A.K. Sikri, J.

1. Petitioner in Civil Writ Petition No. 3215 of 1999 did her M.B.B.S. in the year 1990 from Ravi Shankar University, Raipur, Madhya Pradesh. From the same university she passed her post-graduate degree, i.e., M.D. (Radio-diagnosis) in the year 1994. This M.D. degree is not recognised by the Medical Council of India. Thereafter, she joined Hindu Rao Hospital in Radiology Department on 19th June, 1998 as Senior Resident on contract basis. Persuant to advertisement dated 2nd January, 1999 issued by respondent No. 2 namely, Hindu Rao Hospital for the post of Senior Resident in Radiology Department petitioner applied for the post. She was interviewed on 4th March, 1999.

2. When the result of the interview was declared on 7th April, 1999, petitioner was placed at Serial No. 1 in the list of selected candidates. In the meantime, on 31st March, 1999 the petitioners contract service on the post of Senior Resident was extended upto 14th May, 1999.

3. After the result of the interview was declared, respondent No. 2 asked the petitioner to produce proof that her post-graduate degree was recognised by Medical Council of India (hereinafter referred to as MCI, for short). Petitioner replied to the same stating that recognition of post-graduate degree was not necessary qualification for the post of Senior Resident and, therefore, respondent should not insist on this requirement as contained in their letter dated 10th April, 1999 and the same be withdrawn. Petitioners contract service as Senior Resisdent came to an end w.e.f. 14th May, 1999 and she was not permitted to join her duties from 15th May, 1999. However, earlier appointment letter dated 5th May, 1999 issued to the petitioner appointing her to the post of Senior Resident in the Department of Radiology was subject to production of documentary proof that her post graduate degree was recognised by MCI. Petitioner filed this writ petition and her principal contention is that the respondent 2 cannot insist upon production of documentary proof that her post-graduate degree is recognised by MCI. Petitioner in this writ petition prays for a direction to be issued to respondent to appoint her to the post of Senior Resident in Radiology Department on the basis of appointment letter dated 5th May, 1999.

4. It is not in dispute that for appointment to the post of Senior Resident, post-graduate qualification in the concerned discipline is required. It is also not in dispute that in the advertisement dated 2nd January, 1999 respondents had stipulated that the post graduate qualification should be from recognised university. It is also not in dispute that post graduate decree, i.e., M.D. (Radio Diagnosis) obtained by the petitioner from Ravi Shankar University, Raipur, Madhya Pradesh is not recognised by MCI.

5. However, the argument advanced by Mr. K.N. Kataria, learned Senior Counsel appearing on behalf of the petitioner in support of petitioners case is that prescription of the condition that the post-graduate degree should be recognised by MCI is not proper and valid. He relied upon the Office Memo No. S.11014/15/82-ME(P) issued by Government of India as per which there is no condition stipulated that the post-graduate degree is to be recognised by MCI. Attention was drawn to the following portion of the Office Memo:

3(b)(l) The minimum qualification for selection as Senior Resident in any speciality will be post-graduate degree or a diploma in a concerned speciality if such candidates are not available in any particular speciality others without post-graduate qualification may be considered for selection.

6. Learned Senior Counsel further submitted that as per the relevant regulation of MCI also, which are framed by it in exercise of powers conferred by Section 33 of the Indian Medical Council Act, 1956, no such condition is stipulated. Reliance is placed on para 3 of Schedule 1. Schedule 1 stipulates the norms which every appointing authority, before making appointment to the teaching post in a medical college or institution shall observe. Para 3 reads as under:

Medical teachers in all Medical Colleges except -the Tutors, Residents, Registrars and Demonstrators must possess the requisite recognised post graduate medical qualification in their respective subjects.

7. It was further submitted that although in the advertisement in question it was stipulated that post-graduate degree has to be from recognised institution in the subsequent advertisement, which was published recently, no such requirement is prescribed. On the basis of the aforesaid position, it was submitted that when there was no such requirement either in the Office Memorandum or in the regulation issued by MCI, prescribing this condition in the advertisement or insisting upon the same for appointment of the petitioner to the post of Senior Resident was illegal and petitioner should be appointed to the post as per her merit in the interview. Learned Senior Counsel also relied upon the judgment of this Court in Civil Writ Petition No. 3691 of 1999 entitled Dr. Seema Goel and Othersv. Medical Superintendent, Hindu Rao Hospital and Anotherpronounced by me on August 16,1999.

8. Refuting the aforesaid arguments of the petitioner, Mr. Raman Duggal, learned Counsel appearing on behalf of the Municipal Corporation of Delhi (hereinafter referred to as MCD, for short) argued that prescription of the condition that the post-graduate degree should be recognised by the MCI was proper and in public interest. It was further submitted that the post of Senior Resident Doctor is very responsible and sensitive post. Therefore, the respondent in the interest of patients public at large had taken decision that unless the candidate holds a post-graduate degree in the subject which is recognised by the Medical Council of India, no appointment for the post of Senior Resident shall be made. Since, the petitioner is post-graduate in Radiology from Ravi Shankar University, Raipur which is not recognised by the Medical Council of India, therefore, the petitioner is not entitled for appointment to the post of Senior Resident. Learned Counsel for the respondent further states that no appointment has been made to the post of Senior Resident whose subject/discipline is not recognised by the Medical Council of India. Therefore, any allegations of discriminations/arbitrariness of the petitioner is incorrect and baseless. It is further submitted that the post graduation qualification i.e. M.D. (Radiology) of Ravi Shankar University is not recognised by MCI and that every post-graduate degree of a university is not recognised by the MCI but only a few courses are recognised by the MCI. Since MCI had laid down bare minimum requirement for recognition of post-graduate degree from a particular university, unless that university satisfy such standards, it is not recognised by the MCI. It is a submission of learned Counsel for the respondent that now-a-days various colleges/universities are granting medical degrees which are not recognised by MCI. Hence, MCI had decided to make appointment to the post of Senior Resident of those candidates only whose post-graduate degree/diploma in the specific post is recognised by the MCI. For this reason, in the advertisement issued for the post of Senior Resident it was mentioned that the post-graduate degree/diploma in the respective speciality from recognised university/institution is necessary meaning thereby that such degree/diploma issued by a university/institution is recognised by MCI.

9. On the basis of these averments learned Counsel submitted that the respondents were within their right to prescribe such condition. It was also submitted that merely because the name of the petitioner comes into the select list does not give any right of appointment and in the absence of enforceable right no mandamus lies. It was also submitted that the petitioner was trying to enforce his right to get appointment on the basis of appointment letter dated 5th May, 1999 but the petitioner was not eligible for appointment as in terms of that very appointment letter, offer of appointment was subject to the eligibility of post-graduate degree, i.e., M.D. (Radiology) recognised by MCI. Relevant portion of the appointment letter dated 5th May, 1999 issued by respondent No. 2 reads as follows:

This offer appointment issubject to production of documentary proof that your P.G. Degree MD (Radio) is recognised by Medical Council of India.

10. Since admittedly the petitioners degree was not recognised by MCI, she was not eligible for appointment. It was also submitted that this writ petition had become infructuous in any case inasmuch as the post in question had already been filled as the petitioner failed to accept and/or report for duty by 29th May, 1999 in terms of offer of appointment letter dated 5th May, 1999 as per which the said post was available upto 20th May, 1999 only. The offer was, therefore, automatically cancelled as stated in the appointment letter dated 5th May, 1999 itself and the said post is now filled up by appointing some other person.

11. In Civil Writ Petition No. 4504 of 1999 the question involved is identical. The only difference is that the petitioner specialises in Orthopaedics. He did his post-graduate degree, i.e., M.S. (Orthopaedics) from Deen Dayal Upadhyaya University, Gorakhpur, Uttar Pradesh and it is an admitted case that this degree is not recognised by MCI.

12. The contention of the petitioners that post-graduate degree should be recognised is invalid, cannot be accepted. It may be observed that in the Office Memo issued by Government of India on which reliance is placed, it is silent about the recognition and only mentions that minimum qualification for selection as Senior Resident in any speciality will be post-graduate degree/diploma in the concerned speciality. This Office Memo does not specifically state as to whether such post-graduate qualification should be recognised or not. Office Memo being silent on this aspect, such an omission can always be filled by the respondent and therefore, if the respondent have prescribed that the post-graduate degree/diploma in the instant case is to be one which is recognised by the MCI, such stipulation is not contrary to the Office Memo issued by the Government of India on the subject. Prescribing of such a condition therefore, supplement the Office Memo issued by Government of India and does not supplant the same. This is clearly permissible in law more so when the Office Memo issued by Government of India is of administrative in nature and does not have statutory character. So far as para 3 of Schedule 1 of the Regulation of MCI is concerned, it specifically uses the expression recognised. Moreover, even if it was silent, such a condition could be stipulated as observed while discussing the position in respect of Office Memo issued by Government of India. It maybe also clarified that when the advertisement stipulated that the post-graduate degree/diploma in respect of speciality should be from recognised university, the intention was that it is the post-graduate degree/diploma which should be 12cognised. University may be recognised by MCI, as in the instant case, for other discipline like M.B.B.S. in this case, what is required is that such post-graduate degree/diploma of the university should be recognised by MCI. In fact at the bar Mr. Kataria had accepted this position.

13. Reliance placed in the judgment of Dr. Seema Goel (supra) is of no use to the petitioner. That was a case where no such condition was prescribed in the advertisement which was issued at that time, which is prior in time than the advertisement in the instant case, petitioners were infact given the appointment. Petitioners in that case were in fact appointed to the post of Senior Resident initially for a period of one year and Clause 10 of the appointment letter mentioned that after a period of one year the appointment would be renewed for another one year after assessment of work on the ground that the post-graduate degree / diploma held by the petitioners in that case was not from a university recognised by MCI. It was this action of the non-renewal, after having given the petitioners appointment initially, which was the subject-matter of discussion in the aforesaid judgment. It was found that when in the advertisement there was no stipulation that post-graduate degree/diploma is to be from a recognised university and the petitioners were already given the appointment, whether it was to be renewed or not depend upon the assessment of the work and conduct of the said petitioners as per Clause 10 of their appointment letter. The relevant portion of the said judgment can be quoted here:

Moreover, it cannot be made applicable to those cases where appointment is already made and persons are in position. Secondly, in so far as the appointment of the petitioner is concerned, admittedly no condition was prescribed for their post-graduate degree/diploma from recognised University. Thirdly, they fulfilled the eligibility conditions as per the advertisement issued by the respondents themselves pursuant to which they applied, were found eligible and after due selection and competing with others who applied were recommended for appointment and were appointed. They cannot be made ineligible by introduction such condition subsequent to their selection and appointment.

Since these petitioners were appointed to the post of Senior Residents, initially for a period of one year after fulfilling the eligibility conditions as per advertisement and since they completed/almost completed one year, while examining their cases for renewal of appointment for another year, the guiding factors would be those stipulated in Clause 10 of the appointment letter. A person who is appointed as Senior Resident would have legitimate and expectation to continue for a period of three years if his work and conduct is satisfactory. No doubt the initial appointment is for one year and it is of the discretion of the respondents to renew it for another year and after expiry of second year for another one year. But such discretion cannot be exercised arbitrary or on the basis of irrelevant consideration.

14. The situation in the present case is totally different. Here the condition is stipulated in the advertisement itself. Moreover, since the petitioner could not satisfy this condition she is not given the appointment at all. Merely because her name comes in the select list, she does not get automatically the right to be appointed. She has to fulfil eligibility conditions for appointment to the said post and when she failed to fulfil these conditions the respondent have right to refuse the appointment to her. As far as prescribing of such condition is concerned, even otherwise in the case of Dr. Seema Goyal (supra), itself it was observed that the employer has a right to lay down conditions of eligibility of appointment to a particular post, in the absence of recruitment rules, by administrative instructions also. In so far as contention of the petitioner that such a condition is not prescribed in the advertisement of November 1999, it was explained by learned Counsel for the respondent that it was due to misreading of the judgment of this Court in Dr. Seema Goyal (supra), and the petitioner presumed that the aforesaid judgment decides that no such condition can be prescribed at all it is clearly wrong reading of the said judgment as I had specifically held that such condition can be prescribed which was infact prescribed in the advertisement of January 1999 but had to operate prospectively. How, still the respondents understood the judgment to lay down that condition laid down by them is treated as bad in law is not understood. Be as it may, it would be open to the respondents to take corrective steps in this respect. It is within the rights of the respondent to insist upon the post-graduate degree/diploma from recognised university as eligible condition for appointment to the post of Senior Resident. Following portion of the said judgment deals with this aspect.

There is implicit promise given by the respondents which is a public authority, that if the work and conduct of the petitioners during their first year is satisfactory they would be given such extension. It is not disputed that normally such extensions are given but in the cases of the petitioners it is denied only on the ground that the post-graduate degree/diploma in their respective speciality is not from recognised university. Such action of the respondents is clearly bad in law; inasmuch as (i) As mentioned above, this condition of having PG degree/diploma from recognised university cannot be imposed in the cases of petitioners at this stage after their appointment, (ii) In terms of Clause 10 of the appointment letter, the relevant considerations are the satisfactory work and conduct for renewal of the appointment. Any administrative action which ignores relevant consideration and taken into account irrelevant consideration is liable to be set aside. Re:Hoechet Gamnon, v.State of Orissa reported in AIR 1975 SC 2230.R.P. Bhattv.Union of India reported in AIR 1986 SC 1040 [LQ/SC/1986/523] , (iii) as aforesaid the impugned action of the respondents violates legitimate expectation of the petitioners to continue in service as Senior Residents for a period of three years if their work and conduct is satisfactory, (iv) the impugned action of the respondents in the facts of this case appears to be unreasonable and, therefore, violates Wednesburys principles of reasonableness. The Supreme Court has used Article 14 of the Constitution for this purpose and the general proposition enunciated in this connection is the Article 14 strikes at arbitrariness inasmuch as any action that is arbitrary necessarily involves the negation of equality and is thus violative of Article 14. Reference in this connection can be usefully made to the case of Maneka Gandhiv. Union of Indiareported in AIR 1978 SC 597, Express Newspaper Pvt. Ltd. v.Union of India, AIR 1986 SC 872 [LQ/SC/1985/323] .

15. Thus dealing with this very advertisement which is the subject-matter of instant petition and was issued on 18th January, 1999 it was observed that such a condition can be imposed by the respondents but would have only prospective effect and could not be made applicable to the appointment of the petitioners in Dr. Seema Goyal (supra), when there was no such condition in the advertisement issued in 1998 pursuant to which the said petitioners were appointed. As mentioned above, there are convincing reasons given by the respondents for prescribing such a condition keeping in view that the post of Senior Resident Doctor is very responsible and sensitive post and it is in the interest of patients/public at large that a person who is appointed to this post should be holder of a post-graduate degree/diploma recognised by MCI. This is a policy decision taken by the respondent by prescribing such an eligibility condition. When in law this condition can be prescribed and it does not go contrary to the regulation of MCI or the Office Memorandum issued by Government of India, this Court would not interfere with such a policy decision, more so, when it is neither arbitrary nor mala fide or against any statutory or constitutional provisions and rather the decision is taken to achieve the objective which is laudable.

16. Accordingly, these writ petitions fail and are hereby dismissed. Rule is discharged.

No order as to costs.