DR. THINGUJAM ACHOUBA SINGH & ORS. versus DR. H. NABACHANDRA SINGH & ORS. ETC. on 17 April 2020

332

SUPREME COURT REPORTS

[2020] 6 S.C.R.

ADR. THINGUJAM ACHOUBA SINGH & ORS.

v.

DR. H. NABACHANDRA SINGH & ORS. ETC.

(Civil Appeal Nos. 2250-2252 of 2020)

BAPRIL 17, 2020

[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]

Service Law: Recruitment – The Regional Institute of MedicalSciences (RIMS), Imphal is registered society and running publichealth care institutions in the north east India – Advertisement datedC16.08.2016 was issued by the Ministry of Health & Family Welfareinviting applications for the post of Director of RIMS – Writ petitionsfiled for quashing the advertisement on the ground that it did notprovide relaxation in upper age limit; that the experience of 14years for eligibility, as notified in advertisement was contrary toDthe criteria prescribed by Medical Council of India (MCI); that thevacancy to the post of Director had fallen vacant on 14.09.2015,as such Regulations which were existing on the date of vacancywould apply – In all the three writ petitions, advertisement dated16.08.2016 inviting applications to fill up the post of Director wasunder challenge, and no challenge to the Rules and RegulationsEgoverning the recruitment to the post of Director was made – HighCourt however went into the validity of recruitment rules andrecorded finding that rules were not amended as per the Rules,Regulations and Bye-Laws of the Society – Further, notificationwas quashed on the ground that after amendment to the Rules, suchFrules were not notified to public at large, as such, they were not inthe public domain – High Court also held that the experience criteriaas prescribed by the MCI Regulations was not prescribed in theadvertisement and such regulations would have a binding effect,for filling up the post of Director in RIMS – Held: High Courtcommitted an error in going into the validity of the Rules, in absenceGof any challenge to the same – Not notifying to public at large cannotbe the ground to invalidate the notification, in the absence of anyprovision to that effect in the Bye-Laws of the Society or the Rulesand Regulations framed for recruitment to the post of Director – Asnotified in “Minimum Qualifications for Teachers in Medical H

DR. THINGUJAM ACHOUBA SINGH v.DR. H. NABACHANDRA SINGH

Institutions Regulations, 1998” issued by the MCI, the academicqualifications and experience applicable for the post of Directorof medical institutions differed from those applicable for the post ofDirector/Medical Superintendent of affiliated teaching hospital –For the post of Director in a medical institution, ten years’experience as Professor/Associate Professor/Reader in a medicalcollege, out of which at least five years should be as Professor in adepartment, is prescribed – However, for the post of Director/Medical Superintendent of the affiliated teaching hospital therequired experience is ten years only – It is the specific case of therespondents that the RIMS is an affiliated teaching hospital – Inview of such stand of the respondents it cannot be said that theexperience for eligibility notified in advertisement dated 16.08.2016is contrary to the MCI Regulations – So far as relaxation of upperage limit is concerned, High Court directed the competent authorityand Executive Council of the Society to consider for providing suchrelaxation clause – It is not understandable as to how such directioncan be given by the High Court for providing a relaxation which isnot notified in the advertisement – While it is open for the employerto notify such criteria for relaxation when sufficient candidates arenot available, at the same time nobody can claim such relaxation asa matter of right – The eligibility criteria is within the domain of theemployer and no candidate can seek as a matter of right, to providerelaxation clause – Order of High Court set aside.

Allowing the appeals, the Court

Conclusion

Allowing the appeals, the Court

HELD: 1. In none of the writ petitions, rules governingappointment to the post of Director was under challenge, theHigh Court has gone into the validity of the Rules, as amended,and held that amendments to the Rules were not carried out byfollowing the Rules, Regulations and Bye-Laws of the Society.The specific plea of the respondent authorities in the writpetitions, that there is no challenge to validity of the rules butsame has been brushed aside by the High Court by merely statingthat such an objection is of technical in nature. Such objectionraised should not have been brushed aside by the High Court byholding that such objection is of a technical nature. In any event,it was the case of the respondent authorities that the rulesgoverning appointment were amended by following the rules and AB

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Asuch amendment was also approved by the competent authority,of Ministry of Health & Family Welfare. Further, the fact of notnotifying the amended rules has also been made basis for grantof relief by the High Court. In this regard, the High Court hasheld that not notifying the amended rules would strike at theroot of the amendment process of the recruitment rules, as such,Bunless such rules are notified, the same cannot be enforced. Itappears from the impugned order itself that it was the specificplea in the counter affidavit filed before the High Court that thesaid rules were not framed under Article 309 of the Constitutionof India and further there is no specific provision in the Rules,CRegulations and Bye-Laws of RIMS for notifying the same. It istrue that in a public institution, rules are required to be madeavailable, but at the same time not notifying to public at largecannot be the ground to invalidate the notification, in the absenceof any provision to that effect in the Bye-Laws of the Society or the Rules and Regulations framed for recruitment to the post ofDDirector. [Para 13][339-C-H; 340-A]

2. A copy of the Regulations titled as, “MinimumQualifications for Teachers in Medical Institutions Regulations,1998” (as amended upto 11[th] March 2017) issued by the MedicalCouncil of India is placed on record. As notified in the saidERegulations, the academic qualifications and experienceapplicable for the post of Director of medical institutions differfrom those applicable for the post of Director/MedicalSuperintendent of affiliated teaching hospital. For the post ofDirector in a medical institution, apart from the academicFqualifications, ten years’ experience as Professor/AssociateProfessor/Reader in a medical college, out of which at least fiveyears should be as Professor in a department, is prescribed.However, for the post of Director/Medical Superintendent of theaffiliated teaching hospital the required experience is ten yearsonly. It is the specific case of the respondents that the RIMS isGan affiliated teaching hospital. In view of such stand of therespondents it cannot be said that the experience for eligibilitynotified in the advertisement dated 16.08.2016 is contrary to theRegulations of Medical Council of India. So far as relaxation ofupper age limit, as sought by the petitioners in one of the writHpetitions is concerned, High Court has directed the competent DR. THINGUJAM ACHOUBA SINGH v.DR. H. NABACHANDRA SINGH

authority and Executive Council of the Society to consider forproviding such relaxation clause. It is not understandable as tohow such direction can be given by the High Court for providinga relaxation which is not notified in the advertisement. While it isopen for the employer to notify such criteria for relaxation whensufficient candidates are not available, at the same time nobodycan claim such relaxation as a matter of right. The eligibilitycriteria will be within the domain of the employer and no candidatecan seek as a matter of right, to provide relaxation clause.[Para 14][340-D-H; 341-A]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2250-2252 of 2020.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2250-2252 of 2020.

From the Judgment and Order dated 27.03.2017 of the High Courtof Manipur at Imphal in W.P. (C) Nos. 676 of 2016, 722 of 2016 and 766of 2016.

With

Civil Appeal Nos. 2253-2255 of 2020.

Sanjay Hegde, Sr. Adv., Preetam Singh, S. Gowthaman, G. Balaji,Rajeev Sharma, Ms. Radhalakshmi R., Advs. for the Appellants.

Dr. Rajiv Dhavan, Ajit Kumar Sinha, Sr. Advs., Ms. PunamKumari, Abdulrahiman Tamboli, Siddhi Paddia, Abdul Azeem Kalebudde,A. Rohan Singh, Vivek Kumar Mihir, Vijay Prakash, Ms. Nupur Sharma,Amrish Kumar Sharma, G.S. Makker, Advs. for the Respondents.

The Judgment of the Court was delivered by

R. SUBHASH REDDY, J.

Civil Appeal Nos. 2250-2252 of 2020

[Arising out of S.L.P.(C) Nos.15093-15095 of 2017]

1. Leave granted.

2. These civil appeals are filed, aggrieved by the judgment andorder dated 27.03.2017 passed in W.P.(C) No.676 of 2016;W.P.(C)No.722 of 2016; and W.P.(C)No.766 of 2016, passed by theHigh Court of Manipur at Imphal. By the aforesaid impugned order, theHigh Court has quashed advertisement dated 16.08.2016, invitingapplications to fill up the vacant post of Director in Regional Institute ofMedical Sciences, Imphal.

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A3. The Regional Institute of Medical Sciences (hereinafter referredto as, ‘RIMS’), Imphal is registered as a Society under the SocietiesRegistration Act, 1860 in the year 1975. The said Society was initiallyregistered as ‘North Eastern Regional Medical College’ and same wassubsequently re-registered and changed its name as ‘Regional Instituteof Medical Sciences’ (RIMS). The said Society runs one of the biggestBpublic health care institutions in the north eastern region of India. Theaffairs of RIMS are governed and regulated by the Memorandum ofAssociation (MOA), Rules, Regulations and Bye-Laws of the RIMS.

4. The post of Director of RIMS was last held by Dr. S. SekharjitSingh and same has fallen vacant on 14.09.2015. Since then the post ofCDirector was given to some senior professors of the Institute on In-charge basis from time to time. At first instance on 24.06.2015, anadvertisement was issued by the Ministry of Health and Family Welfare,Govt. of India for filling up the post of Director, RIMS, Imphal by directrecruitment. In the said advertisement, the upper age limit was notifiedDat 50 years, relaxable for Govt. Servants/RIMS officers and speciallyqualified candidates and retirement age was notified at 62 years. Thewrit petitioners in W.P.(C)No.676 of 2016 and some others have made arepresentation dated 01.07.2015 to the Ministry of Health & FamilyWelfare, Govt. of India for changing the age of superannuation from 62years to 65 years. All the petitioners in W.P.(C)No.676 of 2016 haveEeither completed the age of 62 years or are nearing completion of 62years. They again submitted representations on 08.07.2015 and16.07.2015. Having failed to get any positive response they approachedthe High Court by filing writ petition in W.P.(C)No.617 of 2015 forquashing the advertisement with a direction to respondents to fill up theFpost of Director, in accordance with Clause 12 of the Rules andRegulations of RIMS, by fixing the upper age limit for eligibility at 60years. In the said writ petition, some interim orders were passed but inthe meantime, Office Memorandum No.B/1734/96-RIMS(Pt.-I) dated20.04.2016 was issued by the Director of RIMS notifying the age ofsuperannuation at 65 years, with the approval of Ministry of Health &GFamily Welfare, Govt. of India. The said writ petition was withdrawn. Itappears that, in view of the enhancement of age of superannuation to 65years, another advertisement dated 16.08.2016 was issued by prescribingthe upper age limit of 62 years in the eligibility criteria without anyrelaxation, for Government servants/RIMS officers, also.H

5. When fresh advertisement dated 16.08.2016 was issued by theMinistry of Health & Family Welfare, Govt. of India inviting applicationsfor the post of Director, writ petition in W.P.(C)No.676 of 2016 wasfiled before the High Court of Manipur, mainly on the ground that in thesaid notification relaxation for upper age limit was not provided for. Assuch, in the said writ petition relief was sought for quashing theadvertisement dated 16.08.2016, so far as it relates to non-providing ofrelaxation in upper age limit as illegal, with a consequential direction tothe respondents to allow the petitioners therein to participate in the selectionprocess. Questioning the very same advertisement, one other professorworking in RIMS has filed another writ petition in W.P.(C)No.722 of2016, mainly on the ground that the experience for eligibility, as notifiedin the advertisement dated 16.08.2016, was contrary to the criteriaprescribed by Medical Council of India. It was pleaded in the writ petitionthat as per the criteria prescribed by the Medical Council of India, tohold the post of Director, one must have minimum of ten years’ teachingexperience as Professor/Associate Professor/Reader, out of which atleast five years should be as professor in a Department. It was hisgrievance that instead of notifying the criteria as mentioned above, therespondents have merely notified fourteen years of experience withoutthere being a condition of five years of teaching experience as professor.In the said writ petition, relief sought is to quash the notification dated16.08.2016 and to renotify the same afresh by prescribing the experienceas prescribed by the Medical Council of India and other institutions underthe control of Ministry of Health & Family Welfare, Govt. of India.

6. One other candidate who was serving as a professor also filedanother writ petition in W.P.(C) No.766 of 2016 challenging the verysame advertisement mainly pleading that the vacancy to the post ofDirector has fallen vacant on 14.09.2015, as such, said post has to befilled up by applying the Rules and Regulations which were existing onthe date of vacancy. He was also one of the applicants who applied forthe post of Director in response to the advertisement dated 24.06.2015and also advertisement dated 16.08.2016. It was his case in the writpetition that though he has applied in response to both the advertisements,he has noticed that rules regulating appointment of Director, pursuant toadvertisement dated 16.08.2016 were different than the rules containedas per advertisement dated 24.06.2015. It was the case of the solepetitioner that as the post fell vacant on 14.09.2015, rules as on the dateof vacancy ought to be applied to fill up the vacancy and not the amended ABC

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Arules. Incidentally, it was also pleaded that amendment to the rules wasmade without following due procedure as contemplated under Rulesand Bye-Laws of the Society.

7. In all these writ petitions, affidavit in reply was filed by therespondent therein opposing the relief sought for and denying the variousBallegations made.

8. Inspite of the fact that in all the three writ petitions,advertisement dated 16.08.2016 inviting applications to fill up the post ofDirector was under challenge, and no challenge to the Rules andRegulations governing the recruitment to the post of Director was made;Cthe High Court however has gone into the validity of recruitment rulesand recorded finding that rules were not amended as per the Rules,Regulations and Bye-Laws of the Society. Further, notification is quashedon the ground that after amendment to the Rules, such rules were notnotified to public at large, as such, they were not in the public domain.The High Court has also held that the experience criteria as prescribedDby the Medical Council of India Regulations was not prescribed in theadvertisement and such regulations would have a binding effect, forfilling up the post of Director in RIMS. Consequently, further direction isissued to the competent authority to consider providing relaxation in respectof upper age limit or the qualification as sought by the writ petitionerEtherein.

9. We have heard Sri Sanjay R. Hegde, learned senior advocateappearing for the appellants and Dr. Rajiv Dhavan, learned senioradvocate appearing for the RIMS and perused the impugned order andother material placed on record.F

10. Before we proceed further, we deem it appropriate to refer tointerim orders passed by this Court on 07.05.2018 and 24.07.2018. Byorder dated 07.05.2018, this Court permitted the respondent authoritiesto proceed with the selection to the post of Director, RIMS, in terms ofthe recruitment rules, as existed on the date of the order, making it subjectGto result of the Special Leave Petitions. By further order dated24.07.2018, this Court permitted the competent authority to finalise theselection by declaring the result and make the appointment forthwithprovisionally, making it subject to the result of the Special Leave Petitions.

11. During the course of arguments, we were informed thatpursuant to aforesaid two orders passed by this Court, selection processH

is completed and one Dr. Ahanthem Santa Singh was appointed asDirector, RIMS on 05.10.2018, in terms of advertisement dated16.08.2016, subject to the outcome of the present appeals. Same is alsochallenged subsequently before the High Court by way of writ petitionin W.P.No.1181 of 2018 and same is pending consideration.

12. Having heard the learned counsel on both sides, we havecarefully gone through the common impugned order passed by the HighCourt and other material placed on record.

13. At the outset, it is to be noticed that though, in none of the writpetitions, rules governing appointment to the post of Director was underchallenge, the High Court has gone into the validity of the Rules, asamended, and held that amendments to the Rules were not carried outby following the Rules, Regulations and Bye-Laws of the Society. Thespecific plea of the respondent authorities in the writ petitions, that thereis no challenge to validity of the rules but same has been brushed asideby the High Court by merely stating that such an objection is of technicalin nature. At this stage, it is relevant to note that such objection raisedshould not have been brushed aside by the High Court by holding thatsuch objection is of a technical nature. In all these writ petitions in whichcommon order is passed by the High Court, validity of advertisementdated 16.08.2016 alone was under challenge. We are of the view thatthe High Court has committed, an error in going into the validity of theRules, in absence of any challenge to the same. In any event, it was thecase of the respondent authorities that the rules governing appointmentwere amended by following the rules and such amendment was alsoapproved by the competent authority, of Ministry of Health & FamilyWelfare. Further, the fact of not notifying the amended rules has alsobeen made basis for grant of relief by the High Court. In this regard, theHigh Court has held that not notifying the amended rules would strike atthe root of the amendment process of the recruitment rules, as such,unless such rules are notified, the same cannot be enforced. It appearsfrom the impugned order itself that it was the specific plea in the counteraffidavit filed before the High Court that the said rules were not framedunder Article 309 of the Constitution of India and further there is nospecific provision in the Rules, Regulations and Bye-Laws of RIMS fornotifying the same. It is true that in a public institution, rules are requiredto be made available, but at the same time not notifying to public at largecannot be the ground to invalidate the notification, in the absence of any A

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Aprovision to that effect in the Bye-Laws of the Society or the Rules andRegulations framed for recruitment to the post of Director.

14. The High Court has also noticed that the experience foreligibility notified in the advertisement dated 16.08.2016 was not inconformity with the Medical Council of India Regulations. In replyBaffidavit filed before the High Court, while denying such allegation, itwas pleaded that the qualifications and experience, as notified in theadvertisement dated 16.08.2016, was in accordance with the “MinimumQualifications for Teachers in Medical Institutions Regulations, 1998”(as amended from time to time), framed by the Medical Council of India.It was the specific contention of the respondent authorities that as theCRIMS is affiliated to Manipur University, the requirement as prescribedby Medical Council of India for Director of affiliated hospital should beapplied. Such plea is not accepted by the High Court on the ground thatthere is no proper pleading in this regard. A copy of the Regulationstitled as, “Minimum Qualifications for Teachers in Medical InstitutionsDRegulations, 1998” (as amended upto 11[th] March 2017) issued by theMedical Council of India is placed before us. As notified in the saidRegulations, the academic qualifications and experience applicable forthe post of Director of medical institutions differ from those applicablefor the post of Director/Medical Superintendent of affiliated teachinghospital. For the post of Director in a medical institution, apart from theEacademic qualifications, ten years’ experience as Professor/AssociateProfessor/Reader in a medical college, out of which at least five yearsshould be as Professor in a department, is prescribed. However, for thepost of Director/Medical Superintendent of the affiliated teaching hospitalthe required experience is ten years only. It is the specific case of theFrespondents that the RIMS is an affiliated teaching hospital. In view ofsuch stand of the respondents it cannot be said that the experience foreligibility notified in the advertisement dated 16.08.2016 is contrary tothe Regulations of Medical Council of India. So far as relaxation ofupper age limit, as sought by the petitioners in one of the writ petitions is concerned, High Court has directed the competent authority and ExecutiveGCouncil of the Society to consider for providing such relaxation clause.We fail to understand as to how such direction can be given by the HighCourt for providing a relaxation which is not notified in the advertisement.While it is open for the employer to notify such criteria for relaxationwhen sufficient candidates are not available, at the same time nobodyHcan claim such relaxation as a matter of right. The eligibility criteria will

DR. H. NABACHANDRA SINGH [R. SUBHASH REDDY, J.]

be within the domain of the employer and no candidate can seek as amatter of right, to provide relaxation clause.

15. For the aforesaid reasons, we allow these appeals and setaside the impugned common judgment and order dated 27.03.2017 passedin W.P.(C) No.676 of 2016; W.P.(C)No.722 of 2016; and W.P.(C)No.766of 2016 by the High Court of Manipur at Imphal. Consequently, theabove said writ petitions stand dismissed.

Civil Appeal Nos. 2253-2255 of 2020

[Arising out of S.L.P.(C) Nos.4853-4855 of 2019]

16. Leave granted.

17. These civil appeals are filed by the Union of India and RIMSchallenging the very same order of the High Court by which theadvertisement dated 16.08.2016 has been quashed. For the reasonsrecorded while dealing with the appeals arising out of S.L.P.(C)Nos.15093-15095 of 2017, these appeals also stand allowed and theabovementioned impugned order of the High Court is set aside.

Devika Gujral

Appeals allowed.

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