Court and others, vs Ambica Mills Ltd., Ahmedabad and another,

4. The petitioners are aggrieved by the advertisement dated 11.06.2025, a copy of which is annexure-P1 to the writ petition, so far as it pertains to the post of OT Assistant inasmuch as the eligibility criteria, as has been prescribed while inviting applications in pursuance of the said advertisement for said course, has been indicated as B.Sc. (Anesthesia & Operation Theatre Technologist); B.Sc. (OT Technology/ B.Sc. (Anesthesia Technology) from a recognized university/ institute, while none of the petitioners are possessed of such qualification.

5. It is contended that as the petitioners do not possess the said qualification and are, therefore, aggrieved by the said advertisement on the ground that they have been working for a period of five years on outsourcing basis and that the CRFC, in its meeting dated

21.09.2024, a copy of which is Annexure-P9 to the petition, found the petitioners to be well-trained and an asset to the institute, and recommended their continuation. Consequently, prescribing the said qualification in the impugned advertisement is an attempt to oust the petitioners from applying for the regular post of OT Assistant and at the same time continuing them on an outsourcing basis.

6. It is contended that previously, the SGPGI had issued an advertisement in June 2023, a copy of which is Annexure-P6 to the writ petition, whereby the qualification, insofar as it pertained to the post of OT Assistant, was indicated as B.Sc. or 10+2 with Science with five years' experience, and preference was also to be given to candidates with a Certificate/Diploma course in OT Techniques from recognized hospitals/institutions. However, with the issuance of the impugned advertisement, qualifications/eligibility criteria have been changed, thereby ousting the petitioners from applying for the said post. It is contended that if the respondents were to adhere to the qualification previously prescribed in the advertisement of June 2023, the petitioners would be perfectly eligible to apply pursuant to the impugned advertisement.

7. The further argument of Sri Vishen, learned counsel for the petitioners is that Regulations 62 and 65 of the Sanjay Gandhi Post Graduate Institute of Medical Sciences First Regulations, 2011 (hereinafter referred to as "Regulations"), pertain to appointment by promotion, for which the procedure as laid down in the CCS Rules as applicable at AIIMS, New Delhi, is to be followed, while in the instant case, it is a fresh recruitment which is being made by the SGPGI, and consequently, even if the criteria as is now sought to be adopted and the eligibility condition as is now being sought to be incorporated in the impugned advertisement is following the criteria as adopted by the AIIMS, New Delhi yet the said criteria cannot validly be followed by the SGPGI considering the aforesaid Regulations, and as such, in case the respondents are following the criteria as followed by the AIIMS for the post of OT Assistant by prescribing the aforesaid qualifications, the same cannot validly be done as the appointment for the post of OT Assistant is not to be made by promotion.

8. The further argument is that the AIIMS, New Delhi, while laying down the said criteria, had given its rationale as finds place in the order dated 31.07.2023, a copy of which is Annexure-P7 to the petition, whereby the AIIMS had indicated that the devised criteria was being issued as several OT Assistants working in the institute had sought a No Objection Certificate to apply for the post which is in a higher pay scale with a lower qualification of diploma instead of a B.Sc. degree, and that the institute feared an exodus of several experienced OT Assistants, which would adversely affect work in the operation theatre.

9. The argument is that the AIIMS, New Delhi, had a reasonable criteria and reasonable grounds to change the eligibility conditions for the post of OT Assistant, which is not the case with respect to the SGPGI. Consequently, there cannot be any occasion for the SGPGI to follow the criteria as is now applicable in AIIMS, New Delhi.

10. In this regard, reliance has been placed on the judgments of the Hon'ble Supreme Court in the case of Tej Prakash Pathak and others vs. Rajasthan High Court and others, (2025) 2 SCC 1, OfÏcial Liquidator vs. Dayanand and others, (2008) 10 SCC 1 and State of Gujarat and another vs. Ambica Mills Ltd., Ahmedabad and another, (1974) 4 SCC 656.

11. On the other hand, Sri Shubham Tripathi, learned counsel appearing for the SGPGI has justified the advertisement impugned.

12. His argument is that in terms of Regulation 39 and 40 of the Regulations, parity is being maintained by the SGPGI with the AIIMS.

13. Placing reliance on Regulation 40, the argument of Sri Tripathi, Advocate, is that the Regulation categorically provides that the Governing Body may revise qualifications and experience for existing posts and prescribe these in respect of any new posts that may be created with the approval of the State Government, subject to MCI norms where it is applicable.

14. The argument is that as there are no recruitment rules for the post of OT Assistant, consequently the Governing Body in its meeting dated 23.11.2023 has decided to follow the eligibility conditions as laid down by the AIIMS for the purpose of making recruitment for the post of OT Assistant which in fact have been prescribed by the SGPGI while issuing the impugned advertisement, and thus, once parity is being maintained with the AIIMS, New Delhi, consequently, no error has been occasioned by the SGPGI while prescribing the aforesaid qualifications.

15. The further argument of Sri Tripathi, Advocate, is that obviously not everybody would be satisfied with the eligibility criteria, inasmuch as there has to be an aggrieved person or the other who may not be having whatever eligibility criteria that may be prescribed, but once the SGPGI is following the criteria as laid down by the AIIMS, i.e., the same standards for the purpose of recruitment, including the eligibility conditions as prescribed by the AIIMS so far as they pertain to the post of OT Assistant, consequently, even if some other criteria may be prescribed in other hospitals/institutions, the same will not and cannot be a ground for the SGPGI to follow some other criteria, more particularly when it is the criteria laid down by the Premier Institute of India, which is the AIIMS, New Delhi, which is being followed by the SGPGI.

16. In this regard, Sri Tripathi, Advocate, has also elaborated that the pay scale of the staff of the SGPGI is at par with the staff of the AIIMS, New Delhi, and thus it is only proper that the eligibility criteria as prescribed for various posts by the AIIMS, New Delhi, are also followed by the SGPGI.

17. So far as the previous advertisement is concerned, Sri Tripathi, Advocate, has argued that previously the AIIMS, New Delhi, had the said criteria, which now stands changed by the AIIMS, New Delhi, and the revised criteria of the AIIMS is now being followed by the SGPGI.

18. Sri Tripathi, learned counsel for the SGPGI also argues that the aforesaid reasons prevailed with the Governing Body while prescribing the criteria for the post of OT Assistant. As such, there is no legal infirmity in the impugned advertisement so far as it pertains to the post of OT Assistant and in the SGPGI having prescribed the said qualifications.

19. Heard the learned counsel for the parties and perused the record.

20. From the arguments as raised by the learned counsel appearing on behalf of the contesting parties and a perusal of records, it emerges that the petitioners, who are working on an outsourcing basis in the SGPGI as OT Assistants, are aggrieved by the advertisement dated 11.06.2025, so far as it pertains to the post of OT Assistant, by which an eligibility criterion has been prescribed, of which the petitioners are not possessed, and consequently are unable to apply for the said post.

21. The criteria as prescribed in the said advertisement for the said post is the same as prescribed by the AIIMS, New Delhi for the post of OT Assistant which is admitted by the parties.

22. The grounds of challenge to the said advertisement are that as the petitioners have been working for a period of five years, the CRFC in its meeting dated

21.09.2024 has recommended for their continuation and thus once their continuance has been found to be feasible on outsourcing basis, there cannot be any ground for prescribing a qualification in the advertisement which makes the petitioners ineligible to apply for the regular post. The further ground of challenge is that in the earlier advertisement issued by the SGPGI in June, 2023 some other criteria was prescribed for which the petitioners were eligible to apply and there cannot be any occasion for change of the said criteria now in the impugned advertisement simply because the AIIMS, New Delhi has done so which has been done on the grounds as prevailed in the AIIMS, New Delhi as emerges from a perusal of the order dated

31.07.2023 which ground is not available with the SGPGI.

23. The first question that arises before this Court is as to whether the employer has the right to prescribe the eligibility conditions.

24. The said question is no longer res integra keeping in view the law laid down by the Hon'ble Supreme Court in the case of Union of India vs. Pushpa Rani and others, (2008) 9 SCC 242, wherein the Hon'ble Supreme Court has held as under :- "Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efÏciency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open the Court to make comparative evaluation of the merit of the candidates. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efÏciency of administration."

25. From perusal of the judgment of the Hon'ble Supreme Court in the case of Pushpa Rani (supra), it clearly emerges that the Hon'ble Supreme Court has categorically laid down that it is a settled position of law that matters relating to criteria of selection and prescribing the source/ mode of recruitment and qualifications falls within the exclusive domain of the employer. Thus, once the said qualification has been prescribed by the SGPGI, consequently there cannot be any occasion for this Court to interfere with the prescription of the said qualifications in the impugned advertisement so far as it pertain to the post of OT Assistant.

26. Even otherwise, Regulation 40 of the Regulations gives the power to the Governing Body to revise the qualifications and experience for the existing post which has been done by the Governing Body of the SGPGI while issuing the impugned advertisement. Thus, once the Governing Body of the SGPGI is conferred with the power of revising and prescribing the qualifications for the post and no challenge has been raised to the said power as conferred on the Governing Council in terms of Regulation 40 of the Regulations, consequently, no error is found in the Governing Body having prescribed the qualifications for the post of OT Assistant in the impugned advertisement.

27. Even otherwise, Regulation 39 of the Regulations gives the power to the Governing Body to maintain parity with AIIMS.

28. Admittedly, the AIIMS, New Delhi has prescribed the qualifications for the post of OT Assistant and accordingly considering Regulation 39 the parity has been maintained by the Governing Body with regard to the eligibility criteria for the post of OT Assistant which has been done at par with the AIIMS and consequently once Regulation 39 empowers the Governing Body to maintain parity with AIIMS, as such, on this ground also, no reason is found to interfere with the prescription of qualifications for the post of OT Assistant by the SGPGI.

29. So far as the judgment of the Hon'ble Supreme Court in the case of Tej Prakash Pathak (supra) is concerned sufÏce to say that the Hon'ble Supreme Court in the said judgment has itself indicated in paragraph No.52 that the appointing authority/ recruiting authority/ competent authority in absence of rules to the contrary can devise a procedure for selection of a candidate suitable to the post. Thus, the prescription of qualification by the SGPGI would fall within the ambit of the law laid down by the Hon'ble Supreme Court in the case of Tej Prakash Pathak (supra).

30. So far as the judgment of the Hon'ble Supreme Court in the case of Dayanand (supra) is concerned, again the Hon'ble Supreme Court in paragraph No.59 of the said judgment has laid down that the creation and abolition of posts, formation and structuring/ restructuring of cadres and prescribing the source and mode of recruitment and criteria of selection etc. are all matters which fall within the exclusive domain of the employer. This in fact has been done by the SGPGI while issuing the impugned advertisement so far as it pertains to the post of OT Assistant and thus the impugned advertisement prescribing the qualification for the post of OT Assistant, as done by the SGPGI, would clearly fall within the ambit of the law laid down by the Hon'ble Supreme Court in the case of Dayanand (supra).

31. So far as the judgment of the Hon'ble Supreme Court in the case of Ambica Mills Ltd. (supra) is concerned, the Hon'ble Supreme Court has considered as to what would be reasonable classification. Here, the SGPGI has given the rationale for prescribing the qualification for the post of OT Assistant in the impugned advertisement which, as already indicated above, would fall within the ambit of Regulations whereby parity is being maintained by the SGPGI with the AIIMS.

32. Keeping in view the aforesaid discussion, no case for interference is made out. The writ petition being misconceived is dismissed. [Abdul Moin, J.] Order Date :- 2.7.2025 cks/- CHANDRA KANT SINGH High Court of Judicature at Allahabad, Lucknow Bench

4. The petitioners are aggrieved by the advertisement dated 11.06.2025, a copy of which is annexure-P1 to the writ petition, so far as it pertains to the post of OT Assistant inasmuch as the eligibility criteria, as has been prescribed while inviting applications in pursuance of the said advertisement for said course, has been indicated as B.Sc. (Anesthesia & Operation Theatre Technologist); B.Sc. (OT Technology/ B.Sc. (Anesthesia Technology) from a recognized university/ institute, while none of the petitioners are possessed of such qualification.

5. It is contended that as the petitioners do not possess the said qualification and are, therefore, aggrieved by the said advertisement on the ground that they have been working for a period of five years on outsourcing basis and that the CRFC, in its meeting dated

21.09.2024, a copy of which is Annexure-P9 to the petition, found the petitioners to be well-trained and an asset to the institute, and recommended their continuation. Consequently, prescribing the said qualification in the impugned advertisement is an attempt to oust the petitioners from applying for the regular post of OT Assistant and at the same time continuing them on an outsourcing basis.

6. It is contended that previously, the SGPGI had issued an advertisement in June 2023, a copy of which is Annexure-P6 to the writ petition, whereby the qualification, insofar as it pertained to the post of OT Assistant, was indicated as B.Sc. or 10+2 with Science with five years' experience, and preference was also to be given to candidates with a Certificate/Diploma course in OT Techniques from recognized hospitals/institutions. However, with the issuance of the impugned advertisement, qualifications/eligibility criteria have been changed, thereby ousting the petitioners from applying for the said post. It is contended that if the respondents were to adhere to the qualification previously prescribed in the advertisement of June 2023, the petitioners would be perfectly eligible to apply pursuant to the impugned advertisement.

7. The further argument of Sri Vishen, learned counsel for the petitioners is that Regulations 62 and 65 of the Sanjay Gandhi Post Graduate Institute of Medical Sciences First Regulations, 2011 (hereinafter referred to as "Regulations"), pertain to appointment by promotion, for which the procedure as laid down in the CCS Rules as applicable at AIIMS, New Delhi, is to be followed, while in the instant case, it is a fresh recruitment which is being made by the SGPGI, and consequently, even if the criteria as is now sought to be adopted and the eligibility condition as is now being sought to be incorporated in the impugned advertisement is following the criteria as adopted by the AIIMS, New Delhi yet the said criteria cannot validly be followed by the SGPGI considering the aforesaid Regulations, and as such, in case the respondents are following the criteria as followed by the AIIMS for the post of OT Assistant by prescribing the aforesaid qualifications, the same cannot validly be done as the appointment for the post of OT Assistant is not to be made by promotion.

8. The further argument is that the AIIMS, New Delhi, while laying down the said criteria, had given its rationale as finds place in the order dated 31.07.2023, a copy of which is Annexure-P7 to the petition, whereby the AIIMS had indicated that the devised criteria was being issued as several OT Assistants working in the institute had sought a No Objection Certificate to apply for the post which is in a higher pay scale with a lower qualification of diploma instead of a B.Sc. degree, and that the institute feared an exodus of several experienced OT Assistants, which would adversely affect work in the operation theatre.

9. The argument is that the AIIMS, New Delhi, had a reasonable criteria and reasonable grounds to change the eligibility conditions for the post of OT Assistant, which is not the case with respect to the SGPGI. Consequently, there cannot be any occasion for the SGPGI to follow the criteria as is now applicable in AIIMS, New Delhi.

10. In this regard, reliance has been placed on the judgments of the Hon'ble Supreme Court in the case of Tej Prakash Pathak and others vs. Rajasthan High Court and others, (2025) 2 SCC 1, OfÏcial Liquidator vs. Dayanand and others, (2008) 10 SCC 1 and State of Gujarat and another vs. Ambica Mills Ltd., Ahmedabad and another, (1974) 4 SCC 656.

11. On the other hand, Sri Shubham Tripathi, learned counsel appearing for the SGPGI has justified the advertisement impugned.

12. His argument is that in terms of Regulation 39 and 40 of the Regulations, parity is being maintained by the SGPGI with the AIIMS.

13. Placing reliance on Regulation 40, the argument of Sri Tripathi, Advocate, is that the Regulation categorically provides that the Governing Body may revise qualifications and experience for existing posts and prescribe these in respect of any new posts that may be created with the approval of the State Government, subject to MCI norms where it is applicable.

14. The argument is that as there are no recruitment rules for the post of OT Assistant, consequently the Governing Body in its meeting dated 23.11.2023 has decided to follow the eligibility conditions as laid down by the AIIMS for the purpose of making recruitment for the post of OT Assistant which in fact have been prescribed by the SGPGI while issuing the impugned advertisement, and thus, once parity is being maintained with the AIIMS, New Delhi, consequently, no error has been occasioned by the SGPGI while prescribing the aforesaid qualifications.

15. The further argument of Sri Tripathi, Advocate, is that obviously not everybody would be satisfied with the eligibility criteria, inasmuch as there has to be an aggrieved person or the other who may not be having whatever eligibility criteria that may be prescribed, but once the SGPGI is following the criteria as laid down by the AIIMS, i.e., the same standards for the purpose of recruitment, including the eligibility conditions as prescribed by the AIIMS so far as they pertain to the post of OT Assistant, consequently, even if some other criteria may be prescribed in other hospitals/institutions, the same will not and cannot be a ground for the SGPGI to follow some other criteria, more particularly when it is the criteria laid down by the Premier Institute of India, which is the AIIMS, New Delhi, which is being followed by the SGPGI.

16. In this regard, Sri Tripathi, Advocate, has also elaborated that the pay scale of the staff of the SGPGI is at par with the staff of the AIIMS, New Delhi, and thus it is only proper that the eligibility criteria as prescribed for various posts by the AIIMS, New Delhi, are also followed by the SGPGI.

17. So far as the previous advertisement is concerned, Sri Tripathi, Advocate, has argued that previously the AIIMS, New Delhi, had the said criteria, which now stands changed by the AIIMS, New Delhi, and the revised criteria of the AIIMS is now being followed by the SGPGI.

18. Sri Tripathi, learned counsel for the SGPGI also argues that the aforesaid reasons prevailed with the Governing Body while prescribing the criteria for the post of OT Assistant. As such, there is no legal infirmity in the impugned advertisement so far as it pertains to the post of OT Assistant and in the SGPGI having prescribed the said qualifications.

19. Heard the learned counsel for the parties and perused the record.

20. From the arguments as raised by the learned counsel appearing on behalf of the contesting parties and a perusal of records, it emerges that the petitioners, who are working on an outsourcing basis in the SGPGI as OT Assistants, are aggrieved by the advertisement dated 11.06.2025, so far as it pertains to the post of OT Assistant, by which an eligibility criterion has been prescribed, of which the petitioners are not possessed, and consequently are unable to apply for the said post.

21. The criteria as prescribed in the said advertisement for the said post is the same as prescribed by the AIIMS, New Delhi for the post of OT Assistant which is admitted by the parties.

22. The grounds of challenge to the said advertisement are that as the petitioners have been working for a period of five years, the CRFC in its meeting dated

21.09.2024 has recommended for their continuation and thus once their continuance has been found to be feasible on outsourcing basis, there cannot be any ground for prescribing a qualification in the advertisement which makes the petitioners ineligible to apply for the regular post. The further ground of challenge is that in the earlier advertisement issued by the SGPGI in June, 2023 some other criteria was prescribed for which the petitioners were eligible to apply and there cannot be any occasion for change of the said criteria now in the impugned advertisement simply because the AIIMS, New Delhi has done so which has been done on the grounds as prevailed in the AIIMS, New Delhi as emerges from a perusal of the order dated

31.07.2023 which ground is not available with the SGPGI.

23. The first question that arises before this Court is as to whether the employer has the right to prescribe the eligibility conditions.

24. The said question is no longer res integra keeping in view the law laid down by the Hon'ble Supreme Court in the case of Union of India vs. Pushpa Rani and others, (2008) 9 SCC 242, wherein the Hon'ble Supreme Court has held as under :- "Before parting with this aspect of the case, we consider it necessary to reiterate the settled legal position that matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualifications, criteria of selection, evaluation of service records of the employees fall within the exclusive domain of the employer. What steps should be taken for improving efÏciency of the administration is also the preserve of the employer. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or is vitiated due to mala fides. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post be filled by direct recruitment or promotion or by transfer. The Court has no role in determining the methodology of recruitment or laying down the criteria of selection. It is also not open the Court to make comparative evaluation of the merit of the candidates. The Court cannot suggest the manner in which the employer should structure or restructure the cadres for the purpose of improving efÏciency of administration."

25. From perusal of the judgment of the Hon'ble Supreme Court in the case of Pushpa Rani (supra), it clearly emerges that the Hon'ble Supreme Court has categorically laid down that it is a settled position of law that matters relating to criteria of selection and prescribing the source/ mode of recruitment and qualifications falls within the exclusive domain of the employer. Thus, once the said qualification has been prescribed by the SGPGI, consequently there cannot be any occasion for this Court to interfere with the prescription of the said qualifications in the impugned advertisement so far as it pertain to the post of OT Assistant.

26. Even otherwise, Regulation 40 of the Regulations gives the power to the Governing Body to revise the qualifications and experience for the existing post which has been done by the Governing Body of the SGPGI while issuing the impugned advertisement. Thus, once the Governing Body of the SGPGI is conferred with the power of revising and prescribing the qualifications for the post and no challenge has been raised to the said power as conferred on the Governing Council in terms of Regulation 40 of the Regulations, consequently, no error is found in the Governing Body having prescribed the qualifications for the post of OT Assistant in the impugned advertisement.

27. Even otherwise, Regulation 39 of the Regulations gives the power to the Governing Body to maintain parity with AIIMS.

28. Admittedly, the AIIMS, New Delhi has prescribed the qualifications for the post of OT Assistant and accordingly considering Regulation 39 the parity has been maintained by the Governing Body with regard to the eligibility criteria for the post of OT Assistant which has been done at par with the AIIMS and consequently once Regulation 39 empowers the Governing Body to maintain parity with AIIMS, as such, on this ground also, no reason is found to interfere with the prescription of qualifications for the post of OT Assistant by the SGPGI.

29. So far as the judgment of the Hon'ble Supreme Court in the case of Tej Prakash Pathak (supra) is concerned sufÏce to say that the Hon'ble Supreme Court in the said judgment has itself indicated in paragraph No.52 that the appointing authority/ recruiting authority/ competent authority in absence of rules to the contrary can devise a procedure for selection of a candidate suitable to the post. Thus, the prescription of qualification by the SGPGI would fall within the ambit of the law laid down by the Hon'ble Supreme Court in the case of Tej Prakash Pathak (supra).

30. So far as the judgment of the Hon'ble Supreme Court in the case of Dayanand (supra) is concerned, again the Hon'ble Supreme Court in paragraph No.59 of the said judgment has laid down that the creation and abolition of posts, formation and structuring/ restructuring of cadres and prescribing the source and mode of recruitment and criteria of selection etc. are all matters which fall within the exclusive domain of the employer. This in fact has been done by the SGPGI while issuing the impugned advertisement so far as it pertains to the post of OT Assistant and thus the impugned advertisement prescribing the qualification for the post of OT Assistant, as done by the SGPGI, would clearly fall within the ambit of the law laid down by the Hon'ble Supreme Court in the case of Dayanand (supra).

31. So far as the judgment of the Hon'ble Supreme Court in the case of Ambica Mills Ltd. (supra) is concerned, the Hon'ble Supreme Court has considered as to what would be reasonable classification. Here, the SGPGI has given the rationale for prescribing the qualification for the post of OT Assistant in the impugned advertisement which, as already indicated above, would fall within the ambit of Regulations whereby parity is being maintained by the SGPGI with the AIIMS.

32. Keeping in view the aforesaid discussion, no case for interference is made out. The writ petition being misconceived is dismissed. [Abdul Moin, J.] Order Date :- 2.7.2025 cks/- CHANDRA KANT SINGH High Court of Judicature at Allahabad, Lucknow Bench