IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SERVICE MATTER LPA No. 282 OF 2007 and CM No. 5935/2007 Decided on: August 11, 2008 1. Dr. Nikki Sabharwal Senior Specialist Anaesthesia 2. Dr.G. Usha Senior Specialist Anaesthesia 3. Dr. Pramod Gupta Senior Specialist Anaesthesia 4. Dr. Krishna Biswas Specialist Endocrinolog 5. Dr.Nonica Laisram Senior Specialist PMR 6. Dr. Ashwani Gupta Senior Specialist Surgery 7. Dr.Nivedita Sarda Senior Specialist 8. Dr. Yogesh Chandra Porwal, Specialist Medicine 9. Dr. Satya Pal Kataria Senior Medical Specialist 10. Dr. Vindu Amitabh Senior Specialist Medicine. 11. Dr. Kulip Kumar
Senior Specialist Psychiatry. 12. Dr. V. Ramesh Senior Specialist Dermatology 13. Dr. Achla Batra Senior Specialist OBS. and GYNAE 14. Dr. B.D. Hasija Senior Specialist OBS. and GYNAE. 15. Dr. Anil Murarka Specialist Burns and Plastic 16. Dr. Shalabh Kumar Senior Plastic Surgeon 17. Dr. M.D. Goswami Senior Specialist OBS. and GYNAE 18. Dr. Surveen Ghumman Specialist OBS and GYNAE All Consultants/Specialists of Safdarjang Hospital And Vardhman Mahavir Medical College, New Delhi.... Petitioner Through: Ms.Indra Sawhney with Mr.M.J. Nasir, Advs. versus 1. Guru Gobind Singh Indraprastha University Through Vice-Chancellor Kashmere Gate Delhi-110 006 2. Medical Council of India Through its Secretary Aiwan e Ghalib Marg
Kotla Road, New Delhi-110 002 3. Safdarjang Hospital and Vardhman Mahavir Medical College through Medical Superintendent New Delhi.... Respondents 4. Dr. D.K. Gupta Senior Specialist Surgery, Safdarjang Hospital and Vardhman Mahavir Medical College New Delhi... Performa Respondent. Through: Mr.G.D. Goel, with Mr. Sanjiv Goel, Advs. for Respondent No.1. Mr.Maninder Singh with Mr.Kirtiman Singh, Advs. for Respondent No.2. Ms.Monika Garg, Adv. for Respondent No.3. Coram: HON'BLE MR. JUSTICE MADAN B. LOKUR HON'BLE MR. JUSTICE J.R. MIDHA MADAN B. LOKUR, J. (ORAL) This appeal filed under Clause X of the Letters Patent is directed against the judgment and order dated 20th February, 2007 passed by the learned Single Judge in Writ Petition (Civil) No. 581/2007. 2. The Appellants (who are 18 in number) claim to be Senior Specialists/Specialists/Consultants in their respective medical disciplines at Safdarjang Hospital and Vardhman Mahavir Medical College. They say that they are teaching under-graduate and post-graduate students in these hospitals and they are entitled to be designated as Professor/Associate Professor/Lecturers, as the case may be depending upon their experience. 3. Reliance is placed by the Appellants on a Notification dated 15th March, 2005 issued by the Medical Council of India whereby Clause 11.1(d) was
incorporated in the Post Graduate Medical Education Regulations with effect from 15th March, 2005. This amendment reads as under: - Consultants of [or] specialists who have the experience of working for a period of not less than 18 years and 10 years in the teaching and other general departments in the institutions, hospitals, not attached to any medical college, where with a affiliation from any University, post graduate teaching is being imparted as contemplated under sub-regulation (1A) of regulation 8, shall respectively be eligible to be equated as Professor and Associate Professor in the department concerned. The requisite experience for equating a Consultant or Specialist working in the super-specialty departments of the said institutions or hospitals as Professor and Associate Professor shall respectively be 16 years and 8 years. Consultants or a specialists having post-graduate degree qualification, working in such an institution or hospital, who do not have the said period of experience shall be eligible to be equated as Assistant Professor in the department concerned. 4. We may note that the Notification dated 15th March, 2005 is the subject matter of challenge in Faculty Association v. Union of India (WP (C) No. 7049/2005). Today, we have admitted that writ petition for final hearing. 5. The contention of the Appellants is that they are entitled to be designated as mentioned above since they fulfill the qualifications mentioned in the Notification dated 15th March, 2005. Since the Respondents were not so designating them, the Appellants preferred a writ petition under Article 226 of the Constitution in which they prayed for a mandamus for being designated as per their qualifications. It was stated that several others persons have also been given their designation and there is no reason why the Appellants should be discriminated against. 6. The learned Single Judge was of the view that since the Appellants have chosen to err on the side of prudence, because the Notification dated 15th March, 2005 was under challenge, no mandamus could be issued directing them to accord the teaching designation, as claimed by the Appellants. 7. We are of the view that this is not a satisfactory way of dealing with the grievance of the Appellants. If the Appellants are entitled to be treated in a manner similar to the treatment given to a large number of other persons, they should not be denied that equal treatment merely because the Respondents decided not to implement the Notification dated 15th March, 2005. We may also note that the Notification dated 15th March, 2005 has
not been stayed by this Court in the writ petition afore-mentioned and by their inaction the Respondents have effectively granted a stay of that Notification, which is clearly impermissible. The Notification is operative until it is struck down or stayed it cannot be kept in abeyance through inaction. 8. Under the circumstances, we set aside the impugned judgment and order dated 20th February, 2007 and direct the Respondents to consider the case of the Appellants and if they are entitled to the benefit of the Notification dated 15th March, 2005, they may be given that benefit on a provisional basis and subject to the outcome of the writ petition pending in this Court being Faculty Association v. Union of India (WP (C) No. 7049/2005). 9. We may note that in a somewhat similar situation, a writ petition was filed by one Dr. Shibani Mehra being WP (C) No. 23785/2005. A learned Single Judge of this Court, by an order dated 19th December, 2005 granted the mandamus prayed for by Dr. Shibani Mehra making that mandamus subject to the outcome of the proceedings in WP (C) No. 7049/2005. 10. No other relief is claimed by the Appellants. 11. The appeal is disposed of. The application is also disposed of. Sd/- MADAN B. LOKUR, J Sd/- J.R. MIDHA, J LPA No.282/2007 Page 7 of 7