Jharkhand High Court
Dr. Narendra Nath Singh vs State Of Jharkhand Through The ... on 12 April, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 2107 of 2020
With
W.P. (S) No. 1426 of 2020
In [W.P. (S) No. 2107 of 2020]
Dr. Narendra Nath Singh ... PETITIONER
Vs.
1. State of Jharkhand through the Secretary, Department of Health, Medical
Education and Family Welfare Officiating from his office at Project Bhawan,
Dhurwa, Ranchi
2. The Director, Health and Medical Education, Government of Jharkhand, Nepal
House, Doranda, Ranchi
3. Rajendra Institute of Medical Sciences, through its Director, Officiating from
his office at RIMS, Bariatu, Ranchi.
... ... RESPONDENTS
In [W.P. (S) No. 1426 of 2020]
1. Dental Institute Teachers Association, having its registered office at 3A, Onkar
Apartment, Tetar Toli, Bariatu, Ranchi.
2. Dr. Ajoy Kumar Shahi (President of petitioner no. 1).
3. Dr. Prashant Gupta (Secretary of petitioner no. 1).
Vs.
1. The State of Jharkhand through the Secretary, Department of Health, Medical
Education and Family Welfare Officiating from his office at Project Bhawan,
Dhurwa, Ranchi
2. The Director, Health and Medical Education, Government of Jharkhand, Nepal
House, Doranda, Ranchi
3. Rajendra Institute of Medical Sciences, through its Director, RIMS, Bariatu,
Ranchi.
4. The Director, Rajendra Institute of Medical Sciences, Bariatu, Ranchi.
CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
(Through : Video Conferencing)
For the Petitioners : Mr. Prashant Pallav, Advocate
Mr. Parth Jalan, Advocate.
W.P. (S) No. 2107 of 2020
Mr. Rajendra Krishna, Advocate
W.P. (S) No. 1426 of 2020
For the RIMS Dr. Ashok Kumar Singh, Advocate
For the State Mr. Rajiv Ranjan, AG
07/12.04.2021 In view of outbreak of COVID-19 pandemic, case has been taken up
through Video Conferencing. Concerned lawyers have no objection with regard
to the proceeding which has been held through Video Conferencing and there is
no complaint in respect to audio and video clarity and quality.
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I.A. NO. 1118 OF 2021 [In W.P.(S) No. 2107 of 2020]
I.A. No. 1118 of 2021 has been filed in W.P.(S) No. 2107 of 2020 for
staying the advertisement No. 625, dated 15.02.2021 floated by RIMS, Ranchi
for appointment of Principal in Dental College.
Petitioner had preferred original writ petition i.e. W.P.(S) No. 2107 of
2020 whereby challenge has been thrown to the order bearing no. 1974, dated
08.07.2020 wherein respondent no. 3 cancelled the advertisement no. 1067, dated
02.04.2020 in the midst of selection process without assigning any cogent reason.
As per factual matrix, advertisement bearing no. 1067, dated 02.04.2020
was published by the respondents for appointment to the post of Principal, Dental
College, RIMS, Ranchi. The eligibility criteria as prescribed in the advertisement
was M.D.S. in any subject with 5 years teaching experience as 'Professor and
total teaching experience of 17 (seventeen) years after MDS from the recognized
Dental Institute. Petitioner being eligible applied for appointment to the post of
Principal. The application of the petitioner was duly accepted and the date of
interview was scheduled for 25.06.2020. However, in the meantime, the said
advertisement was challenged by one Dr. Subhash Chandra and the Dental
Institute Teachers' Association by filing writ petition i.e. W.P.(S) No. 1580 of
2020 and W.P.(S) No. 1426 of 2020 respectively which was heard and
advertisement was stayed vide order dated 22.06.2020. Thereafter, the
respondents, vide letter no. 1974, dated 08.07.2020, cancelled the said
advertisement which has been challenged in the instant writ petition. However,
during pendency of instant writ petition, respondent-RIMS floated a fresh
advertisement bearing no. 625 dated 15.02.2021, for selection to the post of
Principal, Dental College, RIMS wherein eligibility criteria has been changed.
Being aggrieved by change in the eligibility criteria, petitioner has knocked door
of this Court by way of instant Interlocutory Application.
Mr. Prashant Pallav, learned counsel appearing for the petitioner
throwing challenge to the advertisement, particularly the changed criteria for
appointment to the post of Principal, Dental College, RIMS, vociferously argues
that as per Sections 5(iii) and 6(xii) of the RIMS Act, 2002, the eligibility criteria
for appointment of Principal and Professor, will be guided by the Regulation of
the appropriate Medical Association/ Council i.e. in this case the Dental Council
of India. It has further been argued while going through the relevant provisions of
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RIMS Rules, as well as BDS Regulation, 2007, it appears that RIMS Regulation,
2014 was formulated when Dental Institute at RIMS, Ranchi was not in
existence. The eligibility criteria prescribed in 2014 is same as that of Director,
RIMS. It has also been clarified that RIMS has no position of Principal nor it
had a Dental College. The Dental Council Rules prescribe for 14 years' of
teaching experience and nothing has been mentioned about "standing in the
profession". If RIMS Regulation, 2014 is adopted, the result would be reduction
of teaching experience from 14 years to 10 years. Learned counsel emphatically
argue that the criteria for increased teaching experience was allowed in W.P.(S)
No. 5356 of 2015 for academic excellence whereas the post of Principal is
administrative in nature. Therefore, bringing the criteria as laid down in BDS
Regulation, 2007 at par with the RIMS Regulation, 2014 would bring them in
conflict with one other. Learned counsel submits that there is no legislative gap
in the BDS Regulation, 2007. The BDS Regulation, 2007 is enacted by a
statutory body formed under the Dentist's Act, 1948. The Regulation has been
passed by both the Houses of Parliament. The job responsibility of Principal at
Medical College and the Dental College, RIMS are different. RIMS considered
the said advertisement to be legal. After the interim order, the In-charge Director
cancelled the advertisement. The advertisement, 2020 was floated by the regular
Director. Learned counsel further submits that the stand taken by RIMS in its
counter affidavit is contrary to the records and amounts to duping the court.
RIMS cannot be allowed to change its stand to suit its needs in a whimsical
manner. Petitioner possesses the requisite qualification as per Regulation and
thus for the ends of justice, I.A. No. 1118 of 2021 filed in W.P.(S) No. 2107 of
2020 may be allowed and the advertisement No. 625, dated 15.02.2021 floated
by RIMS, Ranchi for appointment of Principal at Dental College, may be stayed.
On the other hand, Dr. Ashok Kumar Singh, learned counsel appearing
on behalf of RIMS vehemently opposes contention of learned counsel for the
petitioner and submits that no right has accrued to the petitioner to participate in
the selection process by way of advertisement no. 1067, dated 02.04.2020.
Petitioner neither fulfil the eligibility criteria nor does he possess the requisite
qualification. Learned counsel draws attention of this Court towards the
Regulation of RIMS and submits that experience of 25 years is already
mentioned in the Regulation of RIMS and when RIMS Regulation came into
force, the said criteria was very much there and has not been changed neither
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enhanced. Petitioner cannot be permitted to challenge the eligibility criteria
without challenging terms and conditions of Regulation itself. In the instant case,
though eligibility criteria has been changed but the petitioner has chosen not to
challenge the Regulation. Learned counsel further argues that it is within the
jurisdiction of RIMS to lay down conditions and enhance the eligibility criteria
which is higher than as mentioned in the Regulation of Dental Council. Learned
counsel further argues that it is always open for the RIMS and powers of the
Director to correct wrongs committed earlier and to rectify the same and in the
instant case, the defect has been rectified and criteria has been changed in the
fresh advertisement, which is under challenge. It has further been argued by
learned counsel that when the defect was brought to the notice of RIMS, a
decision was taken to cancel the earlier advertisement and by rectifying the
eligibility criteria, a fresh advertisement was floated. Meaning thereby, the earlier
advertisement no. 1067 was superseded by the advertisement no. 625 and thus,
there is no illegality or any infirmity in the fresh advertisement superseding the
earlier advertisement. Learned counsel further submits that the arguments
advanced by learned counsel for the petitioner is not at all acceptable and
reasonings are not tenable in the eyes of law and fit to be rejected. No
interference is warranted and I.A. No. 1118 of 2021 is fit to be dismissed in
limine.
Be that as it may, having heard counsel for the parties across the bar, this
Court is of the considered view that no case is made out for any interference in
I.A. No. 1118 of 2021 for the following facts and reasons:
(1) From perusal of eligibility criteria in the advertisement floated by
the RIMS, it appears that new advertisement stipulates following
conditions as the eligibility criteria;
(i) Master of Dental Surgery from recognized Dental Institute/
College;
(ii) Teaching and/ research experience of not less than ten years;
(iii) Twenty-five years standing in the Profession.
Petitioner is mainly aggrieved by clause (iii) i.e. Twenty-five
years' standing in the Profession.
From perusal of Annexure-A/1 (Page-24) to the counter affidavit
filed by the respondent no. 3 - RIMS, which is Gazette Notification dated
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22.09.2014 of the Health, Medical Education and Family Welfare
Department, Government of Jharkhand, the essential qualification/
experience of the Principal/ Dean has been mentioned as "c. Twenty-five
years standing in the Profession with scale of Rs.75,500 - 80,000 + NPA".
Therefore, comfortably it has been said that the eligibility criteria already
found mentioned in the Regulation 2014 of the RIMS Regulation and it
cannot be said that the same is foreign to the Regulation and borrowed
from somewhere else, which is unknown to the Regulation. The occasion
for floating the fresh advertisement was fully justified as it has been
candidly submitted and admitted by the respondents - RIMS that in order
to correct themselves and rectify the mistake, the present advertisement
has been floated inserting the eligibility criteria of experience of Twenty-
five years standing in the profession in the eligibility criteria, which is as
per the Regulation. No illegality has been committed by the respondents -
RIMS in floating the fresh advertisement. From perusal of Annexure-C of
the counter affidavit, it appears that experience criteria has also been
approved by the State Government and thus, it cannot be said that RIMS
on its own has floated the fresh advertisement, which is not tenable in the
eyes of law. In support of their argument, respondents have issued
corrigendum mentioning other criteria, which has been brought on record
vide Annexure-E to the counter affidavit.
(2) Similar issue fell for consideration before this Court in W.P.(S)
No. 5653 of 2015. In the said case it was urged by the petitioner as to
whether the State Government or the RIMS can lay down experience/
qualification other than what has been prescribed by the DCI norms.
Hon'ble Supreme Court in the case of "Visveswaraiah Technological
University and another Vs. Krishnendu Halder and others reported in
(2011) 4 SCC 606, is relevant and the ratio laid down in para-14 of the
Judgment clearly covers the issue and any challenge on those grounds is
not tenable in the eyes of law.
(3) The arguments advanced by Mr. Prashant Pallav that the said legal
proposition was for achieving excellence in the Medical Education and for
academic purposes and not for administrative purposes, is not accepted to
this Court as the same is unfounded, not in consonance with the ratio laid
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down by the Hon'ble Apex Court. When the Regulation itself speaks of
the eligibility criteria and the experience of twenty-five years, challenge
on the aforesaid ground is not tenable and fit to be turned down.
(4) This Court finds and is of the view that the advertisement
published for appointment to the post of Principal, Dental Institute, is in
consonance with the RIMS Regulation, 2014. From perusal of the
Regulation, it is crystal clear that Clause-II Appendix-3 of the RIMS
Regulation-14 prescribes the eligibility criteria for appointment to the post
of Principal, which clearly indicates that the candidate has to have twenty-
five years standing in the profession. The law is well settled that if the
Statute provides particular manner, it needs to be adhered to.
(5) The Hon'ble Apex Court in the case of Sukhdeo Singh Vs.
Bhagatram Sardar Singh Raghuvanshi reported in (1975) 1 SCC 421 has
held in paragraphs-23 and 24 of the Judgment as under:
"23. The noticeable feature is that these statutory bodies
have no free hand in framing the conditions and terms of service
of their employees. These statutory bodies are bound to apply
the terms and conditions as laid down in the regulations. The
statutory bodies are not free to make such terms as they think fit
and proper. Regulations prescribe the terms of appointment,
conditions of service and procedure for dismissing employees.
These regulations in the statutes are described as "status fetters
on freedom of contract". The Oil and Natural Gas Commission
Act in Section 12 specifically enacts that the terms and
conditions of the employees may be such as may be provided by
regulations. There is a legal compulsion on the Commission to
comply with the regulations. Any breach of such compliance
would be a breach of the regulations which are statutory
provisions. In other statutes under consideration viz. the Life
Insurance Corporation Act and the Industrial Finance
Corporation Act though there is no specific provision
comparable to Section 12 of the 1959 Act the terms and
conditions of employment and conditions of service are provided
for by regulations. These regulations are not only binding on the
authorities but also on the public.
24. Broadly stated, the distinction between rules and
regulations on the one hand and administrative instructions on
the other is that rules and regulations can be made only after
reciting the source of power whereas administrative instructions
are not issued after reciting source of power. Second, the
executive power of a State is not authorised to frame rules under
Article 162. This Court held that the Public Works Department
Code was not a subordinate legislation (See G.J.
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Fernandez v. State of Mysore [AIR 1967 SC 1753 : (1967) 3
SCR 636] ). The rules under Article 309 on the other hand
constitute not only the constitutional rights of relationship
between the State and the government servants but also
establish that there must be specific power to frame rules and
regulations."
From perusal of aforesaid facts and observations, this Court is of
the considered opinion that no case is made out for any interference. Balance of
convenience lies in favour of the respondents. The policy decision of the State
can be interfered only when it is wholly arbitrary on the face of it. From perusal
of entire facts brought on record and the relevant Rules, this Court does not find
any illegality or any arbitrariness on part of the respondents which warrants
interference.There is no illegality or any infirmity in the advertisement, which
warrants any interference.
Resultantly, I.A. No. 1118 of 2021 filed in W.P.(S) No. 2107 of 2020
stands dismissed.
W.P. (S) No. 2107 of 2020
With
W.P. (S) No. 1426 of 2020
Put up these cases in usual course.
(Dr. S.N. Pathak, J.)
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