Arjun Parahiya vs The State of Bihar now Jharkhand

The petitioner is a Cardiologist, working on the post of Associate

Professor, Rajendra Institute of Medical Sciences, Ranchi (hereinafter

referred to as RIMS). He is an aspirant for the post of Professor,

Department of Cardiology in RIMS. He is challenging the experience

qualification in Advertisement No.11035 dated 09.09.2016, whereby

applications for appointment on the post of Professor, Associate Professor,

Assistant Professor and Medical Officer were invited. Alternatively, he is

seeking a direction upon the respondent-RIMS to invite him for interview

and appoint him on the post of Professor.

Mr. Anil Kumar Sinha, the learned senior counsel for the petitioner

contended that the respondent-RIMS has prescribed a qualification in the

advertisement for appointment to the post of Professor which is contrary to

the Ranchi Institute of Medical Sciences Act, 2002 and the Rules framed

thereunder. This contention is founded on a premise that the experience

qualification as prescribed under Schedule-III to the Rajendra Institute of

Medical Sciences Regulations, 2014 is contrary to the norms prescribed by

the Medical Council of India (MCI), which governs the field of medical

education.

The petitioner claims that he is a 1996 batch MBBS from Patna

Medical College and Hospital, from where he obtained a Degree in

M.D(Medicine) in the year 2001. He worked as Senior Resident, Cardiology

between the period 25.01.2002 to 24.01.2005, i.e., for 3 years. It is

pleaded by the petitioner that this period of 3 years during which he

worked as Senior Resident should be counted as teaching experience. He

has enclosed certificates in support of his claim. He completed Doctor in

Medicine (Cardiology), course for which runs for 3 years (10.06.2006 to

09.06.2009). He was appointed as Assistant Professor in RIMS on

19.04.2010. After working for 2 years, 1 month and 10 days, he was

appointed to the post of Associate Professor. By 15.10.2016, which was the

last date for submission of application pursuant to Advertisement

No.11035, he has completed 4 years, 4 months and 14 days. He claims

that he has done 4 research works also. In these facts, the learned senior

counsel for the petitioner contended that the petitioner has acquired the

requisite experience under the advertisement and while so, a direction may

be issued to the respondent-RIMS to issue interview letter forthwith.

The qualification for appointment on the post of Professor, which

has been notified in the advertisement, reads as under :

"Twelve years teaching and/or research experience in recognized institution in the subject of super-speciality for the candidates possessing recognized DM/MCh degree course of 02 years after MD/MS or 05 years degree course after MBBS in the respective discipline/subject or a qualification recognized equivalent thereto. Or, Eleven years teaching and/or research experience in recognized institution in the subject of super-speciality for the candidates possessing recognized DM/MCh degree course of 03 years after MD/MS or 06 years degree course after MBBS in the respective discipline/subject or a qualification recognized equivalent thereto."

While making a prayer for a direction to the respondent-RIMS to

invite him for interview, the petitioner has tried to project himself qualified

for the post of Professor under the advertisement. Whether he fulfills those

conditions or not and, whether he has acquired requisite experience

qualifications or not, are not the issues falling for consideration by the

Court. There is no prayer seeking a declaration that the post of Senior

Resident is a teaching post or the period of his Senior Residency shall be

counted as teaching experience. In fact, it is the function of the Regulator

and not the Court. Whether the petitioner fulfills the qualifications and

qualifies for an invitation for interview or not, is an issue exclusively within

the domain of the Screening Committee which shall scrutinize the

qualifications and certificates of the applicants. In the aforesaid

background, no direction can be issued to RIMS for considering the

petitioner for appointment on the post of Professor. Accordingly, this

prayer is declined.

Another prayer is to quash the advertisement and to restrain the

respondents from filling up the posts contrary to RIMS Act, 2002 and a

direction to the respondents to consider the case of the petitioner in terms

of 2002 Act.

Referring to the prayers made by the petitioner, Mr. Ajit Kumar,

the learned senior counsel appearing for RIMS submitted that the

petitioner, who in the first place sought a direction for an invitation for

interview to him, cannot challenge the conditions under the advertisement.

It was contended that the petitioner, who had earlier submitted his

application pursuant to Advertisement No.474 for which last date for

submission of application was 29.02.2016 approached this Court by filing a

writ-petition only on 13.06.2016, must be barred from challenging the

qualifications prescribed by the advertisement. Mr. Ajit Kumar, the learned

senior counsel raised other technical pleas also; neither the qualification

prescribed under Schedule-III of RIMS Regulations are under challenge nor

the other provisions under which qualification for other post have been

fixed, have been challenged.

No doubt, the qualifications under Advertisement No.474 are

similar to the qualifications notified through Advertisement No.11035,

which is under challenge, and apparently there was delay on the part of the

petitioner to approach the Court, however, I am inclined to decide the issue

raised by the petitioner, on merits.

Main plank of the petitioner is the qualification for appointment on

the post of Professor fixed by Medical Council of India. It was contended

that no qualification contrary to the qualifications fixed by the Medical

Council of India can be fixed by the respondent-RIMS. This contention is

founded on Section 6 of RIMS Act, 2002 and RIMS Rules, 2002, which

provide that for appointment to the post of Professor, a candidate must

possess the qualifications prescribed by the Medical Council of India.

Per contra, Mr. Ajit Kumar, the learned senior counsel for the respondent-

RIMS contended that the qualifications prescribed under the advertisement

are not contrary to the MCI norms and a higher qualification can always be

prescribed by the employer.

To my mind, what needs to be examined is, whether a higher

qualification can be said to be contrary to the qualifications prescribed by a

statutory authority?

The Minimum Qualifications for Teachers in Medical Institutions

Regulations, 1998 in its last addition (Notification dated 15.12.2009)

provides the following qualifications for appointment of Professor in

D.M.(Cardiology) :

A) Professor D.M. (Cardiology) (i)As Reader /Associate Professor in Cardiology for four years in a recognised medical college/teaching institution.

Desirable

(ii) Minimum of four Research Publications indexed in Index Medicus/ national journal and one in International Journal The Above has been amended vide notification dated 24.07.2009 as under :

(i) As Associate Professor in the subject concerned for three years in the recognized medical college.

(ii))Minimum of four research publications in indexed /national journals.

The above has been further amended vide Notification dated 15.12.2009 as under:

Provided that these research publications are published /accepted for publication in the

Journals by the National Associations/Societies of the respective specialities as the First Author. Further provided that the requirement of 4 research publications for promotion to the post of Professor should be taken on cumulative basis with minimum of 2 research publications must be published during the tenure of the Associate Professor

Further provided that for the transitory period of 4 years w.e.f. 24th July, 2009, the appointment/ promotion to the post of Professor can be made by the institutes in accordance with the "Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998" as prevailing before notification of "Minimum Qualifications for Teachers in Medical Institutions (Amendment) Regulations, 2009".

Section 6 of RIMS Act, 2002 provides functions of the Institute.

Sub-Section (xii) provides that RIMS shall make appointments on teaching

and other posts following the norms fixed by MCI, DCI or any other

statutory body. Regulation 9-B of RIMS Regulations, 2014 provides that for

appointment on a teaching faculty a candidate shall obtain eligibility under

Schedule-III to the Regulations, which is the eligibility prescribed by All

India Institute of Medical Sciences (AIIMS), New Delhi. The qualifications

prescribed by the Regulations are as under :

"VERNACULAR MATTER OMITTED"

A medical qualification included in the I or II schedule or part II of the third schedule to the Indian Medical Council Act of 1956 (persons possessing qualifications included in part II of the third schedule should also fulfill the conditions specified in section 13(3) of the Act.

A post graduate qualification e.g. MD/MS or a recognized qualification equivalent thereto in the respective discipline/subject.

And/or

M.Ch for surgical super specialities and D.M. for Medical Super?specialties (2 years or 3 years or 5 years recognized equivalent thereto.

Experience Fourteen years teaching and/or research experience in recognized institution in the subject of speciality after obtaining the qualifying degree of MD/MS qualification recognized equivalent thereto.

Or Twelve years teaching and/or research experience in recognized institution in the subject of speciality after obtaining the qualifying degree of MCh/DM (2 years or 5 years course recognized after MBBS) in the respective discipline/subject or a qualification

recognized equivalent thereto.

Or Eleven years teaching and/or research experience in recognized institution in the subject of speciality for the candidates possessing three years recognized degree of DM/MCh in the respective discipline/subject or a qualification recognized equivalent thereto.

A comparision of the qualifications prescribed by the MCI and

AIIMS, New Delhi which are incorporated under Schedule-III to the

Regulations would reveal that while the basic educational qualification

remains the same, the experience qualification prescribed by AIIMS differs

from the other qualifications prescribed by MCI. It was contended on

behalf of the respondent-RIMS that for appointment on the post of

Professor in Super Speciality Department, requisite experience as provided

under Schedule-III is mandatory. Under the MCI Regulations, no specific

experience qualification has been provided. It simply requires 4 research

publications published/ accepted for publication in the Journals by the

National Associations/Societies of the respective specialities as the First

Author. The requirement of 4 research publications for promotion to

the post of Professor would be on cumulative basis with minimum of 2

research publications must be published during the tenure of the Associate

Professor. On the other hand, the experience qualification under

Schedule-III of RIMS Regulations requires 12 years teaching and/or

research experience in recognized institution in the subject of specialty

after obtaining the qualifying degree of MCh/DM (2 years or 5 years

course recognized after MBBS) in the respective discipline/subject or

a qualification recognized equivalent thereto. An equivalent

qualification is 11 years teaching and/or research experience in

recognized institution in the subject of speciality for the candidates

possessing three years recognized degree of DM/MCh in the

respective discipline/ subject or a qualification recognised equivalent

thereto.

The qualifications prescribed by RIMS Regulations are definitely

not lower than those prescribed by MCI. These are also not contrary to

the norms fixed by MCI. Dictionary meaning of the word "contrary" is

"opposite in nature". The Chambers Dictionary uses the expression

"perverse" also to define the expression "contrary". The Advanced Law

Lexicon describes the word "contrary" to mean "opposite". In common

parlance also, the word contrary is used to mean opposite. Prescribing

higher qualifications in addition to or higher than those prescribed by MCI

would not be contrary to the MCI norms. It also would not be inconsistent

with the object of appointing more skilled and qualified persons on the post

of Professor. In Surinder Singh v Union of India (2007) 11 SCC 599, the

Supreme Court has observed; "In service jurisprudence the prescription of

preferential qualification not only refers to numeric superiority but is

essentially related to better mental capacity, ability and maturity to

shoulder the responsibilities, which are entrusted to the candidates after

their selection to a particular post." It was further observed that,

"the object of prescribing preferential qualification is to select the best

amongst the better candidates who possess more competence than the

others". The learned senior counsel for the respondent-RIMS relied on the

decision in "S. Satyapal Reddy and Others v Govt. of A.P. and Others"

(1994) 4 SCC 391 to contend that there is no inconsistency in prescribing a

higher qualification.

The learned senior counsel for the petitioner next contended that

when there is a conflict between the Rules/Regulations and the parent Act,

provisions of the parent Act must prevail and to the extent of inconsistency

the Rules/Regulations must be declared ultra-vires and inoperative. The

learned senior counsel referred to paragraph no.16 in "Additional District

Magistrate (Rev.) Delhi Admn. v Siri Ram" (2000) 5 SCC 451, paragraph

nos.4 and 8 in "Nedurimilli Janardhana Reddy v Progressive Democratic

Students'' Union & Others." (1994) 6 SCC 506, paragraph no.56 of

"ITW Signode India Ltd. v Collector of Central Excise" (2004) 3 SCC 48 and

paragraph nos. 39 to 41 of "NOVVA ADS. v Secretary, Department of

Municipal Administration & Water Supply & Another" (2008) 8 SCC 42, to

contend that the rule making power cannot travel beyond the scope of the

enabling Act.

This contention is primarily based on Section 6(xii) of the RIMS Act

and Regulation 33, which are reproduced below :

"VERNACULAR MATTER OMITTED"

6(xii) Appointment shall be made on educational and other prescribed posts as per the parameters, rules and regulations as prescribed by Medical Council of India, Dental Council of India or any other legal Council.

"VERNACULAR MATTER OMITTED"

Miscellaneous: (i) In case of any type of conflict among RIMS Act 2002/Rule 2002/Regulation 2014, only RIMS Act and RIMS Rule 2002 shall be valid and effective.

Section 5 deals with objects of the Institute. One of the

objects of RIMS is to achieve high standards in Graduate and

Post-graduate Medical education. To say that sub-Section (xii) of Section 6

of RIMS Act restricts the power of RIMS to fix a standard different from (but

not lower than) the norms fixed by the Medical Council of India would

amount to restricting the legislative power under the Act itself to achieve

higher standards of education. RIMS can fix a qualification different from

the norms fixed by the Medical Council of India; the only restriction on this

power is that the qualification fixed by RIMS shall not be in derogation to

the norms fixed by the MCI. Once it is found that under the Act, RIMS has

power to fix a higher qualification which in a sense may be called a

different qualification, experience qualification prescribed under the RIMS

Regulations must be held in consonance with Section 6(xii) of RIMS Act.

The contention based on Regulation 33 to challenge the qualification

prescribed under the Regulations/ Advertisement is misconceived.

Regulation 33 is a mere reiteration of the well-settled legal proposition and

it has no application in the instant case. It provides that in case of a conflict

between RIMS Act, 2002/ RIMS Rules, 2002 and the Regulations, the

Act/Rules would prevail. The contention challenging the qualification under

Schedule-III on the ground that Section 32 does not permit to frame

regulations contrary to RIMS Act is equally misconceived. This contention

has been raised ignoring the dominant purpose for framing regulations.

Sub-section (1) to Section 32 provides that to achieve the object under the

Act, the Governing Body shall make regulations consistent with the

provisions of the Act. By providing a qualification under Schedule-III to the

Regulations of 2014, which may be higher than the MCI norms but

definitely not lower or inconsistent or in derogation to MCI qualifications,

RIMS intended to achieve the object of providing higher standards of

medical education, which is one of the prime functions of RIMS. The

respondent-RIMS has pleaded that the regulations were framed by the

Governing Body with the previous sanction of the Government and these

were laid before the Assembly and thereafter, the regulations have been

published in the Official Gazette on 22.09.2014. Moreover, under

sub-section (xii) to Section 32 power to make regulation on any other

matter has been preserved. Equally untenable is the plea that post of

Professor (Cardiology) is vacant since 24.06.2011 which requires relaxation

in the eligibility criteria. In my opinion this cannot be a ground to exercise

powers under Regulation 11(iii) to relax the conditions for appointment.

What follows from the above discussions, is that, there is no merit

in the writ-petition and accordingly, it is dismissed.