Ranjit More, J. (Chairman)

1. By filing the present Application, the applicant has sought following reliefs:

"(a) issue a writ in the nature of mandamus or any other writ, order or direction, directing the Respondents to consider the Petitioner for appointment to the post of Associate Professor in the Super Speciality Department of Neuro Surgery, Ministry of Health and Family Welfare, Department of Health, Specialist Grade II in the Teaching Specialist Sub Cadre of the Central Health Services, Group A, in accordance with the advertisement no. F.1/147(41)/2000-R.I.;

(aa) call for the records relating to the selection of candidature for the post of Associate Professor in the Super Speciality Department or Neuro Surgery, Ministry of Health and Family Welfare, Department of Health, Specialisation Grade II in the Teaching Specialists Sub Cadre of the Central Health Services, Group A in accordance with the advertisement no. F.1/147(41)/2000-R.I.and issue a writ of certiorari or any other appropriate writ, order or direction and set aside the decision taken by the UPSC cancelling the candidature of the Petitioner for the aforesaid post;

(b) call for the records relating to the alleged non-recognition of the degree of M.S. (Surgery) conferred by the Punjab University in pursuance to the course conducted by the Dayanand Medical College and issue a writ in the nature of certiorari or any other writ, order or direction, setting aside the order, if any, passed by the Medical Council of India on the issue of de-recognition of the said M.S. (Surgery) degree;

(c) issue a writ in the nature of mandamus or any other writ, order or direction, directing the Medical council of India to clarify that the degree of M.S. (Surgery) being conferred by the Punjab University in pursuance to the course conducted by the Dayanand Medical College, Ludhiana, is a legal, valid and duly recognized degree for all purposes;

(cc) call for the records relating to the alleged decision purporting to cancel/withdraw the certificate of additional qualification bearing No. 1605 dated 14.7.1999 and conferred by the Medical Council of India and issue a writ of certiorari or any other appropriate order or direction quashing the same;

(ccc) issue a writ of certiorari or any other appropriate writ, order or direction quashing the note 1 of the advertisement no. 20 dated 20.10.2000 issued by the Union Public Service Commission (Annexure P-8);

(cccc) issue a writ of mandamus or any other appropriate order or direction directing the Respondent to consider the case of the Petitioner in accordance with the Recruitment Rules i.e. Central Government Health Service Rules, 1996;

(d) pass such other or further order(s) as may be deemed fit and proper;

(e) allow cost of the Petition"

2. By occurrence of the events during the pendency of the Application, the relief claimed in prayer clauses (b), (c) and (cc) have been rendered infructuous, and, therefore, we are considering the relief claimed by the applicant in prayer clauses (a), (aa), (ccc) and (cccc) only.

3. The applicant completed MBBS course and was awarded degree by the Punjab University in the month of May, 1987. The applicant joined M.S. (Surgery) course in Dayanand Medical College, Ludhiana, and completed the same in the year 1991, and was awarded the said degree by the Punjab University. The applicant joined Master of Chirurgue (M.Ch.) course in Neuro Surgery conducted by the Delhi University in the year 1996. The applicant completed the M.Ch. course in April, 1998, and was awarded the said degree by the Delhi University. The applicant, on his application, was granted a certificate dated 14.07.1999 by the Medical Council of India to the effect that the additional qualification of degree in M.S. (Surgery) conferred by the University of Punjab, and the M.Ch. (Neuro Surgery) degree awarded by the Delhi University, stood entered in his name in the statutory Register, i.e., Indian Medical Register, maintained by the Council.

4. On the requisition of the respondent No. 2 - Ministry of Health and Family Welfare, the respondent No. 1 - UPSC, issued an advertisement dated 28.10.2000, inviting applications for the post of Associate Professor of Neuro-Surgery, Ministry of Health and Family Welfare, Department of Health, Specialist Grade II in the teaching specialists sub-cadre of the Central Health Service. The closing date for receipt of applications was 16.11.2000. In response to this advertisement, the applicant applied for the said post of Associate Professor. He was called for and participated in the interview held by the UPSC on 19.04.2001. The applicant came to know that one of the candidates had filed an objection on 04.09.2001 as regards the M.S. (Surgery) degree possessed by the applicant, on the ground that the same was not recognized by the Medical Council of India. The applicant thereafter met the authorities at the Council on 06.09.2001, and was shocked to know that the Council did not recognize the M.S. (Surgery) degree possessed by him.

5. The Medical Council of India, respondent No. 3, thereafter vide letter dated 13.09.2001 informed the applicant that the certificate of additional qualification dated 14.07.1999 had been issued to him inadvertently, and, therefore, directed him to surrender the same. The respondent No. 1, after receipt of the communication from the respondent No. 3, informed the applicant that the degree of M.S. (Surgery) granted by the Punjab University to the students of Dayanand Medical College, Ludhiana is not recognized by the respondent No. 3, i.e., Medical Council of India, as per the provisions of the Indian Medical Council Act, 1956, and, therefore, his candidature stood cancelled for the said post of Associate Professor, as lacking essential qualification.

6. The applicant, being aggrieved, initially preferred a Writ Petition, WP(C) No. 5559/2001 before the High Court of Delhi. Vide order dated 11.09.2001, a learned Single Judge issued notice to the respondents, and by way of interim relief, directed that in case the respondents proceeded to make appointment to the post of Associate Professor in the Super Speciality Department of Neuro Surgery, the same would be subject to the result of the writ petition, and that this fact would be stated in the appointment order, if issued by the respondent. Thereafter, on number of occasions, the writ petition was adjourned at the instance of either party. Finally, the writ petition came up for consideration before a learned Single Judge on 18.03.2015. The learned Judge, having considered the provisions of the Administrative Tribunals Act, 1985, along with the Constitution Bench judgment of the Apex Court in L. Chandra Kumar v Union of India & others AIR 1997 SC 1125 [LQ/SC/1997/514] ], came to the conclusion that the High Court will have no jurisdiction to hear the writ petition, and accordingly transferred the same to this Tribunal.

7. We have heard the learned counsel appearing for the respective parties.

8. Mr. Ashok Aggarwal, learned counsel for the applicant, submitted that the applicant's candidature for the post of Associate Professor was rejected on the ground that the M.S. (Surgery) degree granted by the Punjab University to the students of Dayanand Medical College, Ludhiana, is not recognized by the Medical Council of India as per the provisions of the Indian Medical Council Act, 1956. The learned counsel in this regard submitted that the Council persisted in its above stand despite the judgment of the Punjab & Haryana High Court in CWP No. 15809 of 2000 - Dr. Sukhwinder Singh Gill v Post Graduate Institute of Medical and Research, Chandigarh & another, decided on 02.08.2001. The learned counsel submitted that since the M.S. (Surgery) degree obtained by the applicant was recognized by the Punjab University, his candidature could not have been rejected. In the light of these submissions, the learned counsel seeks the relief claimed hereinabove.

9. Mr. Naresh Kaushik, learned counsel for the respondent No. 1, submitted that the Commission received representation dated 23.07.2001 from one of the candidates Dr. P.K. Upadhyay, along with a letter dated 14.09.2000 addressed to him by the respondent No. 3, i.e., Medical Council of India, informing that the M.S. (Surgery) qualification granted by the Punjab University in respect of the students being trained at Dayanand Medical College, Ludhiana, is not recognized by the respondent No. 3 Council. Consequently, the applicant's case, who had also been a student of Dayanand Medical College, Ludhiana, for M.S. (Surgery) was referred on 06.09.2001 to the respondent No. 3 Council, which is the competent authority for verification of medical qualifications, and the Council vide their letter dated 13.09.2001 confirmed that the M.S. (Surgery) degree granted by the Punjab University to the students trained at Dayanand Medical College, Ludhiana, is not recognized as per the Indian Medical Council Act, 1956. In terms of this confirmation, the applicant's candidature for the aforesaid post of Associate Professor was rejected. Insofar as the note 1 appended to the advertisement in question is concerned, it is submitted that the same was inserted in terms of the recruitment rules. The learned counsel submitted that the candidature of the applicant was rejected as per the advice of the Medical Council of India, which is the competent body, and, therefore, no interference in the matter is called for.

10. Ms. Michelle Baikunthadas, learned counsel appearing for the respondent No. 3 Council, vehemently opposed the Application. The learned counsel, inviting our attention to the provisions of Section 10A of the IMC Act, 1956, submitted that without prior approval of the Central Government, no medical college in India is authorized to open a new or higher course of study or training. Even prior to the insertion of Section 10A by way of an amendment in the year 1993, the regulations framed by the Medical Council of India on post-graduate medical education clearly prescribed that universities should get their post-graduate training facilities and courses at a given centre evaluated by the Council before the course is actually started. The learned counsel submitted that Dayanand Medical College, Ludhiana, from where the applicant pursued his post-graduate course in M.S. (Surgery), had, at no stage, forwarded its request for recognition of the course, and, therefore, the applicant was rightly directed to surrender the certificate of additional qualification, which was issued to him inadvertently. The learned counsel further submitted that the decision of the Punjab & Haryana High Court in Dr. Sukhvinder Singh Gill (supra) was challenged by the Council before the Hon'ble Supreme Court in SLP(C) No. 21106 of 2002. This petition was tagged along with several connected Appeals filed by the Dental Council of India and others. The learned counsel submitted that all these Appeals were dismissed as having been rendered infructuous, by the Apex Court vide order dated 29.04.2014. The question of law which was raised before the Punjab & Haryana High Court in Dr. Sukhwinder Singh Gill (supra) was, however, kept open. The learned counsel also relied upon a Division Bench judgment of the Apex Court in Rakesh Kumar Sharma v State (NCT of Delhi) & others (2013) 11 SCC 58] [LQ/SC/2013/818] , and submitted that on the closing date of the advertisement in question, the applicant was not eligible to be appointed on the post of Associate Professor, and, therefore, his candidature was rightly rejected.

11. During the pendency of the petition before the Delhi High Court, by way of an additional affidavit, the petitioner brought on record letter dated 19.05.2004 from the respondent No. 3 Council, under which it is informed that M.S. (Surgery) qualification granted by the Punjab University in respect of the students being trained at Dayanand Medical College, Ludhiana, is recognized by the Council for the purpose of IMC Act, 1956. The petitioner also brought on record the fact that the Council has entered the additional qualification obtained by him, i.e., M.S. (Surgery) Punjab University, and M.Ch. (Neuro Surgery) Delhi University in the Indian Medical Register. In the light of these documents, the learned counsel fairly stated that the relief clauses (b), (c) and (cc) have been rendered infructuous.

12. Section 10A of the IMC Act, 1956 reads as follows:

"10A. Permission for establishment of new medical college, new course of study.-(1) Notwithstanding anything contained in this Act or any other law for the time being in force,-

(a) no person shall establish a medical college; or

(b) no medical college shall-

(i) open a new or higher course of study or training (including a post-graduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or

(ii) increase its admission capacity in any course of study or training (including a postgraduate course of study or training),

except with the previous permission of the Central Government obtained in accordance with the provisions of this section.

Explanation 1.-For the purposes of this section, "person" includes any University or a trust but does not include the Central Government.

Explanation 2.-For the purposes of this section, "admission capacity", in relation to any course of study or training (including post-graduate course of study or training) in a medical college, means the maximum number of students that may be fixed by the Council from time to time for being admitted to such course or training.

xxx xxx xxx "

13. From a perusal of the above provision of the, it becomes clear that except with the prior approval of the Central Government obtained in accordance therewith, no medical college in India is authorized to open a new or higher course of study or training, including a post-graduate course of study or training, which would enable a student of that college to qualify for the award of any recognized medical qualification. Section 10A came to be inserted in the IMC Act, 1956 w.e.f. 27.08.1992. Even prior to this amendment also, the regulations framed by the Medical Council of India on postgraduate medical education clearly prescribed that universities should get their post-graduate training facilities and courses at a given centre evaluated by the Council before the course is actually started. Besides this, Section 10C of the said Act also provides that if any medical college has started a new or higher course of study or training, before commencement of the IMC (Amendment) Act, 1993, the said medical college shall seek permission within a period of one year from the commencement of the Amendment Act, 1993, from the Central Government in accordance with the provisions of Section 10A of the Act, and if the medical college failed to seek such permission under sub-section (1) of Section 10C, the permission of the Central government shall be deemed to have been refused under Section 10A. It is the specific stand of the respondent No. 3 Council, and which was not at all disputed by the learned counsel for the applicant, that Dayanand Medical College, Ludhiana, from where the applicant pursued his post-graduate course in M.S. (Surgery), had, before the recruitment in question was advertised, forwarded its request for recognition of the said course.

14. It is clear from the reply filed by the respondent No. 3 Council that the request for recognition of the post-graduate qualification in question was received by the office of the Council on 15.03.2000. It is further revealed that the Council, after receipt of the request from the college in question, appointed an inspector to carry out inspection of teaching and other facilities and standard of examination. It further appears from the additional document filed by the applicant himself that on 19.05.2004, Secretary of the respondent No. 3 Council, communicated to the applicant that the M.S. (General Surgery) qualification granted by the Punjab University in respect of the students being trained at Dayanand Medical college, Ludhiana, is recognized by the Council for purposes of IMC Act, 1956. In pursuance of this letter, the additional qualification registration certificate under Section 26 of the Act, was issued to the applicant on 25.10.2010. The fact, however, remains that at the relevant time, the post-graduate qualification of the applicant, namely, M.S. (General Surgery) conferred by the Punjab University was not recognized by the respondent No. 3 Council. This fact was communicated to the respondent No. 1 by the respondent No. 3 in the light of the complaint by one of the candidates against the applicant.

15. The issue before the Punjab & Haryana High Court in Dr. Sukhwinder Singh Gill (supra) was whether the degree possessed by the petitioner therein was a valid degree, making him eligible for appearing in the entrance test for the M.Ch. course, when the respondent - PGIMR, Chandigarh, had laid down the M.S. degree in General Surgery or its equivalent qualification recognized by the Medical Council of India, as an essential qualification. This decision pertains to the admission to M.Ch. course of the PGIMR, Chandigarh. The High Court held that the Medical Council of India might not have recognized Dayanand Medical College, Ludhiana for the purpose of its qualifications as required under Section 10 of the IMC Act, 1956, but if the Medical Council of India has recognized the Punjab University as a good University for the purpose of awarding the degree, the Council cannot question that the degree awarded by the Punjab University does not fulfill the criteria of the prescribed qualification laid down for the entrance test. In the present case, the recruitment rules for the post in question, i.e., Associate Professor, clearly prescribe that the qualification required must be included in the First or Second Schedule or Part II of the Third Schedule to the IMC Act, 1956. In the light of this, and in view of the specific requirement under the relevant recruitment rules, in our considered view, the decision of the Punjab & Haryana High Court in Dr. Sukhwinder Singh Gill (supra) cannot be made applicable to the facts and circumstances of the present case.

16. That apart, the Medical Council of India challenged the decision of the Punjab & Haryana High Court in Dr. Sukhwinder Singh Gill (supra) by filing SLP (C) No. 21106/2002. Vide order dated 18.11.2002, the Hon'ble Apex Court was pleased to issue notice, and tagged the said SLP with SLP (C) No. 13656/2001, which was filed by the Dental Council of India, involving identical issue regarding recognition of medical colleges and courses. The bunch of SLPs/Civil Appeals filed by the Dental Council of India and the Medical Council of India was placed before the Hon'ble Apex Court on 29.04.2014. The Hon'ble Apex Court observing that since the Appeals had become infructuous by virtue of the fact that the students had already passed out prior to 2001, dismissed the same as infructuous, leaving open the question of law involved therein. Since the Apex Court kept open the question raised on behalf of the respondent No. 3 Council in SLP (C) No. 21106/2002, the applicant cannot take support of the decision of the Punjab & Haryana High Court in Dr. Sukhwinder Singh Gill (supra) in this regard.

17. The applicant has challenged the legality and validity of note 1 in the advertisement in question issued by the respondent No. 1 - UPSC. Having gone through the recruitment rules, namely, Central Health Service Rules, 1996, we do not find any merit in this challenge. Schedule V of the Rules of 1996 prescribes minimum education and other qualifications, experience and age limit for direct recruitment to Group 'A' duty posts in the Central Health Service. In the present Application, we are concerned with the post of Associate Professor, and the essential qualifications prescribed under tue Rules of 1996 are as follows:

"(iv) Extensive practical and administrative experience. Essential:

(i) A recognised medical qualification included in the First or Second Schedule or Part II of the Third Schedule (other than licentiate qualifications) to the Indian Medical Council Act, 1956. Holders of educational qualifications included in Part II of the Third Schedule should also fulfil the conditions stipulated in sub-section (3) of Section 13 of the Indian Medical Council Act, 1956.

(ii) Post-graduate degree in the concerned speciality mentioned in Schedule-VI or equivalent.

(iii) At least five years experience as Sr. Resident/Tutor/Demonstrator/Registrar/Lecturer in the concerned speciality in a recognised teaching institution after the first post-graduate qualification."

18. The First Schedule of the IMC Act, 1956 discloses that the degree of Master of Surgery (Surgery) awarded by Dayanand Medical College, Ludhiana, which was subsequently affiliated to Baba Farid University of Health Sciences, was to be a recognised medical qualification when granted in or after January, 2000. So, it is clear that when the applicant obtained the qualification of M.S. (Surgery) from the Punjab University, while studying in Dayanand Medical College, Ludhiana, the same was not recognised by the Medical Council of India prior to January, 2000. In the light of the provisions of IMC Act, 1956 and the Central Health Service Rules, 1996, the respondent No. 1 - UPSC, inserted note 1 in the advertisement dated 28.10.2000 as eligibility criteria to apply for the post of Associate Professor. The applicant's submission that the said note is illegal cannot stand to reason, and is, therefore, devoid of any substance.

19. The issue regarding eligibility criteria/conditions and determination of the relevant date for the same is no more res integra. The Hon'ble Apex Court considered the issue in Rakesh Kumar Sharma (supra). In para 11, the Apex Court held as follows:

"11. There can be no dispute to the settled legal proposition that the selection process commences on the date when applications are invited. Any person eligible on the last date of submission of the application has a right to be considered against the said vacancy provided he fulfils the requisite qualification."

From the above observation of the Hon'ble Apex Court, it is clear that in order to be considered eligible to apply for the post in question, the applicant must fulfil the requisite qualifications on the last date of the submission of the applications. In the present case, as stated earlier, the closing date for receipt of applications in pursuance of the advertisement in question, was 16.11.2000, and in the light of the above discussion, it is clear that the applicant was not eligible to apply to the said post, inasmuch as the M.S. (Surgery) degree possessed by him was not recognised by the Medical Council of India. The applicant's application, in our considered view, was rightly rejected by the respondent No. 1 - UPSC.

20. Taking into consideration the totality of the facts and circumstances of the present case, we do not find merit in the Application. Same is accordingly dismissed. There shall be no order as to costs.