which came into force
ASIM KUMAR v. UNION (Sen, J.) . 19

on May 5, 1963. R.3 provided for the constitution of the Central
Health Service. Under r.4 the Service was divided into two classes
viz. Class I and Class II. The rules envisaged categorization of
personnel manning the service into five different categories viz.
· Categories 'A' to 'E'.. Rule 5 provided for the authorized per-
manent and temporary strength of the Service. Under r.5 (3), the
controlling authority had the power to interchange any post B
included in Jhe junior scale with any post included in , the senior
scale without altering the authorized strength in each category.
R.8 provided for the future maintenance of the Service. 80% of
the vacancies in Category 'B' of the supertime scale were to be
filled by promotion through Departmental Promotion Committee of
officers holding the post in the senior scale who had rendered not
c
less than six years of service in that scale and 20% of the vacan-
cies thereof were to be filled by direct recruitment in the manner
prescribed in the Second Schedule. By a notification dated January
1, 1965 the initial appointments· were notified. The essential
pre-condition for the inclusion of a post in the Central Health D
Service was that a medical qualification recognized under the Indian
Medical Council should be prescribed for it.

By the Central Heath Service (Amendment) Rules, 1966, the
Central Health Service was recrganized with effect from September
9, 1966 and the concept of General Duty officers and Specialist
, Grade Officers was introduced for the first time. R.3 provides that
there shall be a Service constituted to be known as the "Central
Health Service" consisting of (a) persons appointed to the Service
under r.7 or r.7A, and (b) persons appointed to the Service under
r.8. R.4 classifies the Service into four categories viz. Category (I)
Supertime Grade, apart from the post of (i) Director-General of F
Health Services on a fixed pay scale of Rs. 2750/· and (ii) Addi-
tional Director·General of Health Services on a fixed pay of
Rs. 2250/·; a Supertime Grade I carrying a pay-scale of Rs. 1800-
2250; Supertime Grade II with a pay-scale of Rs. I 300·1800; Cate·
. gory (2) Specialists' Grade with a pay-scale of Rs. 600-1300; Cate-
G
aory (3) General Duty Offi;ers Grade I with a pay-scale of
Rs. 450-1250; and Category (4) General Duty Officers Grade II on a
scale of Rs. 350-900. Under r 5 the authorized strength of the
various categories was to be as specified in the First Schedule. R. 7
provides for the initial appointment to the S(\l"vice. R.7A 'provides
for the appointment of departmental candiclates, R,.71\ is in two
H
20 SUPllEllE COURT llBPOl.TS . (1983) 2 s.c.a.

A parts. Part A deals with· the departmental candidates who were
initially appointed in Categories 'A' and 'B' of the Service prior
to the 1966 Rules. All of them are to be appointed to the cor-
responding Supertime Grade I and Supertime Grade II of the new ,
Categories. Part B provides that e'l'ery departmental candidate
who was initially appointed to a category "other than Categories
B 'A' and 'B' shall be appointed to the newly-formed appropriate
Category "after selection". That had to be so because the new
Categories were different and the conditions of eligibility had also
been revised. Accordingly, officers from Category 'C', Category 'D'
and Category 'E' and were selected by the Departmental Promotion
Committee for appointment to the Specialists' Grade-General Duty
c Officers Grade I and General Duty Officers Grade II-after taking
into account the qualification, experience and conditions of
eligibiity. Several Officers who were in former Category 'C' were
placed in General Duty Officers Grade I.

D R.8. provides for the future maintenance of the Service.
After appointments have been made to the Service under rs. 7
and 7A, future vacancies have to be filled in the manner provided
therein. R.8 (2) prov'ides that every vacancy in the Specialists'
Grade shall be filled by direct recruitment in the manner provided
by the Second Schedule. through the Union Public Service Com-
E mission, subject to the exception made in r.8(2A) with regard to
Associate Professors and Assistant Professors. R.8(3) provides for
50% of the vacancies in Supertime Grade II to be filled by pro-
•
motion of General Outy Officers Grade I and, Specialists' Grade
Officers in the ratio of 2 : 3 on the basis of merit and seniority
and the remaining 50% of the vacancies are to be filled by direct

' recruitment in the manner specified in the Second Schedule. '

It would therefore appear that there is 50% direct recruitment
in Supert;me Grade II which practice is in the public interest and
is essential for the maintenance of efficiency. Further, Supertime
G Grade II serves as a promotion avenue to GDOS Grade I also.
In view of this, the Third Pay Commission found it difficult to
recommend the merger of the Specialists' Grade with the Supertime
Grade II, but at· the same time it appreciated present difficulties
in promotion of Specialists to Supertime Grade II. It' accordingly
·'8 recommended a structural reorganization of the cadre of Specialists
to get over these difficulties and to ensure that the GOOS Grade
I, Hospital Specialists and Teaching';!Specialis~ !J~ve reasonable
ASIM KUMAR •. UNION (Sen, /. ) 21

promotional opportunities in their respective fields. It therefore A
directed taking of the following steps ;

"The administrative posts in Supertime Grade II
should be reserved for GDOS Grade I except where
GDOS Grade I with the required specialists qualifica, 8
tions are not available. The posts which cannot be
filled by direct recruitment through the Union Public Service
Commission and it would be open to the Specialists' grade
officers to compete for such posts. These posts should not
be filled by hospital specialists or teaching specialists by
promotion in the normal course. The Supertime Grade c
II will thus consist only of administrative posts in future
for which the revised scale will be Rs. 1500-2000.

The teaching posts (Professors) and hospital specai
.•
lists' posts (comprising other than admininistrative and D
teaching posts) at present included in Supertime Grade II
should be placed in the revised scale of Rs. J 800-2250. This
new grade may be called Specialists' Grade I and the
existing Specialists' Grade may be called Specialists' Grade
II. 50% of the vacancies in the new grade (i.e., Specialists
Grade I) should be filled by direct recruitment as at present,
the remaining 50% being filled by promotion from the
new Specialists' Grade I/. There could be interchange bet
ween hospital specialists and Professors in the higher
grade subject to the candidates satisfying the prescribed
quafifications. We notice that at present out of 27
clinical specialities only a few have posts in Supertime
Grade, IL We would suggest that there should be at
least one post in the higher grade of Rs. 1800-2250 for
every speciality. The proportion of hospital specialists'
posts in the new grade should not exceed 20% of the
number of hospital specialists' posts in the lower grade
(Specialists Grade II) and additional number of posts as G
may be necessary to make up the 20% may be created."

(Emphasis supplied)

B
As a result of the recommendation of the Third Pay Com
mission, the Specialists' Grade is now bifurcated into specialists
22 SUPllBliiE couitr REPORTS tI 983l i s.c.a..
,,
A Grade I or Supertime Grade II carrying a pay-scale of Rs. 1800-
2250 and Specialists Grade II carrying a pay-scale of Rs. 1!00-
1800.

As at present constituted, the Central Health Service has
the following grade structure as per the recommendations of the
B Third Pay Commission :

S. No. Grade Pay (Rs.)
y -t
c 1. (a) Supertime Grade I

(i) Director-General Health Services 3500

(ii) Commissoner of Rural Health 3000

(iii) Additional Director General
D
Health Services 3000

(iv) Other post (a) Level I 2500-2750

(b) Level II 2250-2500

E (b) Supertime Grade II & Specialists
'

-
Grade I 1800-2250

2. Specialist Grade II 1100-1800

3. General Duty Officers Gr~~e I 1100-1600
F
General Duty Officers Selection Grade 1500-2000
'
Generai Duty Officers Grade II 700-1300

G The Commission also recommended a scheme of special merit
promotion for the medical services on the following lines :

"Doctors in Specialists' Grade I in the revised grade
of Rs. 1800-2250 and Supertime Grade II (Rs. 1500-2000)
H who have outstanding performance to their credit, deserv-
ing the recognition, may be promoted to Supertime Grade
I scale, while continuing in their original posts, without
ASIM KUMAR v. UNION (Sen, J.) 23

having to wait until a vacancy arises in the Supertime A
Grade I. Such upgradations of the post consequent upon
merit promotions will be personal to the individuals con-
cerned.

Eminent specialists and doctors in Suprertime Grade I
should be considered for merit promotion to the grade B
Rs. 3000·3500. There will be no non-pratical allowance in
addition."

Such being the infra-structure of the Central Health Service,
the question is as to the promotional prospect of a Specialist
Grade II in a teaching hospital to Specialists Grade I. The whole c
controversy turns on the question whether such a person is el.igible
for appointment as a Professor or Associate Professor of the con-
cerned speciality, and that depends on whether for purposes of sub-rs.
(2) and (2A) of r. 8 and paragraphs 2 (b) and 3 of Annexure I to
the Second Schedule, the condition prerequisite is actual teaching
experience of the Specialist or the capacity in. which such teaching 0
experience is gained.

It is common ground that the 11ppellant has the requisite
essential qualifications for appointment as a Professor or an Asso·
ciate Professor of Radiology. After.obtaining his M.B.B.S. degree
from Calcutta University in the year 1955, the appellant went for E
further studies to the United Kingdom. There he studied Radio-

- therapy for two years at the Liverpool Radium Iostitute
and obtained the Diploma in Medical Radiology & Therapy
(D.t<i.R.T.) from the University of Liverpool in 1958. During the
course of his studies there, he held the appointment of Registrar in
Radiotherapy at the Liverpool Radium Institute from August 1957
to December 1958. Besides gaining teaching experience in that
F

post which under Indian Medical Council Rules is a teaching post,
he also had the privilege of visiting some important London hospitals
like Mt. Verman and Hammersmith which institutions have a unique
and distinguished position in the area of Cancer-therapy by G
irradiation.

On his return to India, the apP._ellant worked as Junior Lecturer
and Clinical Assistant in the Department of Radiology at the B
Christian Medical College & Hospital, Vellore from February 6, 1959
to December 26, 1960. This post required the appellant to take up
24 SUPkEME COURT REPOR'l'S [1983] 2 s.c.tt.

A teching classes in Radiotherapy for the Master of Surgery (M.S.),
Diploma in Gynaecology & Obstetrics (D.G.O.) and M.B.B.S.
courses. During his stay there he was placed in charge of the
Department of Radiotherapy during the absence of Professor
Scudder, and as he had considerable experience in the United
·a Kingdom in the practical aspect of handling such cases, he proved
to be extremely useful to the institution. The certificate of the
renowned Neuro-Surgeon Dr. Jacob Chandy, Medical College &
Hospital, Vellore pays high encomiums to the services rendered by
the appellant and records that his work there was well appreciated
by colleagues and teachers both as a surgeon and as a teacher.
c
As a consequence of a successful academic career as a teacher
of post-graduate courses in the Christian Medical College &
.
•
Hospital, Vellore, the appellant was appointed as a Lecturer in
Radiology under the West Bengal Health. Scheme and held that post
from January 2, 1961 to January 12, 1963. During this period as a
D Lecturer in the Medical College, Calcutta, he had the privilege of
teaching post-graduate classes in Diploma in Medical Radiology &
Electrology (D.M.R.E.). While he was employed in that capa-
city, he was asked by the authorities of the ChriStian
Medical College, Vellore, bis erstwhile employers, to assist them in
organizing the newly installed Tele-Cobalt Therapy Unit under the
E Colombo Plan Aid from Canada in that institution. The State
Government of West Bengal were pleased to depute him for ~
the task and he apparently performed and fulfilled his duties to the
entire satisfaction of the authorities.

On January 14, 1963 the appellant was appointed as a Lecturer
F in Radiology in Maulana Azad Medical College, New Delhi, a post
placed in Category 'E' of the Central Health Service and continued
to work in that capacity till October 8, 1964. He was also employed
as a part-time Lecturer in Delhi University with effect from 1963
and eyen now continues to be employed as such. On October 9,
G 1964 he was appointed as a Radiologist in the Irwin Hosnital
which was a post in Category 'C' of the Central Health SerVice.
By Letter dated April 6, 1965, the Delhi Administration informed the
Principal, Maulana Azad Medical College in answer to a communi-
cation made by him, that conseq.uent upon the appointment of the
H appellant in Category 'C' of the Central Health Service, the
Administration had no objection to designating him as Associate
Professor of Radiology (ex-officio) in the Maulana Azad Medical
ASIM KUMAR v. UNION (Sen, J.) 25
College provided it was not detrimental to bis normal duties as a A
Radiologist and no financial implications were involved.

In pursuanee of r. 7A (1) (b) of the Central Health Service
Rules, 1963, as amended by the Central Health Service (Amendmed)
Rules, 1966 and all other powers enabling him in that behalf, the
President of India issued a notification dated June 8, 1967 making B
snbstantive appointments of 80 officers to the Specialists' Grade with
effect from September 9, 1966. The appellant was listed at
Sr. No. 80 and the entry giving his name and designation reads :

"80. Dr. Asim Kumar Bose Radiologist, Irwin Hospital,
New Delhi." c
'•
As a result of this, the appellant has continued to hold the post of
Radiologist in the Irwin Hospital which is attached to the Matilana
Azad Medical College and treated as an Associate Professor of
of Radiology (ex-officio) both by the University of Delhi as well D
as by the Maulana Azad Medical College.

By the early 70s, the appellant had acquired the requisite
teaching experience of an Associate Professor of Radiology as well
as acquired higher academic qualification. On August 19/20, 1968
the Principal, Maulana Azad Medical College addressed a letter to E
1
the appellant conveying that the Vice· Chancellor ·of the Delhi
University in exercise of his emergency powers, had granted him
recognition as an Associate Professor of Radiology for teaching the
post-graduate and under-graduate students for the D.M.R.T. and
M.B.B.S. courses of studies. In 1970, the appellant was conferred
the degree of Doctor of Philosophy (Medicine) in Radiotherapy by· F
the Calcntta University. The Faculty of Medical Sciences, Univer·
sity of Delhi by its letter dated July I 0, 1972 informed the appel·
la,nt that the Board of Research Studies for Medical Sciences had
at its meeting held on January 15, 1972 appointed him as a Super-
visor for the post-graduate students for the M.D. (Radiotherapy)
course of study. It would therefore appear that the appellant was G
not only holding the post of Radiologist in the Irwin Hospital, but
was also actively associ.ated with teaching the under-graduate and
post-graduate students as an Associate Professor of. Radiology of
the. Maulana Azad Medical College for the M.D., D.M.R.T. and
H
M,B.B.S. courses of studies of the Delhi University.
26 SUl>RBMS COURT REPORTS [1983] 2 S.C.R.

· It appears that subsequent to his substantive appointment by
the President to Specialists' Grade with effect from September 9,
1966, the appellant was called by the Banaras Hindu University for
an interview on August 7, 1972 for the post of Professor of Radio-
therapy but since the post of Associate Professor of Radiotherapy
in Maulana Azad Medical College was falling vacant in 1973, he
B did not appear for the interview. In 1973, the Government of India
promoted and appointed Dr. K.P. Mittal, Lecturer in Radiology in
the Maulana Azad Medical College as Associate Professor of
Radiotherapy ignoring the claim of the appellant.

G The appellant accordingly made a: representation to the
Government of India but the same was rejected. The Government
of India, Ministry of Health & Family Planning, Department of
Health by its letter dated February 23, 1974 informed the Delhi
Adminisration that the appellant could not be considered for
appointment to the post of Associate Professor of Radiotherapy
D in the Maulana Azad Medical College inasmuch as he did not
possess at least five years' teaching experience as Reader/Assistant
Professor in the concerned speciality as required under the Central
Health Service (Amendment) Rules, 1966. The Ministry of Health
was of the view that although the appellant bad the essential quali-
fication prescribed for teaching post, the teaching experience gained
E by him while holding the post of Radiologist-cum-Associate
Professor of Radiology (ex-officio) in the Irwin Hospital since
October 9, 1964 cannot be taken into considration.

The appellant assailed the impugned order by filing a writ
petition in the Delhi High Court on July 24, 1974 complaining that
F
the action of th"e Government of India in the Ministry of Health
disregarding his claim fvr appointment to the post of Associate
Professor of Radiotherapy was in denial of equal opportunity in
matters of employment and thus violative of Arts. 14 and 16 of the
Constitution. The contention upon which the writ petition was based
G was that on a true construction of r. 8 (2A) and paragraph 3 of
Annexure I to the Second Schedule, he was clearly eligible for
appointment to the post of Associate Professor as he bad the
essential educational qualification and bad also the requisite teaching
experience while holding the post of Radiologist-cum-Associate
H Professor of Radiology (ex-officio) in the Irwin Hospital which is a
teaching hospital attached to the Maulana Azad Medical College.
The respondents Nos. I and 2 filed· a return reiterating the .tand
ASIM kUMAR v. UNION (Sen, J.)

taken by the Government of India in the Health Ministry that the A
experience gained by th~ appellant ·as an' Associate Professor of
Radiology (ex-officio) by virtue of his holding the post of Radiologist
in the Irwin Hospital cannot be taken into conside.ration for the
purpose of determining the question of his eligibility for appoint-
ment as Associate Professor. It was pleaded that the impugned
order was thus perfectly legal and valid and bad been issued on a B
correct interpretation of the Central Health Service Rules, I 963 as
amended by the Central Health Service (Amendment) Rules, 1966.
In support of the plea, .it was averred :

"The teaching experience gained by the petitioner
while holding the post of Radiologist in the Irwin Hospital,
New Delhi by virtue of his having ex-officio status of
Associate Professor of Radiotherapy from the 9th of
of October, 1964 cannot be counted as requ1sne
teaching experience under the Central Health Service
Rules." D

It appears that while the writ petition was pending in the High
Court, the appellant was in 1976 selected by the Haryana Public
Service Commission for the post of Professor of Radiology (Radio-
therapy) in the Medical College, Rohtak, but was not relieved of his E
duties by the Government of India in the Ministry of Health &
Family Planning. A letter of the Registrar of the Rohtak University
dated December 9, 1976 requesting the Central Government to
place his services on deputation with the Rohtak University for a
period of three years in the first instance as the appellant, having
put in 17 years' service, was not inclined to resign his post as
Radiologist in the Irwin Hospital. The Ministry of Health by its
letter dated January 17, 1976 however informed the Secretary
(Medical), Delhi Administration that it was not possible to· relieve
the appellant of bis duties or place bis services on deputation with
a lien on his post as Radiologist in the Irwin Hospital, and if he
wanted to join as Professor of Radiology (Radiotherapy) in the G
Medical College, Robtak, be should "give up all connections with
the Central Health Service".

By the judgment under appeal, the High Court, while observing · H
that the appellant admittedly holds high academic and professional
qualifications and has also good teaching experience to his credit,
28 SIJPRBMB COURT RB9QRrS (1983] 2 s.c.R.

A rejected his writ petition on its construction of the Rules. It
.observed that the recruitment rules requi~ed that the requisite
experience must be the experience gained while working in a medical
college or in a teaching institution i.e. as a teacher in a teaching
department. ·It also observed that "it is a well-known fact
that after acquiring the requisite medical qualifications t!:iere
B are different careers open to a medieal graduate, and in
fact it is so ill all professional careers." According to the
High Court, "some people opt for 11 teaching career while
others opt for a regular professional career a1 Doctors. The
medical graduates who opt for a teaching career, join a cadre
different from that of the career of Doctors." In the words of the
c High Court, "they tie down their fate to the teaching career and
expect promotions· to various posts in their channel of promotion
i.e. in the cadre of teachers." While rejecting the claim of the
appellant, the High Court observed :

"It is a fortuitous circumstance that a medical graduate
D
regularly working as a doctor is also permitted by the
authorities to take up a teaching assignment. The normal
duty of such a doctor is in the hospital and in the cadre of
doctors in hospital. If the person who is working as a
doctor is allowed to compete, with teachers in the teaching
cadre, such.teachers are at a disadvantage. Their chances of
promotions are adversely affected by recruitment of people
who do not initially opt for a teaching career. This being
the rationale behind the respondents' ·decision, we do not
find that there is any illegality or arbitrariness in the.
decision of the respondent."
F'
It is difficult to support the reasoning or the conclusion reached by
the High Court ou a construction of the Rules.

The appellant has placed on record a· number of documents
emanating from the University of Delhi as well as from the Dean, · ~
Maulana Azad Medical College showing that his services were
G
ut.ilized as an Associate Professor of Radiology (ex-officio) for
delivering lectures to the post-graduate and under-gradate students
for tbs M.D., M.S., D.M.R.T. and M.B.B.S. courses during the last
17 years.
H
In response to a query from the Court, tile Ministry of Health
prepared a note on the structure of the Central Health Service
ASJM KUMAR v. UNION (Sen, J) . 29

drawing our particular attention to r. 8 (2A) and paragraph 3 of A
Annexure I to the Second Schedule and Sr. No. 4 of Annexure II to
the Second Schedule and on the b'asis of these provisions it is
asserted that for promotion to the post of Associate Professor at
least five years' experience as Reader/ Associate Professor in the
concerned speciality in a medical college/teaching institution after
the requisite post-graduate qualification is absolutely essential. It B
is said that in response to an advertisement of the Union Public
Service Commission for the non-teaching post of Radiologist in the
former Category 'C' the appellant who had joined the Central
Health Service in Category 'E' as Lecturer in Maulana Azad
Medical College with effect from January 14, 1963 on selection to
that post, switched over from teaching to non-teaching post of
c
Radiologist. After setting out his teaching experience as a Lecturer
of Radiology in Maulana Azad Medical College from January 14,
1963 to October 8, 1964 and elsewhere, it is said that· the appellant
was not eligible for appointment as Associate Professor as he was
not holding the post of Reader/Assistant Professor. In trying D
to refute the appeallnt's allegation that there was denial of equal \
opportunity, it is asserted :

"In the absence of the particular advertisement for
the post of Associate Professor, it is not possible to indicate
as to when the applications were first called for the appoint-
ment to the post of Associate Profes.sor of Radiology
in a teaching institution participating in the CHS.
According to the provisions of the CHS Rules, all posts of
Lecturers, Assistant Professors and Associate Profesaors
were required to be filled through the UPSC before the F
rules came to be amended w.e.f: 18.09.1971. After the
amendment of the CHS Rules, only Assistant Professors
possessing five years exeperience were eligible for appoint·
ment as AssoCiate Professor. Since Dr. Bose was holding
the clinical post of Radiologist, he was not in direct line
of and eligible for promotion to· the post of Associate G
Professor."

It is somewhat strange that alongwith the aforesaid note, the
Ministry had produced a letter of the Dean, Maulana Azad Medical
College dated January 25, 1982 addressed to the Secretary, 8
Ministry of Health & Family Welfare which tends to show that

T
30 SiJPR.EMB COUllT R.EPORTS (198312 s.c.11.

A the appellant as Radiologist-cum-Associate Professor of Radiology
(ex-officio) was not actually teaching the post-graduate and under-
graduate students of the Maulana Azad Medical College. The
letter is self-explanatory and reads :

"With reference to the telephonic conversation with
B Sri R. N. Tewari with respect to the question received from
the Supreme Court regarding Dr. A. K. Bose I have to
state that Dr. Bose while performing his duties as Radio-
logist was not lecturing to the students as an Associate
Professor is required to do."

c It is rather difficult to act on the letter of the Dean particulary
when it runs counter to his own affidavit sworn in February, 1982
the relevant extracts of which are given below :

· "That since 1964 the Appellant continues to be a
Radiologit and is not holding any teaching designation
assigned by the Central Health Service and is not is receipt
D of the teaching allowance of Rs. 200.00 which is admissible
in the case of an Associate Professor. Dr. Bose has
never worked as Assistant Professor/Reader to become
eligible for promotion as Associate Professor. He is work-
ing in the Radiology Department. The Head of the
Radiology Department, uses the services of some of the
E Radiologists who do not have any teaching designation to
take lectures. Over the years as an internal arrangement
the non•teacbing Radiologists such as Dr. I. Sahai, Dr. D.P.
Garg, Dr. A.R. Dar, Dr. B.L. Jain, Dr. S. C. Gupta etc.,
in addition to Dr. A.K. Bose, have been assigned lectures
to under-graduate students.
F
Dr. A.K. Bose has been delivering lectures to post gra-
duates of Delhi University and has guided some thesis.
Delhi University has recognised him as a Supervisor of
Thesis and a teacher. However in the matter of post-gra-
G duate teaching the Delhi University also recognises and
ultilises the services of Specialists of non-teaching hospitals
like Safdarjang Hospital, Army Hospital and Dr. R.M.L.
Hospital (Willingdon).
H
The Specialist in Safdarjang Hospital and Dr. R.M.L.
Hospital do not have teaching designation assigned by
ASI¥ KUMAR v. UNION (Sen, J.) 31

the Central Health Service. The Army Hospital is not A
nuder the Central Health Service."

_, As regards the documents placed on record by the appellant,
the Dean goes on to aver in the affidavit :

''That the Appellant bas produced the. Under-graduate 8
lecture programme, the post~graduate lecture programme,
prospectus of Maulana· Azad Medical College for the year
1966-67 and Annual Report of Maulana Azad Medical
College for the year 1980. The Under-graduate teach-
ing programme is· only an internal arrangement of the
Radiology Department The post-graduate programmes c
.have been drawn up by the Delhi University. The pros-
pectus and the Annual Report are informative bulletins
only. All that they state is that Dr. A. K. Bose is an ex-
officio Associate Professor."

The Ministry bas also filed the affidavit of Sb.ri N.S. Bakshi,
D
Deputy Secretary to the Government of India, Ministry of Health
& Family Welfare to the effect :

"That according to the Central Health Service
(Amendment) Rules, 1966, atleast 5 years experience as E
Reader/ Assistant Professor in the concerned speciality in
a medical college/teaching institution .is after the requisite
post-graduate qualification is absolutely essential for pro-
motion to the post of Associate Professor.
---..
That the appellant does not fulfil the above mentioned F
requirement and thus cannot be considered for promotion
to the post of Associate Professor as per CHS Rules. •

That according to the provisions of the CHS Rules, all
posts of Lecturers, Assistant Professors and Associated
Professors were required to be filled through the UPSC
G
before the Rules came to be amended with effect from
18-9-1971. After the amendment of the CHS Rules, only
Assistant Professors possessing five years experience were
as
eligible for appointment Associate Professor. Since Dr.
H
Bose was holding the Clinical post of Radiologist, he was
. not in direct line of and eligible for promotion to th~
32 SUPRBMB COURT RBPOllTS (1983) 2 S.C.ll

A post of Associate Professor. As such the question of the
Appellant becoming due for promotion to the post of
'--- Associate Professor does not arise."

After the conclusion of the hearing, the Health Ministry
at our behest prepared a note on the pattern of teaching and
B non-teaching staff as laid down in the Central Health .Service Rules,
1963 amended from time to time. It would be convenient to re pro-
duce the note in its entirety and it reads :

TEACHING POSTS

C Specialists' Grade (new Specialist Grade II)

Lecturers

All vacancies in this Grade are filled by direct recruitment
through the UPSC at the level of Lecturers in the scale of pay of
D Rs. II 00-1800 plus NPA at graded rates.

Assistant/ Associate Professors

All vacancies in the posts of Assistant Professor and Asso-
ciate Professor are filled by promotion through the Departmental
E Promotion Committee from amongst officers holding the posts of
Lecturers and Assistant Professor 'resp~ctively. The officers are
required to possess the qualification and experience prescribed
for· the post in question. The officers promoted to the posts of
Assistant Professor and Associate Professor are allowed a special
pay of Rs. JOO/- p. m. and Rs. 200/- p.m. respectively
F
In case no departmental officer is available for promotion
to the posts of Assistant/Associate Professor, such vacancy is filled
by direct recruitment through the U.P.S.C.

G Composite Supertime Grade II (Revised Specialist Grade /)
Professor

On the recommendation of the Third Pay Commission, the
Composite Sureprtime Grade II has been bifurcated into Specialist
ff Grade I (Rs. 1800-2250) and Supertime Grade II revised (Rs. 1500-
2000). Vacancies in the Specialist Grade I posts of Professor are
filled by direct recruitment and promotion in the ratio of 1 : I.
ASl!of KUMAR v. UNION (Sen, J.) 33

For promotion to the posts of Professor, Associate Professor/ A
Asssistant Professor with 8 years service are eligible.

Supertime Grade I (Level 11) - Rs. 2250-2500

All the vacancies in the posts of Principals of Medical
College, Heads of teaching institution, Deans are filled by promocions
of Professors.

NON-TBACHING POSTS

Specialists' Grade (now Specialist Grade II)

AU vacancies in this Grade (Rs. 1100-1800) are filled by direct ·C
recruit through the UPSC.

Composite Supertime Grade II (now Specialist Grade I
Rs.1800-2250)

Vacancies in the Specialist Grade I posts of Senior Specialists D
are filled by direct recruitment and by promotion to the ratio
of I : I. For promotion in the posts of Senior Specialists,
Specialist Grade II officers with eight years of regular service and
considered.

Supertime Grade I (Level II) Rs. 2250-2500

Vacancies in Supertime Grade I posts of Consultants etc. are
filled by promotion of officers of composite Supertime Grade II.
The officers must, however, possess the requisite qualifications and
experience for appointment to a particular post in this grade." F
The aforesaid note is in consonance with the view that there is no
infiexible rule that Specialists in a teaching hospital cannot be
promoted as Associate Professor or Professors of their concerned
speciality. On tile contrary, the note clearly brings out that G
vacancies in Specialists Grade I posts of Professors are filled by
direct recruitment and by promotion in the ratio of 1 : I.

,__ The Health Ministry has also submitted a separate note
regarding persons imparting leaching in various disciplines who are H
neither Professor, Associate Profe~sor, A,ssis.t~~t Professor or
L~ctur-.r. The note runs as under ; ·
34 SUPREME COUllT Rl!POllTS (1983] 2 s.c.a.

A "There is no provision in the C.H.S. Rules, whereby
the officers who do not possess the requistc teaching
experience is appointed to a post of Professor in CHS.
However, the University College of Medical Sciences which
is under the administr~tive control of the University of ,
Delhi has been utilising the services of the Medical officers
B 'of the CHS working in the Safdarjang Hospital, New
Delhi, for clinical teaching of the students of the University
College of Medical Sciences. These persons who arc
participating in the teaching programme have been
recognised by the Univeroity of Delhi as Professors/Readers/
Lecturers/Teachers without specific teaching designation on
C!! the condition that such designations will be valid "for the
,period till such time the Safdariang Hospital continues to
impart instructions in clinical subjects to the under-graduate
students of University College of Medical Sciences and the
persons continue to take part in the said teaching". The
conferment of teaching designations by the University of
D
Delhi does not mean that these officers arc recognised as
teachers for the purposes of their service conditions in the
Central Health Service."

Instances are not uncommon where Specialists have been
E promoted as Professors of their concerned speciality. One instance
of this as given by the appclllant is of bis immediate prede:essor
Dr. 0. P. Bhardwaj, Radiologist-cum-Reader in Radiology ex-
officio) in the Irwin Hospital who was appointed as Professor of
Radiology in the Maulana Azad Medical College; and presently is
Dean, Jawabarlal Institute of Post-Graduate Medical Education
F & Research, (JIPMER), Pondicherry. The other instances that we
we could gather with dfficulty are these. One is that of Dr. (Kum.)
P. Nirupma Nayak, Specialist in Gynaecology, Central Hospital,
Dbanbad, promoted as Professor of Obstetrics & Gynaecology,
JIPMER, Pondicherry; later promoted to Supertime Grade I as
G Medical Superintendent at!JIPMER, Pondicherry. Another is that
of Dr. Prakash Chand Sikand, Specialist Physician, Safdarjang
Hospital, promoted as Professor of Medicine, Medical College,
Simla; later transferred as Professor of Medicine to Lady Hardinge
Medical College, New Delhi. The other is that of Dr. Harinandan
H Prasad Verma, Specialist in Anaesthesia, promoted as Professor of
;A~aesthesiolo~y. Maulana Azad Medical~Collcgc, New Delhi. A
ASIM KUMAR v. UNION (Sen, J) 35

further instance is furnished by the case of Dr. N. C. Shinghal v. A
Union of India.(') On the recommendation of the Medical Superinten-·
dent, Willingdon Hospital, the post of Specialist in Ophthalmology
which was an unspecified Specialist Grade post was upgraded by the
Central Gov,ernment as a specified post in Supertime Grade II, and
' Dr. B. S. Jain, Chief Ophthalmologist-cum-Associate Professor of
B
Ophthalmology, Medical College, Simla was transferred to that post.
In the vacancy caused thereby, Dr. Shinghal who was Specialist
in Ophthalmology attached to the Will ind on Hospital, was offered
the post of Chief Opthalmologist-cum-Assoclate Professor of
Ophthalmology, Medical College. Simla. There may be other
imtances as well. c.
It is ne1:essary to emphasise that the recruitment rules nowhere
provide that the teaching experience gained by a Specialist in a
teaching hospital in the capacity of an Associate Professor (ex-officio)
shall not count towards the requisite teaching experience. There is
no provision made in the Rules that the teaching experience must be D
gained on a· regular appointment. There is hardly any difference
so for as teaching experience is concerned whether it is acquired on
regular appoilltment or as Specialist in a teaching hospital with the
ex-officio designation. As the statutory rules do not provide that
the teaching 1,xperience gained in an ex-officio capacity shall not
count towards the requisite teaching experience, the teach- E
ing experience gained by the appellant while holding the post of
Radiologist-cum-Associate Professor of Radiology (ex-officio) in the
Irwin Hospital cannot be ignored in determining his eligibility for
appointment as Professor or Radiology in Maulana Azad Medical.
College.

There is a failure on the part of the Ministry of ·Health to
draw a distinction between teaching and non-teaching hospitals
under the Central Health Service. The two general hospitals under
the Central Health Service are the Willingdon Hospital & Nursing
Home, New Delhi and the Safdarjang Hospital, New Delhi. The
Service also runs Central Hospital, Asansol, Central Hospital,
Dhanbad, Goa Medical College & Hospital, Panaji, G. B. Pant
Hospital, Port Blair, and Government Hospital, Lakshadweep. In
c<1ntradistinction, the te11ching hospitals under the Gentral Health
H
(I) [1980] 3 S.C.R. 44.
36 SUPREME COURT RBPOllTS [IS83) 2 s.c.R.

A Service are : (1) Irwin Hospital, New Delhi and (2) G. B. Pant
Hospital, New Delhi which are both associate hospitals of Maulana
Azad Medical College. The Lady Hardinge Medical College also
has a separate hospital attached to it.

B The medical colleges run by the Central Health Service are :
{l) Maulana Azad Medical College, New Delhi; (2) Lady Hardinge
Medical College, New Delhi; and (3) Jawaharlal Institute of Post·
Graduate Medical Education & Research (JIPMER), Ponclichery.

Besides the medical colleges, the Central Health Service also
runs several medical institutions, viz. Hospital for Mental Diseases,
Ranchi, Patel Chest Institute. Delhi etc. The teaching in these
medical colleges is undertaken by Professors and Associate Profes- r
sors as well as by Specialists attached to the hospitals affiliated to
the respective colleges.
r
D The modern pattern in medical education during recent years
is the organization of clinical units. As medical education has
developed, the di,tinctive feature is the thoroughness with which
theoretical and scientific knowledge are fused with what experience
teaches in the practical responsibility of taking care of human beings.
The clinical teacher has an immediate and absolute responsibility,
E Physicians and surgeons still go round their wards at stated hours,
followed by groups of students to whom they point out the features
of each case, expound the nature of the malady and explain the
reasons for the treatment adopted. But no longer, as formerly, is
the .tudent dependent upon "walking the wards", attending lectures
and reading about the illnesses of which the cases he has seen are ,,
' illustrations. The clinical unit is a far more efficient training centre.
The importance of the clinical years is brought out in the Encyclo·
paedia Britannica Macropaedia, 15th edn. p. 810 :

"The two or more clinical years of on-effective curri-
G culum are characterized by active student participation in
small group conferences and discussions, a decrease in the
number of formal lectures, and an increase in the amount
of contact with patients in teaching hospitals and clinics.
Through work with patients, under the supervision and
H guidance of experienced teachers, students learn methods of
obtaininti comprehensive, accurate and meaningful accounts
ASIM KUMAR •. UNiON (Sen, J.)

of illuness, bow to conduct physical examinations and how A
to develop judgments in the selection and utilization of
laboratory diagnostic aids. During this period, they learn
to apply the knowledge gained in their pursuit of th• basic
medical sciences to the study of general medicine and the
medical and surgical specialities."
B
We must first deal with certain amendments in the Rules
precribing the mode in which the posts of Professors and Associate
Professor can be filled in. By amendments dated February 21,
1968 and September 18, 1971, paragraphs i (b} and 3 of Annexure
I to the Second Schedule and sub-r. (2A) of r. 8 were inserted res-
pectively. These amendments have brought about a change inas·
much as thero is now a vertical channel of promotion to the teaching
posts upto the post of Associate Professor. The Third Pay Commis·
•
sion in its Report at p. 173 observes :

"While the Specialists on the teaching side can hold
posts of hospital specialists, the latter cannot be promoted D
.to teaching posts because of lack of teaching experience."

On a literal construction of these Rules, the effect of these amend·
. ments appears to be this. Normally, a Professor or an Additional
Profeesor in a medical college or teaching institution can be
appointed by direct recruitment from amongst persons holding the E
post of Associate l>rofessor or Assistant Professor in the concerned
speciality in a medical college or a teaching institution havioig' at
least six years' teaching experience out of 12 years' stan-
ding in the G1ade through the Uoian Pubiic Service Commission. An
Associate Professor in the medical college or a teaching institution
can only be promoted from amongst persons holding the post of
Assistant Professor having at lea.st five year's teaching experience
'
in the concerned speciality by the Departmental Promotion Com·
mittee. We arc inclined to the view that the word "as" in the
collocation of the words used "at least six years" experience as
Associate Prof~ssor/Assistant Professor/Reader" in paragraph 2 (b) G
and of the words "at least five years' experience as Reader/Assistant
Professor" in paragraph 3 and sub-r. (2A) of r. 8 must be inter-
preted in its ordinary sense as meaning teaching experience gained
"In the capacity of". In Black's Legal Dictionary, 5th edn., p. 104
the meaning of the word "as" as given is : "Used as an adverb, etc; H
means like, similar to of the same kind, in the same manner, in tho
•
38 sUPkEME C<'Uk1 REPORTS (1983] 2 S,C,P.

A manner in which". In Shorter Oxford Dictionary 3rd edn. p. 111,
tbe word "as" is stated to mean : "The same as, in the character
capacity, role of". In our view, the Ministry of Health is apparently
wrong in ·assuming that the word "as" in paragraphs 2 (b) and 3 of
Annexure I to the Second Schedule and sub-r. (2A) of r. 8 makes
B holding of a post in the cadre a condition precedent to the appoint-
ment of a Professer or an Associate Professor.

The question that falls for consideration is whether the appel·
!ant possessed the qualification and experience requisite for appoint-
ment to the post of Associate Professor of Radiotherapy in
. Maulana Azad Medical College, New Delhi, and if not, whether the
appellant is eligible for appointment to the post of Professor of
.Radiotherapy in that College. That depends on whether be fulfilled
the conditions laid down in r. 8 (2) and 2 (A) and paragraphs 2 (b)
and 3 of Annexure I to the Second Schedule. R. 8 provides that
after appointments have been made to the Service under rs. 7 and
D 7A, future vacancies shall he filed in the manner provided there·
under. R. 8 (2) provides that every vacancy in the Specialists'
Grade shall be filled by direct recruitment in the manner specified in
the Second Schedule. That is to say, 100% of vacancies in the
Specialists' Grade have to be filled by direct recruitment through
tbe Union Public Service Commission. The post of Professor of
E Radiotherapy in the Maulana Azad Medical College is a post be-
lo!'ging to Specialist Grade I which is equivalent to Supertime
Gra~'II carrying a pay·scale of Rs. 1800-2250. Annexure I to the
Second Schedule prescribes the age limit, educational qualifications
· and experience for direct recruitment to the various categories of the
Service. Paragraph 2 (b) thereof reads :
"F
"Supertime Grade II 50 years For Professors/ Additional Professors
Rs. 1300-1800 and be- in medical colleges/teaching institu-
low re- lions.
taxable A post-graduate degree in the
G for concerned speciality mentioned
Govt. in Part A of Annexnre II or equiva-
lent servant.
.. .. .... .. *
H For Professors/ Additional Pro-
fessor, in medical colleges or tea-
•
ASl!I KO!IA!l. v. UNION (Sen, J)
•
ching institutions, at least 6 years
experience as Associate Professor/
Assistant Professor/Reader in a
medical college or teaching institu·
tion after the requisite post-
graduate degree qualification out of
the aforesaid 12 years' standing. B
(Qualifications relaxable at Commis·
sion's discretions in the case of
candidates otherwise well-quali-
fied)."

R. 8 (3) provides that 50% of the vacancies in Supertime c
Grade II to ·be filled in by promotion of General Duty officers
Grade I and Specialists Grade II officers in the ratio of 2:3
and the remaining 50% of the vacancies to be filled by airect recruit·
ment in the manner specified in the Second Schedule. That is to
say, there is certain amount of flexibility and it cannot be that the
appellant who is a Radiologist in the Maulana Azad Medical College
D
which is a post belonging to Specialists Grade II, cannot be
appointed by direct recruitment as Professor of Radiotheraphy
uuder r. 8 (2).

The Ministry of Health seems to quite oblivious of the
fact that during the pendency of appeal, the post of Professor or
E·
i Radiotheraphy in M1julana Azad Medical College having fallen be
vacant, the vacancy in the post has to be filled up in the man·
ner provided by r. 8 (2) i. e. by direct recritment through the
Union Public Service Commission. It is not disputed before
us that the' Union Public Service Commission has the power f
to relax the qualifications prescribed in the case of candidates
otherwise well-qualified. That being so, the appellant who
admittedly is a highly qualified person and has .the requisite
teaching experience as Radiologist-cum-Associate Professor
of kadiologist (ex-officio) is clearly eligible for appoint·
ment as Professor of Radiotherapy under r. 8 (2). The Union G
Public Service Commission while advertising the post of Professor
Radiotherapy which has fallen vacant, must, as it rightly did, invite
the appellant for an interview for being considered for appointme~t
to that post.
H
That conclusion however does not relieve us from dealing
40 SUPREME COURT REPORTS [1983J 2 S,l',1<.
•
·A :with the main. question viz, whether the appellant possessed the
qualifications. and experience requisite for appointment to the post
of Associate Professor of Radiotherapy. The question must turn on
a construction of r. 8 (2 A) and paragraph 3 of Annexurc I to the
Second Schedule of the Rules. As stated above, r. 8 (2) provides
that every vacancy in the Specialists' Grade ~hall be filled by direct
8 recruitment in the manner specified in the Second Schedule. R. 8
(2A) however makes an exception in the case of Associate Professors
and Assisstant Professors Sub-r. (2A) of r. 8 contains a non-obstapte
clause and it reads :

"Notwithstanding anything contained in sub-r. (2)
·c the vacancies in the post of Associate Professor and
Assistant Professor in the medical colleges and teaching
institutions shall be filled hy the appointment of Assistant
Professors and Lecturer respectively in the Specialists'
Grade, possessing the qualifications and experience prescri·
bed in Annexure I to the Second Schedule for the respec·
D live post, on the recommendation of a Departmental
Promotion Committee.

Provided that if no suitable officer is available for
appointment to the post of Associate Professor or Assis-
.E tant Professor in any medical college or teaching institu-
tion from the Grades of Assistant Professor or Lecturer,
as the case may be, such vacancy shall be filled by direct
recruitment in the manner specified in the Second Sche-
dule." ·

F Paragraph 3 of Annexure I to the Second Schedule reads as
follows:

"Specialists' Grade 45 years For Associate Professors/Readers
(Rs. 600-1300) and be- Assistant Professors/ Lecturers.
low (re- A post-graduate degree in the
G Jaxable concerned speciality mentioned
for Govt. in Part A of Annexure II or
servants.) equivalent.
For Associate Professors :
.ff
At least 5 years' experience as
Reader/Assistant Professor in
ASIM KUMAR v. UNION (Sen, .i.) 41
the coacerned speciality in a A
medical college/teaching insti·
tution after the requisite post·
graduate qualifications.

(Qualifications retaxable at
Commission's discretion in the B
case of candidates otherwise
well-qualified.)"

The contention on behalf of the respondents is that ihe appel-
lant could not be considered for appointment to the post of Asso· c
ciate Professor of Radiotherapy in Maulana Azad Medical College
because the teaching experience gaiaed by him while holding the
post of Radiologist-cum-Associate Professor of Radiology (ex·
officio) in the Irwin Hospital since October 9, 1964 cannot be taken
into consideration. It is urged that there is a distinction between
the two posts of Radiologist and Associate Professor of Radiology D
as the post of Radiologist is a clinical post while that of Associate
Professor of Radiology is a teaching post. That being so, it was
· urged that the channels of promotion to the two posts are different
and the appellant who had been substantively appointed to the post
of Radiologist in the Irwin Hospital must seek his own channel of
promotion in Supertime Grade II for a non·teaching job. It is fur- E
ther urged that since the appellant was not holding the post of an
i
Associate Professor, he was not drawing the teaching allowance of
Rs. 200/- p.m. to which he wopld otherwise be entitled. 1t is also
urged that the status of Associate Professor of Radiology (ex-
officio ) which the appellant holds in the Irwin Hospital is akin to
that of honorary Professor or Associate Professsor in the Willing- F
don Hospital or the Safdarjang Hospital and the mere designation of
the appellant as Associate Professor of Radiology (ex·officio) by
the University of Delhi does not give him a right to hold the post
of Professor of Radiology in Maulaaa Azad Medical College. It is
pointed out that a similar question arose in connection with the
G
conferral of honorary teaching designations on certain medical offi·
cers in the Willingdon Hospital and Safdarjang Hospital, New Delhi
in the year 1973. It is said that the President of India was pleased
to direct that the conferral of such teaching designations would not
entitle the Specialists to claim seniority or eligibility for promotion H
merely by virtue of these honorary designations, nor would it entitle
the incumb1mt any special benefit with regard to any teaching
42 SUPREME COURT REPORTS {1983] 2 s.c.R.

A allowance which may be given to the teachers in a medical college.
By parity of reasoning, it is urged that the designation of the appe 1-
lant as a Radiologist ·cum-Associate Professor of Radiology (ex-
officio) did not make him eligible for appointment to the post of
Associate Professor of Radiotherapy in Maulana Azad Medical
College. We are afraid, we cannot subscribe to this line of
B argument.

We find it rather difficult to support the impugned action of
the Government of India in the Health Ministry in holding that
the teaching experience gained by the appellant as Radiologist
c cum-Associate Professor or Radiology (ex·officio) with effect
from October 9, 1964 cannot be taken into consideration.
The view taken by the Health Ministry appears to proceed, on a
misconstruction of r. 8 (2A) and paragraph 3 of Annexure I to the
Second Schedule. As already stated, the word "as" in these provi-
sions must, in the context in which it appears, be interpreted to mean
D "in the capacity of". The Ministry of Health cannot be heard to say
that the appellant has not acquired the status of an Associate Pro·
fessor of Radiology with effect from October, 9, 1964, particularly
when the Central Government have been utilizing his services as
such for teaching the post·gradudate and under graduate
students of the Maulana Azad Medical College for the M.D.,
E M.S., D.M.R.T. and M.B.B.S. courses of studies for the last
17 years. The arrangement bas continued for all these years with
the approval of the Delhi University and presumably with the tacit
sanction of the Medical Council of India. In our opinion, the pro-
visions contained in r. 8 (2A) and paragraph 3 of Annexure I to the
Second Schedule must be interpreted in a broad and liberal sense as
F it would otherwise work great injustice to persons in Specialists
Grade II like the appellant who, while holding a non-clinical post in
a teaching hospital like the Irwin Hospital, has been actually
teaching the students of the Maulana Azad Medical College to
which it i.s affiliated. The contention that the position which the
appellant enjoys as Radiologist-cum-Associate Professor of
G Radiology (ex-officio) in the Irwin Hospital is similar to that of
honorary Professor or Associate Professor in the Willingdon
Hospital or the Safdarjang Hospital and the mere designation of the
. appellant as such does not give him a right to hold the post of
Associate Professor of Radiology, cannot prevail. There is no order
H placed before us of the President of India directing that conferral
of honorary teaching designations on Specialists in the Willingdon
ASIM KUMAR v. UNION (Sen, J.) 43
Hospital and the Safdarjang Hospital would not entitle such A
Specialists to claim seniority or eligibility for promotion. Even if it
were so, that would hardly make any difference. The submission
overlooks the distinction between a teaching and a non-teaching
hospital. There cannot be a medical college without a teaching
hospital as its integral and inseparable part. The mere fact that the
appellant was not drawing a teaching allwance of Rs. 200/· p.m. is B
of no legal consequence because the allowance is attached to the
post of Associate Professor.

We wish to make it clear that it is not for the Court to give
the appellant promotion or make his appointment to the post of
Professor of Radiotherapy. The Court can only on a true cons·
c
!ruction of r. 8 (2A) and paragraph 3 of Annexure I to the Second
Schedule determine the question of his eligibility for such promo.
tion or appointment. If the appellant is eligible to hold the post
of Professor of Radiotherapy, he can always apply irrespective
of the fact whether or not he is in the line of promotion. It is for D
the Union Public Service Commission to advertise the post of
Professor of Radiotherapy and everyone who satisfies the required
qualifications can make an application. That is because the
Commission undoubtedly has the power to relax any of the
qualifications.
E
The result therefore is that the appeal must succeed and is
allowed with costs. The judgment and order of the High Court is
set aside and the impugned order passed by the Government of
India, Ministry of Health & Family Planning, Department of Healih
New Delhi dated February 23, 1974 is quashed. It is declared that
the appellant had acqµired the requisite teaching experience as F
nvisaged by r. 8 (2A) and paragraph 3 of Annexure I to the Second
Schedule of the Central Health Service Rules, 1963, as amended by
the Central Health ,Service (Amendment) Rules, 1966, and was
therefore eligible to be considered for appointment to the post of
G
Associate Professor of Radiotherapy in Mauhna Azad Medical
College which had fallen vacant in 1973. The second respondent
shall give effect to the declaration. As a necessary consequence, we
direct the Union Public Service Commission to re-advertize the post
of Professor of Radiology in Malulana Azad Medical College,
New Delhi which had. fallen vacant during the pendency of the
H
appeal and call the appellant for an interview for being conside(ed
appointment to that post.
44 SUPREME COUJ.t RllPORts [1983) 2 s.c.a.

A We wish to clarify that the declaration shall not adversely
affect or act to the detriment of any person who was and is
senior to the appellant in the Central Health Service or bad
already been appointed as Associate Professor in the concerned
speciality.

B S.R. Appeal allowed.