High Court · 2010

07. Whereas, in her affidavit in reply, the petitioner while general ly reiterating her challenge made in the writ petition, has asserted that the a ppointment of one Dr Abhijeet Dutta on 27.1.2006 was in violation of 2005 Act an d that a post of Registrar , Paediatric Surgery is still lying vacant, she, by her additional pleading has brought on record, various official correspondences in her endeavour to demonstrate that the process for creation of the new post s brought within the purview of the impugned Employment Notice had been initiate d in the year 2004 i.e. much before the publication of the advertisement No.3/20 05 and thus could have been reasonably anticipated to be assimilated in the earl ier process. The plea that the provisions of the Assam Women (Reservation of Vac ancies in Service and posts) Act,2005 (for short hereafter referred to as the ’W omen Reservation Act’) had been violated in making appointments against the pos ts of Registrar/Resident Physician/Resident Surgeon of Surgery (5 posts adverti sed and one anticipated) has been raised as well. WP( C) NO. 6414/2006

08. The petitioners herein, too had offered their candidature pursua nt to the advertisement No.3/05 as above and on completion of the selection proc ess, were empanelled in the select list dated 28.2.06 wherein, the name of the p etitioner No.1 appeared at Sl No.3 for the post of Demonstrator of Physical Scie nce and Medicine and that of the petitioner No.2 at Sl No.8 for the post of Regi strar of Anesthesiology/Anesthetist in order of merit. Vide the above advertisem ent, applications from suitable candidates were invited to fill up 3 posts of Re gistrar of Physical Science and Medicine and 9 posts of Anesthesiology/Anestheti st for the three Medical Colleges of the State. The petitioners have averred th at thereafter, in terms of the said select list, appointments were made to the r espective posts in order of merit. However, though the select list remained vali d till 28.2.2007, the impugned advertisement meanwhile was published on 16.12.20 06 for filling up 6 posts of Demonstrator of Physical Science and Medicine and 4 posts of Registrar of Anesthesiology/Anesthetist under Regulation 3(f) of the Regulations. On queries being made by them, they were told that inspite of thei r selection, they could not be accommodated against the posts earlier advertised in view of the 2005 Act. The petitioners have contended that this enactment was not applicable to their selection process, the same having been initiated prior to the enforcement thereof and have therefore pleaded unfairness in action resu lting in discrimination against them. While maintaining their same stand vis-a-vis the select list dated 28.2.06 whic h stood modified in compliance of the prescriptions of the 2005 Act, the State respondents in their affidavit, have insisted that candidates recommended by t he Commission were duly appointed against the posts available strictly in order of merit. They have clarified that all the appointees to the 9 posts of Registr ar of Anesthesiologist /Anesthetist and 3 posts of Demonstrator of Physical Scie nce and Medicine had duly joined their service and that therefore, the select li st prepared for the earlier process stood wholly exhausted. According to them, t he fresh exercise initiated by the impugned Employment Notice dated 16.12.06 w as necessary to fill up 4 vacant posts of Registrar of Anesthesiologist /Anesth etist , the same having arisen following two rounds of promotion in the months o f July and September, 2006. Similarly, 3 posts of Demonstrator of Physical Scie nce and Medicine had fallen vacant after the advertisement No.3/05 in March/05 a nd still thereafter 3 additional posts were created in March, 2006 and therefore 6 posts of Demonstrator of Physical Science and Medicine too had been advertise d tobe filled up. Exigencies of service has been cited to be the reason to fill up these posts under Regulation 3(f) of the Regulations instead of regular appo intments.

09. By an additional affidavit, the State respondents have disclosed the detailed particulars of the promotions in the Departments of Physical Scien ce and Medicine, Anaesthesia Surgery and Medicine by way of reinforcement of the statements in their first counter. According to them, though the process for c reation of posts referred to in the chart appended to their first affidavit had commenced on 17.06.05 and that eventually the Finance Department had agreed to t he proposal on 10.2.06. It was thereafter that Vide No.HLB 225/2005/11/27 dated 27.3.2006, HLB.225/2005 /11 dated 27.3.06 and HLB.225/2005/13 dated 29.3.06, a t otal of 153 posts in the three Medical Colleges were created out of which 29 wer e in the rank of Registrar/Demonstrator. The respondents have insisted that the posts that had fallen vacant due to promotion in the months of July, 2006 and S eptember,2006 as well as the new posts created in the month of March, 2006 coul d not be anticipated at the time of forwarding the request for the initiation of the earlier process by letter No.HLB 56/2002/308 dated 08.11.2004 to the Com mission, which led to the publication of the advertisement No.3/05 in the month of March2005. In their additional affidavit filed later on, the State respondents sought to cl arify further the dates on which the posts of Registrar/Demonstrator in the rel evant departments had fallen vacant as hereunder :- Sl No. Department Date of Vacancy number. of post Reason Pathology

1. n to the post of Assistant Professor. Surgery 2. l of the earlier incumbent. 3. 3 3 F & SM Promotion New post. 17/4/05 23/6/06 2 1 Promotio Dismissa July/06 September/06 March,2006 These clarifications, the State respondents have provided amongst others to expl ain some inadvertent mistakes in the chart to the above effect appended to their first affidavit.

10. In their supplementary affidavit, the State respondents have ave rred that at the time of the advertisement No.3/05, 3 posts of Demonstrator in P hysical Science and Medicine were advertised, whereof 2 were made for the Assam Medical College and one for the Gauhati Medical College. Though another post was available at Assam Medical College, the same had not been advertised and there fore, in terms of the 2005 Act, it was not available to be filled up from the se lect list dated 28.2.06 which was modified on 27.7.06. The affidavit in reply of the petitioners being in plain reiteration of the averments made in their wri t petition, it is inessential to traverse the same. WP( C) NO. 6455/2006 The petitioner had participated in the selection process initiat 11. ed by advertisement No.3/05 and in the select list dated 28.2.06, he was enliste d at Sl. No.5 for the post of Registrar of Medicine. By this advertisement, 8 su ch posts were to be filled up. As inspite of his above position in the select li st, he had not been appointed and instead, during the validity of the select lis t dated 28.02.06, the impugned Employment Notice was issued to fill up amongst others 11 vacant posts of Registrar of Medicine, the petitioner has laid the pr esent challenge. Though the vires of Section 7(1)(g) of the 2005 Act had been i mpugned, noticeably, in course of the arguments, the same was not pursued.

12. The State respondents have averred that though the petitioner’s name appeared at sl No.5 of the select list, the same having been redrawn by t he Commission in terms of the 2005 Act, he did not figure in the modified list dated 27.07.06. It had been sought to be clarified in course of the arguments th at the fresh list having been prepared to accommodate the equal number of candid ates for the posts advertised by taking into account amongst others the law of reservation, the petitioner being at sl No.4 of the unreserved candidate could not be accommodated as the posts advertised could accommodate only 3 general ca tegory candidates in order of merit. The answering respondents have maintained that the impugned Employment Notice has been issued for filling up 11 posts w hich have arisen due to 2 rounds of promotion in the months of July and Septembe r, 2006 and that the appointments to the posts earlier advertised having been made in compliance of the relevant provisions of the law adhering to the merit of the candidates selected, the challenge is misplaced. Referring to the various correspondences pertaining to the pro 13. motion and the creation of posts as referred to in the pleadings of the State r espondents, the petitioner has reiterated that sufficient number of vacancies in fact had either existed or could be anticipated at the time of the publicati on of the advertisement No.3/05 and that therefore, denial of his appointment i s an obvious infringement of his vested legal right rendering the impugned Empl oyment Notice invalid in law. WP( C) No. 64/07 14. The petitioner had associated himself with the selection process commenced by advertisement No.3/05 and in the select list dated 28.2.06 his nam e figured at Sl No.18 for the post of Demonstrator in Pathology. Incidentally, h e was third in order of merit vis-a-vis the general category candidates. Accord ing to him, though at the relevant time, 24 vacancies in the said post had exist ed, only 11 were advertised. He is aggrieved by the impugned Employment Notice d ated 16.12.06 which according to him, had been published without exhausting the select list dated 28.2.06 qua, the vacancies ought to be filled up on the basis thereof. He has repudiated as well, the enhancement of the minimum academic qual ification of Post Graduate Degree in the concerned discipline to be violative of the Assam Medical Education Service Rules, 2006 (hereafter for short referred t o as 2006 Rules) and the Minimum Qualification for teachers in Medical Institu tions Regulatiion,1998 (hereafter for short referred to Regulation, 1988) framed by the Medical Council of India.

15. The State respondents while referring to the Department’s letter s dated 8.4.2004, 2.2.05, 4.6.05 and 27.12.05 thereby requesting the Commission to advertise the posts of Registrar/Demonstrator and those equivalent thereto in the three Medical Colleges of the State, have stated that on the culmination of the selection process that followed, the select list dated 28.2.06 was prepared by the Commission. As the same was not inconformity with the provisions of the 2005 Act, the Department requested the Commission vide letter No.HLB.106/2006/57 dated 5.7.06 to remodel the same accordingly and thereafter it (Commission) vid e its letter No.90/APSC/DE-3/3/2005-5 dated 27.7.06 furnished the modified list of the selected candidates. While reaffirming that the appointments from the s aid modified list were accordingly made strictly in order of merit, the answer ing respondents have asserted that the enhancement in the entry level academi c qualification for the post of Registrar/Demonstrator and posts equivalent th ereto in the Medical Colleges of the State from MBBS to PG Degree in the conc erned subject was prescribed vide the departmental letter No. HLB 280/2006/25 d ated 4.10.06. According to them, the upgradation in the minimum academic qualifi cation was essential to effectuate promotions to the next higher rank of Assista nt Professor for which PG Degree was an imperative criterion as per the norms of the Medical Council of India. They have clarified that 13 posts referred to by the petitioner and averred to be vacant at the time of the advertisement No.3/05 , were in fact, available to be filled up thereafter following promotion as well as creation of new posts. WP(C) NO. 140/2007 The petitioner at the time of the publication of the Advertisement No.3/2005, ha d been serving as Registrar in the Department of Medicine under Regulation 3 (f ) of the Regulations, Eight posts of Registrar of Medicine having been advertise d vide Advertisement No.3/2005 the petitioner offered his candidature and in the select list dated 28.02.2006, his name appeared at Sl. No.28 in order of meri t. According to the petitioner, at all relevant times, there were, in fact, 1 9 vacancies in the post of Registrar of Medicine, though, only 8 had been adv ertised. Out of the remaining 11, some were held on ad-hoc basis by appointees under Regulation 3(f) like him. On the completion of the said process, by order dated 04.10.2006 the services of some of such ad-hoc appointees includi ng the petitioner were terminated. As it was represented to him that appoint ments to these 11 posts would also be made on regular basis from the same select list, he refrained from challenging the termination of his service. However, by the impugned employment notice dated 16.12.2006, a fresh proce ss was started to fill up these posts under Regulation 3(f), thereby, by implica tion seeking to replace one ad-hoc by another. Contending it to be impermissibl e in law, this employment notice and the process related thereto has been assail ed by him. He has also impugned the prescription of minimum academic qualificat ion of post graduate degree repudiating it to be in violation of the Regulation 1998 framed in exercise of powers conferred by section 33 of the Medical Council Act, 1956.

16. The State respondents in their affidavit, while reiterating thei r stand with regard to the commencement of the process vide the Advertisement No . 3/2005, modification of the original select list dated 28.02.2006 on 27.07.20 06, in compliance of the 2005 Act and the enhancement of the minimum academic qu alification at the entry level, have asserted that the 11 posts referred to by t he petitioner fell vacant only in the year 2006 and, therefore, could not have b een integrated in the earlier process. WP(C) NO. 896/2007 According to the petitioner, he was selected in the year 2004 to be appointed as Demonstrator of Pathology (Blood Bank) at Silchar Medical College and was appoi nted as such under Regulation 3(f) of the Regulations. However, in absence of th e post of Demonstrator of Pathology, he was posted as Demonstrator of Blood Bank in the Pathology department of the said College. His initial term of such appoi ntment was thereafter extended from time to time. In response to the Advertisem ent No.3/2005, he applied for the post of Demonstrator/Registrar in various disc iplines including Pathology. In the select list dated 28.02.2006, his name did n ot figure amongst the recommended candidates for the post of Registrar/Demonstra tor of Pathology, but was included in the list for Radiology at Sl. No. 20. He was, however, not appointed against the 6 posts advertised for the department, w hereafter, on 03.10.2006 his appointment under Regulation 3(f) was cancelled. A ccording to him, no one has yet been appointed against the post, which he had be en holding. Claiming a preference by dint of his status as a scheduled caste ca ndidate, the petitioner has pleaded that, in fact, more than 6 posts were lying vacant in the Department of Radiology at the time of the advertisement. He too, has questioned the validity of the enhancement of the minimum academic qualific ation to that of post graduate degree as prescribed by the impugned employment n otice dated 16.12.2006. The petitioner has complained that though in response t o the impugned advertisement, he sought to participate in the process, he was no t permitted to do so.

17. The State respondents in their counter, while reiterating their averments bearing on the select list dated 28.02.2006, 2005 Act and the appointm ents to the advertised posts in order of merit, have additionally stated that th e decision to raise the minimum academic qualification, is also geared to improv e the quality of teaching in the three Medical Colleges of the State. According to them, the insistence for this higher academic qualification is also to diver t medical graduates without post graduate degree to the State Health Service Sec tor and, thus, promote public health. They have also referred to pay scale to t he teachers of the Medical Colleges of the State as accorded by the All India Co uncil of Technical Education since 1996, which warranted upgradation in the mini mum academic qualification. While pleading that the enhancement in the academic qualification as insisted upon, does not detract from the minimum prescribed b y the Medical Council of India by the Regulation 1998, the State responden ts have endorsed this initiative as a policy decision of the Government on valid considerations. While clarifying that the petitioner was not allowed to participate in the process initiated by the impugned notice dated 16.12.2006 as he lacked in the prescribed academic qualification, the answering respondents ha ve maintained that the posts of Registrar/Demonstrator of Radiology involved the rein, had fallen vacant and/or created after the Advertisement No. 3/2005 had be en issued. They have denied the preferential right claimed by the petitioner as a member of the scheduled caste community for appointment against the post of D emonstrator/Registrar of Radiology Department in the earlier process. His claim vis-a-vis the post of Demonstrator/Registrar, Pathology has been dismissed on t he plain ground that he had not been selected therefor. They have affirmed that all posts involved in the earlier process have since been filled up strictly in accordance with the law adhering to the order of merit as reflected in the modi fied select list dated 27.07.2006. Whereas, the additional pleadings of the pet itioner are by way of repetition of the averments made in the writ petition, the Medical Council of India impleaded as respondent No. 4, in its affidavit has cl arified that the academic qualification prescribed by the Regulation 1998, among st others, for the post of Tutor/Demonstrator/Registrar etc., is the minimum qua lification therefor, which does not permit of any relaxation thereof. WP(C) NO. 4788/2007 18. The petitioner claims to have been appointed as a Registrar of O bstetrics and Gynaecology under Regulation 3(f). By order dated 18.11.2005 he wa s posted at Silchar Medical College, Silchar. The initial term of such appointm ent was extended from time to time. Though, no post of Demonstrator/Registar/Res ident Physician in the Department of Obstetrics and Gynaecology was included in the Advertisement No. 3/2005 to be filled up, by order dated 03.10.2006 his serv ices, as above, were terminated along with other similarly placed appointees. I t was represented by the departmental authorities that though the services of Re gulation 3(f) appointees had been terminated to accommodate the candidates selec ted by the Commission in the above process as no post of Demonstrator/Registrar/ Resident Physician of his department had been so advertised, the termination of his services would be recalled. He, therefore, did not question his ouster at t hat point of time. Even, after the publication of the impugned employment notic e dated 16.12.2006, whereby, applications, inter alia, were invited for filling up three posts of Registrar of Obstetric and Gynaecology under Regulation 3(f), the petitioner was made to understand that posts so advertised did not include t he one held by him. He, therefore, waited in bonafide expectation for his reind uction. It was, thereafter, by the advertisement dated 30.082007, that fresh ap plications were invited for filling up 6 posts of Registrar of Obstetrics and Gy naecology under Regulation 3(f). Thereby, the minimum academic qualifications h ave been raised from MBBS to Post Graduate degree. As this process in the estim ate of the petitioner has the potential of finally sealing his fate and confirmi ng the termination of his services, he has approached this Court for redress. The State respondents, while admitting the petitioner’s appointment as Resident Surgeon of Obstetrics and Gynaecology under Regulation 3(f) by the order dated 1 9.11.2005, have stated that the termination of his services had been pursuant to the decision to that effect along with others in general terms. They have reit erated the reasons for enhancing the minimum academic qualification from MBBS to Post Graduate degree at the entry level of Registrar/Resident Surgeon/Demonstra tor in the Department of the Medical Colleges of the State.

19. Mr. Mishra, leading the arguments for the petitioner has urged t hat as evidently vacancies in the post of Registrar/Resident Physician/Resident Surgeon/Demonstrator in the department of Surgery had occurred soon after the se lection process had been initiated vide the Advertisement No. 3 of 2005 and duri ng the life term of the initial select list dated 28/2/2006 of one year, the imp ugned employment notice to fill up these posts without inducting the petitioner in WP(C) 6321/2006 is visibly illegal and arbitrary. As the pleadings of the res pondents in clear terms demonstrate that vacancies in 15 posts of the above rank in the aforesaid department and advertised by the employment notice dated 16/12 /2006 could have been well anticipated before the completion of the earlier proc ess, the same ought to have been assimilated therein so as to facilitate appoint ment from the select list dated 28/2/2006, he pleaded. According to the learned Sr. Counsel, as the Assam Women (Reservation of vacancies in Services and Posts) Act, 2005, had come into force well before the select list dated 28/2/2006 had been drawn up, the provisions thereof were applicable to the ongoing process set on motion by the Advertisement No. 3 of 2005 and thus having regard to the posi tion of the petitioner in WP(C) 6321/2006 in the order of merit for the post of Registrar/Resident Physician etc, she ought to have been accommodated being the only woman candidate therefor. Mr. Mishra has contended with reference to the pleadings in WP(C ) 6414/2006 testify that on the date of the earlier advertisement vacancy in one post of Demonstrator, Physical Science and Medicine though existed, the same co nsciously had not been offered to be filled up thereby. There being no justifica tion therefor, having regard to the inter se merit of the petitioner No. 2 in th e select list of Demonstrator for Physical Science and Medicine, a writ of manda mus ought to be issued directing her appointment thereto. Relying on the decisio n of a Single Bench of this Court in WP(C) 6430/2006, Dr. Malabika Barman versus APSC and others rendered on 18/1/2007 since upheld by a Division Bench herein i n WA No. 95/2007, Mr. Mishra has argued that the determination made by another D ivision Bench of this Court in Mukul Saikia, 2007 (1) GLT 96 and upheld by the A pex Court (Mukul Saikia versus State of Assam and others (2009) 1 SCC 386) is di stinguishable on facts and, therefore, is of no avail to the respondents. The le arned Senior Counsel has endeavoured to underlie the distinction by referring to Rule 6(1)(a) of the Assam Medical Education Service Rules, 2006. According to h im, whereas the Rules involved in Mukul Saikia and others, supra, did not permit filling up of anticipated vacancies, Rule 6(1)(a) of the Assam Medical Educatio n Service Rules, 2006, in unambiguous terms made it imperative for the appointin g authority to make an assessment of the likely number of vacancies to be filled up by direct recruitment during the next year and to intimate the Commission to conduct the process to recommend a list of candidates in order of preference th erefor. As in compliance of the verdict in Dr. Malabika Barman, supra, selected candidates similarly situated like the petitioner have already been appointed th ere is no conceivable rationale to mete out a different treatment to her, he mai ntained. In addition to the above, Mr. Mishra has placed reliance on the decisio n of the Apex Court in Amlapuram Municipal Council and another versus U. Simhadr i, (1996) 10 SCC 657, in support of his plea of applicability of the Woman Reser vation Act, 2005 in the selection process initiated vide the advertisement No. 3 of 2005.

20. Mr. Mazumdar, learned Counsel for the petitioner in WP(C) No. 64 /2007 while reiterating the stand based on the enunciation made in Dr. Malabika Barman, supra, has urged with special reference to the affidavit of the State re spondents filed on 8/1/2007 in WP(C) 6310/2006 on identical issues (since dispos ed on 18/1/2007 similarly as WP(C) 6430/2007, Dr. Malabika Barman (Supra)) that as 17 clear vacancies in the post of Demonstrator in Pathology were then availab le, the denial of appointment of the petitioner, considering his position in the select list is a visible violation of his legal and constitutional rights.

21. Mr. Bhuyan representing the petitioner in WP(C) 6455/2006 has ur ged that not only considering his merit position in the select list vis-à-vis th e number of posts of Registrar of Medicine advertised, he (petitioner) ought to have been appointed, as a process for creation of as many as 16 posts of Assista nt Professor in the three Medical Colleges of the State had been initiated in th e month of April, 2004, in order to meet the minimum requirement therefor under the Medical Council of India’s Post Graduate Medical Education Regulation, 2000, these were clearly in offing suggesting equal number of anticipated vacancies i n the feeder post of Registrar etc. of Medicine. Mr. Bhuyan has, therefore, urge d that having regard to the mandatory prescription of such requirement under the se Regulations to ensure the continuance of the recognition of the Under Graduat e and Post Graduate Courses in the Medical Colleges of the State, equal number o f posts of Registrar etc of Medicine as anticipated ought to have been included in the advertisement No. 3 of 2005. As the failure of the State respondents in t his regard is not justifiable on any count, an appropriate writ and/or direction ought to be issued to them amongst others to provide appointment to the petitio ner to a post of Registrar of Medicine on the basis of his merit position in the select list. In support of his submissions Mr. Bhuyan has placed reliance on a decision of the Apex Court in Surinder Singh and others versus State of Punjab a nd another, (1997) 8 SCC 488.

22. Mr. Buzorbaruah, learned Counsel for the petitioner in WP(C) No. 140/2007 contended that though at all relevant times 19 vacancies in the post o f Registrar of Medicine had existed only 8 were advertised vide Advertisement No . 3 of 2005 keeping apart 11 without any reason whatsoever. According to him, ha d all these vacancies been advertised, having regard to the position of the peti tioner in the merit list, he would have been appointed on regular basis. Instead , his appointment as Registrar of Medicine under Regulation 3(f) has not only be en terminated but he is sought to be replaced by another ad-hoc incumbent throug h a process initiated by the impugned employment notice dated 16/12/2006. In add ition to contending that this is per se impermissible in law, Mr. Buzorbaruah ha s further urged that the enhancement of the minimum qualification for the entry post of Registrar/Resident Physician etc as is sought to be enforced by the impu gned employment notice, is ex-facie in contravention of Regulation 1998 framed b y the Medical Council of India in exercise of statutory powers under section 33 of the Medical Council of India Act, 1956. The learned Counsel has impeached thi s also for want of competence of the State respondents being lacking in authorit y in law.

23. On behalf of the petitioner in WP(C) 4788/2007, Mr. Buzorbaruah has argued that as the Advertisement No. 3 of 2005 did not include the post of D emonstrator in Obstetrics and Gynaecology, the termination of his appointment as such under Regulation 3(f) to fill up the same through the ensuing process is a pparently illegal and arbitrary being on a non-existent cause. He has reiterated the challenge to the validity of the impugned employment notice inter alia on t he ground of unauthorised upgradation of the minimum academic qualification for recruitment to the post mentioned therein.

24. Mr. Goswami, learned Counsel for the petitioner in WP(C) No.896/ 2007 has generally reiterated the arguments advanced on behalf of the other peti tioners and has urged in particular that having regard to the placement of the p etitioner in this case in the select list, he by all means ought to have been ac commodated.

25. Mr. Saikia in reply has maintained in general terms that as the candidate selected and empanelled in the list dated 27/7/2006 prepared in confor mity with the mandate of section 7(i)(g) of the 2005 Act have been appointed str ictly in order of merit, the petitioner’s claim for appointment on the basis of the select list dated 28/2/2006 which is non est in law is wholly misconceived. As neither the select list dated 27/07/2006 drawn up in compliance of the 2005 A ct nor the notification dated 4/10/2006 stipulating enhancement of the academic qualification at the entry level of posts pursuant to which the impugned employm ent notice had been published has been assailed in any of this petitions, the co ntentions bearing on the anticipated vacancies and unauthorized upgradation of t he conditions of eligibility are liable to be rejected in limine, he asserted. While insisting that the provisions of the 2005 Act were clearly applicable to t he selection process initiated vide the Advertisement No. 3 of 2005 and that acc ordingly the select list dated 27/07/2006 is valid in all respects, the learned Standing Counsel has argued that the 2006 Rules having not been enforced, the no tion of anticipated vacancies founded thereon is misconceived. Mr. Saikia while emphasising that the decision in Dr. Malabika Barman, supra, had been rendered w ithout taking into consideration the view of the Division Bench of this Court, i n Mukul Saikia, supra, since upheld by the Apex Court, it is per incuriam and, t herefore cannot be of any avail to the petitioners. In absence of the 2006 Rules or for that matter any statutory instrument governing the method of recruitment in the posts involved, a fact consistently acknowledged and recorded in Dr. Mal abika Barman, supra, the distinction sought to be introduced on behalf of the pe titioners to neuter the decision in Mukul Saikia and others, supra, is non-exist ent, he contended. As in the facts and circumstances of the case, the determinat ion in Mukul Saikia and others, supra, is applicable, the petitioners’ claim for appointment on the basis of their selection against anticipated vacancies not a dvertised is wholly misplaced, he argued.

26. Mr. Saikia has endeavoured to impress upon this Court that the p rovisions of the Women’s Reservation Act, 2005 are not attracted to the selectio n process initiated vide the advertisement No. 3 of 2005 and, therefore, no reli ef on the basis thereof is extendable to the petitioners. Profusely referring to the pleadings of the respondents, the learned Standing Counsel has urged that t he vacancies advertised in the impugned employment notice dated 16/12/2006 had n either been anticipated nor had arisen at or before the advertisement No. 3 of 2 005 and having occurred thereafter could not have been filled up by the select l ist dated 28/2/2006. As in any view of the matter, the select list dated 27/7/20 06 was modelled to be of the size to accommodate only the advertised vacancies a s enjoined by section 7(1)(g) of the 2005 Act, the petitioners who admittedly by the dint of their merit failed to come within the said zone cannot have any leg itimate grievance for not being appointed. Even assuming without admitting that the plea of the petitioners vis-à-vis the anticipated vacancies has a semblance of substance, in the face of the emphatic legislative mandate contained in the 2 005 Act, they, by no means on the basis of their merit position in the select li st could have been considered for appointment against the same, he insisted.

27. Vis-à-vis the upgradation of the academic qualification, Mr. Sai kia has maintained that Regulation 1998 framed by the Medical Council of India h aving prescribed the minimum academic norm, there is no conceivable bar what so ever for the State respondents to enhance the same in the interest of promotion of teaching standard and improvement of quality of service, particularly, in the rural sector. As Post Graduate is an essential academic qualification for promo tion to the next higher post of Assistant Professor, prescription thereof at the entry post would not only secure better academically equipped candidates at the entry post but also would motivate the medical graduates to devote themselves t o public service, he urged. The following decisions were relied upon to reinforc e the above submissions.

28. Gujarat State Dy. Executive Engineers Association versus State o f Gujarat and others, (1994) Supp 2 SCC 591, Sandeep Singh versus State of Harya na and others, (2002) 10 SCC 549, Madanlal Das versus State of Jammu and Kashmir and others, (1995) 3 SCC 486, Mukul Saikia and others versus State of Assam and others, (2009) 1 SCC 386, Mukul Saikia and others versus State of Assam and oth ers, 2007 (1) GLT 96, Siddharta Sarkar and others versus State of Assam and othe rs, 2007 (3) GLT 715. 28A. The contentious arguments adumbrated hereinabove portray, to sta rt with the following limbic issues having an overall bearing on the adjudicatio n and thus deserves to be attended to at the threshold. Application of the 1. rvation Act, 2005. Assam Fiscal Response and Budget Management Act, 2005 and the Woman Rese

2. Legality and/or validity of the enhancement of the academic qualificatio n from MBBS to Post Graduation at the entry post of Registrar/Resident Surgeon/R esident Physician/ Demonstrator etc as enumerated in the impugned employment not ice dated 16/12/2006.

29. A plain reading of the 2005 Act reveals that it had received the assent of the Governor of the State on 13/5/2005 and published in the issue dat ed 17/5/2005 of the Assam Gazette (Extraordinary). Section 1(3) proclaims that i t would come into force on and from the date as may be appointed by the State Go vernment by a notification in the official gazette. In the above view of the mat ter, this legislation was enforced w.e.f. 17/5/2005. The pleadings and the offic ial records reveal that the initial requisition for the process furthered by the advertisement No. 3 of 2005 was set in motion on 8/11/2004 by a letter of the s ame date of the Joint Secretary to the Government of Assam, Health and Family We lfare (B) Department and culminated in the select list dated 27/7/2006 asserted by the respondents to be patterned in alignment with the 2005 Act. This enactmen t was thus in place and in force during the conduct of the process and, therefor e, has to be held to be applicable thereto. As the enjoinment of section 7(1)(a) and (h) thereof was enforceable at the time of drawal of the select list and ap pointments made, the plea to the contrary for want of retrospectivity thereof do es not commend for acceptance. Act, 2005, was thus applicable to the process ini tiated by the advertisement No. 3 of 2005.

30. The Women Reservation Act 2005 admittedly had received the assen t of the Governor of the State on 13/5/2005 and was notified in the Assam Gazett e (Extraordinary) on 21/5/2005. In terms of section 1(3), this enactment had com e into force at once. The Assam Women (Reservation of Vacancies in Services and Posts) Rules, 2006 framed thereunder had been made effective on and from 30/11/2 005. These enactments therefore, were, also in force during the selection proces s launched vide advertisement No. 3 of 2005 and, therefore, were applicable ther eto as well. This view also find support from the decision of the Apex Court in Amala Puram Municipal Corporation and another, (Supra), wherein an administrativ e order having a bearing on an ongoing selection process and passed in course th ereof was held to be enforceable to guide the same in accordance therewith. As n o debate has been raised as to consequences of the invocation of these laws in t he contextual facts, it is inessential to linger on the provisions thereof in th at perspective. The advertisement No. 3/2005 prescribed the following educationa

31. l qualification for the posts of Demonstrator/Registrar/Resident Physician etc. (cid:28)MBBS Degree from Medical Institutions recognized by MCI and must be registered under the Assam Medical Council Act, 1916 or any other Act. Preference will be given to the candidates having PG degree in the concerned discipline. (cid:29) The impugned employment notice, however, marked a different acad emic qualification as under:- (cid:28)Post Graduate Degree in the subject/specialty obtained from the Medical College s/Universities recognized by the Medical Council of India. (cid:29)

32. Evidently, thus, the academic qualification for eligibility in t he latter process was enhanced. Admittedly, Regulation 1998 of the Medical Coun cil of India prescribes MBBS to be the minimum educational qualification of elig ibility for the posts involved. The upgradation of the entry level academic qua lification has been sought to be impeached as invalid for lack of authority of t he State respondents to stipulate the same in transgression of the prescription in the Regulation 1998. The petitioners contend that any modification of the mi nimum academic qualification enjoined by Regulation 1998 is beyond the dominion of the State executive rendering the impugned employment notice null and void on this count. A Division Bench of this Court in Siddhartha Sarkar & Ors. (Supr 33. a), was seised with an identical issue. The State of Assam therein had, by a se t of rules prescribed norms for the Common Entrance Examination, amongst others, for the MBBS course incorporating marginally rigourous standards compared to th ose codified by the Medical Council of India. This was, inter alia, sought to b e repudiated on the ground that the State formulated stipulation was beyond its competence being opposed to the criteria specified by the Medical Council of Ind ia. This Court on a survey of several decisions of Apex Court including the one rendered in Dr. Preeti Srivastava & Ors. Vs. State of MP Ors., (1999) 7 SCC 120 , negatived the challenge. While referring to the respective fields of legislat ion on the related subjects as outlined for the Parliament and the State Legisla tures, namely, Entry 66 of List-I and Entry 25 of List-III of Schedule VII to th e Constitution of India, the competence of the State to lay down additional or f urther qualifications of higher standards compared to those stipulated by the Me dical Council of India was acknowledged. Such additional qualifications were he ld not to be in conflict with the regulations made by the Medical Council of Ind ia, as the same were construed neither to be adverse to, or lower than the same. In other words, this Court sustained the competence of the State to prescribe qualifications and conditions of eligibility in addition to or superior to thos e prescribed by the Medical Council of India relating to admission to the course involved and concluded that mere variance between the two, did not ipso facto r ender the prescriptions made by the State non est or invalid.

34. The proposition enunciated in Siddhartha Sarkar & Ors. (Supra), can be profitably applied to the issue in hand. Though, the State respondents p resently, have sought to upgrade the academic qualification, sans any legislativ e instrument, the edict to that effect cannot be jettisoned as dehors any author ity in the face of the constitutionally conferred executive power extendable to the matters in respect of which it is equipped to make laws. Regulation 1998 as well, does not embody any prohibition or bar by the concerned State or its Legi slature to enjoin additional qualifications/criteria with the intent to further upgrade the same in the interest of academic excellence or quality of service.

35. The State respondents in their pleadings, have maintained that t he enhancement of the academic qualification at the entry level from MBBS to Pos t Graduate degree has been by way of Government policy not only to attract bette r qualified candidates, but also to facilitate their unimpeded promotion to the next higher rank of Assistant Professor for which Post Graduate degree is an ess ential condition of eligibility. Additionally, they have averred that the conse quential screening on the basis of upgraded qualification would auger well for t he rural health sector, as medical graduates can then be diverted to devote thei r services thereto. The official records reveal that the enhancement in the ent ry level academic qualification has been pursuant to a cabinet decision. Moreov er, the Notification No.NLB.280/2006/25 dated 04.10.2006 in the name of the Gove rnor to the above effect engrafts the permissibility of relaxation in the eventu alities, as referred to therein. On a totality of considerations as above, more particularly, in absence of any r eservation of the petitioners to the authenticity of the factors enumerated by t he State respondents in support of the conscious modification of the primary aca demic qualification and the adjudged subsistence of its power to do so, the impu gnment of the employment notice on this ground is rejected. The plea that such upgradation of the academic qualification is even, otherwise unwarranted due to availability of in-house PG course for the in-service medical graduates is not p ersuasive enough to displace the above determination.

36. The issue as to whether vacancies not advertised occurring durin g the process of the selection in motion could be filled up from the candidates empanelled in the select list on the culmination thereof was answered in the neg ative by a Division Bench of this Court in Mukul Saikia and others, supra. There in 27 posts of Child Development Project Officer (for short referred to as the C DPO) were sought to be filled up by advertising those on 19/8/1997. The petition ers therein also the participants in the exercise instituted a writ proceeding p raying for amongst others a direction to the State respondents also to fill up a ll anticipated vacancies that had arisen on or after the date of the advertiseme nt till the completion of the selection process from the select list dated 17/7/ 2000 in which they were empanelled.

37. The determination of the learned Single Judge rejecting this ple a was sustained in appeal on a survey of a catena of decisions of the Apex Court including those rendering in Surinder Singh and others, (1997) 8 SCC 488 and Ma danlal & Ors. Vs. State of Jammu and Kashmir and others, (1995) 3 SCC 486. The D ivision Bench distinguished the decision of the Apex Court amongst others in Vir ender S. Hooda and another versus State of Haryana and others, (1999) 3 SCC 696 in which a Government circular provided for filling up of vacancies that arose w ithin six months from the date of the recommendation by the concerned Public Ser vice Commission to be filled up from the wait list drawn up. Observing that in t he contextual facts, there was no such policy decision of the Government that va cancies beyond those advertised or occurring till the select list was prepared c ould be filled up from the candidates therefrom, the petitioners’ claim was dete rmined to be untenable. The Division Bench returned a finding on the basis of th e consistent overwhelming view propounded by the Apex Court that the life of the select list got exhausted as the posts advertised were filled up therefrom and that no direction could therefore be issued to fill up posts beyond those advert ised in absence of any policy decision permitting such a course. This view was upheld by the Apex Court in Mukul Saikia and other 38. s versus State of Assam and others, (2009) 1 SCC 386. Emphasising that the selec t list prepared by the APSC could fill the notified vacancies and not future vac ancies, their Lordships observed that if the requisition and advertisement was o nly for 27 posts, the State could not appoint to more than those advertised even though the list was of 64 candidates. It reiterated that the select list got ex hausted when 27 posts were filled and that the candidates below the select list had no right to any additional vacancy in the selection that was held. In no unc ertain terms, the Apex Court concluded that filling up of vacancies over and abo ve the number of vacancies advertised would be violative of Article 14 and 16 of the Constitution of India.

39. It is worthwhile to notice that Clause V of the Assam Social Wel fare (Recruitment and Promotion) Service Order, 1994, involved therein provided for filling up all the posts of CDPO by direct recruitment through the APSC as p er the norms to be fixed jointly with the Ministry of Welfare, Government of Ind ia, by the Social Welfare Department. Visibly the said Service Order did not con template filling up of anticipated or future vacancies in addition to those in e xistence at the time of initiating the process for direct recruitment.

40. In Sandeep Singh, supra, the Apex Court was in seisin of a subst antially similar situation. The concerned Public Service Commission had issued a n advertisement tentatively indicating the number of posts with the hint that a vacancy position may change. The exercise was for appointment to the posts in Ha ryana Civil Service (Executive) Branch. Though the advertisement had been issued on 25/4/1992, the related written examination was held in the year 1993. The in terview that was delayed was held eventually during January and March 1996. Thou gh in between several other posts had fallen vacant, the Public Service Commissi on prepared a list of six vacancies for which the initial requisition had been m ade. The appellants moved the Punjab and Haryana High Court for issuance of a wr it of mandamus to provide them appointments against vacancies as available by th e date of the interview. The appellants in support of their plea relied on sever al circulars of the Government to the effect that vacancies available upto the d ate of the interview should be filled up from amongst the competitive list avail able. The Apex Court upheld the plea relying on amongst others a Government Circ ular of the year 1993 in this regard. It further observed that even otherwise on the first principles, vacancies available in any particular service till the da te of interview at least should be filled up from the very same examination unle ss there was any statutory embargo for the same. That no such statutory inhibiti on existed in the factual setting in hand was also noticed. The Apex Court in Surender Singh (Supra), while principally dwel ling on the import of a waiting list prepared in a recruitment process, had held appointments to the posts over and above, those advertised to be in improper ex ercise of power. While underlining the duty of the authorities concerned to tak e into account the existing as well as anticipated vacancies, their Lordships co ncluded that posts other than those advertised cannot be filled up as a matter o f course and that it is only in rare and exceptional circumstances and in emerge nt situation that this rule can be deviated from. It recalled its observation i n Prem Singh Vs. Haryana SEB (1996) 4 SCC 319 to the effect that the State can d eviate from the advertisement and make appointment on posts falling vacant there after in exceptional circumstances only or on emergent situation and that too by taking a policy decision in that regard. In Gujarat State Dy. Engineers Association (Supra), the Apex Court had held that a waiting list does not furnish a perennial source of recruitment and can be ac ted upon, if a selected candidate does not join, provided there is some extreme exigency justifying appointments therefrom in order of merit. The view of the G ujarat High Court that the candidates in the waiting list were eligible to be ap pointed since the vacancies had not been worked out properly, was disapproved.

41. That the appointments should be limited to the posts advertised was reiterated by the Apex Court in Madanlal & Ors. (Supra), pointing out, inter alia, that if the number is few, in a given case a candidate may not like to co mpete for diverse reasons, which may be otherwise, if the number of vacancies is comparatively more. It was further emphasized that once the vacancies advertis ed are filled up by the selected candidates in order of merit, the select list w ould get exhausted, it having served its purpose.

42. A Single Bench of this Court in WP(C) No. 6430/2006, Dr. Malabik a Barman versus Assam Public Service Commission and others had earlier analysed a challenge of the kind encountered in the present proceeding. The petitioner th erein who was appointed under Regulation 3(f) of the Regulations as demonstrator in Biochemistry in the Gauhati Medical College Hospital had responded to the ad vertisement No. 3 of 2005 contending for one of the four posts of Demonstrator i n Biochemistry as advertised. In the select list dated 28/2/2006, her name figur ed as an Other Backward Class candidate at Sl. No. 7. While she was not appointe d, by the impugned employment notice dated 16/12/2006, four more posts of Demons trator in the same discipline were advertised to be filled up under Regulation 3 (f). Inter alia contending that another vacancy in the post of Demonstrator in B iochemistry had occurred on 8/7/2005 consequent upon a promotion therefrom and t hat therefore the said vacancy could have been well anticipated within the calen dar year 2005, a writ of mandamus was sought for directing the State respondents to accommodate the petitioner against the same. It was pointed out as well that the selection/interview had been conducted by the Commission on 26/8/2005 soon after this vacancy had occurred. That a similar vacancy had occurred in the ENT Department and on the request made by the State Government to the Commission, th e latter had integrated the same in making its recommendations was also asserted pleading discrimination for the departure by the official respondents qua the p ost of Demonstrator in Biochemistry. The fact that vacancy in another post of De monstrator in Biochemistry had occurred on 29/3/2006 and that two other such pos ts had fallen vacant on 29/4/2006 due to promotions was also brought on record. The State respondents while maintaining that the vacancies beyon 43. d those advertised could not be filled up by the same selection process and were thus advertised vide the impugned employment notice dated 16/12/2006 sought to resist the assailment referring to the provisions of the 2005 Act which ordained drawal up of a select list of the size qua the number of posts advertised as a result whereof the modified select list dated 27/7/2006 had been prepared.

44. The learned Single Judge in course of the adjudication observed that ordinarily all existing vacancies, if required to be filled up, must be inc luded in the advertisement issued and that in doing so vacancies that can be rea sonably anticipated in the immediate future must be taken into account. Noticing absence of statutory Service Rules in force prescribing guidelines in this rega rd, it was held that if vacancy in a post with reasonable certainty is likely to arise and the same is required to be filled up in the exigencies of service, th e advertisement ought to account for it, the determining factor being the proxim ity between the initiation of process and the likelihood of the vacancy occurrin g. While underlining that the proximity has to be close, the interest of the adm inistration in dispensing with the requirement of holding repeated selections in such an eventuality was emphasised. It was held that this proposition in absenc e of any service rule could be extended to the facts of the case. Taking note of the fact that one post of Demonstrator of Biochem 45. istry had fallen vacant on 8/7/2005 and that the interview was held on 26/8/2005 it was held that the resultant vacancy ought to have been taken into account to be covered by the selection process culminating in the select list dated 28/2/2 006. While reaching this conclusion, the omission on the part of the State to di spute the fact that in a similar fact situation a subsequent vacancy in the post of Registrar in the ENT Department had been requisitioned by it and was covered by the same selection process initiated by the advertisement No. 3 of 2005 as w ell as the proposition enunciated by the Apex Court in Sandeep Singh (Supra), we re also taken note of. A consequential direction was thus issued to the State re spondents to work out the entitlement of the petitioner to this vacancy on the b asis of the select list dated 28/2/2006 or following such alterations in the mod ified select list dated 27/7/2006 as called for. The impugned employment notice dated 16/12/2006 was permitted to be effected subject to these directions.

46. In WA 95/2007 preferred by the State of Assam against this adjud ication, the eventual directions as above were sustained. On an exhaustive surve y of the various decisions of the Apex Court bearing on the aspect of the permis sibility of appointment to posts beyond those advertised including the one rende red in Sandeep Singh, supra, the Division Bench culled the quintessence thereof to conclude that filling up of vacancies occurring subsequent to the advertiseme nt from out of candidates who had responded thereto would spell denial of opport unity to those who had acquired eligibility later to compete for public employme nt and be violative of Article 14 and 16 of the Constitution of India. The Divis ion Bench, however, remarked that this rule was subject to relaxation in two con tingencies such as (i) the subsequent vacancies had arisen in close proximity of time with the advertisement and (ii) exceptional and rare situation supported b y a policy decision of the State.

47. It however declared that the State as the employer has the right to chose the appropriate time for filling up the vacancies which may occur from time to time for various reasons and subject to factors like exigencies of serv ices, financial capabilities etc. While observing that such a right must be exer cised on some rational basis, which is normally to be regulated by a law pertain ing to the recruitment process, it concluded that in absence thereof though the choice is left to the executive, the same by no means can be exercised in an arb itrary manner. Their Lordships held that in absence of a rule under Article 309 of the Constitution of India governing the conditions of recruitment to the serv ice, the executive government was free to initiate the process of recruitment on ly for the existing vacancies and that it could not be compelled to initiate the recruitment process even for the anticipated vacancies. However, noticing that in the case in hand, though a vacancy in the post of Registrar in ENT Department had occurred subsequent to the advertisement No. 3 of 2005 it had been filled u p from out of the candidates empanelled in the select list, for which no explana tion was forthcoming, it was observed that State could not be heard to say that it cannot be compelled to fill up vacancy not advertised. It was on this pre-dom inant consideration that the challenge in the appeal was negated.

48. That posts in public office beyond those advertised ought not to be normally filled up to be in deference to the constitutional guarantee under Article 14 and 16 is a proposition, which is no longer res integra. It is, howev er, incumbent as has been ordained by the Apex Court in Surinder Singh, supra, t hat before any advertisement is issued, the authorities should take into account the existing vacancies as well as the anticipated vacancies. However, a departu re from this enunciation qua posts falling vacant subsequent to the advertisemen t has been acknowledged to be permissible only in rare and exceptional circumsta nces and in emergent situations and that too if approved by a policy decision of the State.

49. The Apex Court in Sandeep Singh, supra, has extended this flexib ility to vacancies available till the date of interview in absence of any statut ory embargo to the contrary. Though this Court in Dr. Malabika Barman, supra, ha s comprehended the norm of proximity on the measure of the hiatus between the in itiation of a selection process by an advertisement and the occurrence of a subs equent vacancy, as a determinant obligating the authorities concerned to constru e the same to be an anticipated vacancy for enfolding it in the exercise contemp lated to be launched, no outer limit as such of that period has been indicated. There is also no serious resistance to the plea of the State respondents of the Assam Medical Education Service Rule, 2006, being not in force. As a matter of f act, that no such service rule or any other statutory rule under Article 309 of the Constitution of India or otherwise governing the conditions of recruitment t o the posts involved exists has been consistently recorded by both the fora in D r. Malabika Barman, supra. No legislative sanction or prohibition to the assimil ation of the anticipated vacancies in the posts in question in any selection pro cess for direct recruitment thus subsists.

50. Though the 2006 Rules which are reportedly in a draft stage pred icate estimation of the existing as well as anticipated vacancies likely to occu r in every calendar year at the threshold of any process for direct recruitment thereto, in absence of enforcement thereof, the same though does not pose a bind ing effect have the efficacy of essential guidelines of certitude in State actio n based on conscious formulations. While the inclusion of anticipated vacancies certain to occur in near future, when reckoned from the date of commencement of a selection process for direct recruitment to be filled up thereby is a salutary and wholesome proposition catering to administrative convenience and expediency , in the estimate of this Court, pending finalisation of the service rules, a ce iling on the period for contemplating such anticipated vacancies ought to be pro vided to obviate the possibility of unpredictability and non-transparency in the process. The Apex Court as well as the Division Bench of this Court while deciding in Mukul Saikia, supra, though had taken note of Sandeep Singh, supra, did not rely thereon. This was presumably as the Service Order in Mukul Saikia, supra, dealing with direct recruitment to the post of CDPO did not contempl