Dr. Thingujam Achouba Singh vs Dr. H. Nabachandra Singh on 17 April, 2020


Supreme Court of India

Dr. Thingujam Achouba Singh vs Dr. H. Nabachandra Singh on 17 April, 2020

Author: Mohan M. Shantanagoudar

Bench: Mohan M. Shantanagoudar, R. Subhash Reddy

C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.


                                                                                    REPORTABLE

                                               IN THE SUPREME COURT OF INDIA

                                                CIVIL APPELLATE JURISDICTION

                                           CIVIL APPEAL NOS. 2250-2252 OF 2020
                                      [Arising out of S.L.P.(C)Nos.15093-15095 of 2017]

                             Dr. Thingujam Achouba Singh & Ors.                     …..Appellants

                                                              Versus

                             Dr. H. Nabachandra Singh & Ors. etc.                …..Respondents

                                                             WITH

                                             CIVIL APPEAL NOS. 2253-2255 OF 2020
                                          [Arising out of S.L.P.(C)Nos.4853-4855 of 2019]




                                                         JUDGMENT

R. Subhash Reddy, J.

Civil Appeal Nos. of 2020
[Arising out of S.L.P.(C)Nos.15093-15095 of 2017]

1. Leave granted.

2. These civil appeals are filed, aggrieved by the judgment and order

dated 27.03.2017 passed in W.P.(C) No.676 of 2016; W.P.(C)No.722 of

2016; and W.P.(C)No.766 of 2016, passed by the High Court of Manipur

Signature Not Verified at Imphal. By the aforesaid impugned order, the High Court has
Digitally signed by
ANITA MALHOTRA

quashed advertisement dated 16.08.2016, inviting applications to fill up
Date: 2020.04.17
15:26:08 IST
Reason:

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C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.

the vacant post of Director in Regional Institute of Medical Sciences,

Imphal.

3. The Regional Institute of Medical Sciences (hereinafter referred to

as, ‘RIMS’), Imphal is registered as a Society under the Societies

Registration Act, 1860 in the year 1975. The said Society was initially

registered as ‘North Eastern Regional Medical College’ and same was

subsequently re-registered and changed its name as ‘Regional Institute

of Medical Sciences’ (RIMS). The said Society runs one of the biggest

public health care institutions in the north eastern region of India. The

affairs of RIMS are governed and regulated by the Memorandum of

Association (MOA), Rules, Regulations and Bye-Laws of the RIMS.

4. The post of Director of RIMS was last held by Dr. S. Sekharjit

Singh and same has fallen vacant on 14.09.2015. Since then the post

of Director was given to some senior professors of the Institute on In-

charge basis from time to time. At first instance on 24.06.2015, an

advertisement was issued by the Ministry of Health and Family Welfare,

Govt. of India for filling up the post of Director, RIMS, Imphal by direct

recruitment. In the said advertisement, the upper age limit was notified

at 50 years, relaxable for Govt. Servants/RIMS officers and specially

qualified candidates and retirement age was notified at 62 years. The

writ petitioners in W.P.(C)No.676 of 2016 and some others have made a

representation dated 01.07.2015 to the Ministry of Health & Family

Welfare, Govt. of India for changing the age of superannuation from 62

years to 65 years. All the petitioners in W.P.(C)No.676 of 2016 have
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C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.

either completed the age of 62 years or are nearing completion of 62

years. They again submitted representations on 08.07.2015 and

16.07.2015. Having failed to get any positive response they approached

the High Court by filing writ petition in W.P.(C)No.617 of 2015 for

quashing the advertisement with a direction to respondents to fill up the

post of Director, in accordance with Clause 12 of the Rules and

Regulations of RIMS, by fixing the upper age limit for eligibility at 60

years. In the said writ petition, some interim orders were passed but in

the meantime, Office Memorandum No.B/1734/96-RIMS(Pt.-I) dated

20.04.2016 was issued by the Director of RIMS notifying the age of

superannuation at 65 years, with the approval of Ministry of Health &

Family Welfare, Govt. of India. The said writ petition was withdrawn. It

appears that, in view of the enhancement of age of superannuation to 65

years, another advertisement dated 16.08.2016 was issued by

prescribing the upper age limit of 62 years in the eligibility criteria without

any relaxation, for Government servants/RIMS officers, also.

5. When fresh advertisement dated 16.08.2016 was issued by the

Ministry of Health & Family Welfare, Govt. of India inviting applications

for the post of Director, writ petition in W.P.(C)No.676 of 2016 was filed

before the High Court of Manipur, mainly on the ground that in the said

notification relaxation for upper age limit was not provided for. As such,

in the said writ petition relief was sought for quashing the advertisement

dated 16.08.2016, so far as it relates to non-providing of relaxation in

upper age limit as illegal, with a consequential direction to the
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C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.

respondents to allow the petitioners therein to participate in the selection

process. Questioning the very same advertisement, one other professor

working in RIMS has filed another writ petition in W.P.(C)No.722 of 2016,

mainly on the ground that the experience for eligibility, as notified in the

advertisement dated 16.08.2016, was contrary to the criteria prescribed

by Medical Council of India. It was pleaded in the writ petition that as

per the criteria prescribed by the Medical Council of India, to hold the

post of Director, one must have minimum of ten years’ teaching

experience as Professor/Associate Professor/Reader, out of which at

least five years should be as professor in a Department. It was his

grievance that instead of notifying the criteria as mentioned above, the

respondents have merely notified fourteen years of experience without

there being a condition of five years of teaching experience as professor.

In the said writ petition, relief sought is to quash the notification dated

16.08.2016 and to renotify the same afresh by prescribing the

experience as prescribed by the Medical Council of India and other

institutions under the control of Ministry of Health & Family Welfare,

Govt. of India.

6. One other candidate who was serving as a professor also filed

another writ petition in W.P.(C) No.766 of 2016 challenging the very

same advertisement mainly pleading that the vacancy to the post of

Director has fallen vacant on 14.09.2015, as such, said post has to be

filled up by applying the Rules and Regulations which were existing on

the date of vacancy. He was also one of the applicants who applied for
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C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.

the post of Director in response to the advertisement dated 24.06.2015

and also advertisement dated 16.08.2016. It was his case in the writ

petition that though he has applied in response to both the

advertisements, he has noticed that rules regulating appointment of

Director, pursuant to advertisement dated 16.08.2016 were different

than the rules contained as per advertisement dated 24.06.2015. It was

the case of the sole petitioner that as the post fell vacant on 14.09.2015,

rules as on the date of vacancy ought to be applied to fill up the vacancy

and not the amended rules. Incidentally, it was also pleaded that

amendment to the rules was made without following due procedure as

contemplated under Rules and Bye-Laws of the Society.

7. In all these writ petitions, affidavit in reply was filed by the

respondent therein opposing the relief sought for and denying the

various allegations made.

8. Inspite of the fact that in all the three writ petitions, advertisement

dated 16.08.2016 inviting applications to fill up the post of Director was

under challenge, and no challenge to the Rules and Regulations

governing the recruitment to the post of Director was made; the High

Court however has gone into the validity of recruitment rules and

recorded finding that rules were not amended as per the Rules,

Regulations and Bye-Laws of the Society. Further, notification is

quashed on the ground that after amendment to the Rules, such rules

were not notified to public at large, as such, they were not in the public

domain. The High Court has also held that the experience criteria as
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C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.

prescribed by the Medical Council of India Regulations was not

prescribed in the advertisement and such regulations would have a

binding effect, for filling up the post of Director in RIMS. Consequently,

further direction is issued to the competent authority to consider

providing relaxation in respect of upper age limit or the qualification as

sought by the writ petitioner therein.

9. We have heard Sri Sanjay R. Hegde, learned senior advocate

appearing for the appellants and Dr. Rajiv Dhavan, learned senior

advocate appearing for the RIMS and perused the impugned order and

other material placed on record.

10. Before we proceed further, we deem it appropriate to refer to

interim orders passed by this Court on 07.05.2018 and 24.07.2018. By

order dated 07.05.2018, this Court permitted the respondent authorities

to proceed with the selection to the post of Director, RIMS, in terms of

the recruitment rules, as existed on the date of the order, making it

subject to result of the Special Leave Petitions. By further order dated

24.07.2018, this Court permitted the competent authority to finalise the

selection by declaring the result and make the appointment forthwith

provisionally, making it subject to the result of the Special Leave

Petitions.

11. During the course of arguments, we were informed that pursuant

to aforesaid two orders passed by this Court, selection process is

completed and one Dr. Ahanthem Santa Singh was appointed as

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C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.

Director, RIMS on 05.10.2018, in terms of advertisement dated

16.08.2016, subject to the outcome of the present appeals. Same is

also challenged subsequently before the High Court by way of writ

petition in W.P.No.1181 of 2018 and same is pending consideration.

12. Having heard the learned counsel on both sides, we have

carefully gone through the common impugned order passed by the High

Court and other material placed on record.

13. At the outset, it is to be noticed that though, in none of the writ

petitions, rules governing appointment to the post of Director was under

challenge, the High Court has gone into the validity of the Rules, as

amended, and held that amendments to the Rules were not carried out

by following the Rules, Regulations and Bye-Laws of the Society. The

specific plea of the respondent authorities in the writ petitions, that there

is no challenge to validity of the rules but same has been brushed aside

by the High Court by merely stating that such an objection is of technical

in nature. At this stage, it is relevant to note that such objection raised

should not have been brushed aside by the High Court by holding that

such objection is of a technical nature. In all these writ petitions in which

common order is passed by the High Court, validity of advertisement

dated 16.08.2016 alone was under challenge. We are of the view that

the High Court has committed, an error in going into the validity of the

Rules, in absence of any challenge to the same. In any event, it was the

case of the respondent authorities that the rules governing appointment

were amended by following the rules and such amendment was also
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C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.

approved by the competent authority, of Ministry of Health & Family

Welfare. Further, the fact of not notifying the amended rules has also

been made basis for grant of relief by the High Court. In this regard, the

High Court has held that not notifying the amended rules would strike at

the root of the amendment process of the recruitment rules, as such,

unless such rules are notified, the same cannot be enforced. It appears

from the impugned order itself that it was the specific plea in the counter

affidavit filed before the High Court that the said rules were not framed

under Article 309 of the Constitution of India and further there is no

specific provision in the Rules, Regulations and Bye-Laws of RIMS for

notifying the same. It is true that in a public institution, rules are required

to be made available, but at the same time not notifying to public at large

cannot be the ground to invalidate the notification, in the absence of any

provision to that effect in the Bye-Laws of the Society or the Rules and

Regulations framed for recruitment to the post of Director.

14. The High Court has also noticed that the experience for eligibility

notified in the advertisement dated 16.08.2016 was not in conformity

with the Medical Council of India Regulations. In reply affidavit filed

before the High Court, while denying such allegation, it was pleaded that

the qualifications and experience, as notified in the advertisement dated

16.08.2016, was in accordance with the “Minimum Qualifications for

Teachers in Medical Institutions Regulations, 1998” (as amended from

time to time), framed by the Medical Council of India. It was the specific

contention of the respondent authorities that as the RIMS is affiliated to
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C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.

Manipur University, the requirement as prescribed by Medical Council of

India for Director of affiliated hospital should be applied. Such plea is

not accepted by the High Court on the ground that there is no proper

pleading in this regard. A copy of the Regulations titled as, “Minimum

Qualifications for Teachers in Medical Institutions Regulations, 1998” (as

amended upto 11th March 2017) issued by the Medical Council of India

is placed before us. As notified in the said Regulations, the academic

qualifications and experience applicable for the post of Director of

medical institutions differ from those applicable for the post of

Director/Medical Superintendent of affiliated teaching hospital. For the

post of Director in a medical institution, apart from the academic

qualifications, ten years’ experience as Professor/Associate

Professor/Reader in a medical college, out of which at least five years

should be as Professor in a department, is prescribed. However, for the

post of Director/Medical Superintendent of the affiliated teaching hospital

the required experience is ten years only. It is the specific case of the

respondents that the RIMS is an affiliated teaching hospital. In view of

such stand of the respondents it cannot be said that the experience for

eligibility notified in the advertisement dated 16.08.2016 is contrary to

the Regulations of Medical Council of India. So far as relaxation of

upper age limit, as sought by the petitioners in one of the writ petitions is

concerned, High Court has directed the competent authority and

Executive Council of the Society to consider for providing such

relaxation clause. We fail to understand as to how such direction can be

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C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.

given by the High Court for providing a relaxation which is not notified in

the advertisement. While it is open for the employer to notify such

criteria for relaxation when sufficient candidates are not available, at the

same time nobody can claim such relaxation as a matter of right. The

eligibility criteria will be within the domain of the employer and no

candidate can seek as a matter of right, to provide relaxation clause.

15. For the aforesaid reasons, we allow these appeals and set aside

the impugned common judgment and order dated 27.03.2017 passed in

W.P.(C) No.676 of 2016; W.P.(C)No.722 of 2016; and W.P.(C)No.766 of

2016 by the High Court of Manipur at Imphal. Consequently, the above

said writ petitions stand dismissed.

            Civil Appeal Nos.         of 2020
            [Arising out of S.L.P.(C)Nos.4853-4855 of 2019]

            16.   Leave granted.

17. These civil appeals are filed by the Union of India and RIMS

challenging the very same order of the High Court by which the

advertisement dated 16.08.2016 has been quashed. For the reasons

recorded while dealing with the appeals arising out of S.L.P.

(C)Nos.15093-15095 of 2017, these appeals also stand allowed and the

abovementioned impugned order of the High Court is set aside.

………….…………………………………J.

[R. BANUMATHI]

….…………………………………………J.

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C.A.@S.L.P.(C)Nos.15093-15095 of 2017 etc.

[R. SUBHASH REDDY]

New Delhi.

April 17, 2020.

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