DR. PURSHOTAM KUMAR KAUNDALversusSTATE OF H.P. AND OTHERS

                         [2014] 2 S.C.R. 470


A              DR. PURSHOTAM KUMAR KAUNDAL
                                 v.
                  STATE OF H.P. AND OTHERS
                  (Civil App~al No.1956 of 2014)
                        FEBRUARY 11, 2014
B
                [RANJANA PRAKASH DESAI AND
                    MADAN B. LOKUR, JJ.]

     HIMACHAL PRADESH                   MEDICAL       EDUCATION
C SERVICE RULES, 1999:

       r.2(n) - Promotion to the post of Assistant Professor in
  Pharmacology - Respondent no.5 possessing M.D. in
  Pharmacology from the Maharishi Dayanand University -
0 Consideration of case of respondent no.5 for promotion -
  Challenged on the ground that he did not possess an M.D.
  degree in Pharmacology duly recognized by the MCI - Held:
  There is nothing to suggest that recognition of the post
  graduation degree must be by the MCI - As per the Service
E Rules wherever recognition by the MCI is postulated, there
  is a specific reference to it in the Service Rules - r. 2(n) defines
  a post graduate qualification as meaning a qualification as
  specified in Appendix C-1 and II - Appendix C-11 contains a
  list of post graduate qualifications - Some of the post
  graduation degrees that require recognition by the MCI are
F specifically mentioned therein - Except the post graduation
  degrees specified therein the Service Rules merely required
  a recognized post graduate degree for meeting the eligibility
  criteria - Thus, respondent no.5 was entitled to be considered
  for promotion and if found suitable, entitled to all
G consequential benefits - Service law - Promotion.
        Respondent no.5 had obtained a post graduation
    degree in Pharmacology from the Maharishi Dayanand
    University, Rohtak on 31st December, 1991. When his
H                                 470
 DR. PURSHOTAM KUMAR KAUNDAL v. STATE OF 471
             H.P. AND OTHERS
case came up for consideration for promotion before the      A
Departmental Promotion Committee on 28th August,
2001, he was not considered apparently on the ground
that he did not possess an M.D. degree in Pharmacology
duly recognized by the Medical Council of India. This
decisipn was based on a letter dated 8th July, 2001          B
issued by the Deputy Secretary in the MCI to the Director
of Medical Education and Research, Himachal Pradesh.

     Respondent no.5 challenged the failure of the
Departmental Promotion Committee to consider him for         C
promotion. A Single Judge of the High Court rejected the
writ petition filed by respondent no.5 on the ground that
Section 11 (1) of the Medical Council Act, 1956 provides
that only those medical qualifications granted by any
university or medical institution in India which are
included in the First Schedule to the Act shall be           D
recognized medical qualifications for the purposes of the
Act and since an M.D. in Pharmacology from the
Maharishi Dayanand University was not included in the
First Schedule to the Act, respondent no.5 was not
eligible for being considered for promotion to the post of   E
Assistant Professor in Pharmacology. The Single Judge
also referred to Section 2(h) of the Act which defines a
recognised medical qualification as meaning any of the
medical qualifications included in the schedules of the
Act. It was held that the qualification obtained by          F
respondent no.5 from the Maharishi Dayanand University
did not fall under any schedule to the Act. Aggrieved,
respondent no.5 preferred LPA. The Division Bench of
the High Court allowed the LPA and directed the
Department to hold a review departmental promotion           G
committee for the post of Assistant Professor within a
period of eight weeks. It also held that respondent no.5
would be entitled to all consequential benefits in case he
is found suitable by the review departmental promotion
committee. The Division Bench of the High Court was of       H
    472      SUPREME COURT REPORTS             [2014] 2 S.C.R.


A the view that the eligibility criteria only required a
  recognized post graduation degree and did not require
  a post graduation degree recognized by the MCI. The
  degree obtained by respondent no.5 was a recognized
  post graduation degree inasmuch as it was conferred by
B a recognized statutory university. The Division Bench of
  the High Court also noted that in a later departmental
  promotion committee held on or about 25th November,
  2012 respondent no.5 was found eligible for being
  considered for promotion to the post of Assistant
c Professor and was in fact so promoted, while holding the
  same qualifications.

      The question for consideration in the instant appeal
  was whether respondent No.5 was not eligible for being
  considered for promotion to the post of Assistant
D Professor in accordance with the Himachal Pradesh
  Medical Education Service Rules, 1999.

          Dismissing the appeal, the Court

E     HELD: 1. No fault can be found with the view taken
  by the High Court in the letters patent appeal filed by
  respondent no.5. The Service Rules mainly concern
  themselves with a recognized post graduation degree.
  There is nothing to suggest that recognition of the post
  graduation degree must be by the MCI. Perusal of the
F Service Rules showed that wherever recognition by the
  MCI is postulated, there is a specific reference to it in the
  Service Rules. Rule 2(n) of the Himachal Pradesh Medical
  Education Service Rules, 1999 defines a post graduate
  qualification as meaning a qualification as specified in
G Appendix C-1 and II. Appendix C-11 contains a list of post
  graduate qualifications. Some of the post graduation
  degrees that require recognition by the MCI are
  specifically mentioned therein. The chart showed that
  except the post graduation degrees specified therein the
H Service Rules merely require a recognized post graduate
 DR. PURSHOTAM KUMAR KAUNDAL v. STATE OF 473
             H.P. AND OTHERS
degree for meeting the eligibility criteria. [Paras 11, 12, 13]   A
[476-E-G; 479-A]

     2. The plea of the appellant cannot be accepted that
if the appeal is dismissed, rights that have accrued or
vested in his client, including his seniority over                B
respondent no.5 will be disturbed and this is not
permissible. In view of the fact that respondent no.5 was
wrongly not considered for promotion to the post of
Assistant Professor in Pharmacology, he deserves to be
now considered and if found suitable, entitled to all             C
consequential benefits. [Para 14] [479-B-C]
    CIVIL APPELLATE JURISDICTON : Civil Appeal No.
1956 of 2014.
    From the judgment and order dated 19.10.2011 of the
High Court of H.P. at Shimla in LPA No. 176 of 2010.              D
    Ravi Bakshi, Yash Pal Dhingra for the appellant.
   Pragati Neekhra, Syed Mehdi Imam, Gaurav Shrama, Amit
Kumar for the Respondents, Caveator-in-Person.
                                                                  E
    The Judgment of the Court was delivered by
    MADAN B. LOKUR, J. 1. Leave granted.
    2. The only question for consideration is whether
respondent No.5 Dr. D.D. Gupta was eligible for being
considered for promotion to the post of Assistant Professor in F
accordance with the Himachal Pradesh Medical Education ·
Service Rules, 1999. In our opinion, the question should be
answered in the affirmative and against the appellant Dr.
Purshotam Kumar Kaunda!.
     3. The eligibility criteria for promotion to the post of     G
Assistant Professor, as laid down in the Service Rules is as
follows:-
    "By promotion from amongst the lecturers who possess
    three years regular service or regular combined with          H
    4 74      SUPREME COURT REPORTS                   [2014] 2 S.C.R.


A          continuous ad hoc (rendered upto 31.3.1998) service, if
           any, in the grade in the concerned specialty failing which
           by appointment (by selection from amongst the members
           of H.P. Civil Medical Service (General Wing) having
           recognized post-graduation degree or its equivalent
B          qualification in the concerned specialty and possess at
           least three years teaching experience as Lecturer/
           Registrar/Demonstrator/Tutor/Sr. Resident/Chief Resident
           in the concerned specialty after doing post-graduation in
           the concerned specialty failing which by direct recruitment."
c        4. Dr. Gupta had obtained a post graduation degree in
    Pharmacology from the Maharishi Dayanand University, Rohtak
    on 31st December, 1991. He believed that he met the eligibility
    criterion as per the Service Rules and ought to have been
    considered for promotion to the post of Assistant Professor.
D
       5. However, when his case came up for consideration for
  promotion before the Departmental Promotion Committee on
  28th August, 2001 he was not considered apparently on the
  ground that he did not possess an M.D. degree in
E Pharmacology duly recognized by the Medical Council of India
  (for short the MCI). We were told that this decision was based
  on a letter dated 8th July, 2001 issued by the Deputy Secretary
  in the MCI to the Director of Medical Education and Research,
  Himachal Pradesh in which it is stated as follows :-
F          "K1ndly refer to your letter No. HFW (DME) H(1)A-20/99,
           dated 1.9.2001, this is to inform you that MD
           (Pharmacology) qualification granted by Maharishi
           Dayanand University in respect of students being trained
           at Pt B.D. Sharma Postgraduate Institute of Medical
G          Science is not recognized by the Council for purposes of
           IMC Act, 1956."

      6. Dr. Gupta challenged the failure of the Departmental
  Promotion Committee to consider him for promotion by filing
H an original application before the State Administrative Tribunal.
  DR. PURSHOTAM KUMAR KAUNDAL v. STATE OF                          475
      H.P. AND OTHERS [MADAN B. LOKUR, J.]
 The original application was transferred to the High Court of             A
 Himachal Pradesh and registered as CWP (T) No.7948 of
 2008.

          7. By a judgment and order dated 9th August, 2010 a
    learned Single Judge of the High Court rejected the writ petition      B
   filed by Dr. Gupta. The learned Single Judge held that Section
    11 (1) of the Indian Medical Council Act, 1956 (for short the Act)
    provides that only those medical qualifications granted by any
    university or medical institution in India which are included in
   the First Schedule to the Act shall be recognized medical
    qualifications for the purposes of the Act. The learned Single         C
    Judge held that since an M.D. in Pharmacology from the
.. Maharishi Dayanand University was not included in the First
    Schedule to the Act, Dr. Gupta was not eligible for being
    considered for promotion to the post of Assistant Professor in
    Pharmacology. It was also held that since Maharishi Dayanand           D
    University did not apply for recognition of the qualification to the
    Central Government in terms of Section 11 (2) of the Act, Dr.
    Gupta was also not entitled to the benefit of that sub-section of
    Section 11 of the Act. The learned Single Judge also referred
· to Section 2(h) of the Act which defines a recognised medical            E
  . qualification as meaning any of the medical qualifications
     included in the schedules of the Act. It was held that the
    qualification obtained by Dr. Gupta from the Maharishi
     Dayanand University did not fall under any schedule to the Act.
    Accordingly, the writ petition was dismissed by the learned            F
    Single Judge.

      8. Feeling aggrieved, Dr. Gupta preferred LPA No.176 of
 2010 in the High Court. By its judgment and order dated 19th
 October, 2011 the High Court agreed with Dr. Gupta and                    G
 allowed the letters patent appeal and set aside the judgment
 and order of the learned Single Judge. The official respondents
 were directed by the High Court to hold a review departmental
 promotion committee for the post of Assistant Professor within
 a period of eight weeks. It was also held that Dr. Gupta would
                                                                           H
    476      SUPREME COURT REPORTS                  [2014] 2 S.C.R.


A   be entitled to all consequential benefits in case he is found
    suitable by the review departmental promotion committee for
    appointment to the post of Assistant Professor in 2001.

       9. The High Court was of the view that the eligibility criteria
  only required a recognized post graduation degree. It did not
8
  require a post graduation degree recognized by the MCI. The
  degree obtained by Dr. Gupta was a recognized post
  graduation degree inasmuch as it was conferred by a
  recognized statutory university. Therefore, Dr. Gupta was
  eligible for being considered for promotion to the post of
C Assistant Professor in Pharmacology.

       10. The High Court also noted that in a later departmental
  promotion committee held on or about 25th November, 2012
  Dr. Gupta was found eligible for being considered for promotion
D to the post of Assistant Professor and was in fact so promoted,
  while holding the same qualifications.

       11. We are of the opinion that no fault can be found with
  the view taken by the High Court in the letters patent appeal
E filed by Dr. Gupta. The Service Rules mainly concern
  themselves with a recognized post graduation degree. There
  is nothing to suggest that recognition of the post graduation
  degree must be by the MCI. On the contrary, we have gone
  through the Service Rules and find that wherever recognition
  by the MCI is postulated, there is a specific reference to it in
F the Service Rules.

       12. Rule 2(n) of the Service Rules defines a post graduate
  qualification as meaning a qualification as specified in
  Appendix C-1 and II. We are concerned with Appendix C-11
G which contains a list of post graduate qualifications. Some of
  the post graduation degrees that require recognition by the MCI
  are specifically mentioned therein. These are as follows:



H
DR. PURSHOTAM KUMAR KAUNDAL v. STATE OF                 477
    H.P. AND OTHERS [MADAN B. LOKUR, J.]
                                                              A
SI.      Subject        Part A                   Part B
         No.

23.   Cardiology   D.M. Cardiology 2/3 years        -
                   course as recognized by
                   M.C.I. after M.D.Medicine,                 B
                   or M.B.B.S. and 5 years
                   direct course leading
                   to D.M. Cardiology.

24.   Gastro-      D. M. Gastro-enterology 2/3                c
      Entrology    years course as recognized
                   by M.C.I. after M.D.
                   Medicine, or M.B.B.S. and
                   5 years direct course
                   leading to D.M. Gastro-                    D
                   enterology.                      -
25.   Theoracic    M.Ch.C.T.S. 2/3 years            -
      Surgery      course as recognized by
                   M.C.I. after M.S. Surgery,
                   or M.8.8.S. and 5 years                    E
                   direct course leading to
                   M.Ch. C.T.S.

26.   Urology      M.Ch. Urology 2/3 years          -
                   course as recognized by                    F
                   M.C.I. after M.S. Surgery,
                   or M.B.B.S. and 5 years
                   direct course leading to
                   M.Ch. Urology
31.   Nephrology   D.M. Nephrology 2/3 years                  G
                                                    -
                   course as recognized by
                   M.C.I. after M.D.
                   Medicine, or M.B.B.S.
                   and 5 years direct course
                   leadina to D.M. Neohroloav                 H
    478    SUPREME COURT REPORTS               (2014] 2 S.C.R.

A    32. Neo-Natology      D.M. Neo-Natology 2/3            -
                           years course as recognized
                           by M.C.I. after M.D.
                           Medicine, or M.B.B.S. and
                           5 years direct course
B                          leading to D.M. Neo-Natology.

     33. Paediatric        M.Ch.Paediatric Surgery
                                                                -
           Surgery         2/3 years course as
                           recognized by M.C.I.
                           after M.S. Surgery, or
c                          M.B.B.S. and 5 years
                           direct course
                           leading to M.Ch.          '
                           Paediatric Surgery.
D    34. Neuro-Surgery M.Ch.Neuro Surgery 2/3
                                                            -
                           years course as recognized
                           by M.C.I. after M.S.
                           Surgery, or M.B.B.S. and
                           5 years direct course leading
                           to M.Ch. Neuro Surgery.
     35.   Plastic Surgery M.Ch.Plastic Surgery
                                                            -
                           2/3 years course as
                           recognized by M.C.I.
                           after M.S. Surgery, or
F                          M.B.B.S. and 5 years direct
                           course leading to M.Ch.
                           Plastic Surgery.
     36.   Surgical Gastro M.Ch.Surgical Gastro-
G          -Enterology     enterology 2/3 years
                           course as recognized by
                           M.C.I. after M.S. Surgery or
                           M.B.B.S. and 5 years
                           direct course leading to M.Ch.
H                          Gastro-Enterology.
  DR. PURSHOTAM KUMAR KAUNDAL v. STATE OF                      479
      H.P. AND OTHERS [MADAN B. LOKUR, J.]
                                                                       A

      13. It is quite clear from a perusal of the above chart that
 except the post graduation degrees specified therein the
 Service Rules merely require a recognized post graduate
 degree for meeting the eligibility criteria.                          8
       14. Learned counsel for Dr. Kaundal submitted that if the
  appeal is dismissed, rights that have accrued or vested in his
  client, including his seniority over Dr. Gupta, will be disturbed
  and this is not permissible. The submission is stated only to
  be rejected. In view of the fact that Dr. Gupta was wrongly not      C
  considered for promotion to the post of Assistant Professor in
  Pharmacology, he deserves to be now considered and if found
  suitable, entitled to all consequential benefits. In this context,
, we may note that the State of Himachal Pradesh has not
  challenged the decision of the High Court directing                  D
  reconsideration.

        15. It was also contended that the post graduation degree
 obtained by Dr. Gupta was subsequently recognized by the MCI
 by a Notification issued in 2004 and that the Notification would      E
 not have retrospective effect so as to make Dr. Gupta eligible
 for consideration for promotion. It is not necessary for us to deal
 with this contention since we have held that Dr. Gupta's post
 graduation degree did not require any recognition by the MCI.

       16. Finally, it was contended that if Dr. Gupta is promoted     F
 it would be contrary to the Minimum Qualifications for Teachers
 in Medical Institutions Regulations, 1998. This submission was
 not made by Dr. Kaundal at any point of time and was only
 raised in passing by his learned counsel in his rejoinder
 submissions. We are not inclined to entertain this submission         G
 at this stage.

     17. We find no merit in this appeal and it is accordingly
 dismissed.

 D.G.                                          Appeal dismissed.       H