STATE OF BIHAR AND ANR.versusRAMESH CHANDRA AND ANR. ETC.

                      STATE OF BIHAR AND ANR.                                    A
                                      v.
                RAMESH CHANDRA AND ANR. ETC.

                             MARCH 20, 1997

             [S.C. AGRAWAL AND G.T. NANAVATI, JJ.]                               B

      Service Law :

       Medical Council Act, 195(r-Section 33(j)!Indian Medical Council
Regulations, 1971/1982/1989-Requisite qualifications for professor and As- C
sociate professor of Neurosurgery-Quashing of appointment of the app~l,ant
as Professor, who was already working as Associate Professor on tile g/Ju;id
of not having requisite qualifications-Held: Illegal, as the. requisite/qualifica-
tions prescribed by Indian Medical Council Regulations, 1971 for the post of
Professor and Associate Professor are the same-lt has to be ajsumed that
one who was already appointed 011 011e of the posts did possess the requisite D
qualificatio11s for the other post a11d the appointing autho1ity was so satisfied
before appointing him-Degree of M.C/1. after M.S./F.R.C.S. as prescribed by
Indian Medical Council Regulations 1971-Held: Is an alternative qualifica-
tion a11d not the only qualificatio11 to be eligible for being appoilJted as
Professor or Associate Professor--f'erso11 possessing degree of M.!j./F.R.C.S. E
with two years' special trai11i11g is also eligible.

      I11dian Medical Council Regulatio11S, 1971-Though approved by the
Central Government they cannot have statutory f orce-011ly recomme11datory
and 11ot obligatory i11 nature.
                                                                                 F
       I11dia11 Medical Council Regulations, 1982 and 1989-T7wugh 11ot
approved by the Ce11tral Government, desirable to be followed by the appoi11t-
i11g authority for making appointments in order to avoid arbitrariness.

      Words and Phrases : 'Special Trai11ing'-Mea11ing of-In the context of G
Indian Medical Council Regulations, 1971.

      The respondent was appointed as Associate Professor of
Neurosurgery on ad hoc basis in Patna Medical College. The appointment
was'\challenged by the appellant alongwith one of his colleagues, who was
servi~ as Associate Professor. The High Court dismissed the writ petition        H
                                   115
                                                                                    I

                                                                                ~
                                                                                \

    116                  SUPREME COURT REPORTS                (1997] 3 S.C.R.

A as infructuous in view of the statement made by the State that the Govern-
  ment had decided to promote both the petitioners as Associate Professors
  on ad-hoc basis. While dismissing the writ petition, the High Court
  granted liberty to the Government to issue the notification making the
  appointments. Accordingly, the Government issued a fresh notification
  cancelling its earlier order of appointment of the respondent alone and
B appointing all the three together as Associate Professors on ad-hoc basis.
  The order of the High Court was challenged by the respondent in the
  Supreme Court During the pendency of the appeal, the Government
  issued another notification regularising the ad-hoc appointment of all the
  three Associate Professors and also fixing their ·intcr-se seniority. The
C appellant was placed above the respondent in seniority. Taking into con-
  sideration thl,i·order, the Supreme Court disposed of the appeal on 22.9.91
  observing that the dispute which required determination related to
  seniority only and the same had to be decided by the High Court. Thus the
  matter was remanded to the High Court.
D         The respondent challenged before the High Court, the eligibility of
    the appellant for being appointed as Associate Professor, which was ul-
    timately withdrawn by him.

        In the meantime, the post of Professor of Neuro Surgery had fallen
E vacant and the Departmental Promotion Committee recommended the
  appointment of the appellant as Professor, which was challenged by the
  respondent before the High Court. The High Court dismissed the petition
  as premature. Ultimately on August 1, 1992 the Government promoted the
  appellant to the post of Professor with retrospective effect from May 1,
  1990. The respondent again challenged the appointment of the appellant
F before the High Court on the ground that the respondent did not have the
  requisite qualifications. The High Court quashed the appointment of the
  appellant as Professor in Neurosurgery holding that he did not possess
  that requisite qualifications for being appointed as Professor and directed
  the State Government to consider the matter afresh. Against the order of
G the High Court, the appellant as well as the State Government filed the
  present appeals.

          Allowing the appeals, this Court

          Held : 1.1. The High Court was wrong in quashing the appointment
H of the appellant as Professor, who was already working as an Associate
                     STATE v. RAMESH CHANDRA                            117

Professor on the ground of not possessing the requisite qualifications, for A
the reason that prescribed qualifications for the post of Professor and
Associate Professor are the same as per the Regulations framed by the
Indian Medical Council. Once it is conceded that the appointment of the
appellant as Associate Professor was valid, it would be implied that apart
from the required teaching experience, he also possessed the special B
training of two years in Neurosurgery after obtaining the degree of M.S.
It is therefore ditlicult to appreciate how it was open to the respondent
thereafter to challenge that the appellant did not have the special training
requisite for appointment as Professor. Moreover, the order of the
Supreme Court dated 22.9.91 also clearly proves that there was no dispute
regarding the appointment of the appellant as Associate Professor. The C
respondent also made a statement in one of his writ petitions in the High
Court that he was not challenging the appointment of the appellant as
Associate Professor. In view of th,e order of the Supreme Court and the
statement made by the respondent, the High Court ought to have
proceeded on the ground that the appointment of the appellant as As- [
sociate Professor was not in dispute. Therefore, the High Court ought not
to have allowed itself to be influenced by the fact that the appellant's
appointment as Associate Professor was earlier challenged and reopened
the same. [124-G-H, 125-A]

      1.2. The High Court was wrong in not following the ratio of A.N.         E
Shastri's case that when prescribed qualification for both the posts are the
same, it has to be assumed that the appointing authority was satisfied that
the person who was already appointed on one of those posts did possess
the requisite qualifications for appointments on the other post. It was not
shown that the Government was not so satisfied when it has appointed the
appellant as Professor. The High Court wrongly placed the burden on the        F
appellant to show that he had received the requisite "special training" for
two years and erroneously held that the he had failed to establish the same.
                                                                  [125-F-G]
     A.N. Shastri v. State of Punjab, [1988] 2 SCR, .Relied on.
                                                                               G
      2. A plain reading of Indian Medical Council Regulations, 1971,
shows that the degree of M.Ch. is not the only qnalification prescribed for
the post of Professor or Associate Professor. If it would have been so and
the degree of M.Ch. was considered a must, then the said regulation would
not have contained the qualification of "M.S./F.R.C.S. or equivalent           H
    118                  SUPREME COURT REPORTS                  [1997) 3 S.C.R.

A qualification in surgery. with two years' special training in the speciality    ..,
  concerned". The regulation indicates that it is an alternative qualification     I


  for the post of Professor or Associate Professor. For such appointment
  one should have either of these qualifications. M.Ch. is no doubt a higher
  qualification than M.S. Therefore, one who is not M.Ch. and has only the
B M.S. decree it is further necessary to have two years' speci;il training in
  the concerned speciality to be eligible. Therefore, the appellant who is M.S.
  with two years' special training in Neurosurgery is eligible for being
  appointed as Professor. [127-E-H]

          Dr. Ganga Prasad Venna v. State of Bihar, [1995] Supp. 1 SCC 192
C distinguished; Dr. Antn Kumar Aga1wal v. State of Bihar, [1991] Supp. 1
    SCC 287 and Govemment of A.P. v. Dr. R. Murali Babu Rao, [1988] 3 SCR,
    referred to.

        3. The High Court was wrong in holding that the material placed
D before it was not sullicient to establish that the appellant had received two
  years' special training in Neurosurgery. The record discloses that
  neurosurgical unit was established in Patna Medical College Hospital in
  May, 1975. The Appellant was appointed as Resident Surgical Ollicer in
  that unit in December 1976. The certificate issued by the Head of the unit
  further discloses that the appellant had received intensive, theoretical and
E practical training during his tenure of three years as Resident Surgical
  Officer and that during that period he had independently dealt with
  Neurosurgical investigations and operations. The post of Resident surgical
  ollicer is a teaching post and the appellant had continued on the post in
  that unit till his appointment as Assistant Professor on 5.2.1980. It is,
F therefore, not correct to say that the training which the appellant received
  as Resident Surgical Officer between 1976 to 1980 can not be regarded as
  "special training" in Neurosurgery. [126-A-G]

        4. The recommendations of the Medical Council 1971 even after they
  become regulations framed under Section 33 of the Indian Medical Coun-
G cit Act are only recommendatory in nature. The High Court was not right
  in proceeding on the basis that the 1971 regulations have statutory force
  by reason of the approval granted by the Central Government and the
  subsec1uent regulations of 1982 and 1989 are only recommendatory in
  nature. Though it is not obligatory for the appointing authority to follow
H the recon.1mendations which have not received the approval of the Central
             STATE v. RAMESHCHANDRA[NANAVATI,J.)                          119

Government, it would not be improper on the part of the appointing authority     A
to follow such recommendations if they are found to be acceptable and the
appointments made on the basis of such recommendations would be able to
stand the challenge of arbitrariness in a better manner. [128-D-G]

       4.1. Though the academic qualification suggested for the post of
Professor in Neurosurgery is M.Ch. under both the subsequent recommen·           B
dations of 1982 and 1989, the Medical Council made it clear in both those
recommendations that teachers holding posts of the rank of Associate
Professors/Readers and above, possessing qualifications and experience as
prescribed can continue in their posts and also be eligible for promotion to
higher posts. Therefore, even if the eligibility for appointment as Professor    C
is judged on the basis of the subsequent recommendations, the appointment
of the appellant can not be regarded as arbitrary or illegal. [128-G-H; 129-A]

      5. The State Government is, however, directed to consider the case of
the respondent for appointment as Professor on the post which had fallen
vacant, in view of the interim relief granted on 14.7.95 and 24.11.95.           D
                                                                   [129-A·B]
     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11240 of
1995 Etc.

     From the Judgment and Order dated 7.3.95 of the Patna High Court            E
in C.W.J.C. No. 12274 of 1992. ·

      Dr. Shankar Ghosh, Ratan Kumar Chaudhry and Anil Kumar Jha
for the Appellants in C.A. No. 11240/95 and Respondent in C.A. No.
11241/95.
                                                                                 F
     Braj K Mishra and G.B. Sathe, Ranjit Kumar for the Appellant in
C.A. No. 11241/95 and Respondent in C.A. No. 11240/95.

     The Judgment of the Court was delivered by

      NANAVATI, J. These two appeals arise out of the judgment and G
order passed by the High Court of Patna, in Civil Writ Jurisdiction Case
No. 12274 of 1992. Civil Appeal No. 11240/95 is filed by the State of Bihar
and Civil Appeal No. 11241/95 is filed by Dr. Choudhary, who was respon-
dent No. 3 in the writ petition. The writ petition was filed by Dr. Ramesh
Chandra, respondent No. 1 in these appeals and hereafter referred to as H
                                                                                    \~
                                                                                     ~-


    120                  SUPREME COURT REPORTS                   [1997) 3 S.C.R.

A 'the respondent'.

        The respondent after obtaining MBBS degree joined the Prince of
  Wales Medical College, Patna as a demonstrator in the department of
  Anatomy. He did M.S. in General Surgery and thereafter M.Ch. in Neuro
  Surgery in 1967. He then joined the Christian Medical College, Vellore for
B some time and then went to a foreign country for further studies. He
  returned to India in 1973. By that time the Prince of Wales Medical
  College, Patna, was taken over by the State Government. As leave for two
  years which he had obtained while working as a demonstrator in the Prince
  of Wales Medical College had expired and he had not reported for duty
C his name was not included in the list of employees submitted to the
  Government when the said Medical College was taken over by it. Finding
  that his name was not included in the list, he joined Kurji Holy Family
  Hospital in March 1973. His services were terminated by that hospital in
  December 1978. Earlier, on January 18, 1974, he had submitted a joining
D report to the officer incharge of the Patna Medical College who had
  forwarded it to the Government. On June 29, 1981, he was permitted to
  join and was absorbed in the Bihar Health Services as a tutor in the
  department of Anatomy with effect from May 29, 1971 i.e. from the date
  the college was taken over by the Government. The Government then
  sought an opinion of the Medical Council of India as regards his eligibility
E for appointment on a teaching post in Neuro Surgery. After receiving
  corcurrence of the Medical Council the Government created a post of
  Associate Professor in the department of Neuro Surgery and on April 27,
  1983 appointed him on that post on ad hoc basis in anticipation of the
   concurrence of the Bihar Public Service Commission.

F        The appointment of respondent as a tutor with retrospective effect
  and his further appointment as an Associate Professor was challenged by
  one Dr. Sinha and by Dr. Chaudhary who were then working as Assistant
  Professors, by filing a petition (C.W.J.C. No. 1815 of 1983) in the Patna
  High Court. It was disposed of on 31.5.1983 as infructuous, as the State
G Government made a statement before the Court that promotion of both
  the writ petitioners as Associate Professors on ad hoc basis was approved
  by it but a notification to that effect could not be issued because of the stay
  order. The High Court, while dismissing the writ petition had observed that
  it would be open to the Government to issue the notification. Accordingly,
H on June 3, 1983, the Government issued a notification cancelling its earlier
                  STATE v. RAMESHCHANDRA[NAi"IAVATI,J.]                       121

      notification dated 27.4.1983 (whereby the respondent was appointed as an A
      Associate Professor) and appointing all the three Doctors as Associate
      Professors on ad hoc basis. The order passed by the High Court was
      challenged by the respondent by filing an appeal in this Court. Durillg the
      pendency of that appeal (Civil Appeal No. 4023 of 1991) the State Govern-
      ment, on January 24, 1991, issued a notification regularising the ad hoc B
---   appointments of all the three Doctors. Dr. Sinha's name was mentioned at
      serial No. 1 followed by the named of Dr. Chaudhary at serial No. 2 and
      the respondent's name appeared at serial No. 3. On 22.9.1991, this Court
      disposed of the appeal by passing the following order :

              "After hearing learned counselror the parties and having regard        C
              to the ,u;, .. _-iuent events resulting -into the appointment of the
              appellant and respondent Nos. 4 and 5, we find that the dispute
              which requires determination relates to seniority only. It appears
              that the State Government has by its notification dated 24th
              January, 1991 determined the inter se seniority of the appellant and   D
              respondent Nos. 4 and 5. We are of the opinion that the question
              relating to seniority should be decided by the High Court. We,
              accordingly, allow the appeal, set aside the order of the High Court
              and remand the matter to the High Court for determining the
              question of seniority of the appellant and respondent Nos. 4 and       E
              5............... ".

            Meanwhile, the post of Professor of Neuro Surgery had fallen vacant
      on May 1, 1990. Dr. Sinha had also retired by that time. At that stage, the
      respondent again filed a petition in the Patna High Court for a writ of F
      mandamus directing the State of Bihar not to appoint Dr. Chaudhary as
      Professor or allow him to assume the office of the Head of Neuro Surgery
      Department. The respondent also filed one more petition (CWJC 5965 of
      1991) for getting quashed the recommendation of Departmental Promotion
      Committee to appoint Dr. Chaudhary as Professor and Head of the
      Department and also for a writ of mandamus directing the Government to G
      appoint him as Professor and Head of the Neuro Surgery Department in
      the Patna Medical College. The latter writ petition was disposed of -0n
      December 6, 1991 as premature.

           On April 22, 1992, the writ petition filed by Dr. Sinha and Dr. H
    122                   SUPREME COURT REPORTS                  (1997] 3 S.C.R.

A Chaudhary in 1983 and the decision in which was challenged before this
  Court by the respondent and which was remanded to the High Court for
  determining the question of seniority was withdrawn at the instance of the
  writ petitioners. On August 1, 1992, the Government promoted Dr. Chaud-
  hary to the post of Professor with effect from May 1, 1990, the date on
B which the post had fallen vacant. The respondent challenged that appoint-
  ment by amending his earlier writ petition viz. C.W.J.C. No. 3596 of 1990
  which was still pending. It was allowed by the High Court on August 19,
  1992 as the impugned notification dated August 1, 1992 was issued upon
  an erroneous assumption that CWJC No. 5965 of 1991 was still pending.
C The High Court remanded the matter to the State Government and
  directed it to take a fresh decision. Accordingly the Government, on
  November, 18, 1992, decided that all the three Doctors were eligible for
  appointment/promotion as Associate Professors; Dr. Sinha acquired
  eligibility on September 29, 1981 and became entitled to the said post on
  January 8, 1983; Dr. Chaudhary acquired eligibility on February 5, 1983
D and became eligible for promotion from January 8, 1983 as the vacancy was
  already existing on that date; and, Dr. Ramesh Chandra, the respondent,
  who was appointed on the post created on March 10, 1983, was not entitled
  to get it with retrospective effect as prior to April 27, 1983, he was working·
  as a tutor in another department, namely, Anatomy and was, therefore, not
E having any teaching experience during March 10, 1983 to April 26, 1983.
  In view of this decision Dr. Sinha and Dr. Chaudhary were given promotion
  to the post of Associate Professor and their teaching experience was
  treated as heaving started from June 3, 1983. The respondent was treated
   as appointed on April 27, 1983 and his teaching experience was to count
F from that date. The appointments of the three Doctors were, however,
  termed as ad hoc.

         The respondent, therefore challenged the said decision of the
  Government and the appointments of Dr. Sinha and Dr. Chaudhary by
G filing a petition out of which these two appeals arise. The High Court held
  that it was not open to the State Government to describe the promo-
  tions/appointments as ad hoc as it had already made their ad hoc promo-
  tions/appointments regular and fixed their seniority. As this fact was
  noticed by this Court and as in the order dated September 27, 1991, it was
  observed that "the dispute which requires determination relates to the
H seniority only", the High Court held that there was no justification for the
             STATE v. RAMESHCHANDRA[NANAVAnJ.J                          123

State Government to convert their appointment/promotion.into an ad hoc         A
one. As the challenge to the appointment and seniority of Dr. Chaudhary
as Associate Professor was given up in view of the order passed by this
Court in Civil Appeal No. 4023 of 1991, the only controversy which the
High Court was called upon to decide was whether Dr. Chaudhary was
eligible for appointment as Professor. It was contended that even though       B
the appointment of Dr. Chaudhary as Associate Professor is now to be
regarded as valid and qualifications for the posts of Associate Professor
and Professor are the same, his eligibility for the post of Professor was
required to be considered afresh while appointing him on that post. The
High Court held that the regulations framed by the Indian Medical Council
in 1971 were the only regulations having statutory force, they having          C
received the approval of the Central Government. As the Regulations
made by the Medical Council in 1982 and 1989 have not so far been
approved by the Central Government they are to be regarded as recom-
mendatory only. Therefore, the question of eligibility for appointment as
Professor in Neurosurgery was to be determined according to the qualifica-     D
tions recommended in the 1971 regulations. In the 1971 regulations the
Medical Council had recommended the following qualification for the post
of Professor /A~sociate Professor in Neurosurgery :

 "(a) Professor/       M.Ch. in Speciality          (a) As Reader,
      Associate        concerned after                  Asst. Prof. in         E
      Professor        M.S./F.R.C.S.                    respective
                                                        subjects for 5
                       M.S./F.R.C.S. or                 years in a
                       equivalent Surgery with          medical college
                       two years special                after requisite
                       training in the speciality       post-graduate
                                                                               F
                       concerned or speciality          quali-fication.
                       Board (USA) in the
                       speciality concerned."

      Admittedly, Dr. Chaudhary did not have the degree of M.Ch. and,          G
therefore, the only question required to be considered was whether he
possessed alternative· qualifieation of M.S. with two years special training
in the speciality concerned. Interpreting the eligibility requirement the
High Court held that the person concerned should possess both, the
qualification of special training as well as the requisite teaching/research
                                                                               H
      124                   SUPREME COURT REPORTS                  [1997] 3 S.C.R.

 A experience when he claims to be covered by the alternative qualification.
    It further held that two expressions 'special training' and 'teaching
    experience' cannot be read as having the same meaning. Therefore, the
    teaching experience of Dr. Chaudhary as Assistant Professor or Resident
    Surgical Officer could not be regarded as 'special training'. It also held that
    the material on record did not clearly disclose the nature of work done by
  B Dr. Chaudhary. Thus the claim of Dr. Chaudhary that he had received
    'special training' for more than two years was negatived and it was held
    that he did not possess the requisite qualification for appointment as
    Professor. In taking this view the High Court followed the decisions of this
    Court in Dr. A.K Aga1Wal v. State of Bihar, [1991] Supp. 1 SCC '287 and
  C Dr. Ganga Prasad Vernia v. State of Bihar, [1995] Supp. 1 SCC 192 and
    distinguished the decision of this Court in the case of State of Andhra
    Pradesh v. Dr. R. Murali Babu Rao, [1988] 3 SCR 173. It also held that
     though the qualifications for the posts of Associate Professor and Professor
    are the same and the appointment of Dr. Chaudhary on the post of
    Associate Professor was not under challenge, the respondent was entitled
  D to challenge the eligibility of Dr. Chaudhary for the post of Professor. The
    High Court distinguished the decision of this Court in A.N. Shastri v. State
    of Punjab, [1988) 2 SCR 363, on the ground that the the facts in that case
    were different. Finally, the High Court quashed the impugned decision of
     the Government dated November 18, 1992 in so far as it treated the
     appointments of the respondent <1nd Dr. Chaudhary as Associates Profes-
. E sor as ad hoc only. It also quasheq the decision to appoint Dr. Chaudhary
     as Professor in Neurosurgery and directed the State Government to con-
     sider the matter of promotion to the post of Professor in Neurosurgery
     afresh.

  F       The same contentions which were urged before the High Court have
    been raised before us. We will first deal with the contention whether, in
    view of the order passed by this Court on 22.9.1991 in Civil Appeal No.
    4023 of 1991 and the concession made before the High Court by the
    respondent that the appointment of Dr. Chaudhary as Associate Professor
    was now not challenged, it was open to the respondent to contend that Dr.
  G Chaudhary does not possess the requisite qualification for appointment a.s
    Professor, when the qualifications for both the posts are the same. Once it
    is conceded that the appointment Dr. Chaudhary as Associate Professor
    was valid it ·would be implied that apart from the required teaching
    experience he also possessed 'special training' of two years in the speciality
  H of Neurosurgery after obtaining the degree of MS. It is, therefore, difficult
             STATE v. RAMESHCHANDRA[NANAVATI,J.]                        125

 to appreciate how it was open to the respondent thereafter to challenge A
 that Dr. Chaudhary did not have special training requisite for appointment
 as Professor. It is also difficult to appreciate the reason given by the High
 Court for distinguishing and not applying the decision of this Court in A.N.
 Shastri's case (supra) and upholding the contention raised on behalf of the
 respondent. In A.N. Shastri's case the facts were that Shastri was first B
 appointed as Professor and then as Deputy Director. Subsequently, he was
 promoted as Director. His appointment as Director on promotion was
 challenged on the plea that he did not possess the prescribed qualification.
 This Court noticed that there was no difference in the qualifications
 prescribed for the posts of Professor and that of Director. It, therefore,
 held that while giving appointment to him as Professor the Government C
 must have been satisfied that he bad the requisite qualification. It was
 further held that he did possess the requisite qualification for appointment
 as Director. The High Court has distinguished the decision inA.N. Shastri's
 case (supra) only on the ground that his appointment as Professor and
 Deputy Director was not challenged and, therefore, it was not open to D
 question his appointment as Director, the qualifications for those appoint-
 ments being the same. In view of the order passed by this Court in Civil
 Appeal No. 4023 of 1991 and the concession made by the respondent
 before the High Court, it ought to have proceeded on the ground that
 appointment of Dr. Chaudhary as Associate Professor was not in dispute,
and ought not to have allowed itself to be influenced by the fact that earlier E
his appoinfment as Associate Professor was challenged. In our opinion, the
High Court was not right in not following the ratio of that case that when
the prescribed qualifications for the two posts are the same it has to be
assumed that the appointing authority was satisfied that the person who
was already appointed on one of those posts did possess the requisite F
qualification for appointment on the other post. It was not shown that the
Government was not so satisfied when it had appointed Dr. Chaudhary as
Professor. The High Court wrongly placed the burden on Dr. Chaudhary
to show that he had received the requisite 'special training' for two years
and erroneously held that he had failed to establish that he possessed the
said qualification. The decision of this Court in AN. Shastri's case (supra) G
squarely applied to the facts of this case and therefore, the challenge to
the appointment as Dr. Chaudhary as Professor should have been rejected.

      Even otherWise also we find that Dr. Chaudhary had received more
than two ye~rs' training in Neurosurgery after obtaining the degree of M.S.   H
     126                  SUPREME COURT REPORTS                 [1997] 3 S.C.R.

A and the High Court was, therefore, wrong in holding otherwise. May be,
  because all the supporting material which has been placed before us by the
  Government and Dr. Chaudhary in their respective appeals was not placed
  before the High Court and, therefore, the High Court held that the
  material piaced before it was not sufficient to establish that Dr. Chaudhary
B had received two years' special training in Neurosurgery. Apart from the
  assertions made earlier by Dr. Chaudhary and the Government in that
  behalf, the material on record discloses that Neurosurgical Unit was estab-
  lished in Patna Medical College Hospital in May, 1975. One Dr. Verma
  was appointed as Head of that Unit and Dr. Chaudhary was appointed as
  Resident Surgical Officer in that Unit in December, 1976. The certificate
C issued by Dr. Verma further discloses that Dr. Chaudhary had received
  intensive, theoretical and practical training during his tenure of three years
  as Resident Surgical Officer .and that during that period he had inde-
  pendently dealt with Neurosurgical investigations and performed opera-
  tions. The material also disdoses that the Neurosurgical Unit had an
D independent Neuro Out-Patient Department, routine and emergency
  Operation Theatres and wards with facilities for critical cases. The opera-
  tion register for the year 1976 of the Neurosurgical Unit shows that during
  that year as many as 67 major and 4 minor operations had been performed.
  The post of Resident Surgical Officer is a teaching post and Dr. Chaudhary
  had continued on that post in that Unit till his appointment as Assistant
E Professor on 5.2.1980. It is, therefore, not correct to say that the training
  which Dr. Chaudhary received as Resident Surgical Officer between 1976
  and 1980 cannot be regarded as 'special training' in Neurosurgery. The
  High Court was not right in taking the view that Neurosurgical Department
  did not exist in Patna Medical College Hospital during that period and that
F it came into existence only after 1980. What the High Court has failed to
  appreciate is that though the Neurosurgical Department was not an inde-
   pendent department prior to 1982 it was an independent Unit having all
  the facilities for dealing with neurosurgical cases. Therefore, in view of the
   certificate issued by Dr. Verma, the Head of the Neurosurgical Unit and
   the other material on record we hold that Dr. Chaudhary did have 'special
G training' in Neurosurgery for two years.

           Relying upon the decision of this Court in Dr. Ganga Prasad Venna's
     case (supra) it was contended by Mr. Ranjeet Kumar, learned counsel for
     the respondent, that for promotion on the post of Professor or Associate
·H   Professor the qualification of M.Ch. in the speciality concerned after
                STATE v.. RAMESHCHANDRA[NANAVATI,J.]                    127

-   M.S./F.R.C.S. is a must. In that case Dr. Ganga Prasad Verma, an Assistant A
    Professor, was promoted as Associate Professor in Neurosurgery on
    17.9.1993. Prior to that date Dr. Basant Kumar Singh had filed a writ
    petition claiming that he was entitled for promotion as Associate Professor
    in Neurosurgery. As Dr. Verma was appointed as Professor during the
    pendency of the petition, it was amended and the promotion of Dr. Verma B
    was also challenge. The High Court allowed the writ petition, set aside the
    promotion of Dr. Verma and directed the Government to consider the
    matter afresh in the light of the decision of this Court in Arnn Kumar
    Agarwal (Dr.) v. State of Bihar, [1991] Supp. 1 SCC '1J37. The question
    which arose for consideration was whether the High Court was right in C
    giving the said direction. As Dr. Verma did not possess the degree of
    M.Ch. this Court held that the High Court was right in giving such a
    direction. It was contended on behalf of Dr. Verma that the qualification
    of M.Ch. was not a condition precedent for promotion to the post of
    Associate Professor from the post of Assistant Professor and as he had put D
    in more than 15 years' experience as Assistant Professor in the speciality
    concerned, he was entitled to be considered for promotion as Associate
    Professor. It appears that the point that 'M.S./F.R.C.S. or M.S. or F.R.C.S.
    or a qualification equivalent in Surgery with two years' special training in
    the speciality concerned or Speciality Board (USA) in the speciality
    concerned', is an alternative academic qualification, was not specifically E
    raised, though such an interpretation was suggested on behalf of Dr.
    Verma. Therefore, this Court considered only the first qualification, name-
    ly 'M.Ch. in speciality concerned after M.S./F.R.C.S.' and held that promo-
    tion to the post of professor cir Associate Professor, the qualification of
    M.Ch. in speciality concerned after M.S./F.R.C.S. is a must. We are.of F
    the opinion that if that qualification was considered as a must for
    appointment as Professor or Associate Professor then the relevant
    regulation would not have contained the qualification of 'M.S./F.R.C.S.
    or equivalent qualification in surgery with two years' special training in
    the speciality concerned' as qualification for the post of Professor or G
    Associate Professor also. As plain reading of the regulation indicates
    that it is an alternative qualification for being appointed as Professor or
    Associate Professor. For such appointment the person should have
    either of these qualifications. If the said regulation is interpreted other-
    wise and it is held that M.Ch. in speciality concerned after M.S./F.R.C.S. H
    128                   SUPREME COURT REPORTS                   (1997] 3 S.C.R.

A   is a must before a person can be appointed as Professor or Associate
    Professor that would make the latter part of the prescribed academic
    qualification redundant. M.Ch. is no doubt a higher degree than M.S. and,
    therefore, in respect of a person who is not M.Ch. and has only the M.S.
    degree it is further necessary that he should have two years' special training
B   in the concerned speciality to make him eligible for appointment as Profes-
    sor or Associate Professor. These aspects were not gone into by this Court
    while deciding the case of Dr. Ganga Prasad Verma as it had not become
    necessary to decide whether M.S. with two years' 'special training' in the
    speciality concerned was an alternative qualification or not.
c       Our attention was also drawn by the learned counsel to the sub-
  sequent recommendations made by the Medical Council of India in 1982
  and 1989. The High Court has not referred to those recommendations as
  they have not till now received the approval of the Central Government
  and, therefore, have not become regulations under the Indian Medical
D Council Act. As decided by this Court the recommendations of the Medi-
  cal Council even after they become regulations framed under Section 33
  of the India Medical Council Act are only recommendatory in nature. The
  High Court was,. therefore, not right in proceeding on the basis that the
  1971 regulations have statutory force by reason of the approval granted by
E the Central Government and other regulations of 1982 and 1989 are only
  recommendatory in nature whereas the regulations are expected to be
  followed while making appointments on teaching posts in the Medical
  Colleges, it would be open to the appointing authority either to follow or
  not to follow the recommendations which have not received the approval
F of the Central Government and have thus not become regulations. But it
  would not be improper on the part of the appointing authority to follow
  such recommendations if they are found to be acceptable and the appoint-
  ments made on the basis of such recommendations would be able to stand
  the challenge of arbitrariness in a better manner. Both under the 1982 and
G 1989 recommendations the academic qualification suggested for the post
  of Professor in Neurosurgery is M.Ch. in Neurosurgery. However the
  Medical Council made it clear in: both those recommendations that
  teachers holding posts of the rank of Associate Professor/Readers and
  above possessing qualifications and experience as prescribed can continue
H in their posts and also be eligible for promotion to higher posts. Therefore,
                STATE v. RAMESHCHANDRA[NANAVATI,J.)                      129

    even if we judge the eligibility for appointment as Professor on the basis A
    of the subsequent recommendations the appointment of Dr. Chaudhary as
    Professor cannot be regarded as arbitrary or illegal. In the result, the
    appeal is allowed, the judgment and order passed by the High Court are
    set aside and the writ petition filed by the respondent stands dismissed.
    However, in view of the interim relief granted by this Court on 14.7.95 and B
    24.11.95 the State Government is directed to consider the case of the
    respondent for appointment as Professor on the post which had fallen
    vacant. There shall be no order as to costs.

    H.K.                                                    Appeal allowed.




-