Back
1968 Supreme(Raj) 13
Rajasthan High Court
Dave, C.J. & Lodha, J.
Dr. R.P. Chaturvedi - Appellant
Versus
State of Rajasthan - Respondents
D.B. Civil Misc. Writ No. 599 of 1966
Decided On : January 22, 1968
D.P. Gupta and H.G. Rastogi, for Dr. Rampal Chaturvedi; J.S. Rastogi, for Dr. M.L. Gupta; B.B. Desai, for Kailas Narain; G.C. Kasliwal, Advocate General, for State; Raj Narain Munshi, Government Advocate, for State
Headnote:(a) Medical Service (Collegiate Branch) Rules, R. 30(4) (Rajasthan) and University of Rajasthan Act, Ordinance 65 — R. 30(4) and Ordinance 65 cover different fields—If there is any aggrieved parly it is University and not petitioner.(b) Education—University of Rajasthan Act, Ord. 65 and Rajasthan Medical Service (Collegiate Branch) Rules, R. 30(4) -The two provisions cover different fields—If there is any aggrieved party, if Ord. 65 violated it is the university and not the petitioner.(c) Constitution of India, Art. 226—Autonomous body (University of Rajasthan) framing rules laying down academic qualifications for appointment as Professors etc. and making affiliation dependant on fulfilment of condition—Rules framed by governing body of institution in conflict with rules framed by University—It is the university which is the aggrieved party and not the petitioner where seniority may be affected.(d) Education — University of Rajasthan Act, Ord. 65 — Ordinance not in conflict with R. 30(4), Medical Service [Collegiate Branch) Rules —They cover different fields.(e) Education University of Rajasthan Act, Ord. 65—Academic qualifications and teaching experience—While academic qualifications may be held a mandatory minimum condition, teaching experience seems only desirable and capable of being waived or altered and has actually been waived.(f) Medical Service (Collegiate Branch) Rules, R. 30(4) — Rule not discriminatory — Framed to do justice to persons in medical service.
Rule 30(40) and Ordinance No. 65 cover differnt fields and they will have their away in their own spheres. While the Collegiate Branch Rubes regulate the recruitment to the posts and conditions of service appointed to the Rajasthan Medical Service,Ordinance No. 65, which appears in Chapter XX of the Hand Book of the University of Raj., referred to above, lays down the norms and standards of the qualifications which the teachers of various stages of University Education should possess before the University admits the colleges and institutions to its privileges and grants them recognition or affiliation. Thus, if a certain college or institution is unable to satisfy the university about the number and qualifications of its teaching staff, it is open to the university not to admit it to its privileges and refuse affiliation. Similarly, it is open to the University to withdraw the privileges to which a certain college has been admitted and also its recognition or affiliation.
The university is an autonomous body and we are inclined to think that a third person other than the university cannot take up cudgels on behalf of the university in such a state of affairs, it is university alone which can take action against the government and it is for that autonomous body not to allow such state of affairs to continue in an affiliated college and to withdraw the affiliation if its Ordinances are not respected without good reasons. In the present case, it appears from the minutes of the Syndicate, referred to above, that the university itself has permitted the government to continue the appointment of Dr. Ojha as a temporary measure and no objection has been taken by the university in the case of Dr. Rishi either. (Para 26)
There is no conflict between Rule 30(4) of the Collegiate Branch Rules and the University Rules on the point. It is well established that the rules made by the Governor in exercise of his powers conferred upon him by the proviso to Article 309 of the Constitution have statutory force It is also true that the rules so made under Art. 309 are subject to the provisions of the Act in that behalf made by or under an Act of the appropriate legislature under this Article. It was therefore perfectly competent for the Governor to make rules regulating the recruitment to the posts and the conditions of service of persons appointed to the Rajasthan Medical Service "Collegiate Branch". The university Act does not regulate the recruitment and the conditions of service of persons appointed to the public services and posts in connection with the affairs of the State of Rajasthan. These rules therefore do not transgress the field covered by the University Act. There is nothing in the terms of Article 309 of the Constitution which abridges the power of the executive to act under Article 162 of the Constitution without a law. (Para 30)
Ordinance No. 65 is capable of being interpreted that by the term "qualifications" the Ordinance making authorities meant only academic qualifications and teaching experience was besides, (that is, in addition to) academic qualifications. Such an interpretation would not be un-reasonable because it is only under Head No. 3 that the term "qualifications" appears with the word "academic"), and teaching experience has been placed under a separate Head No. 4. It does appear that under Ordinance No. 65, the provision about academic qualifications was mandatory while the provision about teaching experience was only directory and, therefore, the Syndicate had, in appropriate cases, an authority to relax its rigour. Teaching experience, it appears, is treated more as desirable and preferential rather than essential. (Para 40)
The intention of the rules, as is apparent State that from their language, is to maintain the distinction between the two wings throughout and to determine the seniority inter se in each category of Service under each wing. It is clear to us that the rules do not contemplate inter combined seniority list of the different categories of Service of both the wings. It cannot be accepted that the deter- mination of inter se seniority list amongst the Professors of both the wings of Service is absolutely necessary. Before Rule 30(4) was inserted in the Collegiate Branch Rules, there was no provision in these rules under which senior or junior specialists who were members of the Medical Service of Rajasthan could be given any chance of being appointed as Professors and Readers except by direct recruitment and it appears it was with an object to provide an opportunity to the experienced specialists in the Service of the State that sub-rule (4) of Rule 30 was introduced. By enacting Rule 30(4), the State has not shown any favour to them or done any wrong to the petitioners, but it has only shown fairness and imparted even handed justice to those who were denied equal opportunity in the matter relating to employment or appointments in the colleges on account of Rule 5 of the Rules. But for Rule 30(4), the resultant position would have been that the erstwhile Principal Medical Officers of these hospitals which are now attached to the medical colleges would have been relegated to the position of Heads of Second Grade Hospitals in spite of their high qualifications and long experience. Professional experience has also its own importance in the working of a teacher and if Rule 30(4) has been enacted in the circumstances disclosed above, it cannot be adjudged arbitrary, unjust and discriminatory. (Paras 59, 63 and 64)
2. Writs Nos. 599 of 1966 and 99 of 1967 have been filed by Dr. Rampal Chaturvedi and Dr. Mohanlal Gupta respectively and are directed against Dr. D.G. Ojha. Similarly Writs Nos. 98 of 1967, and 100 of 1967 have been filed by Dr. Mohanlal Gupta and Dr. Rampal Chaturvedi respectively and are directed against Dr. P.L. Rishi. Writs Nos. 94 of 1967 and 97 of 1967 have been filed by Dr. Rampal Chaturvedi and Dr. Mohanlal Gupta respectively and are directed against Dr. P.D. Mathur. Writ No 1395 of 1966 has been filed by one Kailash Narain, a student of the Jodhpur Medical College, and is directed against Dr. P.L. Rishi. Since all these writs involve common questions, we propose to dispose them off by a single judgment. For the sake of convenience we would take the case against each of the non-petitioners i.e. Dr. D.G. Ojha, Dr. P.L. Rishi and Dr. P.D. Mathur separately. We may here state that similar two writ petitions were filed questioning the appointment of Dr. S.P. Wanchoo but since Dr. S.P. Wanchoo had retired during the pendency of these writ petitions the cases instituted against him have been withdrawn.
3. Dr. Ojha passed M.B.B.S. Examination in 1939 and in 1943 he took his post graduate degree M.S. He has to his credit total professional experience of about 27 years, out of which he had 17 years experience as a specialist and 2-1/2 years administrative experience as Head of Teaching Department. He was appointed as Professor of Surgery and Officiating Principal of Sardar Patel Medical College, Bikaner by the order of the State of Rajasthan dated 2nd March, 1964 (vide Ex. 9, in Writ Petition No. 599 of 1966). It is alleged that the State Government requested the University of Rajasthan to waive the condition of teaching experience as prescribed in the University Rules in the case of Dr. Ojha for the post of Professor and Head of Department of Surgery but the Syndicate of the University of Rajasthan refused to relax the condition. It is contended that Dr. Ojhas appointment to the post of Professor of Surgery being in derogation of the Statute 30 and Ordinance 65 made by the University of Rajasthan, is illegal and so also his appointment as Principal, as he does not fulfil the requisite qualifications for appointment to the post of Principal prescribed by the University,
4. Dr. P.L. Rishi passed his M.B.B.S. Examination in 1942 and obtained the Post-gradute qualification of F.R.C.S. in 1949. He has to his credit professional experience of about 24 years, out of which he had experience as a specialist for 14-1/2 years. He was appointed as Principal, Medical College, Jodhpur by order dated 28-7-1966 (vide Ex. 9 in Writ Petition No. 100 of 1967) and his appointments as Professor and Principal has also been challenged on identical grounds as in the case of Dr. Ojha.
5. Dr. P.D. Mathur passed his M. B. B. S. Examination in the year 1938 and took F.R.C.S. in 1942. After obtaining the concurrence of the Rajasthan Public Service Commission he was appointed as Reader in Experimental Surgery of Sawai Mansingh Medical College, Jaipur and was later appointed as a part-time and Officiating Additional Professor of Surgery with effect from 5-1-1958. The post of Additional Professor of Surgery was re-designated as Professor of Clinical Surgery. He was appointed as Officiating Principal of Ravindranath Tagore Medical College, Udaipur and Professor of Surgery by the order of the Government of Rajasthan dated 13-7-1965. This order was subsequently superseded and Dr. Mathur was appointed as Professor -of Surgery and Principal, Ravindranath Tagore Medical College, Udaipur with effect from the date of taking over the charge i.e. 24-5-19
