10. Per contra, learned counsel appearing for respondent No.1 has
supported the judgment on all fours.
11. Having heard learned counsel for the parties and perused the material
12. Vide Advertisement Notice No.1 of 2012 dated 10.01.2012, the
remained unfilled. Thereafter, couple of advertisement notifications
Assistant Professor in Clinical Pharmacology could not be filled up.
Pharmacology. Six candidates responded to the Advertisement
Clinical Pharmacology. The selection process was conducted by the
Apical Selection Committee, in which Dr. Mudasir Sharief Banday-
most meritorious candidate. He was, thus, recommended for the post
of Assistant Professor notified under Open Merit Category.
points. The post of Assistant Professor, which, as claimed by the
13. Feeling aggrieved by the selection of respondent No.4 and his
disposed of by a Bench of this Court vide order dated 12 th may, 2022.
14. In compliance with the aforesaid direction, the respondent-Institute
consideration order i.e. Office Order No.130(P) of 2022 dated
30.07.2022. The claim of respondent No.1 for being selected as
a) That the Apical Selection Committee had fixed 50 points as
benchmark for selection in the open merit and respondent No.1
had obtained only 48.00 points.
b) That there was only one post of Assistant Professor in the open
merit and respondent No.4 with the highest points of 70.00 was
recommended for appointment under open merit category and
the other post, which was reserved for Scheduled Caste
category remained unfilled due to non-availability of a
candidate belonging to the said category.
15. It is true that by the time the consideration order (supra) came to be
passed, the respondent-Institute had issued Advertisement
Notification No.02 of 2021 dated 17.04.2021 notifying inter alia one
post of Assistant Professor in the department of Clinical
Pharmacology without indicating the stream medical or non-medical.
Respondent No.1 for reasons best known to him did not respond to
the aforesaid notification. It is only when his claim in reference to
advertisement notification No.07 of 2016 was rejected by the
respondent-Institute in terms of consideration order dated 30.04.2022
(supra), respondent No.1 approached the Writ Court by way of
WP(C) No.2749/2022 in which respondent No.1 inter alia challenged
the advertisement notification No.2 of 2021 as well as consideration
order dated 30.07.2022.
16. The writ petition was contested, amongst others, by the respondent-
Institute. With regard to the advertisement notification No.7 of 2016,
it was contended by the respondent-Institute that, though respondent
No.1 had participated in the selection process, which was carried for
two posts of Assistant Professor in Clinical Pharmacology (OM-1,
SC-1), yet he could not make the grade. Respondent No.1 not only
had failed to obtain the benchmark points, but was also far inferior in
merit than the candidate selected and appointed against open merit
category. It was reiterated that one post of Assistant Professor
earmarked for Scheduled Caste remained unfilled due to non-
availability of candidates belonging to the said category. The detailed
consideration order passed by the respondent-Institute was, thus,
sought to be justified on the aforesaid grounds.
17. It is submitted that, though, the post available with the respondent-
Institute after the selection of 2016, was the one earlier earmarked for
Scheduled Caste category but due to the issuance of revised roster in
terms of S.O.127 dated 20.04.2020, same was de-reserved and
notified for the open merit in terms of Notification No.2 of 2021
dated 17.04.2021. Respondent No.1 has staked his claim on the post
of Assistant Professor notified vide advertisement notification No.2 of
2021 on the ground that this post ought to be filled up from the non-
medical category. The claim is sought to be justified on the ground
that right from the year 2013 till date, not even a single post has been
filled up from non-medical stream. Reliance has been placed by
respondent No.1 on the norms of Medical Council of India
prescribing that the faculty of Clinical Pharmacology must have
faculty in the ratio of 70:30 medical and non-medical respectively.
18. With a view to analyze rival contentions, we deem it necessary to
first set out the relevant extract of "Minimum Qualification for
Teachers in Medical Institutions Regulations, 1998" as amended up to
8th June, 2017, which reads thus:-
"1. Short title and commencement: (1) These regulations may
be called the "Minimum Qualifications for Teachers in Medical
Institutions Regulations, 1998
(2) They shall come into force on the date of their publication in
the Official Gazette.
2 Objectives: Appointment of medical teachers, with minimum
qualification and experience in various departments of medical colleges
and institutions imparting graduate and post-graduate medical
education is a necessary requirement to maintain a standard of
teaching.
3. Minimum qualifications for appointment as a teacher: Minimum
qualifications for appointment as a teacher in various departments of a
medical college or institution imparting graduate and post-graduate
education shall be as specified in the Schedules I and II annexed with
these regulations:
SCHEDULE -I
Every appointing 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.
1-A ...........................
2. In the departments of Anatomy, Physiology, Biochemistry,
Pharmacology and Microbiology, non-medical teachers may be
appointed to the extent of 30% of the total number of the posts in the
department. A non-medical approved medical M.Sc. qualification shall
be a sufficient qualification for appointment as Lecturer in the subject
concerned but for promotion to higher teaching post a candidate must
possess the Ph.D. degree in the subject. The Heads of these
departments must possess recognized basic university medical degree
qualification or equivalent qualification. However, in the department of
Biochemistry, non-medical teachers may be appointed to the extent of
50% of the total number of posts in the department. In case of the
paucity of teachers in non-clinical departments relaxation upto the
Head of the Department may be given by the appointing authority to
the nonmedical persons if suitable medical teacher in the particular
non-clinical specialty is not available for the said appointment.
However, such relaxation will be made only with the prior approval of
the Medical Council of India. A non-medial person cannot be
appointed as Director or Principal or Dean or Medical Superintendent.
In the departments of Community Medicine and Pharmacology,
Lecturers in Statistics and Pharmacological Chemistry shall possess
M.Sc. qualification in that particular subject from a recognized
University.
In the above clause the words "The Heads of these departments must
possess recognized basic university medical degree qualification or
equivalent qualification" shall be substituted with the following as
amended in terms of Notification published on 24.07.2009 in Gazette
of India .
"Heads of the departments of pre and para clinical subjects must
possess recognized basic University degree qualification i.e. MBBS or
equivalent qualification".
In the above clause the words "In the departments of Community
Medicine and Pharmacology, Lecturers in Statistics and Pharmacology
Chemistry shall possess M.Sc. qualification in that particular subject
from a recognised University" shall be substituted with the following as
amended in terms of Notification published on 24.07.2009 in Gazette
of India.
"In the department of Community Medicine, Lecturers in Statistics
shall possess M.Sc. qualification from a recognized University".
19. From a reading of the Regulation No.3 reproduced above, it clearly
transpires that the minimum qualification for appointment as Teacher
in various departments of Medical Colleges/Institutions imparting
Graduate and Post-graduate education is as specified in Schedule-1
and Schedule-II annexed to the Regulations. Article 1 of Schedule-1
clearly prescribes that all medical teachers must possess a basic
University or equivalent qualification included in any one of the
Schedule of the Indian Medical Council Act, 1956 and that they must
also be registered in a State Medical Register or Indian Medical
Register. Article 2, also reproduced above, is by way of an
exception to Article 1 and provides that in the department of
Anatomy, Physiology, Biochemistry, Pharmacology and
Microbiology, the appointment of non-medical teachers to the
extent of 30% of the total number of posts in the department is
permissible. The word "may" used in Article-2 clearly indicates that
it is in the discretion of the Medical Institution to appoint non-medical
teachers also in some of the departments like, Anatomy, physiology,
pharmacology etc. However, while making appointment of non-
medical teachers even in the aforesaid departments, Medical Institute
shall ensure that number of such non-medical teachers appointed in
the aforesaid departments does not exceed 30% of the total number of
posts in the department. A fortiori, there is no mandate upon the
medical institute to recruit necessarily 30% of the total number of
posts in the department of Anatomy, Physiology, Biochemistry,
Pharmacology etc. by appointing non-medical teachers.
20. Even if, a medical Institute appoints, in the department of Anatomy,
Physiology, Biochemistry, Pharmacology etc, all teachers from the
medical category, it cannot be said that the Institute has violated 30%
norm laid down in the Regulations. 30% recruitment from non-
medical teachers is only an extent to which the non-medical teachers
may be appointed in some of the departments of the medical institute
like pharmacology etc. The contention of respondent No.1, which has
also found favour with the Writ Court, that the respondent-Institute
was under an obligation to necessarily recruit 30% of the posts of
Assistant Professor in the department of Pharmacology from non-
medical stream is without any basis and is not supported by a plain
language of the Regulations, we have extracted above. The extent of
30% provided in the Regulations is in respect of the total posts in the
department and not in a particular discipline. All the teachers in the
department of Pharmacology could be from medical stream and there
is no mandate of the Regulations to necessarily and mandatorily
appoint 30% of the total posts of the department from non-medical
students. It is only where non-medical teachers, in view of their merit,
are appointed in the department, it is to be ensured by the medical
institute concerned that their number does not exceed 30% of the total
posts in the department. Viewed thus, the entire edifice of the case of
respondent No.1 built on this mis-interpretation of the Regulations
would come crumbling down.
21. As we have found, there are in all four posts of Assistant Professor in
the department of Clinical Pharmacology in SKIMS, two were filled
up in the selection process conducted in the year 2012. No selection
could be made pursuant to the advertisement notification of 2013 for
the reason that no candidate was found eligible to participate in the
selection process. As noticed above, the selection processes initiated
in the year 2015 and in the beginning of 2016 were abandoned and
not taken to the logical end. It is only in pursuance of the
advertisement notification No.2 of 2016, the process initiated by the
SKIMS was taken to its logical end.
22. From a reading of Advertisement Notification No.7 of 2016, it clearly
transpires that the SKIMS did not specify the number of posts thrown
open for selection in terms of the aforesaid notification. However,
having regard to the fact that two out of the four posts of Assistant
Professor came to be filled up in the year 2012, it can safely be
inferred that vide advertisement notification No.7 of 2016, the
SKIMS had notified remaining two posts of Assistant Professor for
selection. It is further evident from the qualification prescribed in the
Notification that the posts of Assistant Professor Clinical
Pharmacology were thrown open for both medical and non-medical
streams. Respondent No.1 possessing qualification in non-medical
stream participated in the selection process along with five more
candidates. To be more clear, we would like to notice qualification
prescribed for the post in the Advertisement Notification No.7 of
2016, which is reproduced hereunder
S.No. Department Name of the Post Qualification
11 Cl. Pharmacology Assistant Professor Medical Candidates:
M.D (Pharmacology)/
MBBS with Ph.D
(Med. Pharmacology)
Non-Medical
Candidates:
M.Sc. (Med.
Pharmacology) with Ph.D
(Med. Pharmacology)/
M.Sc. (Med.
Pharmacology) with D.Sc
(Med.
Pharmacology)/ M.Sc. in
Pharmacology
with P.hD
23. It is, thus, evident that the two available posts in the department of
Clinical Pharmacology of SKIMS were thrown open for selection for
the candidates possessing medical or non-medical qualification. It is
because of this reason respondent No.1 applied and participated in the
aforesaid selection. We are in agreement with the learned counsel for
respondent No.1 that the advertisement notification No.7 of 2016 did
not indicate anything in respect of the categories for which the
notified posts of Assistant Professor Clinical Pharmacology were
earmarked, though, it is the stand of the SKIMS that two available
posts of Assistant Professor notified in terms of Notification No.7 of
2016 were earmarked Open Merit-1 and Scheduled Caste-1.
24. In the absence of clear stipulation in the Advertisement Notification,
we are ready to go with the submission of learned counsel for
respondent No.1 that there were two posts of Assistant Professor in
Clinical Pharmacology available, which had been thrown open for
selection in terms of advertisement notification No.7 of 2016. Having
said that we quickly go to the merit position of the six applicants, who
had responded to the aforesaid notification. Apart from respondent
No.1, five more candidates had participated in the selection process.
One of the candidate, namely Dr. Semira, did not appear in the
interview before the Apical Selection Committee. The merit of other
candidates, as was assessed by the Apical Selection Committee of the
SKIMS is reproduced hereunder:-
S.No Name of the candidate Score out of 100
1. Dr. Mohammad Younis Bhat 61.75
2. Dr. Muddasir Sharief Banday 70.00
3. Dr. Nasreen Jan Chashoo 68.05
4. Dr.Shakil-u-Rehman 56.00
5. Dr. Semira Absent
6. Dr. Mushtaq Ahmad Hakeem 48.00
25. Dr. Mudassir Sharief Banday with score of 70 point out of 100 came
to be selected against one of the two posts of Assistant Professor in
Clinical Pharmacology and was appointed without any protest or
objection from any candidate. The other post was not filled up and the
reason put forth by the SKIMS is that the same, as per the revised
roster issued in terms of Reservation Rules, 2005, was kept reserved
for Scheduled Caste category and that no candidate from the said
category was available for selection.
26. For the purpose of our discussion, we ignore that the post, which was
not filled up, was earmarked for Scheduled Caste category and take as
if it was to be filled up from general category, even in that situation
Dr. Nasreen Jan Chashoo with score of 68.05 would have come in the
selection zone. Respondent No.1 with the score of 48.00 was at the
bottom of the merit list and, therefore, could not have been selected.
The plea of respondent No.1 that one of the two posts ought to have
been filled up from a candidate with non-medical qualification has
already been dealt with herein above and needs no reiteration.
27. In the face of availability of more meritorious candidates, though with
medical qualifications, the unfilled post could not have been filled up
by appointing respondent NO.1, who was last in the merit, only for
the reason that he possessed non-medical qualification. The
contention of respondent No.1 that 30% of the posts of Assistant
Professor in Clinical Pharmacology ought to have been mandatorily
filled up from non-medical candidates is totally misconceived and
contrary to the Regulations we have discussed elaborately herein
above.
28. With a view to allay any doubt and to set at rest the controversy, we
hold that in terms of the Regulations, it is not mandatory for a medical
college/medical institution to necessarily fill up 30% of the total
number of posts in a discipline or even in the department by
appointing non-medical students. This lies in the discretion of the
medical institution concerned and it is for the institution concerned to
appoint even a non-medical student in some of the departments like
Pharmacology but while doing so the institution concerned shall
ensure that the number of non-medical teachers does not exceed 30%
of total number of posts in the department. That is how the
Regulations are required to be understood and appreciated. The
judgment of the Writ Court, with respect, has proceeded on a total
wrong premise that a medical college or medical institution like
SKIMS is duty bound to fill up atleast 30% of the total number of
posts in each discipline from non-medical candidates.
29. From a reading of the judgment impugned, it is evident that the the
Regulations were perhaps not brought to the notice of the learned
Single Judge. We are, therefore, of the considered opinion that
respondent No.1 did not acquire any right to be selected and
appointed against the post, which remained unfilled in the selection
process initiated vide advertisement notification No.7 of 2016. Since
respondent No.1 did not participate in the selection process initiated,
vide advertisement notification No.2 of 2021 dated 17.04.2021 and,
therefore, had no right to challenge the aforesaid notification. The
very basis of throwing challenge to the advertisement notification
No.2 of 2021 i.e. one of the four posts must necessarily be filled up
from non-medical candidates in terms of the Medical Council of India
Regulations, is built on a total wrong premise and clear
misunderstanding of the relevant Regulations.
30. Whether or not the benchmark of 48 points in the selection process
could have been fixed by the SKIMS after the commencement of the
selection process in terms of notification No.7 of 2016 is a question
that, in the given facts and circumstances of the case and for the
reasons stated above, does not beg determination in this appeal.
31. Admittedly, the SKIMS had not framed any selection criteria prior to
the commencement of the selection process. The selection criteria,
which also included therein `the benchmark eligibility for selection,
was framed during currency of the selection process and therefore, it
cannot be argued by respondent No.1 that by fixing the benchmark of
48 points the SKIMS changed the eligibility criteria or selection
criteria midway or after the completion of the selection process. This
issue is no longer res integra in view of the law laid down by a
Constitution Bench judgment of the Supreme Court in the case of Tej
Parkash Pathak and others v. Rajasthan High Court and others,
[Civil Appeal No.2634/2013 decided on 07.11.2024], 2024 INSC
847.
32. In the context of factual matrix obtaining in the case, we hold that
respondent No.1 never acquired any right to be selected and
appointed as Assistant Professor in Clinical Pharmacology which
remained unfilled in selection process initiated by the SKIMS vide
advertisement Notification No.7 of 2016 and, therefore, respondent
No.1, who had not participated in the selection process will have no
locus standi to challenge the advertisement notification No.2 of 2021
dated 17.04.2021 in which the appellant claims to have emerged
successful candidate for the lone notified post.
33. For the foregoing reasons, we find merit in this appeal, the same is,
accordingly allowed. The judgment passed by the Writ Court dated
04.10.2023, impugned in this appeal, is set aside and the WP(C)
No.2747/2022 filed by respondent No.1 is without any merit and
dismissed accordingly. The SKIMS may proceed to conclude the
selection process initiated in terms of the advertisement notification
No.2 of 2021 dated 17.04.2021 in accordance with law.
34. In this appeal, the SKIMS is aggrieved of and has challenged the
judgment dated 4th October, 2023 passed by the Writ Court in WP(C)
No.2749/2022. The judgment is challenged on multiple grounds
including the grounds, which we have considered while disposing of
LPA No.244/2023.
35. On the analogy of the reasoning given while disposing of LPA
No.244/2023, this appeal, too, is allowed in terms of the judgment
passed in LPA No.244/2023.
(Puneet Gupta) (Sanjeev Kumar)
Judge Judge
SRINAGAR
20.03.2025
Vinod,PS
Whether the order is speaking : Yes
Whether the order is reportable: Yes
