DR. GANGA PRASAD VERMA ETC.versusSTTE OF BIHAR AND ORS. ETC.

                 DR. GANGA PRASAD VERMA ETC.                             A
                              v.
                 STATE OF BIHAR AND ORS. ETC.

                         NOVEMBER 10, 1994

          [K. RAMASWAMY AND N. VENKATACHALA, JJ.}                        B

SERVICE LAW

     Indian Medical Council Act, 1956-Section 33 (J )-Promotion to post
of Professor/Associate Professor-Qualification in speciality namely MCh.
after MS.IF.R.C.S. is a must.                                            C

       The appellant, while working as an Assistant -Professor, was
  promoted as an Associate Professor in Neuro Surgery. Writ petition
  was filed questioning the promotion of the appellant. The High Court
  set aside the promotion of the appellant and directed the respondent to D
  consider the matter afresh in the light of the judgment of the Supreme
  Court in Dr. Arun Kumar Agarwal v. State of Bihar, [1991] 2 SCR 491.
, This appeal by special leave has been filed against the judgment of the
  High Court.

    Both the appellant and respondent No. 7 had the qualification of E
M.S. General Surgery. In addition, 7th ' respondent had the
qualification of M.Ch. in the speciality concerned, namely, Neuro
Surgery. The appellant is not possessed of the qualification prescribed
for super speciality, namely, M.Ch. The question, therefore, was
whether the direction issued by the High Court to consider the case in
the light of the Supreme Court judgment, was correct in law, F
considering the regulation framed by Medical Council of India under •
Clause 33 (J) of the Indian Medical Council Act, 1956.

    The appellant submitted that according to Ciause (9) of the
Regulation, M.S. after M.Ch. in the speciality concerned after
M.S./F.R.C.S. or a qualification equivalent in Surgery with 2 years G
special training in the speciality concerned would mean that the
requirement of acquiring the qualification of M.Ch. is not a condition
precedent for promotion to the post of Associate Professor from the
post of Assistant Professor. Since the appellant had put in more than 15
years experience as an Asstt. Professor and also in the speciality H
                                  455
    456                      SUPREME COURT REPORTS          (1994] SUPP. 5 S.C.R.

A   concerned in the Neuro Surgery, he is entitled to be considered for
    promotion.
          Dismissing the appeal, this Court

         HELD : 1.1. Where the language of the Act is clear and explicit, the
    Court must give effect to it, whatever may be the consequences, for in
B
    that case the words of the statute speak the intention of the legislature.
    The interjection of the preposition 'or' at the underlined place amounts
    to judicial legislature or supplying omission which is impermissible in
    the process of construction of the Regulation. M.Ch. is a super
    speciality. The Associate Professor is to teach the students in that
    subject or guide the research students. So the Regulation intended to
c   prescribe M.Ch. after M.S., is a must. It is clear from word 'after' M.S.
    or F.R.C.S. (458-E-F)
         1.2. In this case, no statutory rules have been made by the State of
    Bihar. Therefore, the Regulations made by Medical Council of India
    ~Is 33 would bind the State Government. The conditions prescribed
D   tllerein namely; for promotion to the Post of Professor or Associate
    Protessor, the qualification in the speciality namely M.Ch. concerned
    after M.S./F.R.C.S. is a must. Since t!te appellant did not have the
    qualification of M.Ch. though he had the experience, he is not entitled
    to be considered for promotion as Associate Professor in supersessiol\ /
    of the claim of the 7th respondent and other similarly situated persons.
E   There is no illegality in the directions given by the High Court.
                                                                    (459-C-F)
        Govt. of A.P. and Anr. etc. v. Dr. R. Murali Babu Rao and Anr. etc.,
    (1988) 3 SCR 173 and Dr. Arun Kumar Aggarwa/v. State of Bihar, (1991)
    2 SCR 491, relied on.
F
        CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 7721-22 of
    1994.

         From the Judgment and Order dated 12.1.94 of the Patna· High "Court in
    c. W.J~c. No. 2832 of 1993 (R)
G
          Harish Salve, L.R. Singh for the Appellant.

          B.B. Singh for State of Bihar.

          Ashok Desai, A. Sharan and Ranjit Kum·ar for the Respondent.

H         The follcwing Order of the Court was delivered:
                  GANGA PRASAD VERMA 11. STATE OF BIHAR                        4S1

        Leave granted.                                                                A
         The appellant, while working as an Assistant Professor, was promoted
    as an Associate Professor in Neuro Surgery, by proceedings dated
    September 17, 1993. In the meanwhile, Dr. Basant Kumar Singh,
    respondent No. 7, had already filed a writ petition claiming the right for
    promotion as an Associate Professor, Neuro Surgery. During its pendency,          B
    the promotion of the appellant came to be made. Therefore, the writ petition
    was amended questioning the promotion of the appellant. The High Court
    in the impugned order dated January 12, 1994 in CWJC No. 2832/93
    allowed the writ petition, set aside the promotion of the appellant and
    directed the respondent to consider the matter afresh in the light of the
    judgment of this court in Dr.·Arun Kumar Agrawal v. State of Bihar, [1991]        C
    2 SCR 491. Thus this appeal by special leave.

         The controversy lies in a short compass. Admittedly, the appellant is
    not possessed of the qualification prescribed for super-speciality, namely,
    M.Ch. Admittedly, both the appellant and respondent No. 7 had the
    qualification as M.S. - General Surgery. In addition, 7th respondent had the D
    qualification of M.Ch. in the speciality concerned, namely, Neuro Surgery,
    acquired in 1989. The question, therefore, is whether the direction issued by
    the High Court to consider the case in the light of the above-said judgment,
    is correct in law. The medical Council of India has framed the regulations
    under Section 33 (J) of the Indian Medical Council Act, 1956. Clause (a) is
    for the Professor/Associate Professor which reads as under:                   E
        Post                  Academic                         Teaching/Research
                              Qualification                           Experience

      (a) Professor/          M.Ch. in speciality            (a) As Reader, Asstt.
        Associate             concerned after                   Prof. in respective   F
        Professor             M.S./F.R.C.S.                subjects for S yeas in a
                                                    medical college after requisite


-                             M.S./f .R.C.S. or an
                              equivalent qualification
                                                      post-graduate qualification.


                                                                                      G
                              in surgery wi~ two years
                              special training in the
                              speciality concerned or
                              speciality Board (USA)
                              in the speciality concerned.                            H
    458                    SUPREME COURT REPORTS            [1994] SUPP. 5 S.C.R.

A         (b) Reader/          -do-                       (b) As Registrar of an
          Asstt.                                           equivalent post for at
          Professor                                   least 3 years in respective
                                                    subjects or allied subjects in
                                                          a teaching institution.

B        Sri M.L. Verma, learned senior counsel for the appellant, states that
    M.S. after M.Ch .. in the speciality concerned after M.S./F.R.C.S. or M.S. or
    F.R.C.S. or a qualification equivalent in Surgery with two years special
    training in the speciality concerned or Speciality Board (U.S.A.) in the
    speciality concerned, would be to mean that the requirement of acquiring
    the qualification of M.Ch. is not a condition precedent for promotion to the
c   post of Associate Professor from the post of Assistant professor. Since the
    appellant had put in· more. than 15 years experience as an Assistant
    Professor and also in the speciality concerned in the Neuro Surgery, he is
    entitled to be considered and the High Court was not right in directing to
    consider the case in the light of the judgment of this Court in Arun Kumar
    Agrawal's case. He strongly relied upon the judgment of this Court in
D   Government of Andhra Pradesh and Anr. etc. v. Dr. R. Murali Babu Rao
    and Anr. etc., [ 1988] 3 SCR 173.

         Where the language of the Act is clear and explicit, the Court must
    give effect to it, whatever may be the consequences, for in that case the
    words of the statute speaks the intention of the legislature. The interjection
E   of the preposition 'or' at the underlined place amounts to Judicial
    legislature or supplying omission which is impermissible in the process of
    construction of the Regulation. So we can not read the regulation in the
    manner suggested by the Counsel. M.Ch. is a super speciality. The associate
    Professor is to teach the students in that subject or guide the research
    students. So the regulation intended to prescribe M.Ch. after M.S., is a
F
    must. It is clear from what we read "after" M.S. or F.R.C.S. In Dr. Murali
    Babu Rao's case, admittedly Dr.' G. Subramanyam, Dr. A. Rajagopala Raju
    and Dr. Soghra Begum who already had MD (Cardiology) and put in


G
    required experience as contemplated under Rule 5 of the Andhra Pradesh
    Medical and Health Services Special Rules, 1982 were senior to Dr. Murali
    Babu Rao who had then the MD (Cardiology) but without five years'
    experience in the super-speciality namely, DM (Cardiology). The question
                                                                                     -
    was whether 5 years' experience in DM is a must. While interpreting Rule
    5, this Court held that acquisition of experience of five years after DM is a
    condition precedent and since Dr. Murali Babu Rao had not had five years
    experience, after acquiring DM (Cardiology), he did not become senior to
H   the aforestated Dr. Subramanyam and others. Therefore, the Tribunal was
                    GANGA PRASAD VERMA v. STATE OF BIHAR                    459

      right in directing to consider. their case ignoring the claims of Dr. Murali A
      Babu Rao and others. That ratio far from helping the appellant is consistent
      with the regulation framed by the Medical Council of India under Section
      33 that degree is speciality is. a must. No doubt, this Court had held therein
      that the regulations framed by the Medical Council of India are only
      directory and would give place to the statutory rules made under proviso to
      Article 309 of the Constitution by the Governor. The regulations made by B
      the Medical Council of India does not have any over-riding effect on the
      statutory rules. Rule 5 prescribed 5 years' teaching experience after DM
      which was upheld. In this case, admittedly, no statutory rules have been
      made by the State of Bihar. Therefore, the regulations made by the Medical
      Council of India under Section 33 would bind the State Government. The
      conditions prescribed therein namely, for promotion to the Post of Professor C
      or Associate Professor, the qualification in the speciality namely M.Ch.
      concerned after M.S./F.R.C.S. is a must. Since the appellant did not have
      the qualification of M.Ch. though he had the experience, he is not entitled
      to be considered for promotion as Associate Professor in supersession of
      the claim of the 7th respondent and other similarly situated persons. In Dr. D
      Arun' Kumar Agrawal's case, this Court considered the controversy and
      held that the acquisition of the qualification of M.Ch. in Neuro Surgery is a
      must and that the omission to consider the case of Dr. Arun Kumar Agrawal
      though had M.Ch. was not considered. It was held to be illegal and directed
      to consider his case. Though the post concerned therein was Assistant
      Professor, since the same qualification has been prescribed for the post of E
      Professor/Associate Professor also, the ratio therein would equally be
      applicable to the claim of the persons eligible to be considered for
      promotion to the post of Professor/Associate Professor. Under these
      circumstances, we hold that the appellant since did not have speciality in
      M.Ch. (Neuro Surgery), there is no illegality in the directions given by the
      High Court, warranting our interference. The appeal is accordingly F
      dismissed. No costs.

      A.G .                                                  Appeal dismissed.
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