@JUDGMENTTAG-ORDER
Mr. Shree Chandrashekhar, J.(C.A.V.) - The petitioner is a Cardiologist, working on the post of Associate Professor, Rajendra Institute of Medical Sciences, Ranchi (hereinafter referred to as RIMS). He is an aspirant for the post of Professor, Department of Cardiology in RIMS. He is challenging the experience qualification in Advertisement No.11035 dated 09.09.2016, whereby applications for appointment on the post of Professor, Associate Professor, Assistant Professor and Medical Officer were invited. Alternatively, he is seeking a direction upon the respondent-RIMS to invite him for interview and appoint him on the post of Professor.
2. Mr. Anil Kumar Sinha, the learned senior counsel for the petitioner contended that the respondent-RIMS has prescribed a qualification in the advertisement for appointment to the post of Professor which is contrary to the Ranchi Institute of Medical Sciences Act, 2002 and the Rules framed thereunder. This contention is founded on a premise that the experience qualification as prescribed under Schedule-III to the Rajendra Institute of Medical Sciences Regulations, 2014 is contrary to the norms prescribed by the Medical Council of India (MCI), which governs the field of medical education.
3. The petitioner claims that he is a 1996 batch MBBS from Patna Medical College and Hospital, from where he obtained a Degree in M.D(Medicine) in the year 2001. He worked as Senior Resident, Cardiology between the period 25.01.2002 to 24.01.2005, i.e., for 3 years. It is pleaded by the petitioner that this period of 3 years during which he worked as Senior Resident should be counted as teaching experience. He has enclosed certificates in support of his claim. He completed Doctor in Medicine (Cardiology), course for which runs for 3 years (10.06.2006 to 09.06.2009). He was appointed as Assistant Professor in RIMS on 19.04.2010. After working for 2 years, 1 month and 10 days, he was appointed to the post of Associate Professor. By 15.10.2016, which was the last date for submission of application pursuant to Advertisement No.11035, he has completed 4 years, 4 months and 14 days. He claims that he has done 4 research works also. In these facts, the learned senior counsel for the petitioner contended that the petitioner has acquired the requisite experience under the advertisement and while so, a direction may be issued to the respondent-RIMS to issue interview letter forthwith.
4. The qualification for appointment on the post of Professor, which has been notified in the advertisement, reads as under :
"Twelve years teaching and/or research experience in recognised institution in the subject of super-speciality for the candidates possessing recognised DM/MCh degree course of 02 years after MD/MS or 05 years degree course after MBBS in the respective discipline/subject or a qualification recognised equivalent thereto.
Or,
Eleven years teaching and/or research experience in recognised institution in the subject of super-speciality for the candidates possessing recognised DM/MCh degree course of 03 years after MD/MS or 06 years degree course after MBBS in the respective discipline/subject or a qualification recognised equivalent thereto."
5. While making a prayer for a direction to the respondent-RIMS to invite him for interview, the petitioner has tried to project himself qualified for the post of Professor under the advertisement. Whether he fulfils those conditions or not and, whether he has acquired requisite experience qualifications or not, are not the issues falling for consideration by the Court. There is no prayer seeking a declaration that the post of Senior Resident is a teaching post or the period of his Senior Residency shall be counted as teaching experience. In fact, it is the function of the Regulator and not the Court. Whether the petitioner fulfils the qualifications and qualifies for an invitation for interview or not, is an issue exclusively within the domain of the Screening Committee which shall scrutinize the qualifications and certificates of the applicants. In the aforesaid background, no direction can be issued to RIMS for considering the petitioner for appointment on the post of Professor. Accordingly, this prayer is declined.
6. Another prayer is to quash the advertisement and to restrain the respondents from filling up the posts contrary to RIMS Act, 2002 and a direction to the respondents to consider the case of the petitioner in terms of 2002 Act.
7. Referring to the prayers made by the petitioner, Mr. Ajit Kumar, the learned senior counsel appearing for RIMS submitted that the petitioner, who in the first place sought a direction for an invitation for interview to him, cannot challenge the conditions under the advertisement. It was contended that the petitioner, who had earlier submitted his application pursuant to Advertisement No.474 for which last date for submission of application was 29.02.2016 approached this Court by filing a writ-petition only on 13.06.2016, must be barred from challenging the qualifications prescribed by the advertisement. Mr. Ajit Kumar, the learned senior counsel raised other technical pleas also; neither the qualification prescribed under Schedule-III of RIMS Regulations are under challenge nor the other provisions under which qualification for other post have been fixed, have been challenged.
8. No doubt, the qualifications under Advertisement No.474 are similar to the qualifications notified through Advertisement No.11035, which is under challenge, and apparently there was delay on the part of the petitioner to approach the Court, however, I am inclined to decide the issue raised by the petitioner, on merits.
9. Main plank of the petitioner is the qualification for appointment on the post of Professor fixed by Medical Council of India. It was contended that no qualification contrary to the qualifications fixed by the Medical Council of India can be fixed by the respondent-RIMS. This contention is founded on Section 6 of RIMS Act, 2002 and RIMS Rules, 2002, which provide that for appointment to the post of Professor, a candidate must possess the qualifications prescribed by the Medical Council of India. Per contra, Mr. Ajit Kumar, the learned senior counsel for the respondent-RIMS contended that the qualifications prescribed under the advertisement are not contrary to the MCI norms and a higher qualification can always be prescribed by the employer.
10. To my mind, what needs to be examined is, whether a higher qualification can be said to be contrary to the qualifications prescribed by a statutory authority?
11. The Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998 in its last addition (Notification dated 15.12.2009) provides the following qualifications for appointment of Professor in D.M.(Cardiology) :
|
A) Professor |
D.M. (Cardiology) |
(i)As Reader /Associate Professor in Cardiology for four years in a recognised medical college/teaching institution. Desirable (ii) Minimum of four Research Publications indexed in Index Medicus/national journal and one in International Journal The Above has been amended vide notification dated 24.07.2009 as under : (i) As Associate Professor in the subject concerned for three years in the recognised medical college. (ii))Minimum of four research publications in indexed /national journals. The above has been further amended vide Notification dated 15.12.2009 as under: Provided that these research publications are published /accepted for publication in the Journals by the National Associations/Societies of the respective specialities as the First Author. Further provided that the requirement of 4 research publications for promotion to the post of Professor should be taken on cumulative basis with minimum of 2 research publications must be published during the tenure of the Associate Professor Further provided that for the transitory period of 4 years w.e.f. 24th July, 2009, the appointment/promotion to the post of Professor can be made by the institutes in accordance with the "Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998" as prevailing before notification of "Minimum Qualifications for Teachers in Medical Institutions (Amendment) Regulations, 2009". |
12. Section 6 of RIMS Act, 2002 provides functions of the Institute. Sub-Section (xii) provides that RIMS shall make appointments on teaching and other posts following the norms fixed by MCI, DCI or any other statutory body. Regulation 9-B of RIMS Regulations, 2014 provides that for appointment on a teaching faculty a candidate shall obtain eligibility under Schedule-III to the Regulations, which is the eligibility prescribed by All India Institute of Medical Sciences (AIIMS), New Delhi. The qualifications prescribed by the Regulations are as under :
|
izk/;kid (Professor) |
ih0ch0&4 37400&67000 :0 U;wure osru 51600+10500+ ,u0ih0,0 |
Essential Qualification/Experience for Medical Candidates : 1. A medical qualification included in the I or II schedule or part II of the third schedule to the Indian Medical Council Act of 1956 (persons possessing qualifications included in part II of the third schedule should also fulfil the conditions specified in section 13(3) of the Act. 2. A post graduate qualification e.g. MD/MS or a recognised qualification equivalent thereto in the respective discipline/subject. And/or 3. M.Ch for surgical super specialities and D.M. for Medical Super-specialties (2 years or 3 years or 5 years recognised equivalent thereto. Experience Fourteen years teaching and/or research experience in recognised institution in the subject of speciality after obtaining the qualifying degree of MD/MS qualification recognised equivalent thereto. Or Twelve years teaching and/or research experience in recognised institution in the subject of speciality after obtaining the qualifying degree of MCh/DM (2 years or 5 years course recognised after MBBS) in the respective discipline/subject or a qualification recognised equivalent thereto. Or Eleven years teaching and/or research experience in recognised institution in the subject of speciality for the candidates possessing three years recognised degree of DM/MCh in the respective discipline/subject or a qualification recognised equivalent thereto. |
13. A comparision of the qualifications prescribed by the MCI and AIIMS, New Delhi which are incorporated under Schedule-III to the Regulations would reveal that while the basic educational qualification remains the same, the experience qualification prescribed by AIIMS differs from the other qualifications prescribed by MCI. It was contended on behalf of the respondent-RIMS that for appointment on the post of Professor in Super Speciality Department, requisite experience as provided under Schedule-III is mandatory. Under the MCI Regulations, no specific experience qualification has been provided. It simply requires 4 research publications published/accepted for publication in the Journals by the National Associations/Societies of the respective specialities as the First Author. The requirement of 4 research publications for promotion to the post of Professor would be on cumulative basis with minimum of 2 research publications published during the tenure of the Associate Professor. On the other hand, the experience qualification under Schedule-III of RIMS Regulations requires 12 years teaching and/or research experience in recognised institution in the subject of specialty after obtaining the qualifying degree of MCh/DM (2 years or 5 years course recognised after MBBS) in the respective discipline/subject or a qualification recognised equivalent thereto. An equivalent qualification is 11 years teaching and/or research experience in recognised institution in the subject of speciality for the candidates possessing three years recognised degree of DM/MCh in the respective discipline/subject or a qualification recognised equivalent thereto.
14. The qualifications prescribed by RIMS Regulations are definitely not lower than those prescribed by MCI. These are also not contrary to the norms fixed by MCI. Dictionary meaning of the word "contrary" is "opposite in nature". The Chambers Dictionary uses the expression "perverse" also to define the expression "contrary". The Advanced Law Lexicon describes the word "contrary" to mean "opposite". In common parlance also, the word contrary is used to mean opposite. Prescribing higher qualifications in addition to or higher than those prescribed by MCI would not be contrary to the MCI norms. It also would not be inconsistent with the object of appointing more skilled and qualified persons on the post of Professor. In Surinder Singh v. Union of India (2007) 11 SCC 599, the Supreme Court has observed; "In service jurisprudence the prescription of preferential qualification not only refers to numeric superiority but is essentially related to better mental capacity, ability and maturity to shoulder the responsibilities, which are entrusted to the candidates after their selection to a particular post." It was further observed that, "the object of prescribing preferential qualification is to select the best amongst the better candidates who possess more competence than the others". The learned senior counsel for the respondent-RIMS relied on the decision in "S. Satyapal Reddy and Others v. Govt. of A.P. and Others" (1994) 4 SCC 391 to contend that there is no inconsistency in prescribing a higher qualification.
15. The learned senior counsel for the petitioner next contended that when there is a conflict between the Rules/Regulations and the parent Act, provisions of the parent Act must prevail and to the extent of inconsistency the Rules/Regulations must be declared ultra-vires and inoperative. The learned senior counsel referred to paragraph no.16 in "Additional District Magistrate (Rev.) Delhi Admn. v. Siri Ram" (2000) 5 SCC 451, paragraph nos.4 and 8 in "Nedurimilli Janardhana Reddy v. Progressive Democratic Students'' Union & Others." (1994) 6 SCC 506, paragraph no.56 of "ITW Signode India Ltd. v. Collector of Central Excise" (2004) 3 SCC 48 and paragraph nos. 39 to 41 of "NOVVA ADS. v. Secretary, Department of Municipal Administration & Water Supply & Another" (2008) 8 SCC 42, to contend that the rule making power cannot travel beyond the scope of the enabling Act.
16. This contention is primarily based on Section 6(xii) of the RIMS Act and Regulation 33, which are reproduced below :
6(xii) Hkkjrh; fpfdRlk ifj"kn] Hkkjrh; naR; ifj"kn~ ;k fdlh vU; fof/kd ifj"kn~ }kjk fu/kkZfjr ekin.Mksa ,oa fu;eksa rFkk fofu;eksa ds vuqlkj ''kSf{kd ,oa vU; fu/kkZfjr inksa ij yksxksa dh fu;qfDr djsxkA
In English
6(xii) Appointment shall be made on educational and other prescribed posts as per the parameters, rules and regulations as prescribed by Medical Council of India, Dental Council of India or any other legal Council.
33- vU;kU;%
(i) ;fn RIMS Act, 2002/Rules, 2002/ Regulations, 2014 esa fdlh izdkj dk Conflict gksus ij RIMS Act ,oa RIMS Rules, 2002 gh ekU; ,oa izHkkoh gksxkA
In English
33. Miscellaneous:
(i) In case of any type of conflict among RIMS Act 2002/Rule 2002/Regulation 2014, only RIMS Act and RIMS Rule 2002 shall be valid and effective.
17. Section 5 deals with objects of the Institute. One of the objects of RIMS is to achieve high standards in Graduate and Post-graduate Medical education. To say that sub-Section (xii) of Section 6 of RIMS Act restricts the power of RIMS to fix a standard different from (but not lower than) the norms fixed by the Medical Council of India would amount to restricting the legislative power under the Act itself to achieve higher standards of education. RIMS can fix a qualification different from the norms fixed by the Medical Council of India; the only restriction on this power is that the qualification fixed by RIMS shall not be in derogation to the norms fixed by the MCI. Once it is found that under the Act, RIMS has power to fix a higher qualification which in a sense may be called a different qualification, experience qualification prescribed under the RIMS Regulations must be held in consonance with Section 6(xii) of RIMS Act.
The contention based on Regulation 33 to challenge the qualification prescribed under the Regulations/Advertisement is misconceived. Regulation 33 is a mere reiteration of the well-settled legal proposition and it has no application in the instant case. It provides that in case of a conflict between RIMS Act, 2002/RIMS Rules, 2002 and the Regulations, the Act/Rules would prevail. The contention challenging the qualification under Schedule-III on the ground that Section 32 does not permit to frame regulations contrary to RIMS Act is equally misconceived. This contention has been raised ignoring the dominant purpose for framing regulations. Sub-section (1) to Section 32 provides that to achieve the object under the Act, the Governing Body shall make regulations consistent with the provisions of the Act. By providing a qualification under Schedule-III to the Regulations of 2014, which may be higher than the MCI norms but definitely not lower or inconsistent or in derogation to MCI qualifications, RIMS intended to achieve the object of providing higher standards of medical education, which is one of the prime functions of RIMS. The respondent-RIMS has pleaded that the regulations were framed by the Governing Body with the previous sanction of the Government and these were laid before the Assembly and thereafter, the regulations have been published in the Official Gazette on 22.09.2014. Moreover, under sub-section (xii) to Section 32 power to make regulation on any other matter has been preserved. Equally untenable is the plea that post of Professor (Cardiology) is vacant since 24.06.2011 which requires relaxation in the eligibility criteria. In my opinion this cannot be a ground to exercise powers under Regulation 11(iii) to relax the conditions for appointment.
18. What follows from the above discussions, is that, there is no merit in the writ-petition and accordingly, it is dismissed.
