Full Judgment Text
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CASE NO.:
Appeal (civil) 2694 of 2007
PETITIONER:
Regional Institute of Medical Science & Anr
RESPONDENT:
S. Bhagyabati Devi
DATE OF JUDGMENT: 17/05/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 2694 2007
[Arising out of S.L.P. (C) No. 22601 of 2005]
WITH
CIVIL APPEAL NO. 2695 2007
[Arising out of S.L.P. (C) No. 23341 of 2005]
S.B. SINHA, J.
1. Leave granted.
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
Ngangbam (for short "Taruni") have been working in RIMS.
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 10 years of
working in the post of Medical Officer. She was promoted with effect from
1.2.1995 in the post of 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 1.7.1998. It is
not in dispute, that both Dr. Taruni and Dr. Bhagyabati have since been
appointed as Associate Professors.
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.
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.
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
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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
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 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 Promotion Rules, 1991 (The
Rules). "Registrar 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 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
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 (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 10 years of regular service in the
teaching posts of the same discipline.
(iii) Within 10 years of regular teaching service as the case
may be they should have minimum 1 year of teaching
experience of the same discipline after obtaining P.G.
Degree.
*
8. The principal contention of Dr. Bhagyabati before the High Court was
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.
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) as a teaching post in Medical
Colleges in the country. Medical Officers of
Community Medicine of this Institute have been
imparting teaching 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).
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Following the enforcement of regulations of the MCI 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.
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 of India 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/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 of India in this behalf as modified
upto 1979 is as under:-
"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 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
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
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 medical officers.
16. Our attention has further been drawn to a Memorandum dated
9.7.1987 which is to the following effect:-
"MEMORANDUM
The duty roster of VIth semester students posted at S.P.M., Deptt. will
be as follows. This roster / programme will be followed every month
until further order.
Days of the
week
Section
Staff
1. Monday,
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Tuesday &
Wednesday
Family Visit Medico
Social Work
1. One
Demonstrator
on rotation for
one month
2. All the
Medical Social
workers
2. Thursday,
Friday &
Saturday
National Health
Programmes &
Urban Clinic
1.
Demonstrators
of U.I.P. & rural
Health Centres,
on Rotation
2. For Urban
clinic Urban
doctor will take
the
responsibility
Notes :- National Health Programme viz :- NMEP, NICPm NTBCP, F.P.
NCP for Blind and Visual
impairment. The visit will of
one day only.
Demonstrator on rotation duty:-
(a) Dr. Taruni Ng.
(b) Dr. Bijoy
(c) Dr. Indibor
(d) Dr. Russia
(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
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/-)
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 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
granted in that behalf.
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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 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.
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 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 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 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 merely 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:-
"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 he fulfils the requisite
qualification. {See State of Bihar and Another etc. etc.
v Asis Kumar Mukherjee and Others etc. etc. [A.I.R.
1975 SC 192]."
17. The submissions made on behalf of RIMS that the post of Medical
Officer, SPM is equivalent to a teaching post has rightly been rejected by the
High Court
18. in Director, AIIMS and Ors. v Dr. Nikhil Tandon and Ors. [(1996) 7
SCC 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 be
treated as a qualification recognised as equivalent to
DM. Schedule I to the AIIMS Recruitment Rules
speaks of DM qualification or a qualification
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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 Council of India. Admittedly, neither has
recognised the said research 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
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
of the Rules. The qualification for eligibility for consideration has also 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. 1.