High Court · 2023

rendered infructuous. The impugned order dated 02-9-2022 is challenged by the petitioner in WPC No. 1962/2022 on all grounds, including the grounds urged by the petitioner in WPC No. 1899/2022.

8. For the foregoing reasons WPC No. 1899/2022, which is rendered infructuous due to issuance of order dated 02-09-2022, is, accordingly, dismissed. WPC No. 1962/2022

9. The petitioner has essentially called in question Office Order dated 02-09-2022 whereby the claim for consideration of his 2nd publication has been rejected and the petitioner has been held ineligible to participate in the selection process for the post of Assistant Professor in the Department of Pediatric Surgery. The impugned communication and the decision of the SKIMS to declare the petitioner ineligible for participation in the selection process, is assailed by the petitioner primarily on the following grounds:- (i) That the qualification prescribed by the SKIMS, requiring two publications in the Indexed National/International Medical Journals as one of the eligibility requirements for the post of Assistant Professor, is contrary to and in violation of the 4 WPC Nos. 1899/2022 & 1962/2022 eligibility qualification laid down by the National Medical Council, in the Minimum Qualification for Teachers in the Medical Institutions (Amendment) Regulations, 2019. (ii) That the petitioner had submitted one publication Indexed in National/ International Medical Journal at time of submission of the application form and the 2nd publication was submitted when he filed the representation on being declared ineligible by the SKIMS vide communication dated 29-08-

2022. The SKIMS did not consider the representation in correct perspective and declared the petitioner in-eligible to participate in the selection process in an illegal and arbitrary manner.

10. The respondents have contested the claim of the petitioner on both counts. In the reply affidavit filed by the Director, SKIMS, a clear stand is taken that the petitioner, who had applied for the post, had, alongwith his application form, submitted five titles out of which three were found book chapters, hence considered to be invalid for consideration. Out of two remaining titles, one publication was found properly indexed in the Medical Journal and the other was found to be non-indexed. Since the eligibility requirement for the post of Assistant Professor was two publications in the Indexed National/ International Medical Journals, as such, the petitioner was declared ineligible vide notice dated 29-08-2022. It is further submitted by the respondents that the petitioner represented against his ineligibility by filing a written representation on 31-08-2022 alongwith two different publications/papers, which were also examined by the Review Committee. 5 WPC Nos. 1899/2022 & 1962/2022 Both the publications were found to have been accepted by the concerned Medical Journals after the cut off date mentioned in the Advertisement Notification and, therefore, were not taken into consideration.

11. Having heard the learned counsel for the parties and perused the material on record, I am of the considered opinion that the petitioner lacks eligibility qualification prescribed for the post in the Advertisement Notification in question and, therefore, has been rightly declared ineligible to participate in the selection process.

12. It is true that the Medical Council of India, renamed as National Medical Council, has, in exercise of powers conferred by Section 33 of the Indian Medical Council Act, 1956, made “Minimum Qualification for Teachers in Medical Institutions, Regulations, 1998”, which have been further amended by Amendment Regulations, 2019, issued and published on 12-02-2020. The Regulations, as their nomenclature itself suggests, lays down minimum qualification for various teaching posts in the Medical Institutions. For the post of Assistant Professor in a Super Speciality, the qualification prescribed by the Regulations is as under:- “A Super Speciality post graduate qualification in DM/M.Ch/DNB equated to DM/M.Ch. in terms of clause 4A of Schedule-I in the concerned subject and as per these Regulations.”

13. The Regulations prescribing minimum qualification do not provide or lay down the requirement of two publications. The requirement of two publications in addition to the qualification prescribed in the Regulations is by the SKIMS, having regard to the standards of SKIMS, a prestigious 6 WPC Nos. 1899/2022 & 1962/2022 Institute and a deemed University as also for the purpose of maintaining high teaching/ academic/research standards.

14. The short question that arises for consideration in this petition is; whether a Medical Institution, like the SKIMS, can lay down qualifications and standards for a teaching post/faculty post, higher than the one prescribed by the National Medical Council in the Regulations framed under Section 33 of the Indian Medical Council Act, 1956.

15. I would have ventured to discuss this issue at some length to meet the arguments of the learned counsel for the petitioner, but, having regard to the fact that the issue raised by the petitioner has been set at rest by Constitution Bench of the Hon‟ble the Supreme Court of India in Dr. Preeti Srivastava Vs. State of Madhya Pardesh and others, (1999) 7 SCC 120, there is hardly any need to reiterate the settled position. In Dr. Preeti Srivastawa‟s case (supra), the Hon‟ble Supreme Court in para 39 has held thus:- “ 39. The respondents have emphasised the observation that admission has to be made by those who are in control of the colleges. But, the question is, on what basis? Admissions must be made on a basis which is consistent with the standards laid down by a statute or regulation framed by the Central Government in the exercise of its powers under Entry 66, List I. At times, in some of the judgments, the words "eligibility" and "qualification" have been used interchangeably, and in some cases a distinction has been made between the two words ? "eligibility" connoting the minimum criteria for selection that may be laid down by the University Act or any Central Statute, while "qualifications" connoting the additional norms laid down by the colleges or by the State. In every case the minimum standards as laid down by the Central Statute or under it, have to be complied with by the State while making admissions. It may, in addition, lay down other additional norms for admission or regulate admissions in the 7 WPC Nos. 1899/2022 & 1962/2022 exercise of its powers under Entry 25 List III in a manner not inconsistent with or in a manner which does not dilute the criteria so laid down.” ( underlying is mine)

16. The judgment of Hon‟ble the Supreme Court in Preeti Srivastava case (supra) has been repeatedly followed, rather in a recent Constitution Bench judgment in Tamil Nadu Medical Officers Association and ors vs. Union of India and others, (2021) 6 SCC 568, the judgment has been clarified and followed.

17. In State of Tamil Nadu and anr v. S. V. Bratheep and ors, (2004) 4 SCC 513, a three Judge Bench of Hon‟ble the Supreme Court, relying upon Preeti Srivastava (supra) and explaining State of Tamil Nadu v. Adhiyaman, (1995) 4 SCC 104, in paras 9 and 10 held thus:- “9............... If higher minimum is prescribed by the State Government than what had been prescribed by the AICTE, can it be said that it is in any manner adverse to the standards fixed by the AICTE or reduces the standard fixed by it? In our opinion, it does not. On the other hand, if we proceed on the basis that the norms fixed by the AICTE would allow admission only on the basis of the marks obtained in the qualifying examination the additional test made applicable is the common entrance test by the State Government. If we proceed to take the standard fixed by the AICTE to be the common entrance test then the prescription made by the State Government of having obtained certain marks higher than the minimum in the qualifying examination in order to be eligible to participate in the common entrance test is in addition to the common entrance test. In either event, the streams proposed by the AICTE are not belittled in any manner. The manner in which the High Court has proceeded is that what has been prescribed by the AICTE is inexorable and that minimum alone should be taken into consideration and no other standard should be fixed even 8 WPC Nos. 1899/2022 & 1962/2022 the higher as stated by this Court in Dr. Preeti Srivastava’s case. It is no doubt true as noticed by this Court in Adhiyaman’s case that there may be situations when a large number of seats may fall vacant on account of the higher standards fixed. The standards fixed should always be realistic which are attainable and are within the reach of the candidates. It cannot be said that the prescriptions by the State Government in addition to those of AICTE in the present case are such which are not attainable or which are not within the reach of the candidates who seek admission for engineering colleges. It is not very high percentage of marks that has been prescribed as minimum of 60% downwards, but definitely higher than the mere pass marks. Excellence in higher education is always insisted upon by series of decisions of this Court including Dr. Preeti Srivastavas’s case. If higher minimum marks have been prescribed, it would certainly add to the excellence in the matter of admission of the students in higher education.

10. Argument advanced on behalf of the respondents is that the purpose of fixing norms by the AICTE is to ensure uniformity with extended access of educational opportunity and such norms should not be tinkered with by the State in any manner. We are afraid, this argument ignores the view taken by this Court in several decisions including Dr. Preeti Srivastava’s case that the State can always fix a further qualification or additional qualification to what has been prescribed by the AICTE and that proposition is indisputable. the mere fact that there are vacancies in the colleges would not be a matter, which would go into the question of fixing the standard of education. Therefore, it is difficult to subscribe to the view that once they are qualified under the criteria fixed by the AICTE they should be admitted even if they fall short of the criteria prescribed by the State...........” 9 WPC Nos. 1899/2022 & 1962/2022

18. Though the aforesaid judgment is rendered in the context of AICTE Act, 1987, and norms of admission framed by „AICTE‟, yet the principles discussed are equally relevant to the MCI Regulations framed by Medical Council of India under the Indian Medical Council laying down minimum qualification for teachers in Medical Institutions. Both the legislations i.e. Indian Medical Council Act and AICTE Act derive their sustenance from Entry 66 of List I of Schedule VII.

19. It is thus trite law that the Medical Council of India, now known as National Medical Council, in the exercise of powers conferred by Section 33 of the Indian Medical Council Act, 1956, has laid down only the minimum qualification for the teachers in the Medical institutions, however, nothing prevents or stops a particular Medical Institution to prescribe qualification higher than the minimum prescribed under the Regulations.

20. It is thus beyond any pale of doubt that State, University or Medical Institution, as the case may be, cannot, while prescribing eligibility criteria, adversely affect the standards laid down by the Central body/MCI. The term “adversely affect the standards” refers to lowering of norms laid down by MCI. Prescribing higher standards for recruitment of faculty of Medical Institution by laying down qualification higher than those prescribed by MCI consistent with object of promoting higher standards and excellence in higher and scientific education, will not be considered as adversely affect ting the standards laid down by Medical Council of India in the Regulations of 1998. 10 WPC Nos. 1899/2022 & 1962/2022

21. The SKIMS, by providing requirement of two publications indexed in National/ International Medical Journal(s), in addition to the minimum qualification laid down in the Regulations of 1998, has not adversely affected standards of Medical Education set out by Medical Council of India in the Regulations.

22. Viewed thus, I do not find any illegality having been committed by the SKIMS by prescribing the requirement of two publications in the indexed National/International Medical Journals insofar as the post of Assistant Professor is concerned. The respondents have very well explained as to why they have prescribed the requirement of two publications in addition to the minimum qualification prescribed by the Regulations. It is claimed that the prescription of minimum of two publications at the level of Assistant Professor and five publications at the level of Professor is for the purposes of maintaining high teaching/academic/research standards at the prestigious institute i.e., SKIMS, which is also a deemed university.

23. The plea of the learned counsel for the petitioner that the qualification prescribed by the SKIMS is ultra vires the Regulations of 1998, as amended in the year 2020, is without any substance and, therefore, rejected.

24. Other plea of the petitioner that, he had submitted one more publication for consideration of the respondents when he filed the representation against his ineligibility declared by the SKIMS, is also contrary to records and, therefore, cannot be accepted. Out of all the publications on which reliance is placed by the petitioner, only one publication is accepted by the Indexed Medical Journal before the cut off 11 WPC Nos. 1899/2022 & 1962/2022 date prescribed in the Advertisement Notification. The Advertisement Notification No. 02 of 2021 clearly provides that the last date for submission of application forms alongwith all certificates, testimonials, reprint of publications shall be 17.05.2021. It is the cut off date mentioned in the Advertisement Notification which is the last date for determining the eligibility of the candidates seeking to participate in the selection process.

25. It is not in dispute two publications the Indexed National/International Medical Journals is one of the essential qualification prescribed in the Advertisement Notification and must be possessed by a candidate by or before the last date of submission of application forms. There is absolutely no dispute with regard to the fact that on the last date of submission of applications forms, the petitioner had not only submitted one publication Indexed in the National/International Medical Journal, but could not submit the second publication, even after the cut off date, which was Indexed and accepted by any National/International Medical Journal before the cut off date. The petitioner was thus rightly found ineligible to participate in the selection process. The consideration order passed by the SKIMS in compliance with the directions of this Court dated 01-09-2022, passed in WP(C) No. 1988/2022, is perfectly legal and falls within the four corners of law.

26. The petitioner being ineligible to participate in the selection process for the post of Assistant Professor in Pediatric Surgery, has rightly not been allowed to participate in the selection process. 12 WPC Nos. 1899/2022 & 1962/2022

27. For the reasons given above and the discussion made, this petition is found to be without any merit and the same is, accordingly, dismissed. (Sanjeev Kumar) Judge Srinagar. 14.12.2023 Anil Raina, Addl. Reg/Secy Whether the order is speaking : Yes Whether the order is reportable: Yes 13