Holding

A Medical Officer (SPM) is not a teaching post; the 2005 amendment is substantive, and therefore Dr. Taruni was not eligible for promotion under the Time Scale Promotion Rules.

Summary

The Regional Institute of Medical Sciences (RIMS) promoted Dr. Taruni, a Medical Officer (SPM), to Assistant Professor in 1995, while Dr. Bhagyabati, also a Medical Officer, was promoted in 1998. Bhagyabati challenged Taruni's seniority, arguing that the SPM post was not a teaching post and therefore Taruni was ineligible for promotion under the Time Scale Promotion Rules, 1991. The High Court directed that Bhagyabati be treated as senior, and both RIMS and Taruni appealed. The Supreme Court examined whether a Medical Officer (SPM) constitutes a teaching post under Rules 17(B) and 31 and whether the 2005 amendment to the Rules was merely clarificatory. It held that occasional teaching duties do not convert a non‑teaching post into a teaching post, the amendment was substantive, and the Medical Council of India does not recognise the SPM post as a teaching post. Consequently, the appeals were dismissed, confirming the High Court's order.

Issues considered

Whether the post of Medical Officer (SPM) is a teaching post for the purpose of eligibility under the Time Scale Promotion Rules, 1991.
Whether the 2005 amendment to the Time Scale Promotion Rules is clarificatory or substantive.
Whether the promotion of Dr. Taruni to Assistant Professor was valid under the applicable rules.

Legislation cited

Medical Council of India Act, 1956s. 33

Subjects

service lawpromotionteaching postmedical officersenioritytime scale promotion rulesamendmenteligibility

Judgment

A REGIONAL INSTITUTE OF MEDICAL SCIENCE AND ANR.
v.
S. BHAGYABATI DEVI

MAY 17,2007

B [S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Service law: Time Scale Promotion Rules, 1991-Rules 17(B) and 31-
Medical officer (SP M)-Appellant working as medical officer (SPiil) promoted
C to the post ofAssistant Professor w.ef 1995-Respondent working as medical
officer promoted as Assistant Professor w.ef 1998-Respondent filed writ
petition questioning seniority of appellant_ on the plea that appellant having
never held any teaching post was not entitled to promotion-High Court
directed that respondent shall be treated to be senior to appe/lant-Co"ectness
of-Held: Correct-Post of medical officer (SPM) is not equ}valent to ihe
D teaching post-Performing a teaching job or working as a demonstrator
once in a while would not render non-teaching post to a teaching post.

Respondent was appointed as a Medical Officer in the year 1984. On
completion of 10 years, she was appointed as an Assistant Professor with effect
from 1. 7.1998. Dr.Twas appointed as a Medical Officer (SPM) in the year
E 1983. In terms of the rules framed by the Executive Council of RIMS, she
could be considered for promotion to the post of Assistant Professor on the
expiry of IO years of working in the post of Medical Officer. She was promoted
with effect from 1.2.1995 in the post of Assistant Professor.

Respondent filed a writ petition before High Court questioning the
F seniority assigned to Dr. T on the plea that she having never held 11ny teaching
post while •. ~ting as Medical Officer (SPM) was not entitled to promotion to
the post of Assistant Professor.

The High Court having regard to the fact that both Dr. T and respondent
G had further been promoted to the post of Associate Professor, did not disturb
the said appointments, but directed that respondent shall be treated to be senior
to Dr. T. Aggrieved by the order of High Court, RIMS and Dr. T both appealed
before this court.

H 84
REGIONAL INSTITUTE OF M£t)ICAL SCIENCE v. S. BHAGY ABA Tl DEVI 85
-I Appellants contended that although rendition of service in a teaching A
post for 10 years is a condition precedent for becoming eligible for the
purported Time Scale Promotion to the post of Assistant Professor under the
Time Scale Promotion Rules, 1991, Dr. T must be held to have fulfilled the
said criteria as her posting in the Department of Community Science was
treated as regular teaching service. In the alternative, it was submitted that
the amendment of the Rules carried out in 2005 is clarificatory in nature.
B,

Dismissing the appeals, the Court

HELD: 1. In exercise of power conferred under Rules 17(B) and 31 of
·the Constitutional bye laws of the Regional Institute of Medical Sciences,
Imphal, the Chairman, Executive Council framed rules known as Time Scale c
Promotion Rules, 1991. "Registrar Grade" has been defined in Rule 3(d) of
the said Rules to include Medical Officer (Teaching and Non-Teaching). Rule
3(g) defines teaching post to mean all posts in the grade of Registrar. On or
about 28.10.2005, Time Scale Promotion Rules had been amended to include
Medical Officers (non-teaching) to Senior Medical Officers in the pay scale D
of Rs. 10,325-325-15,200/-. The Rules provide for creation of teaching posts
as well as non-teaching posts. The Registrar Grade as defined in Rule 2(D)
includes Medical Officer, both teaching and non-teaching.
[Para 6 and 11) (87-G; 88-A; 91-C; 92-A]

2.1. RIMS has not produced any duty chart for the Medical Officers E
(SPM). From the documents whereupon reliance has been placed, it only
appears that the Medical Officers (SPM) are required to take classes once in
a while. Dr.Twas not, therefore, required to take classes on a regular basis.
For the purpose of arriving at a conclusion as to what would be the nature of
the post held by the incumbent the duties attached to the post would be of
seminal importance. The Rules do not provide for the nature of duty attached F
to the Medical Officer (SPM). No other document in that behalf has also been
brought on record. Even whether preventive medicine is taught or not as a
subject has not been disclosed. Performing a teaching job once in a while or
working as a Demonstrator once in a while could not render the non-teaching
post to a teaching post The RIMS might have thought that the post of Medical G
Officer (SPM) is a teaching post, but when a challenge was thrown by
respondent, it was obligatory on its part to establish its contentions by placing
cogent materials before the High Court. It has utterly failed to do so. The
correspondence exchanged by and between the RIMS and Medical Council of
India are also of no assistance. Clarification was asked for in that behalf only
in 2004. The Medical Council even in its response to the said letter did not I-J
86 SUPREME COURT REPORTS (2007) 7 S.C.R.

A say that Medical Officer (SPM) would be a teaching post, it merely laid down · y
the norms in regard to the strength of the cadre. Even the strength of the
cadre was determined only in 2005. (Para IS) (92-A, B, C, D, E)

Rajasthan Public Service Commission v. Kaila Kumar Paliwa/ and Anr.,
(2007) 6 SCALE 531 and Director, A/IMS and Ors. v. Dr. Ni/chi/ Tandon and
B Ors., (1996) 7 SCC 741, referred to.

2.2. Medical Council of India did not recognize the post of Medical
Officer (SPM) to be a teaching post. No other material was also brought on
record to show otherwise. (Pata 19) (93-D)
c 3. The Rules amended in the year 2005 cannot be held to be a
clarificatory one. It is a substantive amendment. Thereby those who are on
the non-teaching side have for the first time been brought within the purview
of the Rules. The qualification for eligibility for consideration has also been
altered. (Para 20) (93-D, E)
, •'
D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2694 of2007.
_.
From the Final Judgment and Order dated 17.08.2005 of the High Court
of Gauhati, Imphal Bench in Writ Appeal No. 21112004/4/2005.

E WITH

C.A. No. 2695 of2007.

Jaideep Gupta, Sr. Adv., Kb. Nobin Singh, S.K. Bhattacharya and L.K.
Paonarn for the Appellants.
F Raju Ramachandran, Sr. Adv., Sapam Biswajit Meitei, Ashok Kumar
Singh and Manjula Gupta for the Respondent.

The Judgment of the Court was delivered by

S.B. SINHA, J. I. Leave granted.
G
2. These two appeals being inter-related and arising out of a common
judgment were taken up for hearing together and are being disposed of by
this common judgment. Regional Institute of Medical Sciences (for short
"RIMS") is a Society registered under the Societies Registration Act. Dr.
(Mrs.) S. Bhagyabati Devi (for short "Bhagyabati") and Dr. Taruni Ngangbarn
H
REGIONAL INSTITUTE OF MEDICAL SCIENCE v. S. BHAGY ABATI DEVI [S.B. SINHA, J.)
87
(for short "Taruni") have been working in RIMS. A
3. Dr. Taruni was appointed as a Medical Officer (SPM) in the year 1983.
She did her post graduation in the year 1992. In terms of the rules framed by
the Executive Council of RIMS, she could be considered for promotion to the
post of Assistant Professor on the expiry of I 0 years of working in the post
of Medical Officer. She was promoted with effect from 1.2.1995 in the post of B
Assistant Professor by an Order dated 8.4.1999. Dr. Bhagyabati was appointed
as a Medical Officer in the year 1984. She completed her post graduation in
June, 1996. On completion of 10 years, she was appointed as an Assistant
Professor with effect from I. 7 .1998. It is not in dispute, that both Dr. Taruni
and Dr. Bhagyabati have since been appointed as Associate Professors. C
4. Dr. Bhagyabati filed a writ.'petition before the Imphal Bench of the
. Gauhati High Court inter alia questioning the seniority assigned to Dr. Taruni
on the plea that she having never held any teaching post while acting as
Medical Officer(SPM) was not entitled to promotion to the post of Assistant
Professor. 0
The learned Single Judge having regard to the fact that both Dr. Taruni
and Dr. Bhagyabati had further promoted to the post of Associate Professor
did not disturb the said appointments, but directed that Dr. Bhagyabati shall
be treated to be senior to Dr. Taruni.
E
5. By reason of the impugned judgment, the Division Bench has upheld
the impugned judgment of the learned Single Judge.

Both RIMS and Dr. Taruni are, thus, before us.

6. We may at the outset notice the relevant rules. As indicated F
hereinbefore, Rules were framed by the Executive Council in exercise of its
power conferred upon it under the Constitutional Bye Laws of the Regional
Institute of Medical Sciences.

The constitution of the Society was approved in a Special Annual
General Body Meeting held on 4.2.1995. The Executive Council has been G
constituted in terms of clause (9) of the said constitution. Clause (11) provides
for the powers and functions of the Council. In exercise of its power conferred
under Rules l 7(B) and 31 of the Constitutional bye laws of the Regional
Institute of Medical Sciences, Imphal, the Chairman, Executive Council framed
rules known as Time Scale Promotion Rules, 1991 (The Rules). "Registrar H
88 SUPREME COURT REPORTS [2007] 7 S.C.R.

A Grade" has been defined in Rule 3(d) of the said Rules inter alia to include
Medical Officer (Teaching and Non-Teaching). Rule 3(g) defines teaching ~
post to mean all posts inter alia in the grade of Registrar. Rule 4 provides
for Time Scale Promotion in the following terms:-

"The Scheme is in the nature of a flexible complementing Scheme
B wherein no additional posts are created, the existing persons on the
basis of critical assessment are promoted to the next higher level or
scales are upgraded without altering the combined authorized strength
of posts."

7. Object of the Rules was to remove frustration due to lack of
C opportunity for promotion in normal courses.
Rule 6(F) of the Rules reads as under:-

"(F) Assistant Professor (Non-functional) from Registrar, Demonstrator,
Resident Pathologist, Resident Anaesthesiologist, Senior Tutor, M.Os
D (Teaching, Senior Resident with P.G. Degree holder (Scale Rs. 3000-
100-3500-125-5000/-)

(i) They must have requisite and recognized Post Graduate ~
qualification as per M.C.I. norms.
(iI) They must render I 0 years of regular service in the teaching
E
posts of the same discipline.
(fu) Within I 0 years of regular teaching service as the case may be
they should have minimum l year of teaching experience of the
same discipline after obtaining P.G. Degree.

F •••••••••
8. The principal contention of Dr. Bhagyabati before the H~gh Court was t
that the post of Medical Officer (SPM) was not a teaching post. Contention
of RIMS as well as Dr. Taruni on the other hand was that the said post is
a teaching post.
G
9. RIMS recently by a letter dated 2.3.2005 addressed to the Secretary,
Medical Council of India wanted to have a clarification in the matter stating:-

"I am writing this letter soliciting your indulgence to provide a
clarification as to the Post of Medical Officer (Community Medicine)
H as a teaching post in Medical Colleges in the country. Medical Officers
REGIONAL INSTITUTE OF MEDICAL SCIENCE v. S. BHAGYABA TI DEVI [S.B. SINHA, J.] 89

of Community Medicine of this Institute have been imparting teaching A
i
and training programme to the undergraduate, post graduate students
and interns in urban and rural health centers and also involving in the
direct delivery of Health care service in Rural and Urban areas and
thus securing the implementation Reorientation of Medical Education
Scheme (ROME). Following the enforcement ofregulations of the MCI B
an undergraduate Medical Education by the Government of India,
Ministry of Health & Family Welfare vide their letter No. V-11917/4/
77-ME(p) dated 13th November 1977 our Institute is also treating the
said post of Medical Officer (Community Medicine) as one of teaching
....
posts in our Service Rule, a controversy which may create required
to be resolved in accordance with the MCI Regulations. C '
A positive clarificatory note on the subject will be highly appreciated."

Our attention has also been drawn to a letter issued by the Medical
Council oflndia addressed to the Director, RIMS dated 15.4.2005 in response
to the said letter to show that there must exist four posts of tutors/ D
demonstrators in each Medical College and one Medical Officer of Health-
cum-Lecturer and one lady Medical Officer in each medical college in the
> Department of Community Medicine.

10. Regulations of the Medical Council oflndia in this behalf as modified
upto 1979 is as under:- E
"Regulations of the Medical Council of India on Under-graduate
Medical Education under Section 33 of the Indian Medical Council
Act, 1956 by the Government of India, Ministry of Health & Family
Welfare, vide the letter No. V-11917/4/77-ME(P) dated the 30th
November, 1977. Incorporating amendments approved by the Govt. of F
India Ministry of Health & Family Welfare vide their letter No. V.11017/
4/77-MPT/ME(Policy) dated 15th October, 1979.

As far as teaching of the Community Medicine is concerned, health
medical Officers in the service who have adequate field experience
should be utilized for teaching of community medicine giving them G
appropriate status, if necessary. Likewise medical college teachers
should by rotation be posted in field practice areas, with batches of
students to introduce community orientation in training programmes."

It appears that the Department of Community Medicine of RIMS had
H
90 SUPREME COURT REPORTS [2007) 7 S.C.R.

A assigned practical epidemiology training to the students of the Medical College
asking Dr. Taruni to impart training on 31.1.1992 alongwith two others by
taking classes from 2 to 4 p.m.

Our attention has further been drawn to Annual Report for the year
2003-2004 where Community Medicine was said to be consisting of two lady
B medical officers.

16. Our attention has further been drawn to a Memorandum dated
9.7.1987 which is to the following effect:-

"MEMORANDUM
c
The duty roster ofVlth semester students posted at S.P.M., Deptt. will
be as follows. This roster/programme will be followed every month
until further order.

D Days of the Section Staff
week
~
I. Monday, Family Visit Medico I. One
Tuesday & Social Work Demonstrator.
Wednesday on rotation for
E one month
2. All the Medical
Social workers
2. Thursday, National Health I. Demonstrators
·Friday & Programmes ofU.l.P. & rural
F Saturday & Urban Clinic Health Centres,
on Rotation
2. For Urban clinic
Urban doctor will
take the
responsibility
G Notes :- National Health Programme viz :- NMEP, NICPm NTBCP, F.P.
NCP for Blind and Visual
impairment The visit will, of
one day only.
J...

H
REGIONAL INSTITUTE OF MEDICAL SCIENCE v. S. BHAGYABATI DEVI (S.B. SINHA,!.] 91

-i Demonstrator on rotation duty:- A
(a) Dr. Taruni Ng.
(b) Dr. Bijoy
(c) Dr. Indibor
(d) Dr. Russia B
(e) Dr. Shyamkanhai
Any one doctor will be with Family visit another and with national
Health programes. This will take with immediate effect. Dr. Indibor will
be in the family visit Section & Dr. Taruni in the National Health C
Programme Section for the month of July, 1987."

11. We may furthermore notice that on or about 28.10.2005, Time Scale
Promotion Rules had been amended to include Medical Officers (non-teaching)
to Senior Medical Officers in the pay scale of Rs. 10,325-325-15,200/-)
D
12. The learned Single Judge of the High Court as also the learned
Division Bench categorically held· that post held by Dr. Taruni was not a
teaching post and, thus, was not eligible for being considered for promotion
to the post of Assistant Professor.

13. It appears that before the High Court submissions were also made E ,
on behalf of the RIMS and Dr. Taruni that all posts specified in the Registrar
Grade are equivalent posts. The said contention was rejected by the learned
Single Judge and upheld by the Division Bench on the premise that a
declaration therefor was necessary, and as there was no material on record
to show that a decision on the said issue had been taken, no relief could -be F
granted in that behalf.

14. Before us Mr. Jaideep Gupta, learned senior counsel appearing on
behalf of the RIMS and Mr. S.K. Bhattacharya, learned counsel appearing on
behalf of Dr. Taruni submitted that although rendition of service in a teaching
post for 10 years is a condition precedent for becoming eligible for the G
purported Time Scale Promotion to the post of Assistant Professor under the
Rules, Dr. Taruni must be held to have fulfilled the said criteria as her posting
in the Department of Community Science was treated as regular teaching
service. In the alternative, it was submitted that the amendment of the Rules
carried out in 2005 is clarificatory in nature.
H
92 SUPREME COURT REPORTS [2007) 7 S.C.R.
;
A 15. The Rules provide for creation of teaching posts as well as non-
teaching posts. The Registrar Grade as defined in Rule 2(D) includes Medical
Officer, both teaching and non-teaching. Before the High Court as also before
us, RIMS has not produced any duty chart for the Medical Officers (SPM).
From the documents whereupon reliance has been placed, it only appears that
B the Medical Officers (SPM) are required to take classes once in a while. Dr.
Taruni was not, therefore, required to take classes on a regular basis. For the
purpose of arriving at a conclusion as to what would be the nature of the post
held by the incumbent, the duties attached to the post would be of seminal
importance. The Rules do not provide for the nature of duty attached to the
Medical Officer (SPM). No other document in that behalf has also been
C brought on record. Even whether preventive medicine is taught or not as a
subject has not been disclosed. Performing a teaching job once in a while or
working as a Demonstrator once in a while, could not render the non-teaching
post to a teaching post. The RIMS might have thought that the post of
Medical Officer (SPM) is a teaching post, but when a challenge was thrown
D by Dr. Bhagyabati, it was obligatory on its part to establish its contentions
by placing cogent materials before the High Court. It has utterly failed to do
so. The correspondences exchanged by and between the RIMS and Medical
Council of India are also of no assistance. Clarification was asked for in that
behalf only in 2004. The Medical Council even in its response to the said
letter did not say that Medical Officer (SPM) would be a teaching post, it
E nierely laid down the norms in regard to the strength of the cadre. Even the
strength of the cadre was determined only in 2005.

· 16. Which post would be a teaching post is a question of fact. In
Rajasthan Public Service Commission v. Kaila Kumar Paliwal & Anr., [2007]
6 SCALE 531, this Court held:;
F
"We are not oblivious that the question as to whether a person fulfils
the criteria of teaching experience or not would depend upon the rules
operating in the field. When the rules are clear and explicit, the same
has to be given effect to. Only in a case where the rules are not clear,
the candidate concerned must place adequate material to show that
G he fulfils the requisite qualification. [See State of Bihar and Another
etc. etc. v. Asis Kumar Mukherjee and Others etc. etc., A.LR. (I 975)
SC 192]"

17. The submissions made on behalf of RIMS that the post of Medical
H Officer, SPM is equivalent to a teaching post has rightly been rejected by the
REGIONAL INSTITUTE OF MEDICAL SCIENCE v. S. BHAGYABATI DEVI [S.B. SINHA, J.) 93
High Court A
18. in Director, A/IMS and Ors. v. Dr. Nikhil Tandon and Ors., [1996]
7 sec 741, it was held:-

"12. We are of the opinion that the two years' training at Cambridge
University undergone by Tandon while working for his Ph.D. cannot B
be treated as a qualification recognised as equivalent to DM. Schedule
I to the AIIMS Recruitment Rules speaks of DM qualification or a
qualification recognised as equivalent thereto. It is not mere equivalence
that is enough. It must also be recognised as equivalent. Recognised
evidently means recognised by the Institute or at least by the Medical
Coundl of India. Admittedly, neither has recognised the said research C
work/training for two years in the Cambridge University as equivalent
to DM. It is agreed before us that the degrees awarded by the

-
Cambridge University are not recognised in India since 1978."

19. Medical Council of India did not recognize the post of Medical D
Officer (SPM) to be a teaching post. No other material was also brought on
record to show otherwise.

20. The Rules amended in the year 2005 cannot be held to be a
clarificatory one. It is a substantive amendment. Thereby those who are on
the non-teaching side have for the first time been brought within the purview E
of the Rules. The qualification for eligibility for consideration has ··!so been
altered.

21. We, therefore, are of the opinion that there is no merit in these
appeals which are dismissed accordingly with costs. Counsel's fee assessed
at Rs. 10,000/- payable by RIMS to respondent No. L F
D.G. Appeal dismissed.