Order
1. Leave granted.
2. The appellant, while working as an Assistant Professor, was promoted as an Associate Professor in Neurosurgery, by proceedings dated 17-9-1993. In the meanwhile, Dr Basant Kumar Singh, Respondent 7, had already filed a writ petition claiming the right for promotion as an Associate Professor, Neurosurgery. During its pendency, the promotion of the appellant came to be made. Therefore, the writ petition was amended questioning the promotion of the appellant. The High Court in the impugned order dated 12-1-1994 in CWJC No. 2832 of 1993 allowed the writ petition, set aside the promotion of the appellant and directed the respondent to consider the matter afresh in the light of the judgment of this Court in Arun Kumar Agrawal (Dr) v. State of Bihar 1991 Supp (1) SCC 287, (1991) 2 SCR 491. Thus this appeal by special leave.
3. The controversy lies in a short compass. Admittedly, the appellant is not possessed of the qualification prescribed for super-speciality, namely, M.Ch Admittedly, both the appellant and Respondent 7 had the qualification as M.S-General Surgery. In addition, 7th respondent had the qualification of M.Ch in the speciality concerned, namely, Neurosurgery, acquired in 1989. The question, therefore, is whether the direction issued by the High Court to consider the case in the light of the abovesaid judgment, is correct in law. The Medical Council of India has framed the regulations under Section 33(j) the Indian Medical Council Act, 1956. Clause (a) is for the Professor/Associate Professor which reads as under:
Post
Academic Qualification
Teaching/Research Experience
(a)
Professor/Associate Professor
M.Ch in speciality concerned after M.S/F.R.C.S
(a)
As Reader, Asstt. Prof. in respective subjects for 5 years in a medical college after requisite postgrad-uate qualification.
M.S/F.R.C.S or an equivalent qualification in Surgery with two years' special training in the speciality concerned or Speciality Board (USA) in the speciality concerned.
(b)
Reader/Asstt. Professor
-do-
(b)
As Registrar of an equivalent post for at least 3 years in respective subjects or allied subjects in a teaching institution.
4. Shri M.L Verma, learned Senior Counsel for the appellant, states M.Ch in the speciality concerned after 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, would be to mean that the requirement of acquiring the qualification of M.Ch is not a condition precedent for promotion to the post of Associate Professor from the post of Assistant Professor. Since the appellant had put in more than 15 years' experience as an Assistant Professor and also in the speciality concerned i.e Neurosurgery, he is entitled to be considered and the High Court was not right in directing to consider the case in the light of the judgment of this Court in Arun Kumar Agrawal case 1991 Supp (1) SCC 287, (1991) 2 SCR 491. He strongly relied upon the judgment of this Court in Govt. of A.P v. Dr R. Murali Babu Rao (1988) 2 SCC 386, (1988) 3 SCR 173.
5. Where the language of the Act is clear and explicit, the Court must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature. The interjection of the preposition ‘or’ at the underlined place amounts to judicial legislation or supplying omission which is impermissible in the process of construction of the Regulation. So we cannot read the Regulation in the manner suggested by the counsel. M.Ch is a super-speciality. The Associate Professor is to teach the students in that subject or guide the research student. So the Regulation intended to prescribe M.Ch after M.S is a must. It is clear from what we read ‘after’ M.S or F.R.C.S In Dr Murali Babu Rao case (1988) 2 SCC 386, (1988) 3 SCR 173, admittedly Dr G. Subramanyam, Dr A. Rajagopala Raju and Dr Soghra Begum who already had M.D (Cardiology) and put in required experience as contemplated under Rule 5 of the Andhra Pradesh Medical and Health Services Special Rules, 1982 were senior to Dr Murali Babu Rao who had then the M.D (Cardiology) but without five years' experience in the super-speciality namely, D.M (Cardiology). The question was whether 5 years' experience in D.M is a must. While interpreting Rule 5, this Court held that acquisition of experience of five years after D.M is a condition precedent and since Dr Murali Babu Rao had not had five years' experience, after acquiring D.M (Cardiology), he did not become senior to the aforestated Dr Subramanyam and others. Therefore, the Tribunal was right in directing to consider their case ignoring the claims of Dr Murali Babu Rao and others. That ratio far from helping the appellant is consistent with the Regulation framed by the Medical Council of India under Section 33 that degree in speciality is a must. No doubt, this Court had held therein that the regulations framed by the Medical Council of India are only directory and would give place to the statutory rules made under proviso to Article 309 of the Constitution by the Governor. The regulations made by the Medical Council of India do not have any overriding effect on the statutory rules. Rule 5 prescribed 5 years' teaching experience after D.M which was upheld. In this case, admittedly, no statutory rules have been made by the State of Bihar. Therefore, the regulations made by the Medical Council of India under Section 33 would bind the State Government. The conditions prescribed therein namely, for promotion to the post of Professor or Associate Professor, the qualification in the speciality namely M.Ch concerned after M.S/F.R.C.S is a must. Since the appellant did not have the qualification of M.Ch though he had the experience, he is not entitled to be considered for promotion as Associate Professor in supersession of the claim of the 7th respondent and other similarly situated persons. In Dr Arun Kumar Agrawal case 1991 Supp (1) SCC 287, (1991) 2 SCR 491, this Court considered the controversy and held that the acquisition of the qualification of M.Ch in Neurosurgery is a must and that the omission to consider the case of Dr Arun Kumar Agrawal though had M.Ch was not considered. It was held to be illegal and directed to consider his case. Though the post concerned therein was of Assistant Professor, since the same qualification has been prescribed for the post of Professor/Associate Professor also, the ratio therein would equally be applicable to the claim of the persons eligible to be considered for promotion to the post of Professor/Associate Professor. Under these circumstances, we hold that the appellant since did not have speciality in M.Ch (Neurosurgery), there is no illegality in the directions given by the High Court, warranting our interference. The appeal is accordingly dismissed. No costs.