HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment reserved on 20.4.2011
Judgment delivered on 21.7.2011
CIVIL MISC. WRIT PETITION NO.9961 OF 2002
Dr. Ashok Tripathi vs State of U.P. & others
Hon'ble Sunil Ambwani, J.
Hon'ble Kashi Nath Pandey, J.
We have heard Shri Manoj Misra and Shri Upendra Singh, learned counsels for the petitioner. Shri M.C. Tripathi, Additional Chief Standing Counsel appeared for the State respondents. Shri S.D. Singh and Shri S.A. Ansari represented the private respondents. Shri M.A. Qadeer has appeared for UP Public Service Commission.
The petitioner is M.B.B.S. (1989) from Kanpur University. He thereafter pursued his studies and obtained the Degree of Masters in Surgery (M.S.) in 1993 from the same University and thereafter worked as Senior Resident in Safdarjung Hospital, New Delhi from 21.1.1994 to 20.1.1997. It is stated by him in paragraph-6 of the writ petition that while working as Senior Resident at Safdarjung Hospital, he also carried out teaching assignments.
By this writ petition filed on 08.3.2002 the petitioner has prayed for issuing a writ of mandamus to respondent nos. 1, 2 and 3 to strictly follow the eligibility criteria fixed by the Medical Council of India vide "Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998" and not to make any appointment of those candidates, who do not possess the minimum teaching qualification as Lecturer in various subjects. At the time, when the writ petition was filed, the UP Public Service Commission was proceeding with the selection vide Advertisement No. 2/2000-2001.
The petitioner had applied for selections to the post of Lecturer in General Surgery. Out of the advertised 11 posts of Lecturer in General Surgery, 02 were reserved for Scheduled Caste and 04 for candidates belonging to Other Backward Classes. The qualification prescribed in the advertisement was "M.S. (Surgery)/M.S. (General Surgery) or equivalent qualifications as recognised by Medical Council of India." The qualification of minimum teaching experience of three years as Resident, Demonstrator/Registrar/Tutor was not given in the advertisement.
The State of UP by notification dated 20.8.2000 directed the Commission not to make any selection and not to send any recommendation to the Commission pursuant to a decision taken by the Government to transfer all the UP State owned Medical Colleges to Societies registered under the provisions of Societies Registration Act, 1860.
The decision taken by the State Government to transfer all Medical Colleges to the Societies was challenged in Writ Petition No. 31860 of 2001 (Sarojini Naidu Medical College Teachers Associations and another vs. State of UP and others). This Court by its judgement dated 12.12.2001 allowed the writ petition and consequently directions were issued to the Commission to conclude the selection process in the manner indicated in the UP State Medical Colleges Teachers Service Rules, 1990.
It is alleged by learned counsel for the petitioner that the Commission in the advertisement did not prescribe the minimum teaching experience required as an eligibility criteria to apply for the post of Lecturer (General Surgery). In the absence of qualifications including teaching experience as prescribed by the Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998 (in short, the Regulations of 1998) made by the Medical Council of India, a large number of candidates were to be considered for appointment. Since the petitioner held the minimum qualification as prescribed in the Regulations of 1998, he filed this writ petition after making representations to the Director General, Medical Education, Lucknow on 4.2.2002 and the Chairman/Secretary, UP Public Service Commission.
The petitioner was not selected and thus he filed an amendment application challenging the selections of respondent nos. 5 to 15, who were also sought to be impleaded. The amendment application was allowed on 05.5.2005. The consequent amendment was made in the prayer clause prescribed as (aa). By the amended prayer the petitioner sought to set aside the appointment of respondent nos. 5 to 15, made vide notification dated 12.12.2002 as Lecturer (Surgery/General Surgery) as being contrary to the UP State Medical Colleges Teachers Service Rules, 1990 and for a direction to hold fresh selection process in accordance with the Rules.
Shri Manoj Misra, learned counsel for the petitioner submits that the selections were made contrary to the UP State Medical College Teachers Service Rules, 1990 (in short the Service Rules of 1990) and the Regulations of 1998 framed by the Medical Council of India. He submits that Rule 8 provided for educational qualifications for Assistant Professor and Associate Professor. It provides that the qualifications will be same as are prescribed by the Medical Council of India. The second proviso to Rule 8 (1) mandates that for the post of Assistant Professor a minimum of three years teaching experience after the post graduate degree will be necessary. Rule 8 of the Rules of 1990 as it then existed is quoted as below:-
"8. Academic qualifications- (1) A candidate for recruitment to the various categories of posts in the service other than the department of Pharmacy, must possess the qualifications prescribed by the Medical Council of India from time to time:
Provided that the qualifications for the post of Assistant Professor and Associate Professor shall be such as prescribed by the Medical Council of India for the post of Lecturer and Reader respectively:
Provided further that a minimum three years' teaching experience after post-graduation, shall be necessary in case of Assistant Professor.
(2) A candidate for recruitment to the various posts in the Department of Pharmacy must possess the qualifications given in Appendix 'B'."
It is submitted by Shri Manoj Misra that by Government Order dated 6.9.1990, the nomenclature for the post of Lecturer was amended as that of Assistant Professor. For appointment to the post of Assistant Professor three years' teaching experience after post graduation was a necessary qualification. After issuance of the Government Order dated 6.9.1990 the Service Rules of 1990 were framed and notified in the Official Gazette on 5.1.1991. The strength of the service and of each category of posts as may be determined under sub-rule (2) of Rule 4 provide that until orders varying the same are passed under sub-rule (1), the posts will be same as provided in Appendix 'A'. The proviso (ii) to sub-rule (2) to Rule 4 provides that the Governor may create such additional permanent or temporary posts as he may consider proper. The Appendix 'A' of the Service Rules of 1990 provides for 04 categories of posts namely, (i) Principal; (ii) Professor; (iii) Associate Professor and (iv) Assistant Professor. There is no post by the name of Lecturer in Appendix 'A'. By Government Order dated 6.9.1990 the post of Lecturer was designated as Assistant Professor. The Rules of 1990 also provide for appointment to the post of Assistant Professor for which the minimum qualifications are as provided in the Regulations made by Medical Council of India and provide for minimum three years teaching experience after post graduation. The Service Rules of 1990 have not been amended and thus the advertisement was not issued in conformity with the Service Rules of 1990 and the Regulations made by the Medical Council of India. A large number of ineligible persons were allowed to participate in the selection process. The respondent nos. 5 to 15 do not possess the requisite teaching experience of three years after post graduation to be eligible for appointment.
It is submitted by Shri Manoj Misra, that in Dr. Ambesh Kumar vs. Principal, L.L.R.M. Medical College, Meerut and others 1986 (Supp) SCC 543 it was held by the Supreme Court that the criteria and standard laid down for admission of students to various post graduate courses in the Medical Colleges under Section 33 of the Indian Medical Council Act could be amended by the State Government in exercise of its executive powers under Article 162 of Constitution of India with reference to Entry 25 of the Concurrent List. The State Government had in that case merely specified a further eligibility qualification for selection for admission to post graduate courses and thus the orders of the State Government were not in conflict of the Regulations made by the Medical Council of India. In Government of Andhra Pradesh and another vs. Dr. R. Murali Babu Rao and another (1998) 2 SCC 386 the Supreme Court held that the eligibility to be determined in accordance with the qualification and experience provided under the Rules prevailing at the time of preparation of the panel prescribing namely for two years training in Cardiology had to be made strictly in conformity with the Rules made under proviso to Rule 309 and not in accordance with the recommendations of any expert body such as Indian Medical Council. In case of conflict between the Rules and the recommendations, the Rule will override the latter. In A. Manoharan and others vs. Union of India and others (2008) 3 SCC 641 the Supreme Court held that the filling up of the vacancies has to be made in accordance with the applicable Rules. The administrative act must yield to a statute. Once a regulation has been framed, in terms of the provisions of the General Clauses Act, the same could be amended only in accordance with the procedures laid down under the principal enactment. In Indra Prakash Gupta vs. State of J & K and others (2004) 6 SCC 786 the Supreme Court held that the role of Public Service Commission, a creature of the Constitution of India, is to scrupulously follow the statutory rules during recruitment. Any procedure devised by it should conform to the statutory rules.
Shri M.C. Tripathi, Additional Chief Standing Counsel submits that previously the teaching staff of the Medical Colleges consisted of Lecturer, Reader, Professor and Principal for which the qualifications were prescribed as per the specification of the Medical Council of India. On certain contingencies the appointment of Lecturer could be made on adhoc basis by a Selection Committee consisting of Secretary, Medical Education; Director, Medical Education and Training, and Specialist of the subjects not below the rank of Senior Professor. In order to streamline the medical education, the Rules of 1990 were made w.e.f. 21.11.1990. Rule 5 provided for recruitment of Assistant Professor, Associate Professor, Professor and Principal. Rule 8 laid down the academic qualifications for appointment to these posts. He relies upon paragraphs 7 to 17 of the counter affidavit of Shri Subhash Chandra Rai, Joint Secretary, Medical Education, U.P. Lucknow, in which it is stated that on prescribing the three years teaching experience after post graduate courses, certain practical difficulties started appearing before the State Government. The first and foremost difficult was that there were hardly any candidate available within the State, who was eligible for being considered for appointment as Assistant Professor as there was no provision in the State of Uttar Pradesh under the residency scheme for providing three years teaching experience after post graduate course. In other States there was a three-year residency scheme prevalent and as such the students of Medical Colleges and Universities of other States could be eligible but not the students of the State Medical Colleges in the State of UP. The residency scheme of the Government of UP notified on October 9, 1990, provided for junior residency and senior residency, for terms which did not provide for three years teaching experience. The fall out was that the number of vacancies in various Medical Colleges started to increase dramatically affecting the Medical Eduction in the State of U.P. The Medical Council of India exerted pressure upon the State Government to make appointment of the teachers and in view of the increasing number of vacancies it was thought proper by the State Government to do away with the three years teaching experience for the post of Assistant Professor.
The UP Public Service Commission, however, did not agree with the same in view of the mandatory provisions of Rule 8 of the Service Rules of 1990. A meeting took place between the Secretary, Medical Education and the Chairman and Members of the Public Service Commission on 3.10.1992. They agreed to make appointment on adhoc basis on the posts of Professor and Associate Professor. However, the same could not be done for the post of Assistant Professor in view of requirement of teaching experience of three years under the Service Rules of 1990. The State Government held several meetings and decided that under the prevailing circumstances the post of Lecturer be created for direct appointment; the post of Assistant Professor be made a promotional post, and to fill up the large number of vacancies in the State Medical Colleges. The Secretary, Medical Education Shri Surendra Pal Gaur sent a letter dated 4.7.1997 to the Commission to initiate selections on 50 posts of Lecturers annexing therewith the draft amendment to the 1990 Rules. Pursuant thereto the Commission started the selections and on 09.7.1999, it recommended for 17 appointments on the post of Lecturer in the pay scale of Rs. 8550-275-14,600. No appointment was made on the post of Assistant Professor as contemplated under the Rules.
As the vacancies continued to increase, to meet the contingencies a scheme of Guest Lecturer was also introduced vide Government Order dated 12.10.1997 through which the petitioner Dr. Ashok Kumar Tripathi was also selected. In order to further ease the situation, the Government decided to fill up the vacancies by selection of Lecturers and sent requisition to the Commission, on which the impugned advertisement No. 2/2000-01 was published inviting applications for the post of 68 Lecturers in various Medical Colleges. The petitioner appeared and participated in the selections but was not selected. In paragraphs 16 and 17 of the counter affidavit, it is stated as follows:-
"16. That it is absolutely essential to bring to the notice of this Hon'ble Court that the aforesaid advertisement No. 2 dated 27.8.2001 copy of which is already filed as Annexure No. 9 to the writ petition clearly mentions that the selection is to be made on the post of Lecturer on 68 vacancies as would be clear from Column-1 para-3 of the said advertisement. In the said column under the heading of eligibility/qualification serial No. 21 provides that the candidate should be M.S. Surgery/M.S. General Surgery or equivalent qualification recognized by the Medical Council of India. It is being made clear that the said selection under the impugned advertisement was not for the post of Assistant Professor but on the post of Lecturer and the qualification prescribed therein was the same i.e. as prescribed by the Medical Council of India in its 1998 Regulations as has also been mentioned in para 21 of the writ petition. As such it is incorrect on the part of the petitioner to allege that the minimum qualification for the post of Assistant Professors was in any manner diluted or brought down making it in consistent with the prescribed qualification of Medical Council of India.
17. That the action of the Govt. in requiring appointment to be made on the post of Lecturer is in no way in contravention of any of the provisions of the U.P. State Medical Colleges Teachers Service Rule, 1990. On the contrary the said Rules gives power to the State Govt. to create any additional or temporary posts as may be considered proper under the provision of Rule 4 (2) (ii)."
In para 19 of the counter affidavit, it is stated that after years of difficulty on 12.5.2005 an amendment was brought about amending the U.P. State Medical Colleges Teachers Service Rules, 1990 vide the U.P. State Medical Colleges Teachers Service (Second Amendment) Service Rule, 2005 providing for the post of Lecturer under note-1 to Appendix 'A' to Rule 4. The amendment to Rule 8 prescribed the minimum qualification for the post of Lecturer to be the same as provided by the Medical Council of India i.e. post graduation qualification in respect of subject and three years teaching experience in the subject in a recognized Medical College as Resident Registrar Demonstrator/Tutor as post graduate students. The amended Rule 8 reads as follows:-
"8. Academic qualifications.-- (1) A candidate for recruitment to the various categories of posts in the service other than the department of Pharmacy must possess the qualifications prescribed by the Medical Council of India from time to time:
Provided that the qualification for the post of Lecturer shall be requisite recognised Postgraduate qualification in the respective subject and three years teaching experience in the subject in a recognised Medical College as Resident Registrar Demonstrator/Tutor as Postgraduate student."
The post of Assistant Professor under the Rules amended by the Second Amendment in the year 2005 was made a promotional post from amongst the duly appointed Lecturers, who have completed three years of satisfactory teaching service. After the amendment of the Rules, a fresh requisition was sent to the Commission for appointment of Lecturers.
The U.P. State Medical Colleges Teachers Service (Second Amendment) Rules, 2005 came into force on May 12, 2005. Rule 17 of the Second amended Rules of 2005 provides for insertion of new Rule 30, which reads as follows:-
"17. Insertion of new rule 30. In the said rules, after rule 29, the following new rule shall be inserted, namely:
Selection/Appointment on the vacancies for which requisition has been sent to the Commission before the commencement of the Uttar Pradesh State Medical Colleges Teachers' Service (Second Amendment) Rules, 2005. "30... The selection/appointment on the vacancies for which requisition has been sent to the commission but the posts which remain unfilled till now before the commencement of the Uttar Pradesh State Medical Colleges Teachers' Service (Second Amendment) Rules, 2005 shall be made in accordance with the provisions of the rules in force at this time."
Shri M.C. Tripathi, Additional Chief Standing Counsel relies upon judgments of Supreme Court in Feroz Ahmad vs. Delhi Development Authority and others 2006 (10) SCC 399; Kurmanchal Institute of Degree & Diploma and others vs. Chancellor M.J.P. Rohilkhand University & others 2007 (6) SCC 35; Greater Bombay Co-operative Bank Ltd. vs. United Yarn Tex (P) Ltd and others 2007 (6) SCC 236; Union of India vs. Sri Vinod Kumar 2007 (8) SCC 100; Dr. U.S. Sinha vs. State of UP and others 2008 (2) A.D.J. 205; Dhananjai vs. State of Uttarakhand 2008 (4) SCC 171; & K.A. Nagamani vs. Indian Airlines 2009 (5) SCC 515. It is submitted by him that where once the petitioner himself has submitted to the rules of recruitment and had tried for being recruited, it is not open to him to challenge the process of recruitment including the rules after he did not succeed in the selections. In K.A. Nagamani (supra); Dhanjai (supra); Union of India (supra) and Dr. U.S. Sinha (supra) the Supreme Court and this Court have refused to interfere for the benefit of the candidates, who had appeared in the selections and did not succeed. He submits that the Medical Council of India Act, 1956 was enacted at that time under Entry 11 of List II. The prescription of qualifications of service of teachers of Medical Colleges was beyond the scope of central legislation and state legislation. The Medical Council of India could only frame rules, orders or regulations in respect of service conditions of teachers either in a University, or Medical Colleges and to take admission. The Central Government had the powers at that time by virtue of Entries 63, 64, 65 and 66 of List-I to maintain the standards of education. After the 42nd amendment to the Constitution of India Entry 11 of the List II was omitted, and Entry 25 of List III was amended. The amended Entry 25 after 3.1.1987 provided for education including technical education, medical education and universities subject to the provisions of Entries 63, 64, 65 and 66 of List-I, being vocational and technical training of labour. Thus the powers to make rules for recruitment, conditions of service of teachers of University, Medical Colleges were with the State legislature. The Medical Colleges in the State are run and managed by the State Government under UP State Universities Act, 1973. The State Government alone has powers to make rules, regulations and guidelines relating to recruitment and service conditions and other subjects in view of Section 47 (e) read with Section 7 of the UP State Universities Act. He has relies upon Kurmanchal Institute of Degree & Diploma and others vs. Chancellor M.J.P. Rohilkhand University & others 2007 (6) SCC 35 and Greater Bombay Co-operative Bank Ltd. vs. United Yarn Tex (P) Ltd and others 2007 (6) SCC 236 for the proposition that the service rules made by the State Government will prevail over the regulations made by the Medical Council of India. Para 20 of the judgment in Kurmanchal Institute of Degree & Diploma (supra) is quoted as below:-
"20. The submission of the learned counsel that the UGC Regulations, 1985 provides for study centres of this nature cannot be countenanced. The UGC Regulations being a subordinate legislation must be read with the principal Act. The subordinate legislation will be ultra vires if it contravenes the provisions of the principal Act. [See Vasu Dev Singh & Ors v. Union of India & Ors. 2006 (11) SCALE 108] A statutory authority, it is well known, must act within the four-corners of the statute. A fortiori it has to operate within the boundaries of the territories within which it is to operate under the statute. Such territorial jurisdiction of the University must be maintained as otherwise a chaos would be created. If distance education of such a nature is to be encouraged, the only course would be to suitably amend the provisions of the Act."
Shri S.D. Singh appearing for Dr. Prabal Neogi, Lecturer in Surgery, M.L.N. Medical College, Allahabad, selected in the subject recruitment, submits that Dr. Ashok Kumar Tripathi does not have locus to maintain the writ petition. He participated in the selection and was not found successful. He filed the writ petition only for the purposes of making grounds to challenge if he did not succeed. He cannot be permitted to turn around and question the advertisement. Shri S.D. Singh has relied upon the judgments in Suneeta Aggarwal vs. State of Haryana & ors (2000) 2 SCC 615; Madan Lal & ors vs. State of J & K & ors (1995) 3 SCC 486 and Om Prakash Shukla vs. Akhilesh Kumar Shukla & ors (1986) Supp SCC 285 in submitting that if a person, who takes a chance and has appeared in the selection process, he does not have locus to challenge the same. Even otherwise the petitioner Dr. Ashok Kumar Tripathi was over age on the date of making application for appointment. His date of birth is 27.6.1964 and thus on 1.7.2000 he was 36 years and 04 days old. He could not have applied for appointment as Lecturer as the advertisement provided that the applicant should be less than 35 years on 1.7.2000. He submits that prior to 1990 all State Medical Colleges offered two years courses of Master in Surgery. Thus Resident Registrar Demonstrator/Tutor, who were post graduate students, could only obtain two years teaching experience during their post graduation. In the year 1990 the State Government introduced a three-year residency course for all post graduate studies in UP, which was adopted by different States of the country at different point of time. Those persons, who had obtained post graduate degree under two year course, could gain minimum eligibility for appointment as Lecturer/Assistant Professor only after gaining one year's additional teaching experience as a Resident after completing post graduate studies. All the students, who completed post graduate studies under the three-year residency scheme, acquired three years teaching experience during such studies/course as residents. They were all issued certificate to that effect by the concerned Medical Colleges in the State of UP, and thus all those persons, who were selected including Dr. Ashok Kumar Tripathi had three years teaching experience. Dr. Prabal Neogi is M.B.B.S. from A.F.M.C. Pune; M.S. (Surgery) from Allahabad and F.R.C.S. from Edinburgh, U.K. He completed house job from All India Institute of Medical Sciences, New Delhi from February, 1989 to September, 1989 and also imparted teaching to under-graduate student at AIIMS, New Delhi, from September, 1990 for three years. He did M.S. (Surgery) from M.L.N. Medical College, Allahabad under three year residency scheme/course and successfully completed three years residency. He has also worked as Resident at M.L.N. Medical College first year from 1990-91, second year from 1991-92, and third year from 1992-93. Thereafter he worked as Registrar in Surgery in Kamla Nehru Memorial Hospital, Allahabad from April 1994 to October 1995 and thereafter left for U.K for F.R.C.S., Edinburgh. He worked from 7.8.1986 to 4.2.1997 as S.H.O in Accident and Emergency at Royal Albert Edward Infirmary, Wigan and also worked from February, 1997 to August, 1997 as S.H.O in Surgery at Argyll and Clyde Acute Hospitals Trust, Scotland. There he also imparted teaching to house surgeons and medical students from University of Newcastle-upon-Tyne Medical School. He thus has four years and eight months teaching experience.
The petitioner has not given the details of the teaching experience of other respondents. It is stated by Shri M.C. Tripathi and Shri S.A. Ansari appearing for Dr. Shabi Ahmed-respondent no. 5 that all the private respondents, who were selected, had three years teaching experience but since the advertisement was for the post of Lecturer, they were all appointed as Lecturer and have been, after completing three years of service, promoted as Assistant Professor.
We are also informed that the posts of Lecturer filled up by adhoc appointment in view of the exigencies detailed as above were regularised under U.P. Adhoc Regularization Rules, 1979, and are still working on the post of Lecturer or on higher post. The advertisement for 68 posts of Lecturers, which were lying vacant during the year 2000, was made in extraordinary circumstances, in accordance with the decision taken by the Government of UP vide its letter dated 9.8.2000 requesting the Commission to hold selection for the post of Lecturer for which the Rules were subsequently amended by the Second Amendment Rules of 2005.
We find that in the year 2002, the State Government faced a difficult situation in which 68 vacancies had arisen in the six State Medical Colleges, and that the Medical Council of India was persuading the State Government to make appointments. The decision to fill up the post of Lecturers, which were not provided under the Rules, and were not included in the Appendix 'A' to the Service Rules of 1990 and for which the three years teaching experience eligibility provided in the Rules, was thus not arbitrary and illegal. If something is not provided under the Rules, the State Government can always fill up the gap and make provisions in exercise of its executive powers which are co-extensive with rule making powers under the proviso to Article 309 of Constitution.
The U.P. State Medical College Teachers Service Rules, 1990 were notified and came into effect from 21.11.1990. The Rules provided in Appendix 'A', with reference to Rule 4 the sanctioned strength of service and which included the posts of Principal, Professor, Associate Professor and Assistant Professor. The qualifications for selection by direct recruitment for the post of Assistant Professor were given in Rule 8. Sub rule (1) provided that a candidate for recruitment to the various categories of post in the service other than the Department of Pharmacy must possess the qualifications prescribed by the Medical Council of India from time to time. The first proviso provided that the qualification for the post of Assistant Professor and Associate Professor shall be as prescribed by the Medical Council of India for the post of Lecturer and Reader respectively. The second proviso provided that a minimum three years teaching experience after post graduation shall be necessary in case of Assistant Professor. It appears that the State Government at the time of making these Rules in the year 1990, was not advised and did not take into account the notification dated October 9, 1990 issued by the Department of Medical Education, Government of India providing for the scheme of junior residency and senior residency applicable to the post graduate students of MD and MS, and post graduate diploma courses in all Government Medical Colleges and K.G. Medical College and the experience of teaching associated with such residency. The scheme provided for teaching after the post graduate courses. The essential qualification for junior residency in paragraph-9 of the notification dated October 9, 1990 provided that only those candidates, who have passed MBBS examination and have completed the rotated internship training and who have been permanently registered by the Medical Council of India or the State Medical Council could apply. All the house officers, junior residents first year and other junior doctors working were as such provided to be converted, in the new proposed post in the residency on August 1, 1987, the date on which the scheme was enforced.
The senior residency scheme was in two categories namely, (i) those senior residents registered for studies in super-specialty course (DM/MCH) and, (ii) for those who were not registered for any course and appointed after obtaining MD/MS/MDS degrees for treatment and to cure patients in the hospitals and for training. This scheme did not provide for three years teaching experience as in other States, where the three years residency scheme was prevalent provided for opportunities and experience of teaching. The State Government thus found that the students of the State Medical Colleges were not eligible for appointment as Assistant Professor and consequently the vacancies also started rising alarmingly.
The Government of U.P. under pressure from Medical Council of India, to fill up the post held several meetings to consider to do away with the three years teaching experience for the post of Assistant Professor. The U.P. Public Service Commission, however, did not agree to do away three years experience unless Rule 8 was amended. In the circumstances before the Rules could be amended, keeping in view the large number of vacancies, the Medical Education Department of the Government of UP and the Public Service Commission decided that the post of Lecturers be created for direct appointment and to make the post of Assistant Professor as promotional post. It was decided that instead of taking a long procedure of amendment of the Rules the matter be referred to the Personnel Department for sending requisition to the Commission. The Secretary, Medical Education by his letter dated 4.7.1997requested the Commission to make selection for 50 posts of Lecturers. The selection process was initiated by the Commission and that on 9.7.1999, 17 appointments were made on the posts of Lecturer, in the pay scale of Rs. 8500-275-14600.
Since the proposed amendments could not be made in due time and the number of vacancies were rising, the State Government introduced a Scheme of Guest Lecturer by Government Order dated 12.10.1997. The Government, thereafter in furtherance to the decision taken by it with the approval of Governor of UP, (in pursuance to which 17, Lecturers were appointed on 9.7.1999), further sent requisition to the Commission to fill up 68 posts of Lecturer in the Medical Colleges in the State, and consequently the advertisement No. 2/2001 was issued. The State Government did not send requisition and the Commission did not make advertisement for filling up the post of Assistant Professor, which was proposed to be promotional post. The proposal to amend the Rules finally resulted into making of the UP State Medical Colleges Teachers Service Rules (Second Amendment) Rules, 2005, providing for the post of Lecturers in the pay scale of Rs. 8500-275-14600. The post of Assistant Professor was made a higher post in the pay scale of Rs. 10,000-325-15,200, vide Rule 21 of the Amended Rules.
In Vimal Kumari vs. State of Haryana and others (1998) 4 SCC 114 the Supreme Court held that it is always open to the Government to regulate the service conditions of the employees for whom Rules are made by those Rules even in their "draft stage" provided that there is a clear intention on the part of the Government to enforce those Rules in the near future. Recourse to such draft Rules is permissible only for the interregnum to meet any emergent situation. Such draft Rules cannot be treated to be Rules under the proviso to Article 309 of Constitution and cannot legally exclude the operation of any existing executive or administrative instruction on the subjects covered by the draft Rules nor can such draft Rules exclude the jurisdiction of the Government, or any other authority from issuing the executive instructions for regulating the conditions of service of the employees working under them. The Supreme Court observed in paragraphs 6, 7 and 8 as follows:-
"The Draft Rules were prepared in 1983 and since then they have not been enforced. It is, no doubt, open to the Government to regulate the service conditions of the employees for whom the Rules are made, by those Rules even in their "draft stage" provided there is clear intention on the part of the Government to enforce those Rules in the near future. Recourse to such Draft Rules is permissible only for the interregnum to meet any emergent situation. But if the intention was not to enforce or notify the Rules at all, as is evident in the instant case, recourse to "Draft Rules" cannot be taken. Such Draft Rules cannot be treated to be Rules made under Article 309 of the Constitution and cannot legally exclude the operation of any existing executive or administrative instruction on the subjects covered by the Draft Rules nor can such Draft Rules exclude the jurisdiction of the Government, or for that matter, any other authority, including the appointing authority, from issuing the executive instructions for regulating the conditions of service of the employees working under them.
7. In the instant case, as pointed out above, the Draft Rules were prepared in 1983. They have been lying in the nascent state since then. In the meantime, many promotions, including that of the appellant were made on the basis of `seniority' which, in the absence of any Rule made under Article 309, could be legally adopted as the reasonable basis for promotion. Seniority having thus been adopted as the criteria for making promotion on the post of Superintendent could not have been displaced by the Draft Rules and the High Court could not have invoked any provision of those Draft Rules which have been lying frozen at their embryonic stage for more than ten years.
8. In the absence of any decision of the State Government that so long as the Draft Rules were not notified, the service conditions of the appellant or the respondent and their other colleagues would be regulated by the "Draft Rules" prepared in 1983, it was not open either to the Government or to any other authority, nor was it open to the High Court, while disposing of the writ petition, to invoke any of the provisions of those Rules particularly as the Government has not come out with any explanation why the Rules, though prepared in 1983, have not been notified for the long period of more than a decade. The delay, or rather inaction, is startling."
In Dr. Anil Kumar Sinha vs. State of Bihar and others (1998) 2 SCC 439 the Supreme Court held that in the absence of statutory rules under proviso to Article 309 or any act of legislature the State Government can regulate the service conditions of teachers in private medical colleges by issuing administrative instructions. Since there were no statutory Rule issued under the proviso to Article 309 of Constitution or any act of the legislature governing the service conditions of the doctors employed in Medical Colleges, the Supreme Court held that in such situation it was open to the State Government to regulate the service conditions of issuing relevant administrative instructions.
In the present case the statutory Rules made under the proviso to Article 309, namely Service Rules of 1990 did not provide for the creation and appointment on the post of Lecturer. The State Government in the emergent situation filled in the gap, by issuing administrative instructions for appointment of Lecturers in contemplation of the amendment to the Rules, which ultimately came into force by Second Amendment to the Rules on 12.5.2005.
In Dr. Sandhya Jain (Mrs.) vs. Dr. Subhash Garg & another (1999) 8 SCC 449 the service conditions of the teachers in Medical Colleges in the State of Madhya Pradesh were regulated by the Madhya Pradesh Medical Education (Gazetted) Service Recruitment Rules, 1987. There was no indication in the Rules as to how the 5th post of Reader in the College of Dentist, Indore was to be filled up. The State Government issued executive instructions for filling up the 5th post. An objection was taken that previously the State Government has been filling up the post from a Lecturer of any discipline and thus the executive instructions could not have provided to the contrary. The Supreme Court also considered the question whether in such case the State Government could have issued executive instructions where there was a gap in the statutory rules contrary to the recommendations of the Medical Council of India for promotion, which is a condition of service. It was held that where the Rules are silent, the executive instructions could be issued provided there is no repugnancy and that the recommendations of Medical Council of India, in view of Government of A.P. vs. Dr. Murali Babu (1988) 2 SCC 386 fixing a different criteria for minimum qualifying marks, for special category candidate seeking admission under the reserved category.
In the present case an emergent situation had arisen in which the State Government found that the students of the State Medical Colleges were not eligible for appointment as Assistant Professor under the Rules of 1990, causing vacancies to accumulate resulting into pressure from the Medical Council of India to fill up the posts. The State Government took a conscious decision to amend the rules by providing for the post of Lecturers, and pending the amendment of the Rules, further decided to provide for the post of Lecturer at the bottom of the service, to be filled up, without any teaching experience from amongst those who have passed MD-MS examinations or had higher qualifications. These persons were provided to be promoted after three years to the post of Assistant Professor. The Rules were consequently amended in the year 2005, by the Second Amendment to the Rules. In such a situation the exercise of the executive power, where the Rules are silent was within the authority of the State Government.
The petitioner claims that he had three years teaching experience. The State Government did not advertise the post of Assistant Professor for which such qualification was mandatory under the then existing Rule 8. The State Government in the given situation had decided to create the post of Lecturers and sent requisition to fill them up by the advertisement No. 2/2000-01, issued by the Commission. The petitioner applied and competed along with his qualifications. He was not found successful in comparison with other candidates, who were selected. The petitioner thus cannot have any complaint that the essential qualifications under Rule 8 were not followed to fill up the post. There was no requirement of three years teaching experience for the post of Lecturer, which was advertised and for which the petitioner had competed.
We may observe that all the private respondents selected on the post of Lecturers have since been promoted on the post of Assistant Professors under the Rules of 1990 as amended by Second Amendment in the year 2005.
The writ petition is dismissed.
Dt.21.7.2011 RKP/