Holding

The appellant, possessing a recognised M.Ch. in Neurosurgery and meeting the preference criteria under Clause 19, was correctly placed at No. 1 in the selection panel and appointed as Assistant Professor, and the High Court’s order was set aside.

Summary

The case concerned the appointment of an Assistant Professor of Neurosurgery at Patna Medical College. Dr. Arun Kumar Agrawal, holding an M.Ch. in Neurosurgery, was placed first in the selection panel prepared by a specialist committee and approved by the State Government, while Dr. Chandra Mohan Jha, holding an M.S. in General Surgery, was placed fourth. Jha challenged the panel, arguing that only he met the eligibility criteria under the advertisement. The Supreme Court examined the advertisement clauses, the recognition of the M.Ch. degree by the Medical Council of India, and the preference provisions for super‑speciality qualifications. It held that the M.Ch. degree was valid and that Clause 19 gave preference to candidates with such a super‑speciality degree and relevant research/experience, outweighing the point score. Consequently, the Court set aside the Patna High Court’s order and upheld the appointment of Dr. Agrawal.

Issues considered

Whether an M.Ch. in Neurosurgery is a recognised qualification for the post of Assistant Professor under the advertisement.
Whether the respondent's M.S. in General Surgery satisfies the eligibility criteria for the Neurosurgery post.
How the points system and preference clauses (especially Clause 3(c), 3(f), and 19) should be interpreted in favour of super‑speciality candidates.
Whether the High Court erred in construing Clauses 2 and 3 as not distinguishing between parent and super specialities.
Whether the State Government’s relaxation and priority for qualified neurosurgeons is legally valid.

Legislation cited

Indian Medical Act, 1956

Subjects

Assistant Professor appointmentNeurosurgeryM.Ch. degreeSuper specialityEligibility criteriaSelection committeePreference clauseMedical Council of India recognition

Judgment

DR. ARUN,KUMAR AGRAWAL AND ORS. ETC.
A
v.
STATE OF BIHAR AND ORS.

APRIL 26, 1991

[N.M. KASLIWAL AND M.M. PUNCHHI, JJ.] B

Civil Services-Bihar Medical Service-Post of Assistant Profes-
sor of Neurosurgery-Appointment-Panel prepared by Selection
Committee approved by Government-Special, parent speciality and
super speciality-Distinction of-Selection of appellant-Justification
of.
c
An advertisement was made for an appointment to the post of
Assistant Professor in Neurosurgery in the Patna Medical College and
Hospital. In the panel prepared by the Selection Committee, whieh was
approved by the State Government, the appellant was placed at No. 1
and the Respondent No. 5 was placed at No. 4. D

The Respondent No. 5 filed a Writ Petition in the High Court
challenging the panel, contending that he alone was eligible for being
appointed as Assistant Professor Neurosurgery in terms oI the
advertisement.
E
The State Government stated iti its counter that the appellant had
post·graduate qualification of M.Ch. in Neurosurgery and research
work and working experience in Neurosurgery and he got preference
vide clause 19 of the advertisement; whereas Respondent No. 5 neither
had post-graduate degree nor three years teaching experience.
F
The allegation of the Respondent No. 5 that !he degree of M.Ch.
in Neurosurgery obtained by the appellant was not recognised;· was not
accepted by the State Goveriinient.

Construing the clauses of the advertisement, the High Court
found the appellant eligible for the post ot Assistant Professor, bow- G
ever, it held that the appellant secured 14 points while the Respondent
No. S, 28 points and as such the appellant was not entitled to any
preference and allowed the Writ Petition of Respondent No. 5, against
which the appeal has been filed.

The controversy before this Court is llmited between the appellant H
and the Respondent No .. S.
491
492 SUPREME COURT REPORTS (1991] 2 S.C.R.

Allowing the appeals, this Court,
A
HELD: 1. The appellant is holding a degree of M.Ch. in the super
speciality of Neurosurgery itself as well as research work and working ___...
experience in the super speciality. Respondent No. 5 is M.S. (General
Surgery). None of the persons is having more than three years teaching
B experience in order to get an over-riding preference. (4998-CJ

2. The Selection Committee consisting of experts in Neuro Surgery
considered the appellant more meritorious and he was placed at No. 1 in
the panel and the State Government also approved the same. (499C-D] ~

3. The post of Assistant Professor is a teaching post in the subject
c of Neuro Surgery and it is beyond comprehension as to how the Respon-
dent No. 5 who is only M.S. (General Surgery), can teach candidates for
the degree of M.Ch. (Neuro Surgery), which is a much higher degree
than M.S. for even a person having M.S. degree has to further pass
M.Ch. Part II and Part III examinations before obtaining M.Ch. degree ·
D in Neuro Surgery. [499A-B]

4. While the M.B.B.S. is a basic degree, its classification in diffe-
rent branches can be labelled as parent specialities like Orthopaedics,
General Surgery, Medicine etc. The parent specialities are manned by
those who are recipients of post graduate degree in that particular
E speciality like M.S. (General Surgery), M.S. (Orthopaedics) M.D.
(Medicine). Further growth of medical sciences resulted into more and
more super specialities, as for example Neuro Surgery, Paediatrics,
Surgery, Plastic Surgery, Neurology, Cardiology, etc. The candidates
who complete the course of super specialities are conferred with the
degree of M.Ch. (Master of Chirurgery) in case the super specialities
F relate to surgery, and the degree of D.M. (Doctor of Medicine) if the
same relates to Medicine. [497A-CJ

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2069-
2070 of 1991.

G From the Judgment and Order dated 20.12.1990 of the Patna
High Court in C. W .J.C. No. 7789 of 1988.

Kapil Sibal, Ranjit Kumar, B.B. Singh, Harish N. Salve and
L.R. Singh for the appearing parties.

H The Judgment of the Court was delivered by
A.K. AGRAWAL v. STATE OF BIHAR [KASLIWAL. J.] 493

KASLIW AL, J. Special leave granted.
A
These appeals by Dr. Arun Kumar Agrawal (appellant) and the
State of Bihar are directed against the Judgment of the Patna High
Court dated 20th December, 1990. The dispute relates for an appoint-
ment on the post of Assistant Professor in Neurosurgery in the Patna
Medical College and Hospital, Patna in pursuance to an advertisement B
dated 19 .12. 1987. The Selection Committee prepared a panel on
4.7.1988 which was approved by the Siate Government on 26.9.88. Jn
the aforesaid panel the appellant was placed at No. 1, Dr. Chandra
Shekhar Kashyap at No. 2, Dr. Shankar Bhuwan Prasad at No. 3 and
Dr. Chandra Mohan Jha at No. 4. Dr. Chandra Mohan Jha filed a writ
petition in the High Court challenging the above panel on grounds
inter alia that Dr. Agrawal, Dr. Chandra Shekhar and Dr. Shankar
c
Bhuwan Prasad placed above him in the panel did not fulfil the
minimum eligibility criteria laid down in the advertisement for
appointment to the post of Assistant Professor, Neurosurgery. His
contention was that he ought to have been placed at No. 1 and he
alone was eligible for being appointed as Assistant Professor, D
Neurosurgery in terms of the advertisement. It may be mentioned at
this stage that the controversy before us is between the appellant and
Dr. Chandra Mohan Jha, respondent No. 5. In order to appreciate the
controversy it would be proper to reproduce the relevant provisions of
the advertisement as translated in English and extracted in the Judg-
ment of the High Court: E
Clause 2 (C):
"For the post of Assistant Professor and Registrar it will be
essential for the candidate to have obtained in the same
speciality for which the application is being made, M.D.,
M.S., F.R.C.S. (U.K.), M.R. C.O.G. (U.K.) or American F
Board of speciality or any other post graduate qualifica-
tion, considered by the Medical Council of India as equi-
valent to the aforesaid degrees. Post graduate qualification
obtained from the U .K. after November 11, 1976 shall not
be granted recognition".
G
Clause3
"For Assistant Professor: (a) Resident/Registrar in the
same speciality or officers having worked on the two posts
in an educational hospital, having worked on the two posts
in an educational hospital, having obtained recognition H
494 SUPREME COURT REPORTS [ 1991] 2 S.C.R.

from the Medical Council of India for conducting M.B.B.S.
1
A
course, alone can apply. (b) Service on any other accepted/
acknowledged teaching post (Jr. Surgeon/Jr. Physician) in
the same subject for which the application is being made
shall be considered equivalent to Registrar/Resident. (c) In
addition to the other conditions Resident/Registrar in the
B concerned subject or medical officers having a minimum of
three years experience on the two posts shall alone be eligi-
ble to apply. This, however, shall not be essential for
Radiology, Skin & V.D., Anaesthesia, Neurology, Neuro-
surgery, Plastic Surgery or any speciality to be constituted
in future, nor shall it be essential to obtain the prescribed
minimum of 15 points for being posted in these subjects. In
c these subjects, however, in case one or more than one such
candidates are available who have obtained three years'
teaching experience in the concerned speciality, then in
that situation, the Medical Officers having such experience
shall be entitled to foremost consideration for appointment
D and they shall be appointed although they might have
obtained less points than those candidates who do not
possess three years teaching experience ".

Clause 3 (f) (Cha):
"It is essential to obtain 15 points for appointment to the
E post of Assistant Professor, however, for the specialities
enumerated in the aforesaid clause 3 the minimum point
shall be 6. In case, candidates obtaining the aforesaid
points are not available in the desired number then the
Government, in order to fill up the vacancies, shall have
the right to relax the minimum points". ·
F
Clause 18:
"For the post of Registrar and Resident Doctor in the units
(specialities) of Cardiology, Cardiothoracic Surgery,
Neuro Surgery, Gastro Entrology, Paediatric Surgery and
Kidney in addition to the necessity of fulfilling the condi-
G tions, contained in clauses 4 and 6 respectively, preference
shall be given for working experience in the concerned
subject."

Clause 19:
"For appointment to the post of Assistant Professor in the
H aforesaid major super specialities, the degree and the
A.K. AGRAWAL v. STATE OF BIHAR (KASLIWAL, J.J 495

teaching experience in the related basic (parent) subject as A
enumerated in clause 3 will be essential. However, those
having degrees, research work or working experience shall
be given preference".

( The appellant passed his M.B.B.S. in 1977, did his internship in all B
subjects in 1977-78, one year's housemanship in general surgery in
1978-79 and another term of one year paid housemanship in Neuro-
surgery. The appellant opted for M.Ch. five years degree course in
1980. He passed M.Ch.-Part I University examination in General
Surgery in 1982, M.Ch. Part-II University Examination is Basic Neuro
4r Science in 1984 and M.Ch. Part III University Examination in Clinical
Neurosurgery in 1985. He entered the State Health Services in 1983 c
and was posted on study reserve post in the department of Neur-
osurgery at Ranchi Medical College, He was posted at Hilsa block
in 1985 and deputed to do full work as Resident Casualty Neuro
Surgeon in September, 1987.
D
•-... Dr. Chandra Mohan Jha passed his M.B.B.S. in 1974 and M.S .
(General Surgery) in 1979. He joined Bihar Health Services through
Public Service Commission on 20th April, 1978 and remained in rural
services upto 1983. He worked as Resident Surgical Officer (General
•I Surgery) including Neutosurgery at DMCH Lahera Sarai from 23.8.83
to 26.9.86. He was then posted as Resident Surgical Officer (Neuro
Surgery) at Patna Medical College Hospital, Patna from 27.9.86 till E
the last date of making application, i.e., 31.1.1988. It is not necessary to
mention further postings as we are concerned only upto the date of
• making application.
~-

The State Government in its counter affidavit filed in the High
F
Court inter alia stated that the appellant had post-graduate qualifica-
tion of M.Ch. in Neurosurgery and research work and working expe-
rience in Neurosurgery and, therefore, he got preference vide clause
19 of the advertisement. Dr. Chandra Mohan Jha, Respondent No. 5
neither had post-graduate degree, nor three, years teaching expe-
rience in the subject, i.e., Neurosurgery and, therefore, he was placed at
~ SI. No. 4 of the merit list. It was also stated that the course of M.Ch. in G
Neurosurgery was being run only in the Rajendra Medical College,
Ranchi, which the State Government recognised, and, therefore, the
allegations of the writ petitioner (respondent No. 5) that the degree
obtai.ned by the appellant was not recognised, was baseless and
incorrect.
-4 H
496 SUPREME COURT REPORTS [1991) 2 S.C.R.

A The High Cour held that according to the various clauses of the
advertisement the requirements for the post of Assistant Professor in
Neuro Surgery could be broadly classified under three heads. The first
related to the group to which the applicant must belong and that was
confined to the cadre of the Medical Officers of the State Health
Service and Junior Teachers and Medical Officers working in the erst-
B while private medical colleges. The second condition related to the
academic qualification required and according to that the candidate
must have a post graduate degree in the same clinical subject, in which
he had applied for the post of Assistant Professor. The High Court
illustrated that a candidate for Assistant Professorship in Medicine
must have a M.D. Degree in Medicine; a candidate for Assistant Pro-
C fessorship in general surgery must have a M.S. degree in general
surgery and a candidate for Assistant Professorship in Neuro Surgery
must have in Neurosurgery a post graduate degree. The third condi-
tion related to experience and called for a careful consideration. The
High Court came to the conclusion as per sub-clause (c) of Clause 3
that with the exception of Neuro Surgery and six other clinical sub-
D jects, a candidate in all other subjects had to have three years
minimum teaching experience in the same clinical subject. Further, in
the clinical subject of Neurosurgery and six other subjects, there was
no minimum period of time attached to it but the only condition was
that he ought to have working as a Resident/Registrar in the >ubject of
Neurosurgery or the other six, as the case may be. While construing
E the two provisos of sub-clause (c) of clause 3, the High Court found
that a candidate for Neurosurgery having teaching experience for
three years would receive the foremost consideration and shall be
offered appointment. The High Court further held that Clauses 2 & 3
•
of the advertisement were to be understood without involving any
distinction of speciality, parent speciality and super speciality. The
F said clauses treated all the clinical subjects at par and the requirements
contained therein applied to each subject. The High Court found the
appellant eligible for the post of Assistant Professor in terms of the
Advertisement. However, it held that the appellant secured 14 points
while the respondent No. 5, 28 points and as such the appellant was
not entitled to any preference.
G
In order to appreciate the controversy, it would be proper to
explain the courses of M.Ch. degree possessed by the appellant and
the M.S. (General Surgery) degree possessed by respondent No. 5
M.Ch. course was initiated in the Rajendra Medical College, Ranchi
by the State Government. M.Ch. Part I examination consists of
H General Surgery and it is held after a period of two years. Part II and
A.K. AGRAWAL v. STATE OF BIHAR [KASLIWAL, J.J 497

III courses of the M.Ch. degree consist of specialisation in Neuro
A
Surgery. During the course of examination for Neuro Surgery in Parts
II and III a candidate has to undergo viva voce test by experts in Neuro

" Surgery. While the M.B.B.S. is a basic degree, its classification in
different b.rartches can be labelled as parent specialities like Ortho-
paedics, General Surgery, Medicine etc. The parent specialities are
manned by those who are recipients of post graduate degree in that B
particular speciality like M.S. (General Surgery), M.S. (Orthopae-
dies), M.D. (Medicine). Further growth of medical sciences resulted
into more and more super specialities as for example Neuro Surgery,
~ Paediatrics, Surgery, Plastic Surgery, Neurology, Cardiology, etc.
The candidates who 'Complete the course of super specialities are con-
ferred with the degree of M.Ch. (Master of Chirurgery) in case the
super specialities relate to Surgery, and the degree of D.M. (Doctor of c
Medicine) if the same relates to Medicine. Now, so far as the post
graduate degree courses in parent specialities called M.S., or M.D. are
concerned are of two years duration, whereas those for super
specialities conferring degrees like M.Ch. and D.M. are of five years
duration after internship. In many universities for obtaining degree of D
-._, M.Ch. in the partiCular super speciality, one has to be M.S. in the
related parent speciality and the course is of three years for such post
graduate degree holders.

The Ranchi University kept the duration of M.Ch. course of five
years and it was provided that if a person having basic degree of E
M.B.B.S. joined such course, he would have to pass M.Ch. Part I
. examination after devoting two years to General Surgery and only
'I' after passing the said M.Ch. Part I examination in General Surgery, he
would be promoted to M.Ch. Part II and then M.Ch. Part III course,
to be completed in three years. This includes specialisation and
-.' research in basic Neuro Sciences and Clinical Neuro Surgery, to qua- F
lify for appearing at the university examination of M.Ch. Part II and
Part III. The University, however, also kept the doors open for M.Ch.
(Neuro Surgery) course, having a span of three years for those who
were already holders of M.S. degree in General Surgery/Orthopaedics
Surgery and they were directly admitted for M.Ch. Part II course and
'lo- they had to study only for three years for M.Ch. Part II and Part III G
course. Initially M.Ch. courses were started by All India Institute of
Medical Sciences only but later on other universities also followed the
same. The Government of Bihar started M.Ch. (Neuro Surgery) five
years degree course in Rajendra Medical College, Ranchi in the year
1980 and only one seat was cpnfined for this course every year in the
whole State of Bihar. Since admission to the M.Ch. Course in Neuro H
498 SUPREME COURT REPORTS [1991] 2 S.C.R.

Surgery was made only after completion of one full year as house
A
surgeon in Neuro Surgery, the course remained of four years duration
,
thereafter.

The controversy has been raised before us that the M.Ch. degree
•
course in Neuro Surgery awarded by Rajendra Medical College,
B Ranchi University is not yet recognised for the purposes of Indian
Medical Act, 1956 and a letter of Medical Council of India dated
27.2.1991 has been placed on record in this regard. Learned counsel
for the respondent No. 5 has tried to contend that M.Ch. degree
obtained by the appellant was of no value as the same has not been
recognised so far by the Medical Council of India. We find no force in
this ~ontention, as this course was started by the Ranchi University in
c 1980 with the consent of Medical Council of India and the State of
Bihar has recognised such degree imparted by the Ranchi University
and even before this Court learned counsel appearing for the State of
Bihar has admitted this position. We are not concerned in this case
about the value of such degree for places outside State of Bihar, but so
D far as the present case is concerned which relates to the post of
Assistant Professor in Patna Medical College and Hospital, PatQa
which post is under the Bihar Government, no such objection can be
maintained by the respondent No. 5.
Before adverting to the various clauses of the advertisement it
E would be worth mentioning that the Medical Council of India in its
recommendations published in 1983 for the posts in the department of
Neuro Surgery has laid down as under:

Post Academic Teaching/Research
Qualification Experience
F
a) Professor M.Ch. Neurosurgery i) As Reader in Neurosurgery
for 5 years in a medical
college
b) Reader -do- ii) As Lecturer in Neuro-

G
surgery for 5 years in a
medical college.
-r
c) Lecturer -do- iii) Requisite recognised
postgraduate qualification
in the subject.

H d) Tutor/Registrar/
Resident
A.K. AGRAWAL v. STATE OF BIHAR [KASLIWAL, J.J 499

Thus for the post of Lecturer in Neuro Surgery a degree of M.Ch. in
A
Neuro Surgery is necessary. Admittedly, the post of Assistant Profes-
sor in question before us is a teaching post in the subject of Neuro
.,_
.
Surgery and it is beyond our comprehension as to how the respondent
No. 5 who is only M.S. (General Surgery), can teach candidates for the
degree of M. Ch. (Neuro Surgery), which is a much higher degree than
M.S. and even a person having M.S. degree has to further pass M.Ch. B
Part II and Part III examinations before obtaining M.Ch. degree in
Neuro Surgery.

·~
The appellant is holding a degree of M.Ch. in the super speciality
of Neuro Surgery itself as well as research work and working expe-
rience in the super speciality. Respondent No. 5 is M.S. (General
Surgery). None of these persons is having more than three years teach· c
ing experience in order to get an over-riding preference. It is not in
dispute that the Selection Committee consisting of experts in Neuro
Surgery considered the appellant more meritorious and he was placed
at No. I in the panel and the State Government also approved the
same. D
-~
A reading of exceptions in sub-clause (c) of Clause 3 goes to
show that for a person having a super speciality in the subjects
mentioned therein which included Neuro Surgery, it was not necessary
to have experience but if there was a candidate available with such
super speciality and three years experience, then he would be given E
preference. Sub-clause (f) of Clause 3 provided that for appointment
• to the post of Assistant Professor the minimum number of poinis
required was 15 but for super speciality, as aforesaid, the minimum
y
required points were six only. The Government of Bihar who issued
the advertisement has also put the same interpretation to the Clauses
of the advertisement. Though the High Court at one stage held that a F
candidate for Assistant Professorship in Neuro Surgery must have a
post graduate degree in Neuro Surgery and having held that the degree
of Neuro Surkery of the appellant was recognised and valid, yet com-
mitted a serious error in giving preference to respondent No. 5, who
was having a degree of M.S. in General Surgery over the appellant
- who was holding much higher degree of M.Ch in the super speciality of G
Neuro Surgery itself. The High Court further committed an error in
holding that Clauses 2 and 3 of the advertisement did not evolve any
distinction of speciality, parent speciality and super speciality. A mere
perusal of the said clauses would show that clauses 2(c) and 3(c) does
talk of parent speciality and super speciality and the finding of the
High Court in this regard was clearly erroneous. Clause 3(c) carved H
500 SUPREME COURT REPORTS [1991] 2 S.C.R.

A out an ex~eption in favour of super speciality vis-a-vis experience and,
therefore, Clause 3 clearly speaks about super speciality. The High
Court in our view committed a further error in not appreciating Clause
19 in its correct perspective. Clause 19 envisaged that preference
would be given to a person who had a degree in super speciality along
with research or working experience. Thus the appellant having a
E degree in super speciality and also having research work or working
experience has been rightly given preference in the matter of appoint-
ment to the post of Assistant Professor in Neuro Surgery over respon-
dent No. 5 who did not h~ve a degree in super speciality.

The State Government has also taken a clear stand that there was
C an acute shortage of qualified Neuro Surgeons in the State and there-
fore in order to induct qualified Neuro Surgeons, the Government had
provided certain relaxations and priorities in the criteria for appoint-
ment to junior teaching posts in various medical colleges of Bihar, so
that such candidates could be appointed. The appellant had been given
preference by virtue of his having M.Ch. degree in Neuro Surgery with
D research work and working experience. The State Government has
further stated that appellant is a qualified Neuro Surgeon and has been
rightly appointed as Assistant Professor of Neuro Surgery vide Notifi-
cation No. 1144 (17) dated 28.12.1990 and the appellant joined the
said post on 28.12.90 itself.

E Thus taking in view the entire scheme of the degree of M.Ch.
and the relevant clauses of the advertisement, we are clearly of the
view that the appellant was rightly put in the Select Panel at No. I and
the Government of Bihar rightly appointed him on the post of
•
Assistant Professor of Neuro Surgery.

F In the result, we allow the appeals, set aside the order of the
High Court of Patna dated 20. 12.1990 and dismiss the writ petition
filed by Dr. Chandra Mohan Jha, respondent No. 5.

In the facts and circumstances of the case, there would be no
order as to costs.

V.P.R. Appeals allowed.