HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. SWP No. 188 OF 201.AND SWP No. 238 OF 201.1. Dr. Rajiv Gupta 2. Dr. Shyam Kumar Gupta Petitioners State Respondent !M/s A.H.Naik, R.K.Gupta,Sr.Adv. with Mr. Prem Sadotra, Adv. Mr. D. S. Chouhan, Adv. Mr. M. K. Bhardwaj, Sr. Adv. With Mr. Ajay Abrol, Adv. Mr. Ratan Lal Gupta, Adv ^Mrs. N. Goswami, Dy. AG Mr. D. C. Raina, Sr. Adv. With Mr. F. A. Natnoo, Adv. Mr. U. K. Jalali, Sr. Adv. With Ms. Megha Amla, Adv. Mr. Sunil Sethi, Sr. Adv. With Ms. Veenu Gupta, Adv. Honble Mr. Justice Hasnain Massodi, Judge Date:
07. 05.2013 :
:
1. Dr. Rajiv Gupta- petitioner in SWP no.188/2011, after successfully undergoing MBBS course from Government Medical College Jammu in 1988 was selected for M.S in General Surgery in 1993 and acquired the degree in the year 1996. He was selected as Assistant Surgeon in 1997 and thereafter as Registrar in the Department of Surgery, Government Medical College Jammu, in November 1997. He worked as Registrar from 2 Nov. 1997 to March 2001. He claims to have a number of publications to his credit and to have been deputed vide government order no. 379- HME of 2004 dated 16.9.2004 as General/Laparoscopic Surgeon in Government Medical College, Jammu.
2. The Jammu and Kashmir State Public Service Commission vide Advertisement Notice no. 09/PSC dated 26.8.2010 invited applications from eligible candidates for the posts of Lecturer (Surgery) in Government Medical College Jammu and Government Medical College Srinagar. The petitioner finding himself eligible for the post responded to the advertisement notice. Respondent no. 3 in SWP no. 188/2011 was amongst other candidates applying for the advertised post.
3. The petitioner apprehending that the respondent Commission may make selection oblivious to eligibility criteria including experience prescribed under the rules, approached the respondent Commission with a representation on 6.12.2010 impressing upon respondent no. 2 to adhere to the recruitment rules while making the selection”
4. Respondent no. 2 vide notification dated 23.12.2010 informed the candidates mentioned in the notice that their applications were found deficient and asked them to remove deficiencies within the timeframe mentioned in the notice. Respondent no. 3 figured at serial no. 17 in the notice and in the deficiency column against his name, he was shown not to have appended two years experience certificate duly signed by Principal/DHS with the application.
5. Respondent no. 2 after finalizing the selection process notified the select list vide notice dated 24.01.2011. Respondent no.3 found place in the selected list at serial no. 1 in the open merit category. The petitioner was not selected and aggrieved with his non-selection has come up with the writ petition on hand.
6. Selection of the respondent no. 3 against posts of Lecturer (Surgery) is questioned by the petitioner, primarily on the ground that respondent no.3 did not possess the requisite experience in terms of recruitment rules as mentioned in the advertisement notice dated 28.8.2010 and therefore was not eligible for the 4 advertised post. It is insisted that respondent no.3 was not eligible to participate in the selection process muchless be selected against the post. The petitioner insists that in view of the Minimum Qualification for the teachers in Medical Institutions Regulations 1998 read with J&K Medical Education (Gazetted) Service Rules, 1979, two years experience as Registrar/Tutor is essential qualification for the post of Lecturer (Surgery) and that as respondent no. 3 did not possess the requisite experience, his selection is liable to set aside.
7. Respondent no.2 opposes the writ petition on the grounds that respondent no.3 fulfilled the eligibility criteria prescribed under the recruitment rules and therefore was rightly selected as Lecturer (Surgery). Reference in this regard is made to experience certificate issued by Shri Venketish Institute of Medical Sciences and Acharya Shri Chandar Institute of Medical Sciences dated 20.4.2010 and 22.10.2008 respectively certifying that respondent no.3 had worked as Assistant Professor, Department of Urology, in the aforesaid institute. Reliance is 5 also placed on certificate dated 23.9.2010.
8. The writ petition is resisted by respondent no.3 on the grounds that challenge to his selection as Lecturer (Surgery) is meritless inasmuch as he has requisite experience to his credit and fulfills the eligibility criteria for the Post. The respondent in his reply makes a detailed reference to the academic qualification to his credit and the experience acquired by him after post graduation degree in Surgery. Respondent no.3 insists that MCI has no jurisdiction or the power to prescribe qualification for recruitment to the post of Lecturer (Surgery) and that jurisdiction of the Council is limited to laying down broad guidelines for Medical Colleges/ Institutes in the Country. It is pleaded that the eligibility criteria can be prescribed by the competent authority in exercise of power under Article 309, Constitution of India, Section 124 Constitution of J&K, and not by the MCI in exercise of its supervisory jurisdiction to issue guidelines from time to time.
9. The petitioner, it is insisted, cannot make 6 selective use of MCI regulations and the recruitment rules and deny that experience gained while pursuing post graduation course is to be given credit while working out experience to the credit of candidates. Reliance is placed on amended notification dated 27.9.2010 whereby the amendment has been made in MCI Minimum Qualification for Teachers in Medical Institutions 1998 Regulations, TABLE-1, under the heading Requirement Of Academic Qualification, teaching and research experiences and a provision made leaving scope for acquisition of teaching experience during the post graduation course.
10. It is pleaded that respondent no. 3 has five years teaching experience as Resident/ Assistant Professor in Post Graduation Institute of Medical Education and Research Chandigarh, Sanjay Gandhi Post Graduation Institute of Medical Sciences Lucknow and Achariya Institute of Medical Sciences, Sidra, to his credit and is therefore eligible for the post of Lecturer Surgery and rightly selected by the respondent 7 Commission. Respondent no.3 downplays the importance of notice dated 23.10.2010 whereby he was asked to make good the deficiency identified in the notice on the ground that as he furnished the requisite certificate, the notice was of no further consequence.
11. Dr. Shyam Kumar Gupta- petitioner in SWP no. 238/2011, also responded to the Advertisement notice no. 09 - PSC of 2010 dated 26.08.2011 invited by the respondent Commission for the available vacancies of Lecturer (Surgery) in GMC Jammu/Srinagar. He also did not find place in the selection list. He in SWP no. 238/2011 questions the selection of Dr. Amit Surirespondent no. 5 in the petition (respondent no. 3 in SWP 188/2011) on the ground that Dr. Amit Suri was not at all eligible for the advertised post on the relevant date. Selection of Dr. Vikrant Singh- respondent no. 6 in SWP no. 238/2011, is assailed on the ground that Dr. Vikrant Singh though eligible for the advertised post, was not entitled to the extra weightage on the account of DNB Qualification claimed by him to have been acquired at Bhopal Memorial 8 Hospital and Research Centre, Bhopal (BMHRC). It is pleaded that BMHRC is not a recognized medical college for post-graduate specialties as it does not offer MD/MS courses. The 350-bed hospital, according to Dr. Shyam Gupta, was set up to provide advanced-level super specialty care to the victims of Bhopal gas tragedy and the public at large. It is insisted that as Dr. Vikrant Singh acquired the DNB Qualification in April/May 2010, he was not entitled to extra weightage/additional five marks for the said qualification as he did not have additional teaching experience of one year after acquiring DNB Qualification. It is pleaded that the DNB qualification acquired by Dr. Vikrant Singh at Bhopal Memorial Hospital and Research Centre, Bhopal in terms of amendments introduced by notification dated 3rd November 2010 to MCI Regulations 1990 cannot be equated with M. Ch. degree and earn Dr. Vikrant Singh extra weightage as given by the respondent Commission.
12. The respondents oppose the writ petition filed 9 by Dr. Shyam Kumar Gupta to the extent it relates to eligibility of Dr. Amit Suri on the same grounds they pleaded in their reply to the writ petition filed by Dr. Rajive Gupta. Dr. Vikrant Singh on his part resists the writ petition on the ground that DNB (Surgical Gastroenterology) qualification acquired by him from Bhopal Memorial Hospital and Research Centre, Bhopal is super specialty degree held to be at par with M. Ch/DM degree and therefore entitles him to extra weightage given by the respondent commission. Dr. Vikrant Singh pleads that he has been rightly assessed by the respondent commission and selected Lecturer (Surgery). Dr. Vikrant Singh questions the maintainability of the writ petition also on the ground that he on the basis of recommendation made by the respondent Commission was appointed as Lecturer (Surgery) vide government order no. 91-HME of 2011 dated 03.02.2011 and that Dr. Shyam Kumar Gupta having failed to question his appointment and restrict his challenge only to his selection notified on 24.01.2011, the writ petition was not maintainable and was liable to 10 be dismissed.
13. I have gone through the pleadings as also record available on the file. I have heard the counsel for the parties at length.
14. J&K Medical Education (Gazetted) Service Rules 1979 (hereafter referred to as Recruitment Rules 1979) provide for constitution and classification of J&K Medical Education Gazetted Services. The service comprises of Teaching, Administrative, and General Wings. In terms of Rule 7, a person is not to be eligible for the recruitment/ promotion to a post in service unless he possesses the qualification and fulfills the requirements prescribed for the post in schedule-II to the Rules. Schedule-I to the Rule gives details of posts of the Service with their sanctioned strength. The post of Lecturer finds place in class-V of the schedule. Schedule II, serial no. 8, pertains to the discipline/subject of surgery. The eligibility criteria for the post of Lecturer surgery is prescribed as under:
11. S. No . Subject Designation of the post Minimum qualification Minimum teaching/research experience 8 Surgery a) Professor M.S (General Surgery/ Surgery) F.R.C.S, Speciality Board of Surgery (USA) or an equivalent qualification in the subject As Associate Professor in Surgery for five years in a Medical College or a recognized Teaching Medical Institution such as AIIMS New Delhi, PGI Chandigarh, JIMER Pondicherry and such other institutions, as are recognized by the Medical Council of India . b) Associate Professor -do- As Assistant Professor in Surgery for five years in a Medical College or a recognized Teaching Medical Institution such as AIIMS New Delhi, PGI Chandigarh, JIMER Pondicherry and such other institutions as are recognized by the Medical Council of India c) Assistant Professor -do- As Lecturer in Surgery for three years in a Medical College or a recognized Teaching Medical Institution such as AIIMS New Delhi PGI Chandigarh JIMER such as AIIMS New Delhi , PGI Chandigarh, JIMER Pondicherry and such other institutions , as are recognize by the Medical Council of India. d) Lecturer -do- As Registrar/Tutor, Demonstrator/Tutor or a Senior Resident for a period of two years in a recognized Teaching Medical Institution recognized by the Medical Council of India or the University of Kashmir /Jammu Provided that the teaching experience, if any, gained before or during the postgraduation studentship shall not be considered while determining the eligibility for the post of lecturer.
15. A bare look at the above table would make it abundantly clear that an aspirants for the post of lecturer must have M.S. Degree to his credit 12 and must have two years experience in a teaching institute, recognized by the MCI or the University of Kashmir or University of Jammu as Registrar/Tutor, Demonstrator /Tutor or Senior Resident. However, the teaching experience, if any gained before or during the post graduation studentship, is not to be considered while determining the eligibility for the post of lecturer.
16. Attention must now go to the advertisement notice no. 09 PSC of 2010 dated 26.8.2010, whereby respondent no. 2 invited applications amongst others for the post of Lecturer (Surgery) and notified the eligibility criteria for the information of the aspirants for the advertised positions including the petitioner and respondent no.
3. It reads: Surgery M. S. (General Surgery/Surgery) FRCS; specialty board of Surgery (USA) or equivalent qualification in the subject As Registrar/Tutor, Demonstrator/Tutor or a Senior Resident for a period of two years in a recognized Teaching Medical Institution recognized by the Medical Council of India or the University of Jammu/Kashmir. The teaching experience, if any, gained before or during post graduation studentship shall not be considered while determining the eligibility for 13 the posts of lecturers.
17. So much about the recruitment rules occupying the field. Let us now shift focus to MCI Regulations.
18. Medical Council of India in exercise of powers conferred by section 33, Indian Medical Council Act, 1956, with the previous sanction of the Central Government, has made regulations called Minimum Qualifications for Teachers in Medical Institution Regulations, 1998 (hereinafter, Regulation of 1998). The objectives of the Regulations of 1998 are spelt out at para 2 of Regulations (2) , which reads as under: Objectives: Appointment of medical teachers with minimum qualification and experience in various departments of medical colleges and institutions imparting graduate and post-graduate medical education is a necessary requirement to maintain a standard of teaching. 19. Regulation (3) makes it mandatory for all the Medical College/Institutions imparting Graduate and Post-Graduate Medical Education to adhere to the minimum qualification prescribed under regulations, while making appointments of teachers in various departments, as laid down in schedules I and II of the regulations”
20. Regulations of 1998 in Schedule-II prescribes following qualification and experience for the post of Lecturer, Surgery: Post Academic Qualification Teaching/Research Experience Assistant professor/ Lecturer M. S. (Surgery)/ M. S. (General Surgery) i) Requisite recognized postgraduate qualification in the subject. ii) Three years teaching experience in the subject in a recognized medical college as Registrar/Demonstrator/Tutor.
21. We have noticed in the preceding paras the J&K Medical Education (Gazetted) Service Recruitment Rules 1979, that govern mode of recruitment, eligibility, criteria, etc. for posts borne on service including the post of Lecturer (Surgery) as also Regulations of 1998 laying down qualification and experience for teaching positions including Lecturer (Surgery) in Medical Institutions of the country. The question arises as to how Recruitment Rules, 1979 are to be corelated to the Regulations of 1998. To get an answer, we have to examine nature of MCI Regulations and find out whether these Regulations have any statutory flavour.
22. The Supreme Court in MCI Vs. State of Karnataka and others (1998) 6 SCC 131.while 15 dealing with Medical Council of India Act, 1956, and Regulations made there under held: The Indian Medical Council Act is relatable to Entry 66 of List I (Union List). It prevails over any State enactment to the extent the State enactment is repugnant to the provision of the Act even though the State Acts may be relatable to Entries 25 or 26 of List III ( Concurrent List). Regulations framed under Section 33 of the Medical Council Act with the previous sanctions of the Central Government are statutory. These regulations are framed to carry out the purposes of the Medical Council Act and for various purposes mentioned in Section 33. If a regulation falls within the purposes referred under Section 33 of the Medical Council At, it will have mandatory force. 23. The question again surfaced before the Constitution Bench of Supreme Court in Dr. Preeti Srivastava and others Vs. State of M.P. and others (1999) 7 SCC 120.The Bench reiterated the law on the subject in the following words: the Regulations made by Medical Council of India in exercise of its powers under Section 20 read with Section 33 are binding and the States cannot, in exercise of power under Entry 25 of List III, make rules and regulations which are in conflict with or adversely impinge upon regulations framed by Medical Council of India for Postgraduate Medical Education.
24. The principle has been followed all along. Reference in this regard may be made to Arvind Kohli (Dr.) Vs. Sham Singh (Dr.) and others, 2011 (3) JKJ 32.(HC), Dr. Arun Sharma Vs. 16 State and others, JKJ Vol. 4, 2012, page 812 and Dr. Narinder Singh Vs. State, JKJ Vol. 4, 2012 page 660.
25. It is therefore well settled that MCI Regulations have overriding effect and the law, rules, regulations or government instructions made by the state government on the subject, are to give way to the MCI Regulations to the extent such law, rules, and Government Instructions regulations are in conflict with MCI Regulations unless the state law, rules or regulations provide for higher standard of qualification and experience as compared to Indian Medical Council Act or MCI Regulations. We have to be alive to the object and purpose of Indian Medical Council Act 1956 and MCI Regulations. The purpose obviously is to provide high and uniform standards in all the medical institutions in India as the medical education because of its importance does not admit of any compromise on the standards in teaching, infrastructure, composition of courses/syllabi, etc. However, where the state law, rules or regulations prescribe higher standards than one 17 prescribed under Indian Medical Council Act or MCI Regulations, such higher standard is to be followed as the Indian Medical Council Act 1956 and the MCI Regulations provide the floor and not the ceiling. The Regulations of 1998, as pointed out earlier, have been made by MCI in exercise of powers available under section 33 Indian Medical Council Act 1956 with the previous sanction of the central government. The Regulations therefore have statutory flavour and are to be followed by the Medical Institutions imparting medical education.
26. Let us revisit the Recruitment Rules of 1979, and Regulations of 1998 to find out the qualification and experience prescribed for the post of Lecturer (surgery). In terms of Recruitment Rules 1979 a candidate for the post of Lecturer (Surgery) must have M. S. (General Surgery/Surgery) FRCS; specialty board of Surgery (USA) or equivalent qualification in the subject to his credit. He must also have minimum experience as Registrar/Tutor, Demonstrator/Tutor or a Senior Resident for a period of two years in a recognized Teaching 18 Medical Institution recognized by the Medical Council of India or the University of Kashmir/Jammu. However, the teaching experience gained before or during the postgraduation studentship is not to be considered while determining eligibility for the post.
27. In terms of MCI Regulations of 1998 a candidate must have M. S. (General Surgery/Surgery) FRCS; specialty board of Surgery (USA) or equivalent qualification in the subject to his credit and must also have three years teaching experience in the subject in a recognized medical college as Registrar/Demonstrator/Tutor.
28. The Recruitment Rules, 1979 as well as the MCI Regulations of 1998 refer to experience gained while occupying a particular position i.e. Registrar/Tutor, Demonstrator/Tutor or a Senior Resident. It is to be noted that the expressions Registrar/Tutor Demonstrator/ Tutor or a Senior Resident are not to be given ordinary meaning but to be understood in the context of Recruitment Rules of 1979. The Rules in Schedule-II and III prescribe the mode of recruitment as Registrar/Tutor, Demonstrator/ Tutor or a Senior Resident as also qualification 19 and experience for appointment for said positions. The experience prescribed under the rules of 1979 therefore must have been gained while working as Registrar/Tutor, Demonstrator/Tutor or a Senior Resident. The experience gained in terms of Recruitment Rules 1979 as well as MCI Regulations 1998 while working in any position other than Registrar/Tutor, Demonstrator/Tutor or a Senior Resident by whatever name called would not make a candidate eligible. The Proviso in Rule 2 in the column titled Minimum teaching/research experience against serial no. 8 (d) Lecturer, puts a further rider by laying down that the experience gained before or during the post graduation studentship shall not be considered while determining the eligibility for the post of Lecturer. A conjoint reading of Rules of 1979 and MCI Regulations 1998 therefore leads to the conclusion that an aspirant for the post of Lecturer (Surgery) in addition to the minimum qualification prescribed must have requisite experience while working as Registrar/Tutor, Demonstrator/ 20 Tutor or a Senior Resident not acquired before or during post graduation studentship. It is important to note that while in column titled Qualification room is left for Equivalent Qualification, no such option is available in case of Experience. In other words even if an aspirant for the post of Lecturer (Surgery) does not have MS (General Surgery/Surgery), FRCS, Specialty Board of Surgery USA, to his credit, still he may be considered for appointment as Lecturer (Surgery) in case he is found to have Equivalent Qualification in the subject to his credit. Similar freedom is not available to the respondent Commission in case of Experience. We dont find expression or equivalent in the relevant column. In the circumstances, an aspirant for the post of Lecturer must necessarily have two years experience gained after post-graduation while working as Registrar/Tutor, Demonstrator /Tutor or a Senior Resident. Experience gained in any other capacity even as Teacher, Lecturer or Assistant Professor would not count and would not be of any benefit to the aspirant. Since the 21 Recruitment Rules of 1979 prescribe higher standard as regards experience as compared to MCI Regulations, 1998, the Recruitment Rules to the said extent are to be followed and adhered to.
29. Let us now examine the experience claimed by Dr. Amit Suri (respondent no. 3 in SWP no. 188/2011 and respondent no.5 in SWP no. 238/2011), and Dr. Vikrant Singh (respondent no. 6 in SWP no. 238/2011). There is no quarrel as regards qualification of Dr. Amit Suri and Dr. Vikrant Singh prescribed under the Recruitment Rules of 1979 as also MCI Regulations 1998. Both the respondents have MS (Surgery) degree to their credit. Dr. Amit Suri has done his MS (Surgery) from Postgraduate Institute of Medical Education and Research Chandigarh in 2002. He has also M. Ch. (Urology) from Sanjay Gandhi Post Graduate Institute of Medical Sciences Lucknow in 2006 to his credit. Dr. Vikrant Singh has done his MS (General Surgery) from SKIMS Srinagar. He claims to have acquired Diplomat of National Board (DNB) in Surgical gastroenterology from Bhopal Memorial 22 Hospital and Research Centre, Bhopal.
30. The respondent commission has wrongly given Dr. A. Suri credit for the experience he is stated to have gained in Shri Venketish Institute of Medical Sciences as Assistant Professor (Urology) from 19.7.2006 to 28.2.2007 and Assistant Professor in Acharya Shri Chander Institute of Medical Sciences from 1.8.2007 to 7.10.2008 and 6.1.2010 to 7.9.2010. The respondent commission was to realize that the experience claimed to have been gained by Dr. Suri was of no consequence against the backdrop of Recruitment Rules of 1979 read with MCI Regulations 1998 whereunder experience as Registrar/Tutor, Demonstrator/ Tutor or a Senior Resident alone was to be taken into account while working out the period of experience.
31. The issue raised in the two writ petitions on hand, relates to their experience as Registrar/Tutor, Demonstrator/Tutor or a Senior Resident. Perusal of record would reveal that Dr. Amit Suri did his MBBS from GMC Jammu in the year 1998 and MS (General 23 Surgery) from Post Graduate Institute of Medical Education and Research Chandigrah in the year 2002. He relies on experience gained by him as Resident from January 2002 to claim eligibility for the advertised post. The experience has been obviously gained by him while pursuing post graduation in the General Surgery. In terms of Recruitment Rules 1979 he cannot claim any credit for the experience for the purpose of eligibility for Lecturer (Surgery) for the simple reason that the experience has been gained while pursuing Post-graduate course and not after the Post Graduation. It needs to be recalled that only such experience as Registrar/Tutor, Demonstrator/Tutor or a Senior Resident can be taken into account in terms of the Recruitment Rules 1979 as has been gained after the post graduation course. This apart, experience has not been gained as Senior Registrar/Tutor, Demonstrator/Tutor or a Senior Resident. The fact that Dr. Amit Suri after completing his post graduation course has done a superior course viz. M Ch. (Urology) does not make any change in the complexion of the matter or brighten up 24 his chances for the advertised post. Again the experience gained by Dr. Amit Suri while pursuing M Ch Urology at Sanjay Gandhi Post Graduate Institute of Medical Sciences cannot be construed as experience contemplated by the Recruitment rules 1979.
32. The argument advanced by Learned Counsel for respondent no. 5 that MCI regularization 1998 were amended in November 2010 and in terms of amendment so incorporated experience gained while pursuing post graduation course is to be taken into account while computing experience, is of no help to Dr. Amit Suri. The reason being that the selection process was initiated on 26 August 2010, the last date fixed for submission of applications was 27.09.2010. The amendment incorporated in Nov 2010 in MCI regularization 1998 therefore would not be applicable to the selection process in question and would not extend any help to the case being projected on behalf of Dr. Amit Suri. This apart, the amendment would not itself change the eligibility criteria, as long as proviso in experience column against item no. 8 in 25 Schedule-II of Recruitment Rules of 1979 is on the statute book and not deleted/modified. The amendment may also not have an overriding effect in presence of the aforesaid proviso as the eligibility criteria prescribed in terms of the proviso is more strict or higher as against the MCI regulation 1998.
33. Dr. Vikrant Singh has done his MBBS from GMC Jammu in 1996 and his MS (General Surgery) from SKIMS Srinagar on 21 January 2003. He was appointed as senior resident in Achariya Institute of Medical Sciences, Sidra on 15 March 2003 and worked as such till 20th Sep. 2005 when he proceeded to undergo DNB course at Bhopal. Dr. Vikrant Singh therefore has more than two years experience as Senior Resident to his credit and is eligible for the advertised post. Dr. Shyam Kumar Gupta does not throw a serious challenge to the eligibility of Dr Vikrant Singh for the post of Lecturer (Surgery). He, as already pointed out, is aggrieved that Dr. Vikrant Singh has been awarded additional marks for higher qualification i.e. DNB when the 26 institute from which he claimed to have acquired DNB qualification was not recognized by the MCI nor was the course i.e. DNB awarded by the institute recognized by the MCI. Perusal of record reveals that Dr. Vikrant Singh has been awarded five marks for higher qualification i.e. DNB to his credit. In the circumstances, it is required to be seen whether the DNB qualification obtained by the Dr. Vikrant Singh would earn him five additional marks awarded by the respondent commission. It is required to be made clear, in the first place that to be eligible for post of Lecturer in a Medical College/Institution or a teacher borne on J&K Medical Education (Gazetted) Service, an aspirant has not only to show that he has obtained requisite degree from an institute/college recognized by the MCI but also that a degree awarded is recognized by the MCI. The Medical Institute may be recognized by the MCI but only some courses run by such Institute may be recognized by the MCI. In such case the degree awarded by such an institute not recognized by the MCI, would not make the 27 candidate eligible for a teaching post borne on J&K Medical Education (Gazetted) Service. Reference in this regard may be made to Arvind Kohli (Dr.) Vs. Sham Singh (Dr) and others, 2011 (3 ) JKJ 32.(HC). In the said case M Ch (CVTS) degree in question was awarded by JIPMER, Pondicherry and SKIMS, Srinagar institutes recognized by MCI. However, the M.Ch (CVTS) Degree awarded by the two institutions was not recognized by the MCI. The Division Bench of this court rejecting the plea that as the Institutes were recognized, the candidates were to be given credit for M.Ch. (CVTS), degrees obtained from such Institutions, held that not only recognition in terms of section 10-A of the Act was necessary but compliance with sections 2 (h) 10-B, 11, 12 and 13 of Indian Medical Council Act, 1956 was equally necessary.
34. What is true about eligibility is equally true about the extra weightage. In other words, as a medical degree obtained from a medical institute not recognized by MCI or a medical degree obtained from an institute recognized by the MCI but the degree itself not recognized by 28 the MCI, does not make an aspirant eligible for the post, in the same way a degree obtained from a medical institution not recognized by the MCI or though recognized by the MCI, but the degree itself not recognized, would not earn a candidate extra weightage provided for under rules or the selection criteria adopted by the Commission. It would be irrational to say that while recognition of the medical institution by the MCI would be relevant while assessing eligibility of a candidate, it would have no relevance while deciding whether the degree obtained earns extra weightage.
35. The Government of India in 1975 established the National Board of Examinations, an autonomous body, under the Ministry of Health and Family Welfare with the objective of conducting post-graduate and post-doctoral courses of high and uniform national standard on all India basis. The degree awarded by National Board of Examinations is called Diplomat of National Board (DNB). In terms of communication no. V.11025/13/2004-ME(P-1) 29 dated Ist. June, 2006, DNB qualification is to be treated equivalent to MD / MS / DM and M. Ch. Degree. However, DNB qualification to make a candidate eligible for an advertised position or earn extra weightage must be recognized under Indian Medical Council Act, 1956 and obtained after undergoing training in a duly accredited college or hospital. In the present case in order to decide whether DNB qualification claimed by Dr. Vikrant Singh entitled him to extra weightage, it is to be seen whether the qualification is one included in schedule-I of Indian Medical Council Act, 1956 and whether Dr. Vikrant Singh was enrolled in an accredited college or hospital authorized to impart training/enroll doctors in the concerned discipline. Dr. Vikrant Singh claims to have DNB qualification in Surgical Gastroenterology. Schedule-I to the Indian Medical Council Act 1956 does not include Surgical Gastroenterology amongst the recognized medical qualifications. The Diplomat N.B. qualification granted by National Board of Examination after 30th August, 1982 are 30 recognized medical qualification in disciplines shown in Schedule-I under heading National Board of Examinations. Surgical Gastroenterology does not figure in the list of disciplines given in the schedule. The DNB in Surgical Gastroenterology, therefore, is not to be taken as recognized medical qualification under the Indian Medical Council Act 1956. This apart, as per the list of accredited hospitals/medical colleges, Bhopal Memorial Hospital and Research Centre Bhopal is not accredited for Surgical Gastroenterology. Furthermore, Bhopal Memorial Hospital and Research Centre Bhopal admittedly does not offer post-graduate course and DNB qualification in any approved discipline for which hospital is accredited would not earn eligibility or weightage unless followed by post- DNB teaching experience. Dr. Vikrant Singh, therefore was not entitled to be given extra weightage for DNB qualification claimed by him to his credit. Once the five extra marks given to him are subtracted from the total merit points i.e. 72.75, his total merit points come down t”
67. 75 i.e. less than total merit points (68.75) secured by the Dr. Shyam Kumar Gupta.
36. From the above discussion it emerges that Dr. Amit Suri was not eligible for the advertised position and therefore had no right to participate in the selection process much less get selected and appointed as Lecturer Surgery. Dr. Vikrant Singh has lesser merit than Dr. Shyam Kumar Gupta though in view of overall merit position of the aspirants, change in his merit position is not to affect his selection and appointment, if ordered pursuant to his selection. Dr. Ajay Anand, Dr. Shyam Kumar Gupta, Dr. Vikrant Singh and Dr. Rajeev Gupta would be the four candidates in the merit list in said order, having obtained 73.50, 68.75, 67.75, and 65.25 merit points and would appear in the merit list accordingly.
37. The net result of the above discussion is that while Dr. Amit Suri is to be deleted from the select list notified vide no. 09-PSC of 2010 dated 26th August 2010 because of his ineligibility for the advertised post i.e. Lecturer Surgery, Dr. Vikrant Singh shall continue to be in the select 32 list though below Dr. Shyam Kumar Gupta (petitioner in SWP no. 238/11) inasmuch as even after subtracting 5 points from his merit points, he still has 67.75 merit points and would be at serial no. 3 in the merit list, immediately after Dr. Shyam Kumar Gupta. The cut of merit, therefore, because of exclusion of Dr. Amit Suri from the select list would come down to 67.75.
38. Viewed thus, SWP no. 188/2011 and SWP no. 238/2011 are allowed and selection and appointment of Dr. Amit Suri (respondent no. 3 in SWP 188/2011 and respondent no. 5 in SWP no. 238/2011) for the post of Lecturer (Surgery) in Government Medical College, Jammu, is set aside. Notification no. 09-PSC of 2010 dated 26.08.2010 to the said extent is quashed. The respondent Commission is directed to reframe the merit list showing Dr. Ajay Anand, Dr. Shyam Kumar Gupta, Dr. Vikrant Singh and Dr. Rajeev Gupta, in that order and make recommendation for appointment against advertised vacancies to the State Government/ Intending department accordingly”
39. Disposed of. (Hasnain Massodi) Judge N Ahmad Jammu:
07. 05/2013