High Court
Case Details
WP(C) 142/2009 BEFORE HON’BLE MR. JUSTICE I. A. ANSARI Considering the fact that both these writ petitions, made under Article 226 of the Constitution of India, have put to challenge the advertisement, dated 20.06.2008, whereby the educational qualifications, for the posts of Demonstrat or/ Registrar, in the Department of Forensic and State Medicine, and also for th e posts of Registrar/Resident Surgeon, in the Department of Obstetrics and Gynec ology, in the Medical Colleges of Assam, have been prescribed as post-graduation in the subject/discipline concerned, both these writ petitions, as agreed to by the learned counsel, appearing for the parties concerned, have been heard toget
Decision
her and are being disposed of by this common judgement and order. 2. Before entering into the discussion of merit of these two writ petitions , the facts, relevant to the issues, raised in both the writ petitions, may, in brief, be described as under: By an advertisement, dated 20.06.2008, as many as 12 posts of Demonstrat or/Registrar, in the Department of Forensic and State Medicine, and 11 posts of Obstetrics and Gynecology, in the Medical Colleges of Assam, were advertised. F or the posts of Demonstrator/Registrar in the Department of Forensic and State M edicine, the prescribed educational qualification, in terms of the advertisement , dated 20.06.2008, was post-graduation in Forensic and State Medicine; whereas; for the posts of Registrar/Resident Surgeon, in the Department of Obstetrics an d Gynecology, prescribed qualification was post-graduation in Obstetrics and Gyn ecology. 3. While the petitioners, in WP(C) No.142/2009, had applied for appointment to the posts of Demonstrator/Registrar in Forensic and State Medicine, the sole petitioner, in WP(C) No.967/2009, was an applicant for the post of Registrar/Re sident Surgeon in the Department of Obstetrics and Gynecology. None of the petit ioners was called to appear in the interview, though the interview was held on 2 0.01.2009. 4. Pursuant to the interview, so held, as many as 9 (nine) posts of Demonst rator/Registrar, in the Department of Forensic and State Medicine, have already been filled up leaving three posts, out of the said twelve advertised posts, vac ant. 5. So far as the posts of Registrar/Resident Surgeon in the Department of O bstetrics and Gynecology are concerned, selections having been made, pursuant to the interview, all the eleven advertised posts have been filled up leaving no v acancy. 6. I have heard Mr. G. Uzir, learned counsel, appearing for the petitioners , and Mr. D. Saikia, learned Addl. Advocate General, Assam, assisted by Mr. B. G ogoi, learned counsel, appearing on behalf of the State respondent. I have also heard Mr. C. Baruah, learned Standing counsel, Assam Public Service Commission, appearing on behalf of the respondent Nos. 1 and 2 in WP(C) No. 142/2009 and re spondent Nos. 2, 3 and 4 in WP(C) No. 976/2009. 7. The petitioners have impugned the advertisement, in question, as not sus tainable in law, on the ground that, in terms of the Minimum Qualifications For Teachers In Medical Institutions Regulations, 1998 (hereinafter referred to as ’ the 1998 Regulations’), which have been framed by the Medical Council of India i n exercise of its powers conferred by Section 3 of the Indian Medical Council Ac t, 1956, the minimum qualification, prescribed for appointment to the post of De monstrator, in a Medical College, is MBBS. 8. It has, therefore, been contended by the petitioners, that since the Med ical Council of India has prescribed the educational qualification as MBBS, the act of prescribing post-graduation, as minimum educational qualification, in the subjects/disciplines concerned, is beyond the powers of the respondents and, he nce, the advertisement, which prescribes higher qualifications than the qualific ations, which ought to have been prescribed, in terms of the 1998 Regulations, i s wholly illegal and may be set aside. 9. Before proceeding further, it needs to be pointed that though the advert isement was published as far back as on 20.06.2008, the writ petitions, namely, The advertisement No. 3/2005 prescribed the following educational qualif WP(C) 142/2009, was filed on 19.01.2009 and WP(C) 976/2009 was filed on 06.02.20 09. Thus, both the writ petitions were fairly delayed and unless it is shown th at the State Government was incompetent to prescribe the educational qualificati ons, which it has prescribed in the advertisement, in question, the petitioners would not be, ordinarily, entitled to receive any relief. 10. Appearing on behalf of the State Government, the learned Addl. Advocate General has pointed out that 1998 Regulations, as is evident from the contents o f the Regulations, prescribe MBBS as the minimum educational qualification, for the post of Demonstrator, in Medical Colleges, and, hence, there is no limitatio n, on the powers of the appropriate State Government, to prescribe any education al qualification, higher than the qualification, which 1998 Regulations has pres cribed as the minimum educational qualification. 11. Apart from the fact that there is considerable force in the above submis sions made by the learned Addl. Advocate General, this issue, as has been rightl y pointed out by the learned Addl. Advocate General, has been considered and dec ided, on 11.01.2010, by this Court, in Dr. Runjun Bujarbaruah -Vs- State of Ass am & Ors (supra), in WP(C) 6321/2006, wherein the Court observed and held as und er: (cid:28)31. ication 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 academic qualificati on 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 the latte r process was enhanced. Admittedly, Regulation 1998 of the Medical Council of I ndia prescribes MBBS to be the minimum educational qualification of eligibility for the posts involved. The upgradation of the entry level academic qualificati on has been sought to be impeached as invalid for lack of authority of the State respondents to stipulate the same in transgression of the prescription in the R egulation 1998. The petitioners contend that any modification of the minimum ac ademic qualification enjoined by Regulation 1998 is beyond the dominion of the S tate executive rendering the impugned employment notice null and void on this co unt. 33. A Division Bench of this Court in Siddhartha Sarkar & Ors. (Supra), was seised with an identical issue. The State of Assam therein had, by a set of rul es prescribed norms for the Common Entrance Examination, amongst others, for the MBBS course incorporating marginally rigourous standards compared to those codi fied by the Medical Council of India. This was, inter alia, sought to be repudi ated on the ground that the State formulated stipulation was beyond its competen ce being opposed to the criteria specified by the Medical Council of India. Thi s Court on a survey of several decisions of Apex Court including the one rendere d in Dr. Preeti Srivastava & Ors. Vs. State of MP Ors., (1999) 7 SCC 120, negati ved the challenge. While referring to the respective fields of legislation on t he related subjects as outlined for the Parliament and the State Legislatures, n amely, Entry 66 of List-I and Entry 25 of List-III of Schedule VII to the Consti tution of India, the competence of the State to lay down additional or further q ualifications of higher standards compared to those stipulated by the Medical Co uncil of India was acknowledged. Such additional qualifications were held not t o be in conflict with the regulations made by the Medical Council of India, as t he same were construed neither to be adverse to, or lower than the same. In oth er words, this Court sustained the competence of the State to prescribe qualifi cations and conditions of eligibility in addition to or superior to those prescr ibed by the Medical Council of India relating to admission to the course involve d and concluded that mere variance between the two, did not ipso facto render th e prescriptions made by the State non est or invalid. 34. The proposition enunciated in Siddhartha Sarkar & Ors. (Supra), can be p rofitably applied to the issue in hand. Though, the State respondents presently , have sought to upgrade the academic qualification, sans any legislative instru ment, the edict to that effect cannot be jettisoned as dehors any authority in t he face of the constitutionally conferred executive power extendable to the matt ers in respect of which it is equipped to make laws. Regulation 1998 as well, d oes not embody any prohibition or bar by the concerned State or its Legislature 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 the enhan cement of the academic qualification at the entry level from MBBS to Post Gradua te degree has been by way of Government policy not only to attract better qualif ied candidates, but also to facilitate their unimpeded promotion to the next hig her rank of Assistant Professor for which Post Graduate degree is an essential c ondition of eligibility. Additionally, they have averred that the consequential screening on the basis of upgraded qualification would auger well for the rural health sector, as medical graduates can then be diverted to devote their servic es thereto. The official records reveal that the enhancement in the entry level academic qualification has been pursuant to a cabinet decision. Moreover, the Notification No.NLB.280/2006/25 dated 04.10.2006 in the name of the Governor to the above effect engrafts the permissibility of relaxation in the eventualities, 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. (Emphasis is added) Apart from the fact that this Court sees no reason to take a view differ 12. ent from the one, which has been taken by the Court, in Dr. Runjun Bujarbaruah - Vs- State of Assam & Ors (supra), it is of immense importance to note, in this r egard, that the posts of Demonstrator/Registrar/Resident Surgeon are feeder post s for promotion to the posts of Assistant Professor and the minimum qualificatio n for appointment to the posts of Assistant Professor is post-graduation in the subject/discipline concerned. 13. Situated thus, it is clear that if any demonstrator is not a post-gradua te, in the subject/discipline concerned, he will remain forever in the post of D emonstrator and will never be promoted to the post of Assistant Professor, when the educational qualification, prescribed for the post of Assistant-Professor, i s post-graduation in the subject/ discipline concerned. In such an eventuality, a person, once appointed as Demonstrator, will always remain as Demonstrator. Because of what have been pointed out above, this Court is clearly of th 14. e view that there was no limitation, on the powers of the State Government, to p rescribe any higher qualification then what the Regulations have prescribed as t he minimum educational qualification, for the posts of Demonstrator/Registrar/Re sident Surgeon, more particularly, when the promotional post, as indicated above , require minimum educational qualification of post-graduation in the subject/di scipline concerned. 15. Considering, therefore, the matter in its entirety, particularly, when t his Court finds that pursuant to the impugned advertisement, all the posts of Re gistrar/Resident Surgeon, in the Department of Obstetrics and Gynecology, in the Medical Colleges of Assam, have been filled up, no direction can be issued by t his Court, in exercise of its extra-ordinary jurisdiction, under Article 226 of the Constitution of India, to either interview, or select, or appoint the sole p etitioner, in WP(C) No. 976/2009, to the post of Registrar/Resident Surgeon in t he said Department. 16. However, so far as the posts of Demonstrator/Registrar, in the Departmen t of Forensic and State Medicine, are concerned, this Court is of the view that since three posts are laying vacant and could not be filled up pursuant to the i nterviews, which had been held, the State Government is free to take recourse to its power of relaxation, as contained in the Notification, dated 04.10.2006, is sued by the Government of Assam, Health & Family Welfare Department, and relax t he prescribed educational qualification inasmuch as the Notification, dated 04.1 0.2006, aforementioned reads as under: (cid:28)Notification Dated Dispur the 4th October, 2006. No. HLB. 280/2006/25: The Governor of Assam is pleased to enhance the entry leve l educational qualification for the post of Registrar/Demonstrator or its equiva lent post in the Medical Colleges of the State from MBBS Degree to Post Graduate degree in the concerned subject. However, to meet any unforeseen situation, where P.G. degree holders in a partic ular subject are not available, the State Government, in the Health & F.W. Deptt ., would relax the requirement of Post Graduate degree whenever and to the exten t necessary. This will come into force with immediate effect. Sd/- (J.C. Goswami, IAS) Secretary to the Govt. of Assam, Health & F.W. (B) Department, Dispur (cid:29) 17. Situated thus, it is abundantly clear that while this Court has no powe r to set aside the educational qualifications, prescribed in the impugned advert isement, for the reasons, which this Court has discussed above, the Government h as the power and liberty to modify the prescribed educational qualifications for the post of Demonstrator/ Registrar, in the Department of Forensic and State Me dicine, should the Government decide to fill up the vacant posts of the Demonstr ator/ Resident Surgeon of the said Department by relaxing the educational qualif ications, which the State Government has prescribed. 18. In case, however, the State Government decides to fill up the posts with out insisting upon the prescribed qualifications under the Notification, dated 0 4.10.2006, aforementioned, a fresh advertisement, in this regard, would be requi red to be published inasmuch as the possibility of many people, holding the degr ee of MBBS, having not applied for the posts of Demonstrator/Registrar, in the s aid Department, on the ground that the advertisement, in question, had prescribe d higher qualifications, cannot be ruled out. 19. Because of what have been discussed and pointed out above, while this Co urt cannot, and does not, set aside the educational qualifications prescribed fo r the aforementioned posts, the Government is left free to fill up the posts of Demonstrator/Registrar/Resident Surgeon, in the Department of Forensic and State Medicine, and, in case the State Government decides to have MBBS as the minimum educational qualification for appointment to the post of Demonstrator/Registrar , in the Department of Forensic and State Medicine, a fresh advertisement shall be issued by the State Government, prescribing the educational qualification for the post(s), in question. 20. In case any advertisement is published for filling up the posts of Demon strator/Registrar, in the Department of Forensic and State Medicine by prescribi ng educational qualification of MBBS and if any of the petitioners, in WP(C) No. 142/2009, applies for selection, or appointment, to the said post, his case may be considered along with persons similarly situated provided he/she, otherwise, possesses the requisite criteria for selection. With the above observations and directions, both these writ petitions sh 21. all stand disposed of. 22. No order as to costs.