Allahabad High Court

Navyug Abhiyan Samiti And Another vs State Of U.P. And 4 Others on 5 October, 2018

Bench: B. Amit Sthalekar, Jayant Banerji




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 39
 

 
Case :- WRIT - A No. - 12589 of 2018
 

 
Petitioner :- Navyug Abhiyan Samiti And Another
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Nitesh Kumar Singh,Ashutosh Sharma,Satish Chaturvedi
 
Counsel for Respondent :- C.S.C.,Hritudhwaj Pratap Sahi,M.N. Singh,Manish Goya,Siddharth Singhal,Vijay Kumar Singh
 

 
Hon'ble B. Amit Sthalekar,J.

Hon'ble Jayant Banerji,J.

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. In this writ petition the petitioner no.1 is a Society stated to be a Non-Governmental Organization (N.G.O.) involved in various kinds of activities in public interest. The petitioner no.2 is one Manish Kumar Agarwal, who is stated to have been duly authorised by the governing body of the Society vide its Resolution dated 19.04.2018 (Annexure-3 to the writ petition) to contest this writ petition. The writ petition has been filed seeking the following reliefs:

"(a) issue a, writ order or direction in the nature of mandamus commanding and directing the respondents to produce entire records pertaining to the selection of Principals of State Medical College pursuant to the advertisement no.1/2017-18 dated 24.10.2017 as well as the service records of the respondent no.s.4 & 5;

(b) issue a, writ order or direction in the nature of quo warranto to declare the selection of respondent no.4 on the post of Principal of State Medical College pursuant to the advertisement no.1/2017-18 dated 24.10.2017 as invalid and void;

(c) issue a, writ order or direction in the nature of quo warrranto to declare the selection and appointment of respondent no.5 on the post of Principal of State Medical College, Jalaun pursuant to the advertisement no.1/2017-18 dated 24.10.2017 as invalid and void;

(d) issue such other and further appropriate writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case;

(e) to award the cost of petition in favour of the petitioners."

2. According to the petitioners an advertisement was issued by the Uttar Pradesh Public Service Commission being Advertisement No.1/2017-18 dated 24.10.2017 for filling up four posts of Principal (Allopathy) under the Medical Education Department, U.P. (Allopathy).

3. The grievance of the petitioners is that in the Advertisement the upper age limit for submitting application form has been fixed as 65 years (till retirement). The posts are in the Pay Scale of Rs.37400-67000/- in the Grade Pay of Rs.10,000/-. The Essential Qualification in the Advertisement is as under:

(i) M.D/M.S. Or an equivalent qualification recognised by Medical Council of India.

(ii) Atleast 10 years Teaching experience as Professor/Associate Professor/Reader in a recognized Medical College/Institution out of which atleast five years should be as professor in a department.

Preferential Qualification

Preference for these appointments may be given to the heads of the department in a Medical College or as head in any Medical Institution.

Age Limit required was-Upper age limit 65 years (till retirement).

There is also a Note which states that Essential qualification is required to be recognised by M.C.I. otherwise candidature will not be considered.

4. The contention of the petitioners is that Rule-9 of the Uttar Pradesh State Medical Colleges Teachers' Service Rules, 1990 (hereinafter referred to as the Rules, 1990) (as amended in 2005) prescribes that a candidate for direct recruitment for the post of Principal must not have attained the age of 55 years on the first day of July of the calendar year in which the vacancies are advertised. It is stated that contrary to the provisions of Rule 9 of the Rules, 1990 in the advertisement the maximum age has been fixed as 65 years and it is alleged that this has been done only to give undue benefits to the respondents no.4 & 5.

5. Rule 9 of the Rules, 1990 read as under:

"9. Age- a candidate for direct recruitment must have attained the minimum age and must not have attained the age more than the maximum age specified against the post in the table given below on the first day of July of the calendar year in which vacancies are advertised:

Serial No.

Name of the Post

Minimum Age

Maximum Age

Principal

55 years

Professor

45 years

Lecturer

21 years

35 years

Provided that the upper age limit in the case of the candidates belonging to the Scheduled Castes, Scheduled Tribes and such other categories as may be notified by the Government from time to time shall be greater by such number of years as may be specified."

6. It is stated that on 06.04.2018 a notice/select list regarding final selection of the Principals selected against the advertisement in question was published, copy of which has been filed as Annexure-5 to the writ petition. It is stated that interviews were held on 15th, 16th and 17th March, 2018 and the respondents no.4 & 5 alongwith two others were selected and they were placed in their respective seniority in the select list dated 06.04.2018.

7. It is stated that earlier a departmental enquiry was initiated against the respondent no.4 and on 11.03.2016 a punishment order was passed awarding adverse entry to the respondent no.4 and it was also directed that in future she will not be allowed to discharge any administrative duties or responsibilities. It is stated that the respondent no.4 had also filed a Writ Petition No.4119 of 2015 (Dr. Arti Lal Chandani Vs. State of U.P. And others) challenging the order dated 12.12.2014 by which she had been transferred to State Medical College, Banda but that writ petition was dismissed. It is alleged that the respondent no.4 then applied for voluntary retirement under the V.R.S. Scheme on 09.08.2016 which was accepted by the respondent no.1 on 29.8.2016. It is also alleged that subsequently the respondent no.4 submitted a representation on 02.05.2017 for setting aside the order dated 29.08.2016 but the same was rejected by order dated 23.10.20117. It is also stated that while submitting her application form against the Advertisement dated 24.10.2017 the respondent no.4 had also concealed the fact of her punishment order dated 11.03.2016.

8. According to the petitioners the respondent no.4 is not entitled to hold the office of Principal of the State Medical College as at the time of her voluntary retirement she was more than 60 years of age and currently her age is more than 63 years. It is also stated that the respondent no.4 was given a censure entry and directed not to hold any administrative post and yet she has been selected which would render her selection completely illegal. So far as the respondent no.5 is concerned, the only allegation made against him is in paragraph 27 of the writ petition and all that has been stated is that his selection for the post of Principal in the State Medical College is invalid. It is also stated that he has crossed the age of retirement under the V.R.S. Scheme and has also crossed the maximum age limit prescribed under Rules, 1990 for direct recruitment for the post of Principal in the State Medical College.

9. We have heard Sri Satish Chaturvedi, learned Senior Counsel for the petitioners, Sri Manish Goyal, learned Additional Advocate General for the respondents no.1 & 2, Sri M.N. Singh, learned counsel for the respondent no.3 and Sri Siddharth Singhal, learned counsel for the respondent no.4. No one has appeared on behalf of the respondent no.5. The service report of the office dated 07.07.2018 is that neither acknowledgment nor unserved notice has been received in the office as yet. In such circumstances service on respondent no.5 shall be deemed to be sufficient.

10. At the outset a preliminary objection has been raised by Sri Manish Goyal, learned Additional Advocate General for the State-Respondents to the effect that the writ petition is not maintainable as the petitioner no.1 is a Society whereas the petitioner no.2 has only been authorised by the governing body of the Society to file the present writ petition and that the relief no.(a) claimed in the writ petition is in the nature of mandamus directing the respondents to produce the entire records relating to the selection of the Principals of the State Medical College. He submits that the relief no.(a) is in the nature of a PIL as neither of the petitioners is seeking any relief for himself and therefore the writ petition with regard to relief no.(a) is not maintainable.

11. So far as the relief no.(b) is concerned, the objection of Sri Manish Goyal is that the respondent no.4 has till date not been appointed but she has only been selected, therefore, a writ of quo warranto to declare her selection on the post of Principal of State Medical College as invalid and void is also not maintainable as a writ of quo warranto can lie only against a person who has been appointed. He has placed reliance on the judgment of the Supreme Court in (2010) 9 SCC 655 (Hari Bansh Lal Vs. Sahodar Prasad Mahto and Others) wherein the Supreme Court in paragraph 11 to 15 has held as under:

"11. About maintainability of the Public Interest Litigation in service matters except for a writ of quo warranto, there are series of decisions of this Court laying down the principles to be followed. It is not seriously contended that the matter in issue is not a service matter. In fact, such objection was not raised and agitated before the High Court. Even otherwise, in view of the fact that the appellant herein was initially appointed and served in the State Electricity Board as a Member in terms of Section 5(4) and from among the Members of the Board, considering the qualifications specified in sub-section (4), the State Government, after getting a report from the vigilance department, appointed him as Chairman of the Board, it is impermissible to claim that the issue cannot be agitated under service jurisprudence.

12. We have already pointed out that the person who approached the High Court by way of a Public Interest Litigation is not a competitor or eligible to be considered as a Member or Chairman of the Board but according to him, he is a Vidyut Shramik Leader. Either before the High Court or in this Court, he has not placed any material or highlighted on what way he is suitable and eligible for that post.

13. In Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra a three- Judge Bench of this Court held (SCC p.281, para 18)

"if public interest litigations at the instance of strangers are allowed to be entertained by the Tribunal, the very object of speedy disposal of service matters would get defeated".

In para 21, this Court reiterated as under: (SCC p.283)

"21. In the result, we answer the first question in the negative and hold that the Administrative Tribunal constituted under the Act cannot entertain a public interest litigation at the instance of a total stranger."

14. In Ashok Kumar Pandey vs. State of W.B. this Court held thus: (SCC pp.358-59 16)

"16. As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that courts are flooded with a large number of so-called public interest litigations where even a minuscule percentage can legitimately be called public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in a large number of cases, yet unmindful of the real intentions and objectives, courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases. Though in Duryodhan Sahu (Dr) v. Jitendra Kumar Mishra this Court held that in service matters PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Whenever such frivolous pleas are taken to explain possession, the courts should do well not only to dismiss the petitions but also to impose exemplary costs. It would be desirable for the courts to filter out the frivolous petitions and dismiss them with costs as aforestated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the courts."

The same principles have been reiterated in the subsequent decisions, namely, B. Singh (Dr.) v. Union of India, Dattaraj Nathuji Thaware v. State of Maharashtra and Gurpal Singh vs. State of Punjab.

15. The above principles make it clear that except for a writ of quo warranto, Public Interest Litigation is not maintainable in service matters."

12. He has also placed reliance on the following judgments:

(a) (1998) 7 SCC 273 (Dr. Duryodhan Sahu and Others v. Jitendra Kumar Mishra and Others).

(b) (2004) 3 SCC 349 (Ashok Kumar Pandey v. State of W.B.).

(d) (2005) 1 SCC 590 (Dattaraj Nathuji Thaware v. State of Maharashtra and Others).

(e) (2005) 5 SCC 136 (Gurpal Singh v. State of Punjab and Others).

13. These judgments have already been referred to by the Supreme Court in Har Bansh Lal (supra) and therefore for sake of brevity we need not reproduce thus here.

14. The learned counsel for the petitioners has not been able to show as to how this writ petition at the behest of the petitioners no.1 & 2 is maintainable so far as the relief no.(a) is concerned, as the relief no.(a) relates to a service matter and the petitioner no.1 being a Non-Governmental Organization and the petitioner no.2 is not claiming relief for himself has not been shown as to how the relief in the nature of PIL in a service matter is maintainable. Therefore, on the facts of the case and the law laid down by the Supreme Court so far as the relief no.(a) is concerned, we dismiss the writ petition as not maintainable.

15. So far as relief no.(b) is concerned, the relief is for a direction in the nature of quo warranto to declare the selection of respondent no.4 on the post of Principal of State Medical College as invalid and void. It is not disputed between the parties that till date the respondent no.4 has not been appointed as Principal of a State Medical College. The petitioners are also not challenging the appointment of the respondent no.4 but are only challenging her selection.

16. In Hari Bansh Lal (Supra) the Supreme Court has held that even for issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules. Paragraph 19 of the said judgment reads as under:

"19. It is clear from the above decisions that even for issuance of writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules. In the later part of our judgment, we would discuss how the appellant herein was considered and appointed as Chairman and whether he satisfied the relevant statutory provisions."

17. In (2006) 11 SCC 731 (B. Sriniwasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Association) the Supreme Court in paragraph 49 thereof has held as under:

"49. The law is well settled. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine, at the outset, as to whether a case has been made out for issuance of a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one which can only be issued when the appointment is contrary to the statutory rules."

18. Therefore what emerges from the law laid down by the Supreme Court in Hari Bansh Lal and B. Sriniwasa Reddy (supra) is that a writ of quo warranto will issue only when there is a challenge to an appointment as being contrary to the statutory rules. By issuance of a writ of quo warranto the Court only declares the appointment to be void. The Court only makes a public declaration but will not consider the respective impact on the candidates or other factors which may be relevant for issuance of a writ of certiorary.

19. It is not disputed between the parties that the respondent no.4 has not yet been appointed as Principal. This fact is further borne out from the order of the Court dated 31.05.2018 that the respondent no.4 has been selected but not appointed. The order of the previous Bench dated 31.05.2018 reads as under:

"1. Selection and appointment made by respondent -3 on the post of Principal in State Medical Colleges has been challenged on the ground that under Statutory Rules namely, U.P. State Medical Colleges Teachers Service Rules 1990 (hereinafter referred to as "Rules, 1990") maximum age for appointment prescribed is 55 years on the first day of July of every calendar year in which vacancies are advertised but in the present case Commission advertised maximum age as 65 years and has made recruitment which is patently illegal and selection recommendation and appointment of the incumbents who are above age prescribed under Rules 1990 is patently illegal.

2. Respondents were directed to seek instructions as to whether there is any amendment in Rules or not. Sri M.N. Singh, learned counsel appearing on behalf of Commission on instructions, stated that there is no amendment in Rules, 1990 and only on the basis of Government Order dated 06.02.2015, age has been increased. Apparently the recruitment and appointment in the case in hand is patently illegal.

3. We are informed that respondent no. 5 has already been appointed and respondent no. 4 has been selected but not appointed. In these facts and circumstances, we direct that appointment of respondent no. 5 shall be subject to result of writ petition and respondents are restrained to appoint respondent no. 4 without satisfying that she fulfills eligibility conditions prescribed under Rules 1990.

4. Respondent 1 and 2 are represented by learned Standing Counsel. Sri M.N. Singh, Advocate has put in appearance on behalf of respondent no. 3. They pray for and are allowed one month time to file counter affidavit.

5. Issue notice to respondents 4 and 5 returnable at an early date. They may also file their counter affidavits within two weeks' from the date of receipt of notice.

6. List this matter on 09.07.2018."

We therefore hold that the writ petition in so far as the relief no.(b) seeking a writ in the nature of quo warranto in respect of respondent no.4 is concerned, is not maintainable and is accordingly dismissed.

20. So far as relief no.(c) relating to the respondent no.5 is concerned, it is not disputed that he has been appointed as Principal of the State Medical College, Jalaun in pursuance of the Advertisement dated 24.10.2017 and therefore, to that extent this writ petition would be maintainable.

21. The allegation in the writ petition is that in the Advertisement the upper age limit for recruitment has been fixed as 65 years (till retirement). The Essential Qualification prescribed is :-

(i) M.D/M.S. or an equivalent qualification recognised by Medical Council of India.

(ii) Atleast 10 years Teaching experience as Professor/Associate Professor/Reader in a recognized Medical College/Institution out of which atleast five years should be as professor in a department.

Under the head Preferential Qualification it was laid down that was preference for these appointments may be given to the heads of the department in a Medical College or as head in any Medical Institution.

Age Limit:- Upper age limit 65 years (till retirement).

There is also a Note which states that Essential qualification is required to be recognised by M.C.I. otherwise the candidature will not be considered.

22. Sri Satish Chaturvedi, learned counsel for the petitioner submitted that Rule 9 of the Rules, 1990 provides that a candidate for direct recruitment must have attained the minimum age and must not have attained the age more than the maximum age specified against the post on the first day of July of the calendar year in which vacancies are advertised. For the post of Principal the maximum age prescribed is 55 years. Rule 9 of the Rules, 1990 reads as under:

Serial No.

Name of the Post

Minimum Age

Maximum Age

Principal

55 years

Professor

45 years

Lecturer

21 years

35 years

His contention therefore is that the maximum age limit of 65 years as prescribed in the Advertisement is not in sync with rather it is de hors the maximum age prescribed in Rule 9 of the Rules, 1990 and the Rules, 1990 being statutory rules the advertisement which prescribes the age limit which is contrary to what is provided in the Rules, 1990 would be ab intio void and any selection and appointment based on such an advertisement would also be null and void.

23. His contention further was that the Government Order dated 06.02.2015 filed alongwith the counter affidavit issued by the State Government enhancing the age of superannuation as well as the age for recruitment of Medical Officers by the U.P. Public Service Commission from 60 years to 65 years is contrary to the Rules, 1990 and the Rules, 1990 being Rules framed under Article 309 of the Constitution of India will prevail over any Government Order.

24. Sri Chaturvedi further submitted that Section 32 of the Indian Medical Council Act, 1956 (hereinafter referred to as the Act, 1956) confers power on the Central Government to make rules to carry out the purposes of this Act. Section 32 of the Act, 1956 reads as under:

"32. Power to make rules.- (1) The Central Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.

(2) Every Rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under the rule]."

25. Section 33 of the Act, 1956 confers power on the Council to make Regulations generally to carry out the purposes of this Act. Section 33 of the Act, 1956 reads as under:

"33. Power to make regulations.- The Council may, with the previous sanction of the Central Government, make regulations generally to carry out the purposes of this Act, and without prejudice to the generality of this power, such regulations may provide for-

(a) the management of the property of the Council and the maintenance and audit of its accounts;

(b) the summoning and holding of meetings of the Council, the times and places where such meetings are to be held, the conduct of business thereat and the number of members necessary to constitute a quorum;

(d) the powers and duties of the President and Vice-President;

(e) the mode of appointment of the Executive Committee and other Committees, the summoning and holding of meetings and the conduct of business of such Committees;

(f) the tenure office, and the powers and duties of the Registrar and other officers and servants of the Council;

(fa) the form of the scheme, the particulars to be given in such scheme, the manner in which the scheme is to be preferred and the fee payable with the scheme under clause (b) of sub-section (2) of section 10A;

(fb) any other factors under clause (g) of sub-section (7) of section 10A;

(fc) the criteria for identifying a student who has been granted a medical qualification referred to in the Explanation to sub-section (3) of section 10B;

(g) the particulars to be stated, and the proof of qualifications to be given in applications for registration under this Act;

(h) the fees to be paid on applications and appeals under this Act;

(i) the appointment, powers, duties and procedure of medical inspectors and visitors;

(j) the courses and period of study and of practical training to be undertaken, the subjects of examination and the standards of proficiency therein to be obtained, in Universities or medical institutions for grant of recognized medical qualifications;

(k) the standards of staff, equipment, accommodation, training and other facilities for medical education;

(l) the conduct of professional examination; qualifications of examiners and the conditions of admissions to such examinations;

(m) the standards of professional conduct and etiquette and code of ethics to be observed by medical practitioners; and

(ma) the modalities for conducting screening tests under sub-section (4A), and under the proviso to sub-section (4B), and for issuing eligibility certificate under sub-section (4B), of section 13;

(n) any matter for which under this Act provision may be made by regulations."

26. The submission is that no rules have been framed by the Medical Council of India with regard to the upper age limit for appointment on the post of Principal and the Regulations also do not indicate that they have the sanction of the Central Government and therefore in the absence of any rule or regulation framed in contemplation of the statutory provisions of Sections 32 and 33 of the Act, 1956 the Government Order dated 06.02.2015 cannot supersede the provisions of Rule 9 of the Rules, 1990, which are statutory rules framed under Article 309 of the Constitution of India.

Sri Satish Charturvedi in support of his submissions has placed reliance on the following judgments:

(i) AIR 1967 SC 1910 (Sant Ram Sharma Vs. State of Rajasthan)

(ii) (2001) 5 SCC 482 (Dr. Rajendra Singh Vs. State of Punjab)

(iii)(2004) 12 SCC 588 (Virendra Singh Hooda Vs. State of Haryana)

(iv) 2012 (ADJ) 333 (Dr. Akhilesh Singh and Others Vs. State of U.P. And Others)

(v) Service Bench No.1654 of 2011 (Dr. Ravindra Nath Vs. State of U.P. Decided on 15.09.2001)

27. Sri Manish Goyal, learned Additional Advocate General, on the other hand, submitted that the Indian Medical Council Act, 1956 provides for framing of rules and regulations for guidance, governance and management of Medical Colleges and any such regulation framed by the Medical Council of India would prevail over any rule made by the State Government. The submission is that the Central Government is empowered to frame rules with regard to Item No.66 of List (I) of Schedule 7 of the Constitution of India with regard to coordination and determination of standards in Institutions for higher education or research and scientific and technical institutions. Item No.66 of List (I) of Schedule 7 of the Constitution of India reads as under:

"66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions."

List-III of Schedule-7 which is the Concurrent List confers power on the Central Government as well as the State Government to legislate with regard to the Items mentioned therein. Entry 25 of the List includes Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List-I; vocational and technical training of labour. Item No.25 of List (III) of Schedule 7 of the Constitution of India reads as under:

"25. Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List-I; vocational and technical training of labour."

28. The case of the respondents further is that the Medical Council of India issued Minimum Qualification for Teachers in Medical Institutions Regulations, 1998 (amended upto 8th June, 2017) and Schedule-1 thereto which contains the amended Regulation 1-A provides that the maximum age limit upto which a person can be appointed or granted extension or re-employed in service against the posts of Teachers or Dean or Principal or Director, as the case may be, which are required to be filled up as per the norms of the Medical Council of India in any Medical College or Teaching Institution for imparting Graduate and Post Graduate medical education, shall be 65 years. Clause -1A was added by way of amendment vide Notification published on 16.03.2005 in the Gazette of India. This Clause-1A was inserted after the existing Para 1. The last word of the paragraph provides that the words "shall be 65 years", shall be amended in terms of Notification dated 17.09.2010 to read as "shall be 70 years".

29. Schedule-I Clause 1 and 1A of the Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998 as amended upto 8th June, 2017 reads as under:-

SCHEDULE-I

Every appointment authority before making an appointment to a teaching post in medical college or institution shall observe the following norms:

1. All Medical teachers must possess a basic University or equivalent qualification included in any one of the Schedules to the Indian Medical Council Act, 1956 (102 of 1956). They must also be registered in a State Medical Register or Indian Medical Register.

The Clause 1A as under is included in terms of Notification published on 16.03.2005 in Gazette of India.

1A "The maximum age limit upto which a person can be appointed or granted extension or re-employed in service against the posts of Teachers or Dean or Principal or Director, as the case may be, which are required to be filled up as per the norms of the Medical Council of India in any Medical College or Teaching Institution for imparting Graduate and Post-Graduate medical education, shall be 65 years.

The Clause '1A' was inserted after paragraph 1, vide notification dated 16.03.2005. The last words of the paragraph i.e. "shall be 65 years.", shall be amended as under, in terms of notification dated 17.09.2010.

"shall be 70 years."

30. Sri Manish Goyal, learned Additional Advocate General has further referred to Rule 8 of the Rules, 1990 (as amended) which provides that 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. Rule 8 of the Rules, 1990 reads as under:

"8. Academic qualification--(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.

(2) A candidate for recruitment to the various posts in the Department of Pharmacy must possess the qualifications given in Appendix 'B'."

31. He therefore submits that Rule 8 of the Rules, 1990 itself provides that a candidate for recruitment must possess the qualification prescribed by the Medical Council of India from time to time and further submitted that the Medical Council Regulations, 1998 (as amended upto 8th June, 2017), Annexure-1 to the counter affidavit filed by the State by including Clause 1A vide amendment Notification dated 16.03.2005 had provided that the maximum age limit upto which a person can be appointed or granted extension or re-employed in service against the posts of Teachers or Dean or Principal or Director, as the case may be, which are required to be filled up as per the norms of the Medical Council of India in any Medical College or Teaching Institution or imparting Graduate and Post Graduate medical education shall be 65 years and subsequently Clause-1A amended in terms of Notification dated 17.09.2010 the age of 65 years was enhanced to 70 years.

32. The learned counsel submitted that Clause-1A as amended in the Regulations, 1998 was notified in the Gazette of India published on 16.03.2005 providing the age of recruitment of Principal as 65 years but the same was never challenged by the petitioners at any point of time and even now the petitioners have not challenged the amended Clause-1A which by Notification dated 17.09.2010 has enhanced the age of recruitment to 70 years. He further submitted that since Clause-1A has been included by way of amendment in the minimum qualification for Teachers in Medical Institution Regulations, 1998 therefore, it is a part of the Academic Qualification and therefore, in terms of the Rule 8 of the 1990 Rules (amended) a candidate for recruitment must possess the qualification prescribed by the Medical Council of India from time to time under the heading of Academic Qualification for which now the maximum age of recruitment for the post of Principal shall be 70 years.

33. He has further referred to the provisions of Section 19A of the Act, 1956 which provides for laying down minimum standards of medical education and states that the Council may prescribe the minimum standards of medical education required for granting recognised medical qualifications (other than post graduate medical qualifications) by universities or medical institutions in India. Section 19A of the Act, 1956 reads as under:

"19A. Minimum standards of medical education.-(1) The Council may prescribe the minimum standards of medical education required for granting recognised medical qualifications (other than post-graduate medical qualifications) by universities or medical institutions in India.

(2) Copies of the draft regulations and of all subsequent amendments thereof shall be furnished by the Council to all State Governments and the Council shall, before submitting the regulations or any amendment thereof, as the case may be, to the Central Government for sanction, take into consideration the comments of any State Government received within three months from the furnishing of the copies as aforesaid.

(3) The Committee shall from time to time report to the Council on the efficacy of the regulations and may recommend to the Council such amendments thereof as it may think fit."

34. Sri Satish Chaturvedi, on the other hand, referring to the Medical Council of India Amendments dated 17.09.2010 and 16.03.2005 submitted that these Regulations shall not supersede the Statutory Rules, 1990 framed by the State Government under Article 309 of the Constitution of India. He further submitted that Rule 8 of the Rules, 1990 only speaks of Academic Qualification and does not deal with age where as Rule 9 of the Rules, 1990 specifically lays down the age of recruitment as 55 years and that age cannot be enhanced by a mere Government Order dated 06.02.2015.

35. In support of his contention Sri Satish Chaturvedi has relied upon the judgment of the Supreme Court reported in (2004) 12 SCC 588 (Virendra Singh Hooda Vs. State of Haryana) in which the Supreme Court has held that an executive instruction will not prevail over Statutory Rules. Paragraph 24 of the judgment reads as under:

"24. The aforesaid circular is general in nature and does not refer to any particular service or service rules. In law if an executive instruction is contrary to Statutory Rules, the Rules will prevail and not the executive instructions. Further reading of aforesaid circular shows that it is applicable to pre-existing vacancies."

36. In the same context he has referred to another judgment of the Supreme Court reported in AIR 1967 SC 1910 (Sant Ram Sharma Vs. State of Rajasthan and Another) paragraph 15 of which reflects the same proposition of law that the Government cannot amend or supersede Statutory Rules by administrative instructions. Paragraph 15 of the judgment reads as under:

"15.We proceed to consider the next contention of Mr. N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed."

37. He has also referred to the judgment of the Supreme Court reported in (2001) 5 SCC 482 (Dr. Rajinder Singh Vs. State of Punjab and Others) wherein also it has been held that Statutory Rules cannot supersede or amend or altered by administrative instructions or government order, notification or circular. Paragraph 8 of the judgment reads as under:

"8. The settled position of law is that no Government Order, Notification or Circular can be a substitute of the statutory rules framed with the authority of law. Following any other course would be disastrous inasmuch as it would deprive the security of tenure and right of equality conferred upon the civil servants under the constitutional scheme. It would be negating the so far accepted service jurisprudence. We are of the firm view that the High Court was not justified in observing that even without the amendment of the rules, the Class II of the service can be treated as Class I only by way of notification. Following such a course in effect amounts to amending the rules by a Government Order and ignoring the mandate of Article 309 of the Constitution."

38. Learned counsel next referred to the judgment of the Division Bench of this Court given in Service Bench No.1654 of 2011 (Dr. Ravindra Nath Tripathi Vs. State of U.P. Through Secretary Medical Education and others) decided on 15.09.2011 which was a case under the U.P. State Homeopathic Medical Colleges Teachers' Service Rules, 1990 where also as in the case of Medical Colleges there is a Central Council of Homeopathy under the Homeopathy Central Council Act, 1973 (hereinafter referred to as the Act, 1973) and under Section 73 of the Act, 1973 power has been conferred on the Central Council to frame Regulations and the Division Bench has held that Regulations framed cannot be said to be the Central Act or law enacted by Parliament. In that case the petitioner therein had been rejected for being considered for appointment on the post of Lecturer in Homeopathy advertised by the U.P. Public Service Commission on the ground that he did not possess the essential qualifications required. The qualifications mentioned in the advertisement were in pursuance of the provisions of the U.P. State Homeopathic Medical Colleges Teachers' Service Rules, 1990 which provides;

(A) recognized Diploma or Degree in Homeopathy;

(ii) Degree recognized by Medical Council of India.

(B) Three years' experience in a recognized Homeopathy or Allopathy Medical College.

The contention of the petitioner therein was that the qualifications prescribed under the Act, 1973 would prevail and the State rules regarding qualifications would have to be amended.

39. Sri Manish Goyal, learned Additional Advocate General submitted that the Court while deciding the judgment of Ravindra Nath Tripathi (supra) has omitted to notice that Rule 8 of the U.P. State Homeopathic Medical Colleges Teachers' Service Rules, 1990 while referring to academic qualifications has itself laid down that a candidate for direct recruitment to the various posts in the service must possess the qualifications, as are given in Appendix 'B' and since Appendix 'B' was itself never discussed there would have been no need for the Court to consider if there was any conflict between the State Rules and the Central Regulations and therefore, the judgment of the Division Bench in the case of Ravindra Nath Tripathi was sub silentio.

40. Having gone through the judgment of Dr. Ravindra Nath Tripathi (supra) we find that Rule 8 of the U.P. State Homeopathic Medical Colleges Teachers' Service Rules, 1990 itself provided that the academic qualifications shall be such as are prescribed in Appendix 'B' of the Rules but through the Court made a passing reference to Appendix B it did not discuss the same further on merit and therefore, in our opinion, the judgment of Dr. Ravindra Nath Tripathi is a judgment sub silentio and is not a binding precedent on the law laid down herein. For the same reason the judgment in the case of Dr. Akhilesh Singh and Others Vs. State of U.P. And Others 2012 (2) ADJ 333 also does not have any binding precedent as it has followed the judgment in the case of Dr. Ravindra Nath Tripathi (supra).

41. Learned Additional Advocate General then submitted that M.C.I. Regulations, 1998 have been amended upto 8th June, 2017 and these regulations being statutory there would be a presumption of their validity in law unless it is proved otherwise. He further submitted that minimum qualifications for teachers in the Medical Institution Regulations, 1998 as amended upto 8th June, 2017 is a statutory regulation and there would a presumption as to the validity of these regulations unless it is proved otherwise and the burden to disprove the same always lies upon the person who is questioning the validity of the Regulations.

The law in this regard has been settled by the Supreme Court in AIR 1951 SC 41 (Charanjit Lal Chawdhury Vs. Union of India), AIR 1951 SC 318 (State of Bombay Vs. F.N. Balsara) and AIR 1959 SC 942 (Mahant Moti Das Vs. S.P. Sahi).

The law laid down in the above judgments has been affirmed by the Supreme Court in (1999) 9 SCC 700 (B.R. Enterprises Vs. State of U.P. And Other) (para 81).

In our opinion, our judgment need not be burdened by reproducing the various paragraphs of the judgments referred to above.

Merely alleging that the Regulations, 1998 as amended upto 2017 are invalid would not render them void and the burden is upon the petitioners to prove it otherwise. In the present case the petitioners have only made a bald allegation of the invalidity of the Regulations without disclosing any supporting material in that regard.

42. Sri Manish Goyal further submitted that both the Central Government as well as the State Government are empowered to legislate in respect of matters which fall under Entry 25 of List-III of Schedule VII of the Constitution of India and therefore, if there ever is a conflict between the Central Law and the State Law, subject to the exception carved out in Clause (2) of Article 254 of the Constitution of India, the Central Law would prevail. Reference has been made to the judgment of the Supreme Court reported in (2015) 6 SCC 363 (Kalyani Mathivanan Vs. K.V. Jeyaraj and Others) and paragraphs 46, 47, 48, 49, 50, 51,52 and 53 read as under:

"46. Article 246 demarcates the matters in respect of which Parliament and State Legislature may make laws. The legislative powers of the Central and State Governments are governed by the relevant entries in the three lists given in 7th Schedule.

47. Entry 66 in List I provides for Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Prior to 42nd Amendment, education including Universities subject to the provisions of the Entries 63, 64, 65, 66 of List-I and Entry 25 of List III was shown in Entry 11 of the List II - State List. By 42nd Amendment of Constitution w.e.f. 3rd January, 1977 Entry 11 of List II-State List was omitted and was added as Entry 25 of List-III. At present the aforesaid provisions read as follows:

"Seventh Schedule

List I - Union List

66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.

List III - Concurrent List

25.- Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour."

48. Article 254 relates to repugnancy of Law made by the State with the law made by the Parliament. Article 254 reads as follows:-

"254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.-(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause ( 2 ), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."

49. The effect in case of inconsistency between the Legislation made by the Parliament and the State Legislature on the subject covered by List III has been decided by this Court in numerous cases.

50. In State of Tamil Nadu and another vs. Adhiyhaman Education & Research Institute, this Court noticed that Schedule VII list I Entry 66 has remained unchanged from the inception and that Entry 11 was taken out from List II and was amalgamated with Entry 25 of List III. In the said case the Court held as follows: (SCC pp. 113-14 & 134-35, paragraph 12 & 41)

"12.The subject "coordination and determination of standards in institutions for higher education or research and scientific and technical institutions" has always remained the special preserve of Parliament. This was so even before the Forty-second Amendment, since Entry 11 of List II even then was subject, among others, to Entry 66 of List I. After the said Amendment, the constitutional position on that score has not undergone any [pic]change. All that has happened is that Entry 11 was taken out from List II and amalgamated with Entry 25 of List III. However, even the new Entry 25 of List III is also subject to the provisions, among others, of Entry 66 of List I. It cannot, therefore, be doubted nor is it contended before us, that the legislation with regard to coordination and determination of standards in institutions for higher education or research and scientific and technical institutions has always been the preserve of Parliament. What was contended before us on behalf of the State was that Entry 66 enables Parliament to lay down the minimum standards but does not deprive the State legislature from laying down standards above the said minimum standards. We will deal with this argument at its proper place.

* * * *

41. What emerges from the above discussion is as follows:

(i) The expression 'coordination' used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make 'coordination' either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention.

(ii) To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative.

(iii) If there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of clause (2) of Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative.

(iv) Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case.

(v) When there are more applicants than the available situations/seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the Centre or the Central authority to short-list the applicants. When the State authority does so, it does not encroach upon Entry 66 of the Union List or make a law which is repugnant to the Central law.

(vi) However, when the situations/seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally. So also when the State authorities de-recognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the Central authority, the State authorities act illegally."

51. In Dr. Preeti Srivastava and another vs. State of M.P. a Constitution Bench of five Judges dealt with the State competence under List III Entry 25 to control or regulate higher education which is subject to standards laid down by the Union of India. The Court noticed that the standards of higher education can be laid down under List I Entry 66 by the Central Legislation and held as follows: (SCC pp. 153-55, paras 35-37)

"35. The legislative competence of Parliament and the legislatures of the States to make laws under Article 246 is regulated by the VIIth Schedule to the Constitution. In the VIIth Schedule as originally in force, Entry 11 of List II gave to the State an exclusive power to legislate on "education including universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III".

Entry 11 of List II was deleted and Entry 25 of List III was amended with effect from 3-1-1976 as a result of the Constitution 42nd Amendment Act of 1976. The present Entry 25 in the Concurrent List is as follows:

"25.Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour." [pic] Entry 25 is subject, inter alia, to Entry 66 of List I. Entry 66 of List I is as follows:

"66. Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions."

Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977, education, including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254.

36. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. Some of these are:

(1) the calibre of the teaching staff;

(2) a proper syllabus designed to achieve a high level of education in the given span of time;

(3) the student-teacher ratio;

(4) the ratio between the students and the hospital beds available to each student;

(5) the calibre of the students admitted to the institution;

(6) equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges;

(7) adequate accommodation for the college and the attached hospital; and

(8) the standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged.

37. While considering the standards of education in any college or institution, the calibre of students who are admitted to that institution or college cannot be ignored. If the students are of a high calibre, training programmes can be suitably moulded so that they can receive the maximum benefit out of a high level of teaching. If the calibre of the students is poor or they are unable to follow the instructions being imparted, the standard of teaching necessarily has to be lowered to make them understand the course which they have undertaken; and it may not be possible to reach the levels of education and training which can be attained with a bright group. Education involves a continuous interaction between the teachers and the students. The pace of teaching, the level to which teaching can rise and the benefit which the students ultimately receive, depend as much on the calibre of the students as on the calibre of the teachers and the availability of adequate infrastructural facilities. That is why a lower student-teacher ratio has been considered essential at the levels of higher university education, particularly when the training to be imparted is a highly professional training requiring individual attention and on-hand training to the pupils who are already doctors and who are expected to treat patients in the course of doing their postgraduate courses."

52. In Annamalai University vs. Secretary to Government, Information and Tourism Department, this Court observed that UGC Act was enacted by Parliament in exercise of its power under Entry 66 of List I of the Seventh Schedule to the Constitution of India whereas the Open University Act was enacted by Parliament in exercise of its power under Entry 25 of List III. It was held that in such circumstances the question of repugnancy between the provisions of the said two Acts, does not arise. The Court while holding that the provisions of the UGC Act are binding on all the Universities held as follows: (SCC p. 607, paras 40 & 42)

"40. The UGC Act was enacted by Parliament in exercise of its power under Entry 66 of List I of the Seventh Schedule to the Constitution of India whereas the Open University Act was enacted by Parliament in exercise of its power under Entry 25 of List III thereof. The question of repugnancy of the provisions of the said two Acts, therefore, does not arise. It is true that the Statement of Objects and Reasons of the Open University Act shows that the formal system of education had not been able to provide an effective means to equalise educational opportunities. The system is rigid inter alia in respect of attendance in classrooms. Combinations of subjects are also inflexible.

42. The provisions of the UGC Act are binding on all universities whether conventional or open. Its powers are very broad. The Regulations framed by it in terms of clauses (e), (f), (g) and (h) of sub-section (1) of Section 26 are of wide amplitude. They apply equally to open universities as also to formal conventional universities. In the matter of higher education, it is necessary to maintain minimum standards of instructions. Such minimum standards of instructions are required to be defined by UGC. The standards and the coordination of work or facilities in universities must be maintained and for that purpose required to be regulated. The powers of UGC under Sections 26(1)(f) and 26(1)(g) are very broad in nature. Subordinate legislation as is well known when validly made becomes part of the Act. We have noticed hereinbefore that the functions of UGC are all-pervasive in respect of the matters specified in clause (d) of sub-section (1) of Section 12-A and clauses (a) and (c) of sub-section (2) thereof."

53. The aforesaid judgment makes it clear that to the extent the State Legislation is in conflict with Central Legislation including sub-ordinate legislation made by the Central Legislation under Entry 25 of the Concurrent List shall be repugnant to the Central Legislation and would be inoperative.

The judgment of Dr. Preeti Srivastava and Another Vs. State of M.P., (1990) 7 SCC 120 relied upon by the respondents, has already been discussed in the judgment of Kalyani Mathivanan (supra) and therefore need not be quoted for the sake of brevity.

43. In (1998) 6 SCC 131 (Medical Council of India Vs. State of Karnataka and Others) the Supreme Court has held as under:

"27. The State Acts, namely, Karnataka Universities Act and Karnataka Capitation Fee Act must give way to the central Act, namely, the Indian Medical Council Act, 1956. Karnataka Capitation Fee Act was enacted for the sole purpose of regulation in collection of capitation is empowered to fix the maximum number of students that can be admitted but that number cannot be over and above that fixed by the Medial Council as per the Regulations. Chapter IX f the Karnataka Universities Act, which contains provision for affiliation of colleges and recognition of institutions, applies to all types of colleges and not necessarily to professional colleges like medical colleges. Sub-section (10) of Section 53, falling in Chapter IX of this Act, provides for maximum number of students to be admitted to course for studies in a college and that number shall not exceed the intake fixed by the University or the Government. But this provision has again to be read subject to the intake fixed by the Medical Council under its Regulations. It is the Medical Council which is primarily responsible for fixing standards of medical education and over-seeing that these standards are maintained. It is the Medical Council which is the principal body to lay down conditions for recognition of medical colleges which would include the fixing of intake for admission to a medical college. We have already seen in the beginning of this judgment various provisions of the Medical Council Act. It is, therefore, the Medical Council which in effect grants recognition and also withdraws the same. Regulations under Section 33 of the Medical Council Act, which were made in 1977, prescribe the accommodation in the College and its associated teaching hospitals and teaching and technical staff and equipment in various departments in the college and in the hospitals. These Regulations are in considerable details. Teacher-student ratio prescribed is 1 to 10 exclusive of the professor or head of the department. Regulations further prescribe, apart from other things, that number of teaching beds in the attached hospitals will have to be in the ratio of 7 beds per student admitted. Regulations of the Medical Council, which were approved by the Central Government in 1971, provide for the qualification requirements for appointments of persons to the posts of teachers and visiting Physician/Surgeons of medical colleges and attached hospitals. "

44. Learned counsel for the petitioners has also relied on the judgment of the Supreme Court reported in (1995) 4 SCC 104 (State of T.N. And Another Vs. Adhiyaman Educational & Research Institute and Others) particularly paragraph 41 thereof. The judgment of Adhiyaman (supra) has already been referred to by the Supreme Court in the decision of Kalyani Mathivanan (supra) and therefore, the paragraph 41 thereof need not be quoted here for the sake of brevity.

45. Upon our analysis and examination of the Medical Council of India Regulations, 1998 we may note that the age of recruitment as amended from time to time has been prescribed by the Medical Council of India under the minimum qualifications for Teachers in Medical Institution Regulations, 1998 as amended upto 8th June, 2017 and the age now prescribed is 70 years for a Principal as the maximum age limit upto which a person can be appointed or granted extension or re-employment in service against the post of Teacher and Principal etc. The provisions relating to age being mentioned under the heading of Minimum Qualifications are therefore mandatory in view of the provisions of Rule 8 of the 1990 Rules, which under the heading of Academic Qualifications provides that a candidate for direct recruitment to the various categories of posts in the service other than the Department of Pharmacy must possess the qualifications prescribed in the Regulations framed by the Medical Council of India from time to time. In this view of the matter, in our opinion, having reference to the judgments of the Supreme Court referred to hereinabove in the cases of Kalyani Mathivanan (supra), Medical Council of India (supra) and Adhiyaman Educational & Research Institute (supra) the age of recruitment as prescribed by the Medical Council of India in its Regulations, 1998 as amended from time to time shall prevail over the provisions of Rule 9 of the 1990 Rules in view of Article 254 of the Constitution of India and the provisions of Rule 9 in so far as the post of Principal is concerned shall to that extent be inoperative.

46. So far as the contention of the petitioners that the respondent no.5 had sought voluntary retirement and therefore, he is ineligible for recruitment to the post of Principal is concerned, the same is thoroughly misconceived inasmuch as Clause 1A of the Regulations, 1998 as amended upto 2017 speaks of appointment, extension or re-employment. The word re-employment does not imply an employment by a candidate only after attaining the age of superannuation. A person would be eligible for recruitment even after he accepts V.R.S. Provided he fulfils the eligibility criteria prescribed by the Medical Council of India and therefore even if the respondent no.5 had sought voluntary retirement at any point of time that would not in itself render him ineligible to seek appointment/re-employment under the respondents and therefore, on that ground also we do not find any illegality or infirmity in the appointment of respondent no.5.

47. Therefore on a conspectus of facts and the law laid down by the Supreme Court in the cases of Kalyani Mathivanan (supra), Medical Council of India (supra) and Adhiyaman Educational & Research Institute (supra) the writ petition lacks merit and is accordingly dismissed.

Order Date :- 5th October, 2018

N Tiwari