Seema Ahlawat v. Govt. of NCT of Delhi & Ors.

16. I have heard the learned counsels for the parties and examined their respective contentions.

17. The genesis of the dispute before this Court lies in the Advertisement No. 01/2017 dated 23.02.2017 pursuant to which Petitioner seeks appointment to the post of Associate Professor (Panchakarma) in the Sansthan and this Court is called upon to pronounce that the experience of the Petitioner as Specialist in the Teaching Hospital of the Sansthan including experience as Clinical Teacher be treated as ‘total teaching of 05 years or more in the concerned subject as a Lecturer’ and declare her eligible for appointment as Associate Professor (Panchakarma).

18. An advertisement was issued by the Sansthan on 23.02.2017 notifying 07 vacancies of Associate Professor and the eligibility criterion pertaining to experience, which is the bone of contention between the parties, is as follows:-

19. The criteria for appointment as Associate Professor/Reader stipulated in the Advertisement is based on the RRs notified for the said posts and relevant part of the RRs is as under:-

20. From the arguments of the respective parties, it comes out that the entire case turns on the interpretation and construction of the words ‘Teaching’ and ‘Lecturer’ occurring in the Advertisement, based on the RRs. Teaching experience does not have a statutory definition and may appear simple to describe or understand but to my mind it is too abstruse and technical and therefore, the question really arises is whether this Court has the expertise or the legal tools to enter into the exercise of determining the sufficiency of teaching experience or making a comparative evaluation of teaching involving bed side clinical experience/teaching with classroom teaching as a Lecturer. Before proceeding to examine the controversy arising in the present writ petition, it is necessary to understand the scope and ambit of interference by this Court in matters relating to appointment, selection etc. while exercising power of judicial review under Article 226 of the Constitution of India. No doubt, the power of the High Court under Article 226 of the Constitution is wide but it is equally true that it has to be exercised judicially and judiciously and officious interference in act of the Executive should not be the norm, save and except, where the action is in bad faith or for an oblique motive or is a malafide exercise.

21. It is trite that Courts do not substitute opinions of Experts, particularly, in areas pertaining to academics, appointment criteria, laying down curriculum, experience or qualification required for a particular post etc. as these are matters within the domain of the employer and beyond the remit of this Court. The Constitution Bench of the Supreme Court in University of Mysore v. C.D. Govinda Rao and Another, 1963 SCC OnLine SC 15 held that ‘normally, the Courts should be slow to interfere with the opinions expressed by the Experts’. In several decisions the Supreme Court has consistently held that it would normally be wise and safe for the Courts to leave the decision to Experts who are more familiar with the problems they face than the Courts generally can be. In Basavaiah (Dr.) v. Dr. H.L. Ramesh and Others, (2010) 8 SCC 372, the short controversy before the Supreme Court was whether the Appellants were qualified to be appointed as Readers in Sericulture while dealing with a challenge to their appointment by the private Respondents. The University had constituted an Expert Committee comprising of leading Experts in the field which had scrutinized the qualification, experience and published works of both the candidates and made unanimous recommendations in favour of their appointments and there were no allegations of malafide against any members of the Expert Committee. The Division Bench of the High Court had held that the Appellants did not have Doctorate degree in Sericulture and were not qualified for appointment as Readers. Examining the judgment of the High Court, the Supreme Court held as follows:- “20. [Ed.: Para 20 corrected vide Official Corrigendum No. F.3/Ed.B.J./108/2010 dated 18-9-2010.] It is abundantly clear from the affidavit filed by the University that the Expert Committee had carefully examined and scrutinised the qualification, experience and published work of the appellants before selecting them for the posts of Readers in Sericulture. In our considered opinion, the Division Bench was not justified in sitting in appeal over the unanimous recommendations of the Expert Committee consisting of five experts. The Expert Committee had in fact scrutinised the merits and demerits of each candidate including qualification and the equivalent published work and its recommendations were sent to the University for appointment which were accepted by the University.

21. It is the settled legal position that the courts have to show deference and consideration to the recommendation of an Expert Committee consisting of distinguished experts in the field. In the instant case, the experts had evaluated the qualification, experience and published work of the appellants and thereafter recommendations for their appointments were made. The Division Bench of the High Court ought not to have sat as an appellate court on the recommendations made by the country's leading experts in the field of Sericulture.

22. A similar controversy arose about 45 years ago regarding appointment of Anniah Gowda to the post of Research Reader in English in Central College, Bangalore in University of Mysore v. C.D. Govinda Rao [AIR 1965 SC 491] in which the Constitution Bench unanimously held that normally the courts should be slow to interfere with the opinions expressed by the experts particularly in a case when there is no allegation of mala fides against the experts who had constituted the Selection Board. The Court further observed that it would normally be wise and safe for the courts to leave the decisions of academic matters to the experts who are more familiar with the problems they face than the courts generally can be.

23. We have been called upon to adjudicate a similar matter of the same University almost after half a century. In a judicial system governed by precedents, the judgments delivered by the Constitution Bench and other Benches must be respected and relied on with meticulous care and sincerity. The ratio of the Constitution Bench has not been properly appreciated by the learned Judges in the impugned judgment. xxx xxx xxx

38. We have dealt with the aforesaid judgments to reiterate and reaffirm the legal position that in the academic matters, the courts have a very limited role particularly when no mala fides have been alleged against the experts constituting the Selection Committee. It would normally be prudent, wholesome and safe for the courts to leave the decisions to the academicians and experts. As a matter of principle, the courts should never make an endeavour to sit in appeal over the decisions of the experts. The courts must realise and appreciate its constraints and limitations in academic matters.

39. In the impugned judgment, the High Court has ignored the consistent legal position. They were expected to abide by the discipline of the precedents of the courts. Consequently, we are constrained to set aside the impugned judgment of the Division Bench of the High Court and restore the judgment of the Single Judge of the High Court.”

22. In Dr. M.C. Gupta and Others v. Dr. Arun Kumar Gupta and Others, (1979) 2 SCC 339, a somewhat similar controversy arose where State Public Service Commission had invited applications for two posts of Professors of Medicine in the State Medical Colleges. The question before the Supreme Court was with regard to the teaching experience of Appellant No. 1 as a Lecturer in Cardiology in the Department of Medicine and of Appellant No. 2 as Post-Doctoral Teaching Fellow in the Department of Medicine. The High Court interfered in the matter and set aside the selections made by the Selection Board comprising of Experts. The Supreme Court set aside the judgment of the High Court on the ground that it would normally be prudent and safe to leave such matters to Experts and observed as follows:- “7.....When selection is made by the Commission aided and advised by experts having technical experience and high academic qualifications in the specialist field, probing teaching research experience in technical subjects, the Courts should be slow to interfere with the opinion expressed by experts unless there are allegations of mala fides against them. It would normally be prudent and safe for the Courts to leave the decision of academic matters to experts who are more familiar with the problems they face than the Courts generally can be.....”

23. In J.P. Kulshreshtha (Dr.) and Others v. Chancellor, Allahabad University and Others, (1980) 3 SCC 418, the Supreme Court observed that earlier rulings of the Supreme Court were cited to hammer home the point that Court should not substitute its judgment for that of the academicians and while there may not be an absolute ban it is a rule of prudence that Courts should hesitate to dislodge decisions of academic bodies. In Dalpat Abasaheb Solunke and Others v. Dr. B.S. Mahajan and Others, (1990) 1 SCC 305, the Supreme Court held as follows:- “12.....It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the court, the High Court went wrong and exceeded its jurisdiction.”

24. In The Chancellor and Another v. Dr. Bijayananda Kar and Others, (1994) 1 SCC 169, the Supreme Court observed as under:-

25. To the same effect are the decisions in Dental Council of India v. Subharti K.K.B. Charitable Trust and Another, 2001 SCC OnLine SC 688 and Medical Council of India v. Sarang and Others, 2001 SCC OnLine SC 1012.

26. In Maharashtra State Board of Secondary and Higher Secondary Education and Another v. Paritosh Bhupeshkumar Sheth and Others, (1984) 4 SCC 27, the Supreme Court held that Courts should be extremely reluctant to substitute their views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by Professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and that it will be wholly wrong for the Court to make a pedantic and purely idealistic approach to the problems of this nature. Relevant paragraph of the judgment is as follows:-

27. It would be relevant to refer to another judgment of the Supreme Court in All India Council for Technical Education v. Surinder Kumar Dhawan and Others, 2009 SCC OnLine SC 378, where it was held that Courts’ interference in academic and educational matters is not proper and relevant passages are as under:-

”

28. The contentions of the parties have to be examined in the light of the aforementioned judgments and within the restricted scope and ambit of judicial interference of this Court. Broadly understood, the case of the Petitioner is that she is M.D. in Panchakarma Speciality and working as a Specialist in the teaching hospital of the Sansthan since 04.10.2010 i.e. before the admission of the first batch of students and her working experience be counted and treated as teaching experience of 05 years or more in the concerned subject as Lecturer. This contention is predicated on Regulation 10(1)(a)(iii) of MSR, 2016 and her experience of teaching in clinical classes of Panchakarma subject, for which she has placed on record an experience certificate.

29. Sansthan has taken a categorical position in the counter affidavit that Petitioner’s work experience does not qualify as a teaching experience for the post of Associate Professor (Panchakarma) as the principal nature of her work is to treat patients in the hospital and not teach the students in classes as a Teacher/Lecturer. Sansthan has also pointed out that the clinical bed side teaching was only as Panchakarma Vaidya for students for the purpose of exposure in hospital functioning, OPD and Panchakarma therapies which is akin to internship as opposed to a Lecturer in the wards and similar duties are performed by other Medical Officers/Clinical Registrars and even there clinical teaching is not counted as teaching experience as a Lecturer. It is also stated in the affidavit that clinical classes are only scheduled for 4th year students with a group of 15-20 students for the purpose of therapies etc. and cannot be equated to a teaching experience as understood in the context of Lecturers in colleges. Sansthan has also placed on record a letter dated 19.09.2022 authored by NCISM, an expert body created under Indian Medicine Central Council Act, 1970 in response to a letter of the Sansthan dated 03.10.2022, clarifying that bed side clinical experience is not mentioned as a part of the experience required for the post of Associate Professor under Regulation 17(b)(ii)(B) of Regulation

2022. Therefore, once the expert body has clarified that bed side clinical experience cannot be counted as experience for the post of Associate Professor and Sansthan has taken a clear stand on an affidavit that Petitioner was not teaching as a Lecturer and/or the clinical experience cannot be counted as an experience in the concerned subject as a Lecturer, it is not for this Court to rule otherwise in the absence of any material to the contrary placed on record by the Petitioner.

30. The Sansthan is right in its argument that the Petitioner herself clearly understood that her experience as bed side clinical teaching cannot be equated to a Lecturer and it is for this reason that in the application form while filling up the details under the heading ‘Experience Details’ she has not referred to her clinical teachings. Total experience of 16 years 10 months and 20 days claimed by the Petitioner relates to her Junior Residency, Administrative Incharge, Ayurvedic Doctor, Ayurvedic Expert, Clinical Registrar Panchakarma and Panchakarma Vaidya, save and except, for a period of 01 year 01 month and 25 days as Lecturer Panchakarma from 01.02.2009 to 25.03.2010. Petitioner has sought to argue that the clarificatory letter dated 19.09.2022 does not help the Sansthan since it pertains to Regulation 2022 which does not apply to the present case. It is true that the clarification pertains to a subsequent Regulation 2022 but the fundamental point that the Petitioner is glossing over is that NCISM has clarified that bed side clinical experience is not included towards experience in the Regulations concerning the post of Associate Professor and by an analogy, once ‘bed side clinical experience’ is not included in 2016 Regulation, the same cannot be counted towards experience requisite for the post of Associate Professor. Relevant part of 2016 Regulation dealing with experience required for the post of Associate Professor is as follows:-

31. In this view of the matter, while the clarification may not be in relation to 2016 Regulation but would inure to the advantage of the Sansthan as it only goes to show that even as per the opinion of expert body, bed side clinical experience cannot be counted as experience required for Associate Professor as a Lecturer. It is relevant to point out that during the pendency of this petition, an Advertisement No.01/2022 was issued by the Sansthan on 01.02.2022 inviting applications for filling up teaching and non-teaching posts by direct recruitment. Petitioner applied for the post of Associate Professor (Panchakarma) and after scrutinizing her experience of clinical bed side teaching towards fulfillment of essential criteria of experience, she was declared ineligible and an order dated 23.11.2022 was passed. The order has been placed on record by the Sansthan on an affidavit, but no submission was made by the Petitioner if the order was challenged.

32. Insofar as the Petitioner claims that she was working as a Lecturer for 01 year 01 month and 25 days, the same was in a College in U.P. and it is not clear from the application form as to on what basis, if any, she was given the nomenclature of a Lecturer. Even assuming that this period is to be reckoned, it still falls short of the minimum experience of 05 years of Lecturer and does not help the Petitioner.

33. Heavy reliance was placed by the learned counsel for the Petitioner on Regulation 10(1)(a)(iii) of MSR, 2016 to contend that Petitioner was appointed as a Specialist Doctor with the Sansthan in 2010 and by virtue of this Regulation her experience as a Specialist Doctor/Clinical Teacher must be counted from the date of her appointment i.e. 04.10.2010 pursuant to an offer of appointment dated 01.10.2010. In support of this contention, Petitioner has also relied on a letter authored by the Sansthan on 12.04.2017, which according to the Petitioner, is an admission that persons working as Medical Officers, Clinical Registrars or Vaidyas in the hospital as Experts are eligible for teaching experience required for Lecturer/Assistant Professor. In my view, the contention is misconceived and cannot be accepted. Regulation 10(1)(a)(iii) of MSR, 2016 is extracted hereunder:-

34. A bare perusal of the Regulation shows that it pertains to phase wise specific requirements of new colleges and applies at a stage when new colleges are formed. Regulation 10(1) provides that an Ayurveda college seeking permission for starting Bachelor of Ayurvedic Medicine and Surgery (Ayurvedacharya) course under provisions of Section 13(A) of the Act shall establish infrastructure and manpower as provided in sub-regulations. This provision, by its plain reading cannot apply to determine the experience requirement as a Lecturer in 2017 in relation to an advertisement for filling up the post of Associate Professor in a college established in the year 2010. Even assuming for the sake of argument that sub-regulation (1)(a)(iii) of Regulation 10 applies, it only provides that experience of the Specialist Doctor/Clinical Teacher appointed for operating the teaching hospital in the fields mentioned therein, before admission of the first batch of students, shall be considered as a Teacher from the date of appointment of the Specialist Doctor or two years prior to submission of application by the Applicant to the Central Government to establish a college whichever is ‘lesser’. Therefore, the provision itself applies to count an experience from the date of appointment or two years prior to the application to establish a college and qualifies and restricts it by the word ‘lesser’. Therefore, even if the experience from the appointment of the Petitioner is counted, it would be restricted to two years’ period prior to submission of the application to establish a college, as that is the lesser period. While the Petitioner has not mentioned the precise date when the application was made by the Sansthan to establish the college, however, taking the case of the Petitioner at the highest, even if it is from 2010, the experience cannot be counted beyond two years cap and would not make the Petitioner eligible in terms of the RRs and the Advertisement where minimum experience required is of 05 years.

35. Reliance by the Petitioner on the letter dated 12.04.2017 is misconceived. Reading of the letter shows that the Sansthan has raised a query to CCIM (now NCISM) with regard to applicability of MSR, 2016 to the Clinical Registrars, Medical Officers and Vaidyas in the hospital. In response, CCIM vide letter dated 17.04.2017 had clarified that Regulation 10(1)(a)(iii) does not contain any provision regarding the eligibility of Medical Officer, Emergency Medical Officer and Clinical Registrar for teaching experience as Lecturer/Assistant Professor. Relevant part of the letter is as follows:- “Subject: Teaching Experience of CR/MO/Vaidya in Hospital Section-reg Sir, With reference to your letter dated 12.04.2017 on the subject mentioned above, I am directed to inform you to refer the Indian Medicine Central Council (Requirement of Minimum Standard for Under-Graduate Ayurveda Colleges and attached Hospital) Regulations, 2016, subregulation 10(a)(iii) which read as under:- The experience of specialist doctor or clinical teacher shall be considered as a teacher from the date of appointment of the specialist doctor or two year prior to submission of application by the applicant to the Central Government to establish a college whichever is lesser. Further, no provisions have been made regarding the eligibility of Medical Officer, Emergency Medical Officer and Clinical Professor.” (Emphasis supplied)

36. Therefore, once an expert body which is a Statutory body constituted for the purpose of determining and fixing the standards has clarified that Regulation 10(1)(a)(iii) does not apply to the Vaidyas in the hospital, little reliance can be placed on the letter of the Sansthan dated 12.04.2017. In fact, this clarification completely dents the case of the Petitioner that by virtue of the said Regulation, her experience as Panchakarma Vaidya including clinical teaching be treated as experience of teaching as a Lecturer. In fact, this Court also does not read the above Regulation any differently from what has been interpreted by the Statutory body and thus the Sansthan is right that Petitioner does not fulfil the criteria of eligibility under the experience column laid down in the RRs and the Advertisement. In view of the ineligibility of the Petitioner, no mandamus can be issued to the Sansthan to consider the case of the Petitioner for appointment to the post of Associate Professor (Panchakarma) in the Sansthan. It is not for this Court to substitute its wisdom for that of the Sansthan or the expert Statutory body NCISM in view of the wealth of judicial precedent, referred to above.

37. Petitioner has placed reliance on certain judgments to further her case, however, this Court is of the opinion that none of them apply to the present fact situation. In State of Maharashtra (supra), the Petitioner had approached the Supreme Court since the Respondents therein had taken a policy decision not to grant ‘No Objection Certificate’ to any institution for starting new B.Ed. college for the academic year 2005-06. In Asim Kumar Bose (supra), the Supreme Court made an exception in light of the fact that the Appellant therein had acquired requisite teaching experience, as envisaged by the prescribed rules and was therefore eligible to be considered for appointment to the post of Associate Professor. The same cannot be of help to the Petitioner as in that case the Appellant was an ex-officio Associate Professor in the medical college to which the hospital was attached. Judgment in Faculty Association, Maulana Azad Medical College and Associate Hospital (supra), would not aid the Petitioner, as in the said case Regulation 11.1(d) of PGME Regulations, 2000 itself treated Consultants or Specialists having the requisite experience not attached to medical colleges but post-graduate institutions covered by Regulation 8(1A) as Professors, Associate Professors and Assistant Professors and the Division Bench held that Petitioners were unable to establish and show that the said Regulation was bad in law while the Respondents had established that the Regulation was enacted by MCI with the object and purpose to allow and permit post-graduate courses already in existence to continue. Moreover, the Court also found that Regulation 11.[1] was not in conflict with the Central Health Service Rules, 1996 and the teaching and non-teaching cadres remained distinct and separate, where Consultants and Specialists in the nonteaching sub-cadre remained members of the said cadre and did not occupy posts meant exclusively for the teaching sub-cadre.

38. There is no merit in the writ petition and the same is accordingly dismissed. Pending application stands disposed of.