whether order of the High Court quashing the advertisement dated 16.08.2016, inviting applications to fill up the vacant post of Director in Regional Institute of Medical Sciences,Imphal , is correct ?
When the High Court has also noticed that the experience for eligibility notified in the advertisement dated 16.08.2016 was not in conformity with the Medical Council of India Regulations , the publication cannot to be set aside.
2020 [4] advocatemmmohan apex court cases 11
C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2250-2252 OF 2020
[Arising out of S.L.P.(C)Nos.15093-15095 of 2017]
Dr. Thingujam Achouba Singh & Ors. …..Appellants
Versus
Dr. H. Nabachandra Singh & Ors. etc. …..Respondents
W I T H
CIVIL APPEAL NOS. 2253-2255 OF 2020
[Arising out of S.L.P.(C)Nos.4853-4855 of 2019]
J U D G M E N T
R. Subhash Reddy, J.
Civil Appeal Nos. of 2020
[Arising out of S.L.P.(C)Nos.15093-15095 of 2017]
1. Leave granted.
2. These civil appeals are filed, aggrieved by the judgment and order
dated 27.03.2017 passed in W.P.(C) No.676 of 2016; W.P.(C)No.722 of
2016; and W.P.(C)No.766 of 2016, passed by the High Court of Manipur
at Imphal. By the aforesaid impugned order, the High Court has
quashed advertisement dated 16.08.2016, inviting applications to fill up
1
C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
the vacant post of Director in Regional Institute of Medical Sciences,
Imphal.
3. The Regional Institute of Medical Sciences (hereinafter referred to
as, ‘RIMS’), Imphal is registered as a Society under the Societies
Registration Act, 1860 in the year 1975. The said Society was initially
registered as ‘North Eastern Regional Medical College’ and same was
subsequently re-registered and changed its name as ‘Regional Institute
of Medical Sciences’ (RIMS). The said Society runs one of the biggest
public health care institutions in the north eastern region of India. The
affairs of RIMS are governed and regulated by the Memorandum of
Association (MOA), Rules, Regulations and Bye-Laws of the RIMS.
4. The post of Director of RIMS was last held by Dr. S. Sekharjit
Singh and same has fallen vacant on 14.09.2015. Since then the post
of Director was given to some senior professors of the Institute on Incharge basis from time to time. At first instance on 24.06.2015, an
advertisement was issued by the Ministry of Health and Family Welfare,
Govt. of India for filling up the post of Director, RIMS, Imphal by direct
recruitment. In the said advertisement, the upper age limit was notified
at 50 years, relaxable for Govt. Servants/RIMS officers and specially
qualified candidates and retirement age was notified at 62 years. The
writ petitioners in W.P.(C)No.676 of 2016 and some others have made a
representation dated 01.07.2015 to the Ministry of Health & Family
Welfare, Govt. of India for changing the age of superannuation from 62
years to 65 years. All the petitioners in W.P.(C)No.676 of 2016 have
2
C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
either completed the age of 62 years or are nearing completion of 62
years. They again submitted representations on 08.07.2015 and
16.07.2015. Having failed to get any positive response they approached
the High Court by filing writ petition in W.P.(C)No.617 of 2015 for
quashing the advertisement with a direction to respondents to fill up the
post of Director, in accordance with Clause 12 of the Rules and
Regulations of RIMS, by fixing the upper age limit for eligibility at 60
years. In the said writ petition, some interim orders were passed but in
the meantime, Office Memorandum No.B/1734/96-RIMS(Pt.-I) dated
20.04.2016 was issued by the Director of RIMS notifying the age of
superannuation at 65 years, with the approval of Ministry of Health &
Family Welfare, Govt. of India. The said writ petition was withdrawn. It
appears that, in view of the enhancement of age of superannuation to 65
years, another advertisement dated 16.08.2016 was issued by
prescribing the upper age limit of 62 years in the eligibility criteria without
any relaxation, for Government servants/RIMS officers, also.
5. When fresh advertisement dated 16.08.2016 was issued by the
Ministry of Health & Family Welfare, Govt. of India inviting applications
for the post of Director, writ petition in W.P.(C)No.676 of 2016 was filed
before the High Court of Manipur, mainly on the ground that in the said
notification relaxation for upper age limit was not provided for. As such,
in the said writ petition relief was sought for quashing the advertisement
dated 16.08.2016, so far as it relates to non-providing of relaxation in
upper age limit as illegal, with a consequential direction to the
3
C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
respondents to allow the petitioners therein to participate in the selection
process. Questioning the very same advertisement, one other professor
working in RIMS has filed another writ petition in W.P.(C)No.722 of 2016,
mainly on the ground that the experience for eligibility, as notified in the
advertisement dated 16.08.2016, was contrary to the criteria prescribed
by Medical Council of India. It was pleaded in the writ petition that as
per the criteria prescribed by the Medical Council of India, to hold the
post of Director, one must have minimum of ten years’ teaching
experience as Professor/Associate Professor/Reader, out of which at
least five years should be as professor in a Department. It was his
grievance that instead of notifying the criteria as mentioned above, the
respondents have merely notified fourteen years of experience without
there being a condition of five years of teaching experience as professor.
In the said writ petition, relief sought is to quash the notification dated
16.08.2016 and to renotify the same afresh by prescribing the
experience as prescribed by the Medical Council of India and other
institutions under the control of Ministry of Health & Family Welfare,
Govt. of India.
6. One other candidate who was serving as a professor also filed
another writ petition in W.P.(C) No.766 of 2016 challenging the very
same advertisement mainly pleading that the vacancy to the post of
Director has fallen vacant on 14.09.2015, as such, said post has to be
filled up by applying the Rules and Regulations which were existing on
the date of vacancy. He was also one of the applicants who applied for
4
C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
the post of Director in response to the advertisement dated 24.06.2015
and also advertisement dated 16.08.2016. It was his case in the writ
petition that though he has applied in response to both the
advertisements, he has noticed that rules regulating appointment of
Director, pursuant to advertisement dated 16.08.2016 were different
than the rules contained as per advertisement dated 24.06.2015. It was
the case of the sole petitioner that as the post fell vacant on 14.09.2015,
rules as on the date of vacancy ought to be applied to fill up the vacancy
and not the amended rules. Incidentally, it was also pleaded that
amendment to the rules was made without following due procedure as
contemplated under Rules and Bye-Laws of the Society.
7. In all these writ petitions, affidavit in reply was filed by the
respondent therein opposing the relief sought for and denying the
various allegations made.
8. Inspite of the fact that in all the three writ petitions, advertisement
dated 16.08.2016 inviting applications to fill up the post of Director was
under challenge, and no challenge to the Rules and Regulations
governing the recruitment to the post of Director was made; the High
Court however has gone into the validity of recruitment rules and
recorded finding that rules were not amended as per the Rules,
Regulations and Bye-Laws of the Society. Further, notification is
quashed on the ground that after amendment to the Rules, such rules
were not notified to public at large, as such, they were not in the public
domain. The High Court has also held that the experience criteria as
5
C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
prescribed by the Medical Council of India Regulations was not
prescribed in the advertisement and such regulations would have a
binding effect, for filling up the post of Director in RIMS. Consequently,
further direction is issued to the competent authority to consider
providing relaxation in respect of upper age limit or the qualification as
sought by the writ petitioner therein.
9. We have heard Sri Sanjay R. Hegde, learned senior advocate
appearing for the appellants and Dr. Rajiv Dhavan, learned senior
advocate appearing for the RIMS and perused the impugned order and
other material placed on record.
10. Before we proceed further, we deem it appropriate to refer to
interim orders passed by this Court on 07.05.2018 and 24.07.2018. By
order dated 07.05.2018, this Court permitted the respondent authorities
to proceed with the selection to the post of Director, RIMS, in terms of
the recruitment rules, as existed on the date of the order, making it
subject to result of the Special Leave Petitions. By further order dated
24.07.2018, this Court permitted the competent authority to finalise the
selection by declaring the result and make the appointment forthwith
provisionally, making it subject to the result of the Special Leave
Petitions.
11. During the course of arguments, we were informed that pursuant
to aforesaid two orders passed by this Court, selection process is
completed and one Dr. Ahanthem Santa Singh was appointed as
6
C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
Director, RIMS on 05.10.2018, in terms of advertisement dated
16.08.2016, subject to the outcome of the present appeals. Same is
also challenged subsequently before the High Court by way of writ
petition in W.P.No.1181 of 2018 and same is pending consideration.
12. Having heard the learned counsel on both sides, we have
carefully gone through the common impugned order passed by the High
Court and other material placed on record.
13. At the outset, it is to be noticed that though, in none of the writ
petitions, rules governing appointment to the post of Director was under
challenge, the High Court has gone into the validity of the Rules, as
amended, and held that amendments to the Rules were not carried out
by following the Rules, Regulations and Bye-Laws of the Society. The
specific plea of the respondent authorities in the writ petitions, that there
is no challenge to validity of the rules but same has been brushed aside
by the High Court by merely stating that such an objection is of technical
in nature. At this stage, it is relevant to note that such objection raised
should not have been brushed aside by the High Court by holding that
such objection is of a technical nature. In all these writ petitions in which
common order is passed by the High Court, validity of advertisement
dated 16.08.2016 alone was under challenge. We are of the view that
the High Court has committed, an error in going into the validity of the
Rules, in absence of any challenge to the same. In any event, it was the
case of the respondent authorities that the rules governing appointment
were amended by following the rules and such amendment was also
7
C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
approved by the competent authority, of Ministry of Health & Family
Welfare. Further, the fact of not notifying the amended rules has also
been made basis for grant of relief by the High Court. In this regard, the
High Court has held that not notifying the amended rules would strike at
the root of the amendment process of the recruitment rules, as such,
unless such rules are notified, the same cannot be enforced. It appears
from the impugned order itself that it was the specific plea in the counter
affidavit filed before the High Court that the said rules were not framed
under Article 309 of the Constitution of India and further there is no
specific provision in the Rules, Regulations and Bye-Laws of RIMS for
notifying the same. It is true that in a public institution, rules are required
to be made available, but at the same time not notifying to public at large
cannot be the ground to invalidate the notification, in the absence of any
provision to that effect in the Bye-Laws of the Society or the Rules and
Regulations framed for recruitment to the post of Director.
14. The High Court has also noticed that the experience for eligibility
notified in the advertisement dated 16.08.2016 was not in conformity
with the Medical Council of India Regulations. In reply affidavit filed
before the High Court, while denying such allegation, it was pleaded that
the qualifications and experience, as notified in the advertisement dated
16.08.2016, was in accordance with the “Minimum Qualifications for
Teachers in Medical Institutions Regulations, 1998” (as amended from
time to time), framed by the Medical Council of India. It was the specific
contention of the respondent authorities that as the RIMS is affiliated to
8
C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
Manipur University, the requirement as prescribed by Medical Council of
India for Director of affiliated hospital should be applied. Such plea is
not accepted by the High Court on the ground that there is no proper
pleading in this regard. A copy of the Regulations titled as, “Minimum
Qualifications for Teachers in Medical Institutions Regulations, 1998” (as
amended upto 11th March 2017) issued by the Medical Council of India
is placed before us. As notified in the said Regulations, the academic
qualifications and experience applicable for the post of Director of
medical institutions differ from those applicable for the post of
Director/Medical Superintendent of affiliated teaching hospital. For the
post of Director in a medical institution, apart from the academic
qualifications, ten years’ experience as Professor/Associate
Professor/Reader in a medical college, out of which at least five years
should be as Professor in a department, is prescribed. However, for the
post of Director/Medical Superintendent of the affiliated teaching hospital
the required experience is ten years only. It is the specific case of the
respondents that the RIMS is an affiliated teaching hospital. In view of
such stand of the respondents it cannot be said that the experience for
eligibility notified in the advertisement dated 16.08.2016 is contrary to
the Regulations of Medical Council of India. So far as relaxation of
upper age limit, as sought by the petitioners in one of the writ petitions is
concerned, High Court has directed the competent authority and
Executive Council of the Society to consider for providing such
relaxation clause. We fail to understand as to how such direction can be
9
C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
given by the High Court for providing a relaxation which is not notified in
the advertisement. While it is open for the employer to notify such
criteria for relaxation when sufficient candidates are not available, at the
same time nobody can claim such relaxation as a matter of right. The
eligibility criteria will be within the domain of the employer and no
candidate can seek as a matter of right, to provide relaxation clause.
15. For the aforesaid reasons, we allow these appeals and set aside
the impugned common judgment and order dated 27.03.2017 passed in
W.P.(C) No.676 of 2016; W.P.(C)No.722 of 2016; and W.P.(C)No.766 of
2016 by the High Court of Manipur at Imphal. Consequently, the above
said writ petitions stand dismissed.
Civil Appeal Nos. of 2020
[Arising out of S.L.P.(C)Nos.4853-4855 of 2019]
16. Leave granted.
17. These civil appeals are filed by the Union of India and RIMS
challenging the very same order of the High Court by which the
advertisement dated 16.08.2016 has been quashed. For the reasons
recorded while dealing with the appeals arising out of S.L.P.
(C)Nos.15093-15095 of 2017, these appeals also stand allowed and the
abovementioned impugned order of the High Court is set aside.
………….…………………………………J.
[R. BANUMATHI]
….…………………………………………J.
10
C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
[R. SUBHASH REDDY]
New Delhi.
April 17, 2020.
11
When the High Court has also noticed that the experience for eligibility notified in the advertisement dated 16.08.2016 was not in conformity with the Medical Council of India Regulations , the publication cannot to be set aside.
2020 [4] advocatemmmohan apex court cases 11
C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2250-2252 OF 2020
[Arising out of S.L.P.(C)Nos.15093-15095 of 2017]
Dr. Thingujam Achouba Singh & Ors. …..Appellants
Versus
Dr. H. Nabachandra Singh & Ors. etc. …..Respondents
W I T H
CIVIL APPEAL NOS. 2253-2255 OF 2020
[Arising out of S.L.P.(C)Nos.4853-4855 of 2019]
J U D G M E N T
R. Subhash Reddy, J.
Civil Appeal Nos. of 2020
[Arising out of S.L.P.(C)Nos.15093-15095 of 2017]
1. Leave granted.
2. These civil appeals are filed, aggrieved by the judgment and order
dated 27.03.2017 passed in W.P.(C) No.676 of 2016; W.P.(C)No.722 of
2016; and W.P.(C)No.766 of 2016, passed by the High Court of Manipur
at Imphal. By the aforesaid impugned order, the High Court has
quashed advertisement dated 16.08.2016, inviting applications to fill up
1
C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
the vacant post of Director in Regional Institute of Medical Sciences,
Imphal.
3. The Regional Institute of Medical Sciences (hereinafter referred to
as, ‘RIMS’), Imphal is registered as a Society under the Societies
Registration Act, 1860 in the year 1975. The said Society was initially
registered as ‘North Eastern Regional Medical College’ and same was
subsequently re-registered and changed its name as ‘Regional Institute
of Medical Sciences’ (RIMS). The said Society runs one of the biggest
public health care institutions in the north eastern region of India. The
affairs of RIMS are governed and regulated by the Memorandum of
Association (MOA), Rules, Regulations and Bye-Laws of the RIMS.
4. The post of Director of RIMS was last held by Dr. S. Sekharjit
Singh and same has fallen vacant on 14.09.2015. Since then the post
of Director was given to some senior professors of the Institute on Incharge basis from time to time. At first instance on 24.06.2015, an
advertisement was issued by the Ministry of Health and Family Welfare,
Govt. of India for filling up the post of Director, RIMS, Imphal by direct
recruitment. In the said advertisement, the upper age limit was notified
at 50 years, relaxable for Govt. Servants/RIMS officers and specially
qualified candidates and retirement age was notified at 62 years. The
writ petitioners in W.P.(C)No.676 of 2016 and some others have made a
representation dated 01.07.2015 to the Ministry of Health & Family
Welfare, Govt. of India for changing the age of superannuation from 62
years to 65 years. All the petitioners in W.P.(C)No.676 of 2016 have
2
C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
either completed the age of 62 years or are nearing completion of 62
years. They again submitted representations on 08.07.2015 and
16.07.2015. Having failed to get any positive response they approached
the High Court by filing writ petition in W.P.(C)No.617 of 2015 for
quashing the advertisement with a direction to respondents to fill up the
post of Director, in accordance with Clause 12 of the Rules and
Regulations of RIMS, by fixing the upper age limit for eligibility at 60
years. In the said writ petition, some interim orders were passed but in
the meantime, Office Memorandum No.B/1734/96-RIMS(Pt.-I) dated
20.04.2016 was issued by the Director of RIMS notifying the age of
superannuation at 65 years, with the approval of Ministry of Health &
Family Welfare, Govt. of India. The said writ petition was withdrawn. It
appears that, in view of the enhancement of age of superannuation to 65
years, another advertisement dated 16.08.2016 was issued by
prescribing the upper age limit of 62 years in the eligibility criteria without
any relaxation, for Government servants/RIMS officers, also.
5. When fresh advertisement dated 16.08.2016 was issued by the
Ministry of Health & Family Welfare, Govt. of India inviting applications
for the post of Director, writ petition in W.P.(C)No.676 of 2016 was filed
before the High Court of Manipur, mainly on the ground that in the said
notification relaxation for upper age limit was not provided for. As such,
in the said writ petition relief was sought for quashing the advertisement
dated 16.08.2016, so far as it relates to non-providing of relaxation in
upper age limit as illegal, with a consequential direction to the
3
C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
respondents to allow the petitioners therein to participate in the selection
process. Questioning the very same advertisement, one other professor
working in RIMS has filed another writ petition in W.P.(C)No.722 of 2016,
mainly on the ground that the experience for eligibility, as notified in the
advertisement dated 16.08.2016, was contrary to the criteria prescribed
by Medical Council of India. It was pleaded in the writ petition that as
per the criteria prescribed by the Medical Council of India, to hold the
post of Director, one must have minimum of ten years’ teaching
experience as Professor/Associate Professor/Reader, out of which at
least five years should be as professor in a Department. It was his
grievance that instead of notifying the criteria as mentioned above, the
respondents have merely notified fourteen years of experience without
there being a condition of five years of teaching experience as professor.
In the said writ petition, relief sought is to quash the notification dated
16.08.2016 and to renotify the same afresh by prescribing the
experience as prescribed by the Medical Council of India and other
institutions under the control of Ministry of Health & Family Welfare,
Govt. of India.
6. One other candidate who was serving as a professor also filed
another writ petition in W.P.(C) No.766 of 2016 challenging the very
same advertisement mainly pleading that the vacancy to the post of
Director has fallen vacant on 14.09.2015, as such, said post has to be
filled up by applying the Rules and Regulations which were existing on
the date of vacancy. He was also one of the applicants who applied for
4
C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
the post of Director in response to the advertisement dated 24.06.2015
and also advertisement dated 16.08.2016. It was his case in the writ
petition that though he has applied in response to both the
advertisements, he has noticed that rules regulating appointment of
Director, pursuant to advertisement dated 16.08.2016 were different
than the rules contained as per advertisement dated 24.06.2015. It was
the case of the sole petitioner that as the post fell vacant on 14.09.2015,
rules as on the date of vacancy ought to be applied to fill up the vacancy
and not the amended rules. Incidentally, it was also pleaded that
amendment to the rules was made without following due procedure as
contemplated under Rules and Bye-Laws of the Society.
7. In all these writ petitions, affidavit in reply was filed by the
respondent therein opposing the relief sought for and denying the
various allegations made.
8. Inspite of the fact that in all the three writ petitions, advertisement
dated 16.08.2016 inviting applications to fill up the post of Director was
under challenge, and no challenge to the Rules and Regulations
governing the recruitment to the post of Director was made; the High
Court however has gone into the validity of recruitment rules and
recorded finding that rules were not amended as per the Rules,
Regulations and Bye-Laws of the Society. Further, notification is
quashed on the ground that after amendment to the Rules, such rules
were not notified to public at large, as such, they were not in the public
domain. The High Court has also held that the experience criteria as
5
C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
prescribed by the Medical Council of India Regulations was not
prescribed in the advertisement and such regulations would have a
binding effect, for filling up the post of Director in RIMS. Consequently,
further direction is issued to the competent authority to consider
providing relaxation in respect of upper age limit or the qualification as
sought by the writ petitioner therein.
9. We have heard Sri Sanjay R. Hegde, learned senior advocate
appearing for the appellants and Dr. Rajiv Dhavan, learned senior
advocate appearing for the RIMS and perused the impugned order and
other material placed on record.
10. Before we proceed further, we deem it appropriate to refer to
interim orders passed by this Court on 07.05.2018 and 24.07.2018. By
order dated 07.05.2018, this Court permitted the respondent authorities
to proceed with the selection to the post of Director, RIMS, in terms of
the recruitment rules, as existed on the date of the order, making it
subject to result of the Special Leave Petitions. By further order dated
24.07.2018, this Court permitted the competent authority to finalise the
selection by declaring the result and make the appointment forthwith
provisionally, making it subject to the result of the Special Leave
Petitions.
11. During the course of arguments, we were informed that pursuant
to aforesaid two orders passed by this Court, selection process is
completed and one Dr. Ahanthem Santa Singh was appointed as
6
C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
Director, RIMS on 05.10.2018, in terms of advertisement dated
16.08.2016, subject to the outcome of the present appeals. Same is
also challenged subsequently before the High Court by way of writ
petition in W.P.No.1181 of 2018 and same is pending consideration.
12. Having heard the learned counsel on both sides, we have
carefully gone through the common impugned order passed by the High
Court and other material placed on record.
13. At the outset, it is to be noticed that though, in none of the writ
petitions, rules governing appointment to the post of Director was under
challenge, the High Court has gone into the validity of the Rules, as
amended, and held that amendments to the Rules were not carried out
by following the Rules, Regulations and Bye-Laws of the Society. The
specific plea of the respondent authorities in the writ petitions, that there
is no challenge to validity of the rules but same has been brushed aside
by the High Court by merely stating that such an objection is of technical
in nature. At this stage, it is relevant to note that such objection raised
should not have been brushed aside by the High Court by holding that
such objection is of a technical nature. In all these writ petitions in which
common order is passed by the High Court, validity of advertisement
dated 16.08.2016 alone was under challenge. We are of the view that
the High Court has committed, an error in going into the validity of the
Rules, in absence of any challenge to the same. In any event, it was the
case of the respondent authorities that the rules governing appointment
were amended by following the rules and such amendment was also
7
C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
approved by the competent authority, of Ministry of Health & Family
Welfare. Further, the fact of not notifying the amended rules has also
been made basis for grant of relief by the High Court. In this regard, the
High Court has held that not notifying the amended rules would strike at
the root of the amendment process of the recruitment rules, as such,
unless such rules are notified, the same cannot be enforced. It appears
from the impugned order itself that it was the specific plea in the counter
affidavit filed before the High Court that the said rules were not framed
under Article 309 of the Constitution of India and further there is no
specific provision in the Rules, Regulations and Bye-Laws of RIMS for
notifying the same. It is true that in a public institution, rules are required
to be made available, but at the same time not notifying to public at large
cannot be the ground to invalidate the notification, in the absence of any
provision to that effect in the Bye-Laws of the Society or the Rules and
Regulations framed for recruitment to the post of Director.
14. The High Court has also noticed that the experience for eligibility
notified in the advertisement dated 16.08.2016 was not in conformity
with the Medical Council of India Regulations. In reply affidavit filed
before the High Court, while denying such allegation, it was pleaded that
the qualifications and experience, as notified in the advertisement dated
16.08.2016, was in accordance with the “Minimum Qualifications for
Teachers in Medical Institutions Regulations, 1998” (as amended from
time to time), framed by the Medical Council of India. It was the specific
contention of the respondent authorities that as the RIMS is affiliated to
8
C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
Manipur University, the requirement as prescribed by Medical Council of
India for Director of affiliated hospital should be applied. Such plea is
not accepted by the High Court on the ground that there is no proper
pleading in this regard. A copy of the Regulations titled as, “Minimum
Qualifications for Teachers in Medical Institutions Regulations, 1998” (as
amended upto 11th March 2017) issued by the Medical Council of India
is placed before us. As notified in the said Regulations, the academic
qualifications and experience applicable for the post of Director of
medical institutions differ from those applicable for the post of
Director/Medical Superintendent of affiliated teaching hospital. For the
post of Director in a medical institution, apart from the academic
qualifications, ten years’ experience as Professor/Associate
Professor/Reader in a medical college, out of which at least five years
should be as Professor in a department, is prescribed. However, for the
post of Director/Medical Superintendent of the affiliated teaching hospital
the required experience is ten years only. It is the specific case of the
respondents that the RIMS is an affiliated teaching hospital. In view of
such stand of the respondents it cannot be said that the experience for
eligibility notified in the advertisement dated 16.08.2016 is contrary to
the Regulations of Medical Council of India. So far as relaxation of
upper age limit, as sought by the petitioners in one of the writ petitions is
concerned, High Court has directed the competent authority and
Executive Council of the Society to consider for providing such
relaxation clause. We fail to understand as to how such direction can be
9
C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
given by the High Court for providing a relaxation which is not notified in
the advertisement. While it is open for the employer to notify such
criteria for relaxation when sufficient candidates are not available, at the
same time nobody can claim such relaxation as a matter of right. The
eligibility criteria will be within the domain of the employer and no
candidate can seek as a matter of right, to provide relaxation clause.
15. For the aforesaid reasons, we allow these appeals and set aside
the impugned common judgment and order dated 27.03.2017 passed in
W.P.(C) No.676 of 2016; W.P.(C)No.722 of 2016; and W.P.(C)No.766 of
2016 by the High Court of Manipur at Imphal. Consequently, the above
said writ petitions stand dismissed.
Civil Appeal Nos. of 2020
[Arising out of S.L.P.(C)Nos.4853-4855 of 2019]
16. Leave granted.
17. These civil appeals are filed by the Union of India and RIMS
challenging the very same order of the High Court by which the
advertisement dated 16.08.2016 has been quashed. For the reasons
recorded while dealing with the appeals arising out of S.L.P.
(C)Nos.15093-15095 of 2017, these appeals also stand allowed and the
abovementioned impugned order of the High Court is set aside.
………….…………………………………J.
[R. BANUMATHI]
….…………………………………………J.
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C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.
[R. SUBHASH REDDY]
New Delhi.
April 17, 2020.
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