Dr. H. Nabachandra Singh vs The Union of India

Heard Mr. H.S. Paonam, learned senior counsel assisted by Mr. A. Arunkumar, learned Advocate for the petitioners in W.P.(C) No. 676 of 2016 as well as Mr. A. Bimol, learned counsel for the petitioner in W.P.(C) No. 722 of 2016 and Ms. Babita Th., learned counsel for the petitioner in W.P.(C) No. 766 of 2016. Also heard Mr. B.P. Sahu, learned senior counsel assisted by Mr. M. Tapan Sharma, learned counsel for the RIMS respondent as well as Mr. S. Suresh, learned CGC for the Union respondents. 2. Since there are certain common issues running through these 3 (three) writ petitions, these have been taken up and heard together and disposed of by this common judgment. On conclusion of the hearing on 24.03.2017, the judgement was dictated in the Court but could not be completed, hence continued on 27.03.2017. The corrected transcript of the judgment is being made available after three days of the pronouncement of the judgment. 3. W.P.(C) No. 676 of 2016 has been filed by 4 (four) petitioners who are presently working as Professors in the RIMS and claim to possess all the requisite qualifications and experience prescribed by the relevant recruitment rules for appointment to the post of Director (RIMS). The petitioners of this writ petition state that in a reply received on 17th July 2016 to an RTI application filed, the petitioners came to know of the relevant recruitment rules for the post of Director, RIMS. As per the aforesaid recruitment rules for the post of Director, the upper age limit for direct recruitment has been fixed at 50 years, relaxable for Government servants/RIMS employees and specially qualified candidates. The said recruitment rules provide the tenure of service as 5 years inclusive of 1 (one) year probation. The petitioners say that the said RTI application was filed after the respondent no. 1 issued the advertisement on 24.06.2015 for filling up the post of Director in which the upper age limit was fixed at 50 years relaxable for Government servants/RIMS officers and specially qualified candidates. However, the age of retirement of the post of Director has been shown to be 62 years which is stated to be as per existing recruitment rules. The petitioners contend that though all the petitioners were otherwise eligible for applying for the said post of Director, in view of the provision fixing the age of retirement of the post of Director at 62 years, which according to the petitioners was contrary to the rules applicable at that time to be 65 years, the petitioners challenged the said advertisement dated 24.06.2015 by filing a writ petition, being W.P.(C) No. 617 of 2015, after the petitioners failed to get any positive response from the authority concerned for correction of the age of superannuation of Director. The petitioners took the specific plea in the said writ petition that the age of superannuation of the post of Director cannot be 62 years but 65 years. This Court while issuing notice in the said writ petition W.P.(C) No. 617 of 2015 passed an order on 30.07.2015 holding that the petitioners had been able to make out a prima facie case for passing an interim order in their favour and passed the interim order to the effect that if any of the petitioners apply for appointment to the post of Director (RIMS) within the stipulated time, their case shall not be rejected merely on the ground that they had crossed the age limit and/or reached 62 years which is the age of retirement mentioned in the advertisement. The order dated 30.07.2015 passed in W.P.(C) No. 617 of 2015 is reproduced herein below as this would provide the backdrop of the issues involved in these writ petitions and for better appreciation of these issues. Accordingly, the same is reproduced herein below : "30.07.2015 Heard Mr. N. Ibotombi, learned senior counsel for the petitioners and Mr. A. Bimol, learned counsel for the Respondent RIMS. Also heard Mr. S. Rupachandra, learned ASG for Respondent No. 1. Issue notice returnable within 3 (three) weeks. Since the respondents'' counsel have accepted notice on behalf of the respective respondents, no formal notice need be issued. There is a prayer on behalf of the petitioners for passing an interim order for staying the impugned advertisement as enclosed in the letter dated 24.06.2015 (Annexure-A/6 colly) by which the post of Director, RIMS, Imphal has been advertised for appointment. In the said advertisement, the upper age limit of the applicants has been fixed at 50 years relaxable for Govt. Servants/RIMS Officers and specially qualified candidates. Further, it is mentioned in the Advertisement that the age of retirement for the post of Director of the RIMS, Imphal is 62 years as per existing recruitment rules. Mr. Ibotombi, learned senior counsel for the petitioners has taken exception to the aforesaid stipulations as being contrary to the Rules. As regards the upper age limit fixed at 50 years in the impugned advertisement, it has been submitted that in various similar institutions namely AIIMS, PGIMER, NEGRIHMS and JIPMER under the same administrative control of the Ministry of Health & Family Welfare, Government of India, the upper age limit has been fixed at 60/62 etc. It has been submitted that the RIMS which is a medical institute under the Ministry of Health and Family Welfare, Government of India has not adhered to the norms applied in other similar institutions in the rest of the country. Accordingly, it has been submitted that the fixing of age limit at 50 years in the aforesaid advertisement, is unreasonable and hence, liable to be interfered with. Coming to the second objection regarding fixing the age of retirement for the post of Director at 62 years in the impugned advertisement, it has been submitted that no such retirement age has been mentioned in the recruitment rules, a copy of which has been made available by the RIMS authority as contained in Annexure A/10. It has been submitted that the retirement age on superannuation for the post of Director of the RIMS had earlier been fixed by the RIMS authority at 65 years. It has been submitted that the Executive Council of the RIMS in their 42nd Meeting held on 05.08.2011 had taken the decision that the age of superannuation for the post of the Director of RIMS be fixed at 65 years at par with other medical institutions like AIIMS at Delhi, PGIMER at Chandigarh, NEGRIHMS at Shillong and JIPMER at Puducherry where it has been fixed at 65 years and all these medical institutions are under the administrative control of the Ministry of Health and Family Welfare, Govt. of India. It has been submitted that after the decision was taken by the Executive Council in their 42nd Meeting, the Ministry of Health and Family Welfare, NE wrote to the Director, RIMS informing that the Secretary, Health and Family Welfare in his capacity as the Chairman of the Executive Council, RIMS has approved the amendment to the whole Clause 12 of the Memorandum of Association of RIMS which reads as follows : "ii) The Director of the Institute shall be appointed by the President of Board of Governors (BOG), RIMS (Hon''ble Union Ministry of Health and Family Welfare, GOI) with the concurrence of the Central Government from a panel of names recommended by "a Search cum Selection Committee as approved by the Union Minister of Health & Family Welfare in his capacity as President of the Board of governors, RIMS & DOPT". The term of office of Director shall be five years or till the incumbent attains the age of sixty five years whichever be earlier. An incumbent Director shall be eligible for re-appointment for another term provided the procedure laid down herein before is followed. Authority for approval of extension in tenure of Director will vest with the ACC(*)." * This is in consonance with the latest guidelines issued by GOI/DOPT vide O.M. No.AB.14017/11/2004- Estt.(RR), dated 30th July, 2007.] Thereafter, the Ministry of Health & Family Welfare, NE Division wrote a letter to the Director, RIMS on 17.05.2012 informing that the Ministry has approved the amendments in Clause 12 of Bye Laws of Regional Institute of Medical Sciences (RIMS), Imphal relating to appointment of Director, RIMS, Imphal. The said letter also refers to the decision of the authority to fix the age of superannuation of Director, RIMS at 65 years at par with other institutions viz., AIIMS, PGIMER, NEIGRIHMS etc. and decision to amend the Recruitment Rules for the post of Director, keeping in view Clause 12 regarding the age of superannuation and terms and conditions of similar posts, DOPT''s guidelines relating to service rules/recruitment rules etc. Subsequently, the Executive Council in their 43rd Meeting held on 22.08.2012 confirmed the proceedings of the 42nd Meeting of the Executive Council. In terms of the aforesaid decisions, the Director, RIMS issued an order dated 03.09.2014 stating that in pursuance of the decision taken under agenda item No. 3 of the 42nd meeting of the Executive Council, Society of RIMS, Imphal held on 05.08.2011, the age of superannuation of Director, RIMS, Imphal shall be 65 years. Accordingly, necessary changes had been also made in the Bye Laws of RIMS as regards the age of superannuation of the post of Director of the Institute and the term of the office of the Director. The aforesaid changes can be seen from the amendment made in the Memorandum of Association, Rules and Regulations, Bye-Laws, relevant portion of which has been reproduced at para 5 of the Writ petition. Mr. N. Ibotombi, learned senior counsel for the petitioner submits that as it is the indisputable position now that the age of retirement of the post of Director of RIMS would be 65 years contrary to what had been mentioned in the impugned advertisement in which the age of retirement for the post of Director has been stated to be 62 years purported to be as per the existing Recruitment Rules. It has been submitted that being aggrieved by such wrong fixation of upper age limit and the age of superannuation for the post of Director, RIMS in the impugned advertisement, some of the petitioners and others had submitted representations to the authority including respondents No. 1 and 2 on 08.07.2015 and 16.07.2015 (Annexures A/8 and A/9 respectively) for making necessary changes in the age limit for the post of Director as well as in the relevant recruitment rules, in terms of the decision of the Executive Council, Rules and Regulations, the Memorandum of Association of the RIMS as mentioned above. The petitioners submit that they have genuine apprehension that if the impugned advertisement is not appropriately amended in terms of the decision of the Executive Council as incorporated in the Rules and Regulations, it will adversely affect all the petitioners. It has been submitted by Mr. Ibotombi, learned senior counsel for the petitioners that the petitioner Nos. 1, 2 and 4 have already applied for the said post of Director and the remaining petitioners will be also submitting necessary applications in terms of the impugned advertisement as the last date is 31st of this month. It has been submitted that in the event the impugned advertisement is not amended in conformity with the decision of the Executive Council as mentioned above, the candidature of the petitioners will be liable to be rejected which will cause irreparable injury to the petitioners, as the petitioners have crossed the age of 50 years and many of them are either nearing or crossed 62 years. To these contentions of the petitioners, Mr. A. Bimol, Ld. Counsel for the RIMS authority has submitted that as per the impugned advertisement, the age limit has been fixed at 50 years in terms of the recruitment rules for the post of Director, which has not been challenged by the petitioners. Further, in the impugned advertisement it is provided that the aforesaid age limit is relaxable for Government Servant/RIMS officers and specially qualified candidates. As such, since the petitioners are RIMS officers, their age can be relaxed by the authority as regards the age limit of 50 years and hence, their apprehension is unfounded. As regards the other issue of age of superannuation for the post of Director, RIMS, it has been submitted by Mr. Bimol, Ld. Counsel for the RIMS that it has to be ascertained as to whether the decision to enhance the age of superannuation of the post of Director to 65 years was taken by the Executive Council in terms of Rule 8(iii)(m) of the Rules and Regulations of the RIMS which provides that the Executive Council may amend the bye-laws, rules and regulations after obtaining concurrence of the Ministry of Health & Family Welfare, Government of India. It has been submitted by Mr. A.Bimol that it is not known whether prior concurrence of the Ministry was taken before the Executive Council took the decision in the 42nd Meeting to fix the age of superannuation of the post of Director at 65 years, which needs to be ascertained. As such, passing of any interim order can be considered after ascertaining this aspect. Mr. N. Ibotombi, learned Senior Counsel has submitted that since the petitioners had already submitted representations along with others on 08.05.2015 and 16.05.2015 (Annexures A/8 and A/9) respectively, the impugned advertisement for appointment to the post of Director, RIMS may be stayed till consideration of the said representations. Mr. A. Bimol, learned counsel for the RIMS respondent on the other hand prays that the present process for appointment may continue and any appointment made may be subject to the result of this petition. Heard learned counsel for the parties as regards the prayer of the petitioners for passing an interim order. As regards the first issue raised by the petitioners about fixing the age limit of the candidates at 50 years, it has been also mentioned in the advertisement as well as in the recruitment rules that it is relaxable for Govt. Servants/RIMS officers and specially qualified candidates, without, however, fixing any outer limit of the relaxation provided. In that view of the matter, as there is no limitation to the period of relaxation, as the petitioners are officers of the RIMS, they cannot be put to any disadvantageous position by this upper limit fixed which can be relaxed. Mr. A. Bimol, Ld. Counsel for the RIMS himself states that because of the relaxation provision, the authorities will examine their case for relaxation and the petitioners need not have any apprehension in that regard. Therefore, this Court would hold the tentative view that the petitioners cannot be disqualified on this ground, even though they may have crossed 50 years of age. Coming to the second issue, this Court is also of the tentative view that since the age of superannuation to the post of Director has been fixed at 65 years as decided in the 42nd meeting of the Executive Council of RIMS which has been approved by the Ministry of Health & Family Welfare, as evident from the letters dated 3.05.2012 (Annexure- A/2) and 17.05.2012 (Annexure-A/3) and as the necessary changes have been also incorporated in Rules and Regulation and Bye Law and Memorandum of Association of the RIMS as reflected in para 5 of the writ petition, the age of superannuation to the post of Director should be 65 years. The fact that this enhanced age of superannuation of the post of Director, RIMS fixed at 65 years has been incorporated in the Rules and Regulation of the RIMS, would lead to the presumption to its validity. In view of the above, fixation of 62 years as the age of superannuation for the post of Director as mentioned in the impugned advertisement dated 24.07.2015 does not seem to be in conformity with the existing Rules and Regulations, Bye- Laws and Memorandum of Association of the RIMS which govern the service conditions of the employees of RIMS including the post of Director. Accordingly, this Court is of the opinion that the candidature of any applicant for the post of Director, RIMS cannot be rejected merely on the ground that the age of retirement of the incumbent of the post of Director is 62 years as mentioned in the impugned advertisement and the age of the applicant is nearing or has crossed the age of 62 years. Considering the above, this Court is satisfied that the petitioners have been able to make out a prima facie case for passing an interim order in their favour, which would warrant certain interference by this Court at this stage, though this Court is not inclined to stay the process of selection initiated by the impugned advertisement. Accordingly, for the reasons discussed above, in the interim, it is directed that the case of the petitioners, if they apply for appointment to the post of Director, RIMS within the stipulated time, shall not be rejected merely on the ground that they have crossed the age limit of 50 years or that they are going to reach or have crossed 62 years which is the age of retirement mentioned for the post of Director, RIMS in the impugned advertisement. In other words, the cases of the petitioners who apply for the post of Director, RIMS shall also be considered along with others by the authorities for appointment to the post of Director, RIMS which has been initiated by issuing the impugned advertisement. Since these issues raised by the petitioners have to be finally adjudicated, it is provided that selection and appointment to the post of Director, RIMS pursuant to the impugned advertisement shall not be made without the leave of this Court. It is also clarified that as this interim order has been passed at the stage of motion, the Respondents would be at liberty to approach this Court for modification/vacation of this interim order. List after 3 (three) weeks." 4. It is to be noted that the petitioners had made the claim of the age of superannuation of Director being 65 years on the basis of an order issued by the Director (RIMS) on 03.09.2014 in pursuance of the decision taken under Agenda No. 3 of the 42nd Meeting of the Executive Council, Society of RIMS, Imphal held on 08.08.2011 (Annexure-A/4). Thus, the said writ petition, W.P.(C) No. 617 of 2015 was filed essentially for correction of the age of superannuation for the post of Director, RIMS from 62 to 65 years for framing the recruitment rules in consonance with recruitment rules of AIIMS, New Delhi, PGIMER, Chandigarh, NEHRIMS, Shillong and JIPMER, Puducherry. While the petition challenging the advertisement for the post of Director issued on 24.06.2015 stood as such, another Office Memorandum was issued on 20th April, 2016 by the Director, RIMS stating that in pursuance of the letter dated 06.04.2016 of the Ministry of Health & Family Welfare, NE Division, Government of India, the age of superannuation for the post of Director, RIMS is enhanced from 62 to 65 years as conveyed by the Ministry which had the approval of Appointment Committee of the Cabinet (ACC). It is to be noted that there was already an order issued by the Director, RIMS on 03.09.2014 on the basis of the decision of the Executive Council enhancing the age of superannuation to 65 years. However, because of a fresh order issued enhancing the age of superannuation for the post of Director from 62 to 65 years as notified by the Office Memorandum dated 20.04.2016, the petitioners were of the view that they had no more grievance and as the RIMS authorities also requested the petitioners to withdraw the petition, they bona fide believed that their cases would be considered for appointment to the post of Director (RIMS) and did not press the writ petition. Accordingly, the said writ petition, W.P.(C) No. 617 of 2015 was closed on withdrawal on 25.07.2016. 5. The petitioners claim that while the petitioners were under such bona fide impression, to their shock and surprise they found that another advertisement dated 16.08.2016 was issued for appointment to the post of Director by the Respondent no. 1 which is impugned in this writ petition. The petitioners claim that the impugned advertisement is contrary to the existing recruitment rules for the post of Director (RIMS). As per the said advertisement, the upper age limit for applying for the post has been fixed at 62 years without any provision for relaxation as had been provided in the earlier advertisement dated 24.06.2015 and also under the relevant recruitment rules as furnished to the petitioners by the RIMS authorities on 17.07.2015. Accordingly, being aggrieved, the petitioners filed the present writ petition, W.P.(C) No. 676 of 2016 seeking quashing and setting aside the advertisement dated 16.08.2016 in so far it relates to non providing of relaxation of the upper age limit for the applicants and for a direction to the respondents to allow the petitioners to participate in the selection process for appointment to the post of Director (RIMS) by modifying the impugned advertisement. 6. Mr. H.S. Paonam, learned Sr. Counsel for the petitioners in W.P.(C) No. 676 of 2016 has strenuously argued that the impugned advertisement dated 16.08.2016 was issued to oust the candidature of the petitioners in as much as the petitioners were otherwise eligible in terms of the earlier advertisement dated 24.06.2015 as well as the relevant recruitment rules and their main grievance in filing the writ petition, W.P.(C) No. 617 of 2015 was relating to the fixation of the age of superannuation of the post of Director at 62 years in the earlier advertisement which was supposed to be 65 years but was wrongly put at 62 years. However, since the date of superannuation of the post of Director was rectified by fixing it at 65 years, they did not pursue the earlier writ petition W.P.(C) No. 617 of 2015 as they were under the bona fide impression that their cases would be considered for appointment to the post of Director. However, by cancelling the advertisement dated 24.06.2015, and by issuing another advertisement on 16.08.2016 impugned in this writ petition and by taking away the relaxation clause, the petitioners have been sought to be debarred from applying for the post of Director, RIMS as most of the petitioners have already crossed the age of 62 years by the time of issue of the impugned advertisement. 7. The second writ petition, W.P.(C) No. 722 of 2016 has been filed by the petitioner, Dr. Brogen Singh Akoijam who also claims to be eligible for appointment to the post of Director by taking the plea that firstly, the said advertisement is not based on the relevant recruitment rules and also not in consonance with the Medical Council of India (MCI) Regulations. It has been contended that the experience criteria provided in the advertisement is not in consonance with the MCI Regulations. While under the impugned advertisement the teaching experience required is of not less than 14 years without any reference to the experience in the grade of Professor, the MCI Regulations specifically provide, as contained in the Minimum Qualifications for Teachers in Medical Institutions Regulations, 1988 as amended upto 13th July, 2016, that for the post of Principal/Dean/Director of medical institutions, one must possess a recognised Post Graduate medical qualification and other academic qualifications from a recognised institution with a minimum 10 years teaching experience as Professor/Associate Professor/Reader in the Medical colleges/Institute, out of which at least 5 years should be as Professor in a Department. Further, preference for appointments is to be given to the Heads of the Department. Mr. A. Bimol, learned counsel for the petitioner submits that since the MCI Regulations are binding upon the medical colleges including RIMS, which had stipulated the requirement of having at least 5 years of teaching experience in the grade of Professor, the absence of it in the impugned advertisement would vitiate the advertisement and the recruitment process. It has been submitted that though it would be within the wisdom of the authorities to provide enhanced requirements, more than what has been provided under the MCI Regulations, they cannot compromise with any of the basic minimum requirement/qualifications mentioned in the MCI Regulations by lowering the standard. 8. Mr. Bimol submits that the experience and qualifications mentioned in the impugned advertisement are also inconsistent with the earlier advertisement dated 24.06.2015 as well as the existing recruitment rules. He submits that while in the earlier advertisement as well in the recruitment rules, the relaxation clause was provided in respect of the upper age limit as well as for the qualifications and experience, such relaxation has not been provided in the impugned advertisement. 9. Accordingly, the petitioner has sought for quashing the advertisement dated 06.08.2016 and for a direction to the respondents to rectify the advertisement as far as it relates to the experience and qualifications notified in the advertisement so as to bring it at par with the relevant rules of other medical institutions under the Ministry of Health & Family Welfare, Government of Manipur. 10. The plea of the official respondents, on the other hand as mentioned above, is that this advertisement dated 16.8.2016 is based on valid recruitment rules amended by the competent authority, a copy of which has been annexed as Annexure-H/4 to affidavit filed by the Respondent no. 1. The petitioners, however, have vehemently objected to this contention of the respondents by stating that the said recruitment rules were not in existence at the time of issuing of the impugned advertisement dated 16.8.2016. Mr. Bimol submits that even if the respondents claim that the recruitment rules had been amended, since these were not notified, are not valid and cannot be enforced. Mr. Bimol, Ld. Counsel for the petitioner submits that what had happened prior to issuing of the impugned advertisement was that the 46th Executive Council in its meeting on 20.10.2015 under Agenda Item No.5 took the decision for enhancement of the age of superannuation of the post of Director from 62 to 65 years, on the basis of which the Ministry was to take further actions in that regard. In other words, the decision taken by the Executive Council was for enhancement of the age of the superannuation of the post of Director, RIMS from 62 to 65 years and nothing more. There was no reference to making any amendment of the recruitment rules for the post of Director, RIMS. Thereafter, the matter was referred to the Ministry, for obtaining approval of the Appointment Committee of the Cabinet (ACC) for enhancement of the age of superannuation for the post of Director, RIMS from 62 to 65 years. Mr. Bimol submits that thereafter, RIMS prepared a draft amendment of the recruitment rules for the post of Director and sent to the Ministry for approval vide letter dated 25.4.2016 (Annexure-H/7). Pursuant to the aforesaid proposal of the Director, RIMS, the Ministry informed the Director vide letter dated 10.8.2016 that the competent authority has approved the amendment of the recruitment rules for the post of Director, with the direction to notify it immediately. Mr. Bimol submits that though there was a specific instruction by the Ministry to notify the recruitment rules, there was no notification by the RIMS authorities till date. 11. Mr. A. Bimol, learned counsel also submits that proper procedures as required under the rules had not been followed while amending the recruitment rules. He submits that even though the Bye Laws authorised the Director of the RIMS to make necessary amendment and prepare the same for placing to the Ministry for approval, yet, such a proposal would require to be approved by the Executive Council as the Executive Council is vested with the overall power of management and administration of the Institute. However, there was no approval by the Executive Council of the amendment of the recruitment rules so proposed by the Director and approved by the Ministry of Health & Family Welfare. 12. Mr. A. Bimol further submits that Schedule 1 at Sl. No. 22.b of the Rules and Regulations relied on by the respondents clearly mentions that the Director has been given full power for framing/modifying Recruitment Rules for submission to the Ministry for approval. However, it has been also mentioned that such power is to be exercised as per norms of the Central Government, which however, were not followed. 13. He submits that, it is clearly laid down in the Central Government norms as provided under the relevant Office Memorandum that at the time of framing/modifying recruitment rules, the authorities, namely, the Department of Personnel and Administrative Reforms as well as the UPSC have to be consulted. Further, such recruitment rules as approved should be notified within 4 (four) weeks from the date of approval. It has been submitted that in the present case there was no such consultation with the Department of Personnel and Administrative Reforms and the RIMS authorities also never published the recruitment rules. Accordingly, it has been submitted that though the Director may have full power for modifying or amending the recruitment rules, such powers were exercised without following the norms. 14. Lastly, Mr. A. Bimol submits that it is an undisputable fact that the recruitment rules relied on by the respondent authorities on the basis of which the impugned advertisement was issued, were never published. He accordingly, submits that as the recruitment rules were never notified, the same cannot be enforced because of which the impugned advertisement cannot be sustained. 15. The third writ petition, W.P.(C) No. 766 of 2016 has been filed by one Professor Thounaojam Naranbabu Singh who is also presently serving as a Professor in the RIMS and claiming to be eligible for appointment to the post of Director as per the relevant recruitment rules, challenging the said advertisement dated 16.08.2016. Ms. Babita Th., learned counsel for the petitioner has also raised similar issues about the defects in the advertisement by not providing relaxation to qualifications and experience and being inconsistent/contrary to the MCI Regulations. Ms. Babita has raised an additional issue contending that the post of Director (RIMS) became vacant on regular basis on 14.09.2015 on retirement of the earlier regular incumbent and hence, the vacancy is to be filled on the basis of the relevant recruitment rules existing at the time of occurrence of vacancy. 16. In response to the submissions made by Mr. H.S. Paonam, learned Sr. Counsel for the petitioners in WP(C) No. 676 of 2016, Mr. S. Suresh, learned CGC has submitted that perusal of the relief sought in the said writ petition would show that the challenge made is against the advertisement dated 16.08.2016 only so far as it relates to the upper age limit. The entire advertisement has not been sought to be nullified and it has been challenged only on the limited area of non-provision of relaxation in the upper age limit. Mr. Suresh, therefore, contends that it would mean that the petitioners are not aggrieved by the advertisement as a whole and as such the scope of this petition is confined to the limited area of challenge. As regards the other two remaining writ petitions, Mr. Suresh submits that none of them were eligible for appointment to the post of Director, RIMS either under the earlier advertisement dated 24.06.2015 nor the latest advertisement dated 16.08.2015 and hence they have no right to challenge the impugned advertisement. 17. Mr. Suresh further submits that none of the petitioners in these three petitions have challenged the recruitment rules on the basis of which the impugned advertisement dated 16.08.2016 was issued and the recruitment rules were framed by following the due process as provided under the relevant rules. He, therefore, raises the preliminary objection contending that if the relevant recruitment rules, on the basis of which the advertisement is issued, are not challenged, the petitioners cannot challenge the validity of the advertisement. 18. Mr. Suresh submits that the RIMS is a registered society whose affairs are governed and regulated by the provisions as contained in the Memorandum of Association, Rules and Regulations and Bye-Laws of the RIMS. Rule 8 of the Rules and Regulations of the RIMS provides that there shall be an Executive Council of the RIMS. Powers and functions exercisable by the Executive Council are enumerated under Rule 8(iii). Rule 8(iii) provides that the management and administration of the institute shall vest in the Executive Council. Rule 8 (iii) empowers the Executive Council, among others, to frame Bye-laws and procedures for conduct of the affairs of the Institute and also to amend Bye-laws and Rules and Regulations of the institute after obtaining concurrence of the Ministry of Health & Family Welfare, Government of India. Mr. Suresh contends that however, nothing has been mentioned in Rule 8 (iii) giving powers to the Executive Council to amend or frame the recruitment rules of the posts under the RIMS. 19. Mr. Suresh states that in the 42nd Meeting of the Executive Council held on 05.08.2011 it was decided to enhance the age of superannuation for the post of Director, RIMS to 65 years and process of amendment of recruitment rules was initiated. The decision however, was reviewed in the 45th Executive Council Meeting held on 20.11.2014 to examine the proposed enhancement of the age of superannuation of Director and other posts in the Institute and accordingly, the RIMS was advised on 13.01.2015 to submit a consolidated proposal for consideration of the Ministry which was still awaited. 20. Mr. Suresh submits that in order to fill up the vacancy which had arisen to the post of Director on 14.09.2015, the advertisement dated 24.06.2015 was issued, which however, was challenged by some of the petitioners by filing a writ petition, W.P. (C) No. 617 of 2015. Mr. Suresh submits that at the relevant time, the age of superannuation for the post of Director, RIMS was 62 years. In the said writ petition, this Court passed an order on 30.07.2015 directing, inter alia, that selection and appointment for the post of Director pursuant to the said advertisement shall not be made without leave of the Court. Accordingly, the Ministry after considering the order passed by the Court and the claim made by the petitioners in the said writ petition for enhancement of the age of superannuation for the post of Director, RIMS from 62 to 65 years placed the matter for necessary decision in the 45th Executive Council Meeting held on 20.10.2015 which recommended the enhancement of the age of superannuation of the post of Director, RIMS to 65 years. 21. Mr. Suresh further submits that in terms of the Office Memorandum dated 15.11.2012 issued by the Department of Personnel and Training, any enhancement of the age of retirement beyond 60 years as well as appointment to such post with enhanced age requires the approval of the Appointment Committee of Cabinet (ACC)/Prime Minister. Accordingly, the decision of the Executive Council to enhance the age of the retirement of the post of Director, RIMS to 65 years was placed before the ACC which approved the same on 30.03.2016. After such approval, the Ministry wrote to the Director, RIMS on 06.04.2016 for necessary modification of the Memorandum of Association, Bye-laws of the institute and also to submit proposal for modification of the recruitment rules for the post of Director (RIMS) along with draft recruitment rules which were duly submitted by the Director on 25.04.2016. The Ministry after considering the proposal for the amendment of the recruitment rules for the post of Director approved the same on 07.08.2016 and accordingly, intimated the Director of RIMS about the same on 10.08.2016. 22. Mr. Suresh submits that as per Bye-law 3 of the Bye-laws of the RIMS read with Schedule 1, Sl. No. 22 b, it is the Director who is authorised to frame, modify or amend the recruitment rules for different posts including the post of Director which is to be approved by the Ministry. In other words, as far as the framing and amendment of recruitment rules for the posts including the post of Director, RIMS is concerned, the power is given to the Director of RIMS and not to the Executive Council as contended by the petitioners. In the present case, as empowered under Bye-law 3 of RIMS, the Director (RIMS) prepared the proposed amendment of the recruitment rules and submitted to the Ministry for concurrence, which was duly approved and after the approval, the recruitment rules of the post of Director (RIMS) stood amended on the basis of which the present advertisement was issued. 23. Mr. Suresh submits that once the amendment of the recruitment rules as proposed by the Director, RIMS was approved by the Ministry these would govern the recruitment to the post of Director. Mr. Suresh submits that the aforesaid amendment of the recruitment rules was made by following the due process as provided under the Rules and Regulations and Bye-laws of the RIMS and there had been no lapses as regards the procedure followed. 24. Mr. Suresh also submits that nowhere in the Rules and Regulations or the Bye-laws of the RIMS, it is mentioned that the recruitment rules have to be notified and in absence of any such provision, publication of recruitment rules as insisted by the petitioners being not mandatory, is not required and hence, the recruitment rules cannot be said to be vitiated by reason of non publication. 25. Mr. Suresh further submits that the earlier writ petition, W.P.(C) No. 617 of 2015 was closed on withdrawal on 25th July, 2016 and the interim orders passed earlier stood vacated as also recorded in the order. Mr. Suresh, therefore, submits that once the petitioners had withdrawn the writ petition, they cannot now claim any benefit accruing out of the interim order as it stood merged with the final order where nothing was observed about continuing the benefit granted by the interim order and they have to abide by the terms and conditions of the latest advertisement. In support of his contention, Mr. Suresh has relied on the decision of the Hon''ble Supreme Court in Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., (2010) 9 SCC 437 in which it was held by the Hon''ble Supreme Court that, "24. It is not permissible for a party to file a writ petition, obtaining certain orders during the pendency of the petition and withdraw the same without getting proper adjudication of the issue involved therein and insist that the benefits of the interim orders or consequential orders passed in pursuance of the interim order passed by the writ court would continue. The benefit of the interim relief automatically gets withdrawn/neutralised on withdrawal of the said petition. In such a case concept of restitution becomes applicable otherwise the party would continue to get benefit of the interim order even after losing the case in the court. The court should also pass order expressly neutralising the effect of all consequential orders passed in pursuance of the interim order passed by the court. Such express directions may be necessary to check the rising trend among the litigants to secure the relief as an interim measure and then avoid adjudication on merits......." 26. Mr. Suresh submits that the earlier advertisement issued on 24.06.2015 was based on the old recruitment rules and the present impugned advertisement is based on the amended recruitment rules and as such, the earlier advertisement cannot be acted upon as sought by the present petitioners as the same stood cancelled and superseded by the later advertisement as also specifically mentioned that the earlier advertisement dated 24.06.2015 stood cancelled. He submits that the earlier advertisement cannot be acted upon simply for the reason that the relevant recruitment rules have been already amended in the meantime. Mr. Suresh accordingly submits that the authorities issued the impugned advertisement on the basis of the subsisting amended recruitment rules and nobody can claim any right to insist upon an earlier advertisement which was based on old recruitment rules which are no more in existence. 27. As regards the challenge of the petitioners about the upper age limit without giving any relaxation clause in the advertisement, Mr. Suresh submits that the same is based on the amended recruitment rules and the petitioners would not have any vested right to insist on providing any relaxation dehors the recruitment rules. Mr. Suresh submits that fixation of the upper age limit at 62 years without any relaxation clause is also in consonance with what has been provided for the post of Director of AIIMS, New Delhi. In any event, it is within the wisdom of the rule making authorities to make such prescriptions of eligibility as may be deemed necessary and it will be beyond the scope of challenge by any candidate as regards the qualifications or relaxation to be provided in the recruitment rules. 28. Mr. Suresh further submits that perusal of the pleadings of the writ petitions would indicate that the petitioners'' main grievance and challenge made in these writ petitions is against the advertisement dated 16.08.2016 and as such, the scope of the writ petition cannot be enlarged to other issues which have not been specifically raised in the petitions but raised at the time of hearing. Mr. Suresh contends that if the petitioners are challenging the validity of the advertisement, the adjudication should be confined only to the validity of the advertisement and not to any other issues not specifically raised in the writ petitions. 29. The submissions of Mr. Suresh, learned CGC can be summarised as follows: (i) The Executive Council is not the competent authority to make amendment of the recruitment rules for the post of Director. (ii) It is the Director who is authorised to make, amend or modify the recruitment rules subject to approval of the Ministry of Health and Family Welfare. (iii) If any person seeks to challenge the validity of an advertisement he also must challenge the recruitment rules on the basis of which the said advertisement was issued. In the present case, as the petitioners have not challenged the validity of the amended recruitment rules and as such, they have no locus to challenge the validity of the advertisement which is based on the recruitment rules. (iv) The petitioners now cannot raise any issues about the validity of the recruitment rules as the same has not been specifically challenged in the writ petitions. (v) Since the main relief sought for is confined to the validity of the advertisement, this Court ought to confine itself to examining the validity of the same and not to examine any other issues relating to any relief not claimed, including validity of the recruitment rules. (vi) Since the petitioners are neither eligible under the earlier recruitment rules nor under the present recruitment rules, they have no right to claim the relief as sought for in the petitions. (vii) The recruitment rules for the post of Director had been amended by following due process as provided under the Rules and Regulations and Bye-laws and nobody has challenged the Bye-laws where the procedure for amendment of the recruitment rules for the post of Director have been laid down. (viii) There is no provision under the Rules and Regulations and Bye-laws for notifying the recruitment rules and the authorities while amending the recruitment rules have scrupulously followed the procedure laid down in the Bye-laws and rules and as such, the question of the same being invalidated because of non notification does not arise. What is required to be followed as contained in the laid down rules have been complied with. (ix) As regards the petitioner in W.P.(C) No. 766 of 2016 Mr. Suresh submits that the writ petition is not maintainable as the similar writ petition filed by him i.e., W.P.(C) No. 13 of 2011 seeking similar reliefs was closed and not pressed. It will be deemed that the petitioner had abandoned his claim and hence, the petitioner is not entitled to get any relief in W.P.(C) No. 766 of 2016 on the same cause of action. 30. It is clearly evident from the claims and counter claims of the contesting parties that the validity of recruitment rules on the basis of which the impugned advertisement had been issued, is the main bone of contention between the parties. While the petitioners contend that no such amended recruitment rules existed at the time of issuance of the impugned advertisement and if existed, were never notified and hence, cannot be enforced. On the other hand, it has been contended by the respondents that the earlier recruitment rules for the post of Director which had been relied on by the petitioners had been amended and new recruitment rules have come into existence on which basis, the impugned advertisement had been issued and none of the petitioners have challenged the validity of these amended recruitment rules and if the said new recruitment rules have not been challenged by any of the petitioners, they cannot challenge the notification/advertisement issued based on the amended recruitment rules. 31. Mr. Suresh, learned CGC has laid much stress on this point that none of writ petitioners have challenged and questioned the recruitment rules for the post of Director on which basis the impugned advertisement has been issued. This stand of the respondent authorities, however, has been vehemently opposed by the petitioners on the ground that when the recruitment rules relied on by the authorities are invalid and not enforceable, the question of challenging the same does not arise. The petitioners further contend that in any event, it is the responsibility of the respondents to demonstrate before this Court that the impugned advertisement dated 16.08.2016 is based on valid recruitment rules and as such, the onus is on the respondents to justify before this Court of the existence of valid recruitment rules for the post of Director (RIMS) on which basis the impugned advertisement dated 16.08.2016 was issued. 32. Therefore, before this Court proceeds to examine the various issues raised in these writ petitions, this Court proposes to consider first the objection raised by Mr. Suresh, learned counsel for the respondents that in absence of challenge to the amended recruitment rules for the post of Director (RIMS), the writ petitions are not maintainable. If this objection of Mr. Suresh is to be upheld, the petitions will not be maintainable and as such other issues raised need not be gone into. 33. In support of his contention, Mr. Suresh has relied on the decision of the Hon''ble Supreme Court in P. Chitharanjan Menon v. A. Balakrishna, (1977) 3 SCC 255 wherein the Hon''ble Supreme Court held as follows :- "5. ...............The promotion of the respondents in the writ petition having been ordered as early as February 13, 1962, without challenging that order a subsequent order which determined the date of their commencement of service cannot be challenged....................." 34. He has also referred to the decision of the Hon''ble Supreme Court in State of Maharashtra v. Jalgaon Municipal Council, (2003) 9 SCC 731 in which it has been held as follows. "33. ........... The petitions filed before the High Court did not lay any challenge to the vires of the Ordinance either on the ground of unreason-ability or on the possible ground of curtailing a vested right to prefer objections or on the ground of unreason-ability. In the absence of any challenge having been laid, the constitutional validity of the amendment cannot be gone into........." Mr. Suresh has placed further reliance on the decision of the Hon''ble Supreme Court in Secretary to the Govt. & Anr. v. M. Senthil Kumar, (2005) 3 SCC 451. 35. Mr. Suresh submitted that though the recruitment rules for the post of Director had been annexed to the affidavits-in-opposition of respondent no. 1, the petitioners had opted not to challenge the same by filing any application or writ petition. He submits that since it has not been challenged, any challenge made to the impugned advertisement dated 16.08.2016 is not permissible in law. In this regard, Mr. Suresh has relied on the decision of the Hon''ble Supreme Court in P. Chitharanjan Menon v. A. Balakrishna, (1977) 3 SCC 255. 36. Mr. Suresh submits that the main issue raised in the writ petition is about the validity of the advertisement dated 16.08.2016 and as such, it was the core issue to be decided but in the process the subject matter of adjudication cannot be enlarged by bringing into or by questioning the validity of the recruitment rules which have not been challenged in the writ petitions. In this regard, Mr. Suresh has relied on the decision of the Hon''ble Supreme Court in M. Purnananda & Ors. v. Mahadesha & Anr., (2005) 6 SCC 791 in which the Hon''ble Supreme Court held that, "7. We find that the writ petitioners had not questioned the selection of the persons who are affected by the High Court''s impugned order. They were not applicants before the Tribunal. On the contrary they questioned correctness of the view expressed by the Tribunal allowing the original applications filed by some of the respondents. Therefore, the subject-matter of adjudication before the High Court could not have been enlarged by the High Court at the instance of the writ petitioners." Mr. Suresh has also relied on Sadananda Halo v. Momtaz Ali Sheikh, (2008) 4 SCC 619 wherein the aforesaid principle was restated as follows. "58. It is settled law that in such writ petitions a roving inquiry on the factual aspect is not permissible. The High Court not only engaged itself into a non-permitted fact finding exercise but also went on to rely on the findings of the amicus curiae, or as the case may be, the scrutiny team, which in our opinion was inappropriate. While testing the fairness of the selection process wherein thousands of candidates were involved, the High Court should have been slow in relying upon such microscopic findings. It was not for the High Court to place itself into a position of a fact-finding commission, that too, more particularly at the instance of those petitioners who were unsuccessful candidates. The High Court should, therefore, have restricted itself to the pleadings in the writ petition and the say of the respondents. Unfortunately, the High Court took it upon itself the task of substituting itself for the Selection Committee and also in the process assumed the role of an appellate tribunal which was, in our opinion, not proper......" 37. In T.H. Musthaffa v. M.P. Varghese, (1999) 8 SCC 692 the Hon''ble Supreme Court reiterated the impermissibility of examining an issue not raised in the pleadings by holding thus, "10. ..................... The allegation made in the course of the petition is that there is wrong acceptance of invalid votes polled for Respondent 1. It is not made clear as to how many votes are liable to be rejected for using wrong instrument by the voters for expressing their preference. There is no further indication as to how many of such votes had been polled in favour of Respondent 1 so as to materially affect the result of the election. In the absence of such plea the learned Judge could not have granted the relief of re-count. Therefore, the view taken by the High Court that the pleadings are insufficient to order re-count is perfectly in order. ........ Unless the appellant had put forth his case in the pleading and the respondents are put on notice, the respondents cannot make an admission at all and there is no such admission in the course of the pleadings. If the pleadings did not contain the necessary foundation for raising an appropriate issue, the same cannot go to trial. Any amount of evidence in that regard, however excellent the same may be, will be futile. Therefore, the learned counsel is not justified in making the said submission and the same is rejected. The learned Judge noticed that the appellant, though had raised objection in this regard in the application for re-count, did not reiterate the same in second application much less any averment is made in the petition. The learned Judge held, in our view, rightly that there is no pleading in this regard and the evidence adduced cannot be looked into as no issue thereto arises." 38. Mr. Suresh contends that the relief sought for in these writ petitions are basically confined to challenging the impugned advertisement dated 16.08.2016 and as such, they cannot seek for any other relief including for declaring the amended recruitment rules as non enforceable in support of which Mr. Suresh has relied on the decision of the Hon''ble Supreme Court in Krishna Priya Ganguly & Ors. v. University of Lucknow & Ors., (1984) 1 SCC 307 in which it was held has follows:- "26. The High Court further observed that the respondent appears to be a very dedicated worker having acquired a diploma and would have proved an invaluable asset to the Institution. We do not see any proper material for this conclusion to which the High Court has suddenly jumped apart from the fact that admissions were not to be given by the High Court according to its own notions. Finally, in his own petition in the High Court, the respondent had merely prayed for a writ directing the State or the college to consider his case for admission yet the High Court went a step further and straightaway issued a writ of mandamus directing the college to admit him to the M.S. course and thus granted a relief to the respondent which he himself never prayed for and could not have prayed for. Such a gross discrimination made in the case of a person who had obtained lowest aggregate and lowest position seems to us to be extremely shocking. ........." 39. Thus, Mr. Suresh submits that the since the petitioners have not challenged the validity of the recruitments rules in these writ petitions, the validity of the recruitment rules cannot be examined by expanding the scope of adjudication which is to be confined to the validity of the advertisement. Without finding fault with the recruitment rules, the advertisement cannot be assailed much less set aside. 40. Though the submission of Mr. Suresh is quite attractive and no one can doubt the proposition of law as highlighted in these various judgments of the Hon''ble Supreme Court relied upon by Mr. Suresh, this Court is of the view that these decisions may not be applicable in the present facts and circumstances of the case, for the reasons given herein below. 41. When the writ petition, W.P.(C) No. 676 of 2016 was moved on 09.09.2016 challenging certain aspects of the impugned advertisement, it was claimed by the RIMS authorities that the recruitment rules for the post of Director had been already amended by which the upper age limit for direct recruitment had been fixed at 62 years and there is no provision for relaxation of the upper age limit and a copy of the amended recruitment rules was produced before the Court. Mr. Suresh, learned CGC appearing for the Union of India also had taken a similar plea. It was then objected by Mr. H.S. Paonam, learned Sr. Counsel for the petitioners on the ground that the aforesaid recruitment rules produced before the Court were never notified and hence, cannot be acted upon. The Court, after hearing the parties, made the observation at that time that nothing has been shown in the documents produced by Mr. B.P. Sahu, learned Senior Counsel for the RIMS as to when the said amendment to the recruitment rules for the post of Director (RIMS) had been notified as it is well settled that unless an order is notified it cannot be enforced. Accordingly, the Court took the view that the issues raised by the petitioners need to be examined, and directed the respondents to file appropriate affidavit in that regard. In the meantime, W.P.(C) No. 722 of 2016 was filed in which this Court passed an order on 21.10.2016 directing the RIMS authorities to produce the relevant recruitment rules for the post of Director which are in existence and applicable and to indicate as to how the said recruitment rules had been framed and notified, and the procedure followed in adopting and notifying the said recruitment rules, which were directed to be done before 26.10.2016. Subsequently, when these matters were taken up on 28.10.2016, Mr. B.P. Sahu, learned Sr. Counsel submitted that he had received a letter from the Deputy Director (Administration), RIMS stating that the advertisement dated 16.08.2016 issued by the Ministry was as per the Bye-laws of the Institute and the recruitment rules were approved by the Ministry as conveyed by the letter dated 10th August, 2016 and a copy of the letter was produced before the Court. However, the said letter did not mention as to how the recruitment rules had been amended and about the procedures followed for amendment and the letter also did not indicate when the said recruitment rules were approved by the competent authority. As the said letter did not give a clear picture as regards the queries made by the Court, the Court again directed the official respondents to file a detailed affidavit by 18th November, 2016 as regards the steps taken by the various authorities for framing the recruitment rules for the post of Director (RIMS). The Court also directed the authorities to explain the entire process of amendment till the stage of approval and to explain why the recruitment rules were not notified in terms of the letter dated 10.08.2016 of the Ministry. The authorities were also directed to produce the relevant records. Thereafter, the respondent authorities filed an affidavit on 15.11.2016 which was followed by another affidavit filed on 11.01.2017 in W.P.(C) No. 676 of 2016. The respondent no.1 also filed affidavits-in-opposition in the other two writ petitions taking similar pleas as regards the amendment of the recruitment rules. In the said affidavits-in-opposition filed by the respondents it had been categorically stated that Bye-law 3 (ii) empowers the Director of the RIMS to lay down norms including framing of recruitment rules and submit the same to the Ministry of Health & Family Welfare, Government of India for approval. It has been stated that the aforesaid Bye-law 3 (ii) read with Schedule 1 under Sl. No. 22.b clearly provides that it is the Director who is authorised to make amendments of the recruitment rules for various posts including the post of Principal/Dean/Reader/Director subject to approval of the Ministry. Therefore, it is the specific stand of the respondent authorities that it is the Director who is authorised, empowered to make amendments to the recruitment rules for the post of Director subject to approval of the Ministry and not any other authorities including Executive Council. It has been stated by the respondents that in the present case, the Director submitted the draft recruitment rules for the post of Director vide letter dated 25th April, 2016 which were approved by the Ministry on 07.08.2016 and conveyed to the Director (RIMS) on 10.08.2016. Thus, once the amendment to the recruitment rules proposed by the Director in terms of the Bye-laws 3 read with the Schedule (i) Sl. No. 22.b had been approved by the Ministry, the recruitment rules for the post of Director stood amended and which would be the extant rules for recruitment to the post of Director which had been acted upon for notifying the advertisement dated 16.08.2016. It is to be noted that though the said conveyance letter dated 10.08.2016 directed the Director, RIMS to notify the recruitment rules, it was not done which had been explained by the respondents contending that the Bye-laws and Rules and Regulations of the RIMS do not provide for notification of the same. 42. It had been also specifically pleaded by the respondent no. 1 that the Executive Council RIMS is not the competent authority for amendment in the recruitment rules for the post of Director, RIMS and if the recruitment rules had been placed before the Executive Council of the RIMS, it was not because of any requirement of the rules but only for keeping the Executive Council in the loop. 43. As regards requirement of notification of the amended recruitment rules, Mr. Suresh stated that the authorities concerned, that is, the Director, RIMS and the Ministry followed the provisions of law as provided under Bye-laws and once these laid down procedures were followed, it was sufficient for effecting a valid amendment of the recruitment rules. 44. Mr. Suresh also submits that when nothing has been mentioned of the requirement of publication of amended recruitment rules under the Rules and Regulations and Bye-laws, and when the laid down procedures had been followed by the authorities, nothing remained to be done and absence of notification cannot nullify the amended recruitment rules. 45. It may be also noted from the various orders passed by this Court on 09.09.2016, 21.10.2016 referred to above, that though the amended recruitment rules have not been specifically challenged in the writ petition, it was intrinsically linked to the core issue and dispute between the parties and the respondents were given adequate opportunity to explain the validity of the said amended recruitment rules which were questioned by the petitioners contending that the same were not validly made nor notified before the impugned advertisement was issued. The petitioner in W.P.(C) No. 722 of 2016 filed a miscellaneous application being MCWP(C). No. 1 of 2017 seeking an interim order for directing the respondents not to proceed with the recruitment process for Director, RIMS in which he has categorically stated in para no. 6 thereof that the recruitment rules and validly made and notified. Para 6 of the said misc. application reads as follows: "6. That the authorities of RIMS have neither explain(ed) in detail the procedure adopted in framing of the said recruitment rules, till today as directed by this Hon''ble Court. On the other hand it has been learnt that the said recruitment rules was approved by the Executive Council of RIMS only on 19.12.2016 in its 47th Executive Council Meeting held on 19.12.2016. Further the said approved RR is yet to (be) notified after getting necessary approvals from the concerned authorities of RIMS. In this view of the matter, it is humbly to submit that the said recruitment rules, on the basis of the impugned notification had been issued, is an invalid, unapproved and un-notified rules which has no legal validity. Accordingly, the said impugned notification is also an invalid and illegal notification and accordingly, no recruitment process for appointment of Director RIMS can be taken upon on the basis of the said notification." 46. Thus the amended recruitment rules, the very basis of the impugned advertisement, were questioned by the petitioners about which the respondents had all the opportunities to justify and which they did by filing affidavits which have been discussed above. The respondents filed detailed affidavits justifying the amendment of the recruitment rules of the Director and explaining the procedures followed and steps taken and rationalising the act of non notification of the recruitment rules. 47. It may be noted that the rationale behind the principle that an issue not raised ought not to be adjudicated by the Court or that the scope of the adjudication should not enlarged by raising issues not based on pleading is for the salutary reason that any party which may be adversely affected by any decision on any issue, ought to be given all the opportunities to place his point of view and supporting materials on that issue and not be taken by surprise. Thus, when an issue has not been specifically raised with supporting pleadings and materials, the other party who had no opportunity to contest the same ought not be prejudiced by any decision on such an issue. But that is not the situation in the present case. The issue raised by the petitioners that there were no valid recruitment rules and the proper procedures were not followed or that the same were not notified, have been specifically pleaded as mentioned above, which have been explained by the respondents authorities by way of filing detailed affidavits-in-opposition. The Respondents had explained in detail how the amendment of the recruitment rules was affected and they also justified the non notification of the amended recruitment rules by claiming that the Bye-laws and Rules and Regulations of the RIMS do not provide for it. Thus, the Union Respondents had ample opportunity to defend their case as regards the validity of the recruitment rules which they fully utilized. All claims and counter claims about the validity of the recruitment rules have been adequately incorporated in the pleadings of the contesting parties. Therefore, this Court is of the view that the respondent authorities cannot be said to have been taken by surprise at all about the issues raised by the petitioners about the validity of the recruitment rules for the post of Director and they had all the opportunity to defend their position. Hence, this Court takes the view that the respondents cannot take shelter behind the technical plea that merely because the petitioners have not specifically challenged the amended recruitment rules for the post of Director in these writ petitions, the petitions are not maintainable. There are adequate materials and pleadings of the contesting parties on which basis the issue about the validity of the recruitment rules can be decided. Accordingly, this Court rejects the objection of the Respondents that the petitioners are not entitled to challenge the validity of the recruitment rules. 48. Having decided that the petitioners can question the validity of the recruitment rules, the Court would proceed to deal with the issue of validity of the recruitment rules. 49. The validity of the amended recruitment rules on the basis of which the impugned advertisement dated 16.08.2016 was issued has been assailed by the petitioners on the following grounds: (i) That it is not the Director, RIMS but the Executive Council, which has the authority to make any amendment to the recruitment rules for the post of Director, RIMS under the relevant provisions of the MOA, Rules and Regulations and Bye-laws of the RIMS. (ii) The amendment of the recruitment rules has been assailed on the ground that the procedure laid down under rules had not been followed for amendment. (iii) The amended recruitment rules being in violation of the mandatory Medical Council of India Regulations are void. (iv) The recruitment rules even if properly amended, having not been notified, are not valid in the eyes of law and hence, cannot be enforced. 50. As regards the authority which is empowered to amend recruitment rules, it has been contended by Mr. Suresh, learned CGC as well as Mr. B.P. Sahu, learned Sr. Counsel for the RIMS that Bye-law 3(ii) of the Bye-laws of the RIMS read with Schedule 1 Sl. No. 22.b specifically mentions that it is the Director who has the power to frame/modify/amend the recruitment rules for different posts which is to be approved by the Ministry of Health & Family Welfare. 51. Bye-law 3(ii) provides that detailed procedures and norms for recruitment including framing/modifying/amending of recruitment rules for different posts shall be laid down by the Director and submitted to the Ministry of Health & Family Welfare for approval. It has been further provided under Sl. No. 22.b of the Schedule 1 that the full power for framing/modifying/amending of recruitment rules for submission to the Ministry for approval is with the Director. According to the Respondents, from the above Bye-law 3 (ii) read with Schedule 1, sl.no.22.b, it is manifestly clear that it is the Director who is the competent authority to amend the recruitment rules. The respondents state that the draft amendment of the recruitment rules was furnished by the Director, RIMS by letter dated 25.04.2016 which was approved by the Ministry on 07.08.2016 and accordingly, once the approval was given to the draft amendment recruitment rules, the process of amendment would be deemed to be completed and it would then become the binding recruitment rules. It has been submitted by the respondents that it is on the basis of this amended recruitment rules approved by the Ministry that the advertisement was issued. Counsel for the respondents further submit that contrary to the contention of the petitioners that it is the Executive Council which is the competent authority to amend the recruitment rules, it is nowhere mentioned in the MOA or Rules and Regulations or the Bye-laws of the RIMS, that the Executive Council is the authority to frame/modify or amend the recruitment rules. The petitioners, on the other hand argued that it has been specifically provided under Rule 8(iii) that the management and administration of the institute shall vest in the Executive Council and shall have the power and functions as enumerated therein. The petitioners contend that it is specifically provided under Rule 8 (iii) (j) that Executive Council has the power to frame Bye-laws and procedures for conduct of the affairs of the Institute. Further it has been provided under Rule 8 (iii) (m) that the Executive Council may where necessary, amend the Bye-laws, Rules and Regulations of the institute after obtaining concurrence of the Ministry of Health & Family Welfare, Government of India. It is by relying on these provisions under Rule 8 (iii) (j) and (m) that the petitioners have contended that framing and amending of recruitment rules comes within the purview of the Executive Council read with power of the Executive Council to supervise the overall administration and management of the Institute as provided under clause (a) of Rule 8 (iii). The petitioners also contend that what Bye-law 3 (ii) provides is merely the procedure to frame/modify/amend the recruitment rules. It does not indicate the source of power or authority of the Director to frame, modify or amend the recruitment rules. It merely lays down the procedure that the Director can initiate the process for framing/modifying/amending the recruitment rules which is to be approved by the Ministry. According to the petitioners, Bye-law 3 does not say that the power has been given to the Director to frame/modify/amend recruitment rules and that the Executive Council would have no role to play in the framing, modifying and amending of recruitment rules. Therefore, this issue as to the authority which has the competency to frame/modify or amend the recruitment rules has to be examined in the context of Rule 8 (iii) and Bye-law 3 (ii) as discussed above. Rule 8 of the Rules and Regulations of the RIMS reads as follows: "8. Executive Council i) There shall be an Executive Committee consisting of the following members. (1)......... .............. (10)......... ii) ................................. iii) The management and administration of the Institute shall vest to the Executive Council and accordingly shall have the following powers and functions: a) to supervise the overall administration and management of the Institute; b) to consider and approve the budget estimates including revised and supplementary expenditure recommended by the Finance Committee and appraise the same to the Board of Governors. c) ......................................... d) ............................................. e) .......................................... f) ......................................... g) .......................................... h) ........................................... i) .......................................... j) to frame Bye-laws and procedures for conduct of the affairs of the Institute; k) ............................................. l) .............................................. m) the Council may wherever necessary amend the bye law rules and regulation of the institute after obtaining concurrence of the Ministry of Health & Family Welfare, Government of India." Bye-law 3 of the Bye-laws of the RIMS is reproduced herein below:- "3. Procedure for Recruitment and Promotion (i) ...................................................... (ii) Detailed procedures and norms for recruitment including framing/modifying/amending of Recruitment Rules for different posts shall be laid down by the Director and submit to the Ministry of Health & Family Welfare for approval. Qualification and experience in the Recruitment Rules for teaching posts shall be prepared in consonance with MCI guidelines. (iii)............................... (iv) ......................................." Schedule 1, Sl. No. 22.b reads as follows: "Schedule -1 To Rules And Regulations Extent Of Powers Bye-Laws-3, 4, 5, 6, 7, 8, 9, 12, 13.

Sl. No. Nature of Powers Director Chairman Executive Council Executive Council President Governing Body

1 2 3 4 5 6 7

1.a .......... .......... .......... .............. ......... ........

.......... .......... ........... ........... ................ ..........

b ......... ........... ............ ........... ............... ..........

c ......... .......... ............ ............. ............ .........

..... . ...... .... ... ...... ..... ..... ............ ...........

..... ... ... ...... ...... .... ....

..... ..... ..... ..... ...... .... ...

22a Power to make Appointment

i. Ad-hoc/ Temporary/ contract Full powers for Group B,C & D posts, Lecturers, Asstt. Prof. not exceeding a period of six months with prior permission of Executive Council Full Power of all group A posts and in other case beyond six month with prior permission of Executive Council

ii. Permanent Group B, C & D posts. Subject to recommendation of Selection committee Group A & B posts. Subject to recommendation of Selection committee.

b. Power for framing/ modifying of R/R for submission to Ministry for approval Full powers as per norms of Central Govt.

..... .... ... ... .. ...

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The contention of the respondents that the Director has been given the sole authority to frame/modify/amend the recruitment rules including for the post of Director is based on Bye-law 3(ii) read with Schedule 1 could have been accepted but for the fact that the authorities themselves by their own statement and action have clearly indicated that it is the Executive Council which has the authority to recommend/approve the amendment of the recruitment rules. 53. It may be noted that when the office of the respondent no. 1 issued the order dated 14.12.2016 disposing of the representation submitted by the Teacher and Medical Officers Association (TAMOA), RIMS Hospital pursuant to the order passed in W.P.(C) No. 722 of 2016 seeking rectification of the recruitment rules for the post of Director, RIMS to bring on par with the other autonomous bodies under the Ministry of Health & Family Welfare, it has been specifically mentioned in para 7 of the said order dated 14.12.2016 that it is the Executive Council which has the authority to recommend the amendment of recruitment rules for the post of Director, RIMS. In para 7 of the said order it has been stated as follows: "7. And therefore, after careful consideration of the material/record relevant in this regard, the respondent no. 1 i.e. Secretary, Ministry of Health & Family Welfare, Government of India is of the view that the representation dated 15.09.2016 of the petitioner association TAMOA, RIMS, Imphal may be placed before the Executive Council of RIMS which is the competent authority to recommend amendments in the Recruitment Rules of Director, RIMS, Imphal, in its next meeting for its appropriate consideration. " 54. Thus, the respondent no.1 took the stand that it is the Executive Council which is the competent authority to recommend amendments in the recruitment rules. Such a stand had been indeed followed subsequently in the matter relating to the amendment of the recruitment rules which is the subject matter of dispute in these writ petitions. The amendment of the recruitment rules for the post of Director which was prepared by the Director, RIMS and approved by the Ministry on 07.08.2016 was placed before the Executive Council in their 47th meeting held on 19.12.2016 for ratification and the Executive Council considered the issue on ratification of the recruitment rules for the post of Director, RIMS and took the decision as follows : "Item No. 2 Ratification of Recruitment Rule of the post of Director, RIMS, Imphal The EC after deliberations ratified the amended Recruitment Rules (RRs) for the post of Director, RIMS, Imphal which was earlier approved in the Ministry of Health & Family Welfare as conveyed to the institute by the Ministry vide its letter no. U.12025/23/2015-NE dated 10-08-2016. However, the EC directed that before notifying, the RRs may be got vetted by the IFD in the Ministry of Health & Family Welfare." 55. The Executive Council deliberated on the amendment of the recruitment rules for the post of Director (RIMS), Imphal which was already approved by the Ministry of Health & Family Welfare. The Executive Council while ratifying the same directed that before notifying the recruitment rules it may be vetted by the IFD in the Ministry of Health & Family Welfare. Therefore, the stand and actions taken by the respondent no. 1 would clearly indicate that though the Director has the authority to initiate framing, modifying or amending the recruitment rules and submit the same for approval of the Ministry of Health & Family Welfare, it ultimately has to be approved or ratified by the Executive Council as had been done in the 47th Meeting and also mentioned in the order dated 14.12.2016 passed by the respondent no. 1 while disposing the representation of the TAMOA, RIMS. 56. It has been however, contended by the respondents that placing of the amended recruitment rules before the 47th Executive Council meeting was not for the purpose of approval but merely to keep the Executive Council in the loop as the matter also involved the enhancement of the age of superannuation of the post of Director which is also related to the recruitment rules, as the Executive Council has been vested with the general power of regards supervision of administration and management of the Institute. In other words, the placing of amendment of recruitment rules before the Executive Council was not for the purpose of getting its approval but for the simple reason of keeping it informed of such amendment as it has the overall power of supervision and administration of the Institute. This submission on the part of the respondents could have been accepted had the Executive Council merely noted the amendment of the recruitment rules, in exercise of its general power of supervision of administration and management of the Institute. However, what is seen from the records is that when the matter was put up before the Executive Council, the Executive Council did not merely ratify the amendment of the recruitment rules but also put certain conditions by directing that before notifying the same and that it should be vetted by IFD of the Ministry of Health & Family Welfare. The wording of Agenda no. 2 clearly indicates that the matter was placed before the Executive Council for its ratification and not for mere consideration and information. Further, the Executive Council also stipulated certain conditions while ratifying the same. Thus if the recruitment rules were merely placed before the Executive Council for keeping it in loop as contended by the Respondents, there would have been no occasion for the Executive Council to put such conditions or use the expression "ratified" in the resolution. Further, since certain conditions were put by the Executive Council, till such conditions were fulfilled, even if amendment of recruitment rules were validly proposed by the Director and approved by the Ministry, these could not be said to be effective rules and cannot be enforced. 57. It has not been also shown by the respondents that the amendment of the recruitment rules had been vetted by the IFD of the Ministry of Health & Family Welfare as directed by the Executive Council. Further, from the resolution of the Executive Council it is clearly evident that the recruitment rules were required to be notified. 58. As regards the contention that the Executive Council has no role to play in the amendment of the recruitment rules it may be noted that under Rule 8 of the Rules and Regulations, management and administration of the Institute vest with the Executive Council which has the general power to supervise the overall administration and management of the Institute, for which the Executive Council can frame and amend Bye-laws of the Institute. It is by invoking the said supervisory power under Rule 8, that the Bye-laws had been framed by the Executive Council which in turn delegated the authority to the Director to frame/modify/amend the recruitment rules for the posts under the Institute under Bye-law 3. In other words, the Director exercises the said power as a delegated authority by virtue of the power conferred by the Executive Council and if the Bye-laws had not be framed, it would be the Executive Council which would have exercised this power. It is in this context that the involvement of the Executive Council in the amendment of the recruitment rules can be said to be permissible and also desirable, which had been done as already noted by this Court. It cannot, therefore, be said as contended by the Respondents that the Executive Council has no role to play in the amendment of the recruitment rules for the post of Director, RIMS. 59. Therefore, in the present case, this Court would unhesitatingly hold that even if the Director be deemed to be the competent and appropriate authority to amend the recruitment rules, from the stand taken and practise followed by the authorities themselves, it is clearly evident that such amendment should be approved by the Executive Council in exercise of its general power of supervision of the administration and management of the Institute. It is not the case of the respondents that under the rules, at no point of time, amendment of recruitment rules require ratification or approval of the Executive Council and it was never done in the past. Accordingly, in absence of any such material in this regard to effect that the amendment of recruitment rules does not require to be ratified by the EC, and in view of the materials on record to the contrary that such amendment of recruitment rules for the post of Director require approval of the Executive Council, this Court would hold that in case of amendment of recruitment rules for the post of Director (RIMS), it would require approval of the Executive Council, without which it cannot be valid. 60. It may be noted that Bye-law 3 read with Schedule 1, Sl.No.22b specifically deals with the power of the Director, RIMS to frame, modify and amend the recruitment rules, there is no such specific provisions qua the Executive Council, though certain powers and functions have been specifically enumerated under Rule 3(iii) of the Rules and Regulations as quoted above. For example, the Executive Council has been specifically given the power to consider and approve creation, up-gradation and abolition of posts and revision of scale of pay and allowances in the light of the recommendations of the Finance Committee. Thus, without the sanction of the Executive Council no order relating to the aforesaid subjects would be valid. However, nothing has been specifically provided under the Rules and Regulations about amendment of recruitment rules. Therefore, unless the Executive Council so requires or any other authority so proposes, approval by Executive Council of any amendment of the Recruitment Rules of the Director, RIMS is not a mandatory requirement. However, the Executive Council in exercise of its power as provided under Rule 8 (iii) of the Rules and Regulations is authorised to supervise the overall administration and management of the Institute would have authority to approve or not to approve such amendment to the recruitment rules. 61. It may be also mentioned that as per the Memorandum of Association of the RIMS the overall management of the Institute is entrusted to the i) Board of Governors and ii) the Executive Council. However, for general administration and management, the Board of Governors is not generally involved but the Executive Council, as already observed above. No material has been brought to the notice of the Court that in the matter of amendment of recruitment rules, the Board of Governors is also involved. But that is not the case with Executive Council which is involved with such activities as already discussed above. 62. But what has been noted by this Court as mentioned above is that, the RIMS authorities as a matter of practise had been taking the position that the Executive Council has the authority to amend the recruitment rules. This Court has observed that in the 47th meeting of the Executive Council held on 19.12.2016 the Executive Council after discussing the representation of the Teachers'' And Medical Officers'' Association (TAMOA), RIMS directed the Director, RIMS to examine in detail the representation dated 15.9.2016 of TAMOA, RIMS and prepare a formal Agenda for consideration in the next meeting of the Executive Council which may be fixed in mid-January, 2017. This resolution of the Executive Council clearly shows that in the matters relating to the recruitment rules and service conditions of the post of Director, RIMS, it is the Executive Council which takes the necessary decision. That is the reason when the Respondent no. 1 issued the order on 14.12.2016 disposing of the representation of the TAMOA it was specifically mentioned that the Executive Council is the competent authority to recommend amendment of the recruitment rules of Director, RIMS. 63. This Court also has noted that the Executive Council had been involved in other important matters of the administration of the RIMS, though not specifically assigned to do. Bye-law 4 lays down the criteria for fixing the seniority, wherein the role of the Executive Council is not mentioned at all. However, in the 46th Meeting of the Executive Council, the matter relating to fixation of seniority of the faculty members was considered though the rules do not provide for involvement of the Executive Council. This would also clearly indicate that mere omission of the role of the Executive Council in any crucial activity of the Institute would not divest the authority of the Executive Council on such matters. 64. This Court is of the view that framing, modification and amendment of recruitment rules, particularly for the post of Director, RIMS is an important matter and it is desirable that the Executive Council also gets involved as had been done in the past and ought not be left only to the Director subject to approval by the Ministry, as contended by the Respondents. The post of Director, RIMS is very significant and vital for smooth and effective functioning of the Institute and as such it may not be appropriate to leave to the Director entirely, subject to approval of the Ministry, the amendment of his own recruitment rules. Perhaps because of this, the higher/competent authorities considered it necessary to involve the Executive Council in this regard. This Court commends such an approach to be appropriate which is also in consonance with the Rules and Regulations and powers conferred to the Executive Council and practise adopted by the RIMS. 65. The other contentious issue is about the non notification of the recruitment rules. In this regard it has been submitted by the petitioners that even if it is assumed that the recruitment rules have been validly amended, since these were not notified, the same cannot be enforced. In support of their contentions, the petitioners have relied on the following decisions of the Hon''ble Supreme Court. (1) B.K. Srinivasan v. State of Karnataka, (1987) 1 SCC 658 in which the Hon''ble Supreme Court held as follows: "15. There can be no doubt about the proposition that where a law, whether parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes. Whether law is viewed from the standpoint of the "conscientious good man" seeking to abide by the law or from the standpoint of Justice Holmes''s "unconscientious bad man" seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known. We know that delegated or subordinate legislation is all-pervasive and that there is hardly any field of activity where governance by delegated or subordinate legislative powers is not as important if not more important, than governance by parliamentary legislation. But unlike parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is, therefore, necessary that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication. There may be subordinate legislation which is concerned with a few individuals or is confined to small local areas. In such cases publication or promulgation by other means may be sufficient 1: Narayana Reddy v. State of A.P., (1969) 1 Andh WR 77 (ii) Similarly it was held in T. Narasimhulu v. State of A.P., (2010) 6 SCC 545 in which the Hon''ble Supreme Court held as follows: "15. This is not to say that rules made under the proviso to Article 309 of the Constitution are not required to be published at all. A rule made under the proviso to Article 309 of the Constitution has the same effect as an Act of the appropriate legislature regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State. Hence, even if Article 309 of the Constitution does not say that the rules made under the proviso thereto are required to be published, these rules are required to be published just as any other Act passed by the appropriate legislature is required to be published so that the persons affected by the rules or the Act are aware of the rule or the Act. 16. In Harla v. State of Rajasthan 3 this Court held: (AIR 1951 SC 467 : 1952 Cri LJ 54 this court held: (AIR p. 468, para 8) "8. ... Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort is essential." Also, in State of Maharashtra v. Mayer Hans George AIR 1965 SC 722 : (1965) 1 Cri LJ 641 this Court held: (AIR p. 743, para 45) "45. ... Where there is a statutory requirement as to the mode or form of publication and they are such that, in the circumstances, the Court holds to be mandatory, a failure to comply with those requirements might result in there being no effective order the contravention of which could be the subject of prosecution but where there is no statutory requirement we conceive the rule to be that it is necessary that it should be published in the usual form i.e. by publication within the country in such media as generally adopted to notify to all the persons concerned the making of rules." 17. It will be clear from the law laid down by this Court that where the law prescribes the mode of publication of the law to become operative, the law must be published in that mode only, but where the mode of publication of the law is not prescribed by the law, such law should be published in some usual or recognised mode to bring it to the knowledge of all persons concerned. In the present case, the contention of the appellants before the Tribunal or the High Court was not that the government order in GOMs Nos. 35 and 51 that the amendment to Rule 2 of the Forest Service Rules would have retrospective effect from 8-4-1986 was never made known by any reasonable mode, but that it was not published in the Official Gazette. This contention of the appellants, as we have seen, has no merit. (iii) In Gulf Goans Hotels Co. Ltd. v. Union of India, (2014) 10 SCC 673 the Hon''ble Supreme Court also held as follows: 22. It is also essential that what is claimed to be a law must be notified or made public in order to bind the citizen. In Harla v. State of Rajasthan 15 while dealing with the vires of the Jaipur Opium Act, which was enacted by a resolution passed by the Council of Ministers, though never published in the Gazette, this Court had observed: (AIR p. 468, para 8) "8. ... Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is, or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a resolution without anything more, is abhorrent to civilised man." 23. The Court in Harla v. State of Rajasthan AIR 1951 SC 467 : 1952 Cri LJ 54 noticed the decision in Johnson v. Sargant & Sons (1918) 1 KB 101 : 87 LJ KB 122 and particularly the following: (AIR pp. 468-69, para 11) "11. The principle underlying this question has been judicially considered in England. For example, on a somewhat lower plane, it was held in Johnson v. Sargant & Sons(1918) 1 KB 101 : 87 LJ KB 122, that an order of the Food Controller under the Beans, Peas and Pulse (Requisition) Order, 1917, does not become operative until it is made known to the public, and the difference between an Order of that kind and an Act of the British Parliament is stressed. The difference is obvious. Acts of the British Parliament are publicly enacted. The debates are open to the public and the Acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done. They also receive wide publicity in papers and, now, over the wireless. Not so Royal Proclamations and Orders of a Food Controller and so forth. There must therefore be promulgation and publication in their cases. The mode of publication can vary; what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must be." 24. It will not be necessary to notice the long line of decisions reiterating the aforesaid view. So far as the mode of publication is concerned, it has been consistently held by this Court that such mode must be as prescribed by the statute. In the event the statute does not contain any prescription and even under the subordinate legislation there is silence in the matter, the legislation will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette (B.K. Srinivasan v. State of Karnataka)(1987) 1 SCC 658. Admittedly, the "guidelines" were not gazetted. 66. On the other hand, Mr. Suresh contends that the rules of the RIMS do not provide for notification and the authorities concerned, that is, the Director, RIMS and the Ministry followed the provisions of law as provided under Bye-laws and once these laid down procedures were followed, it was sufficient for effecting a valid amendment of the recruitment rules. Mr. Suresh submits that it is a well settled principle of law that where a power is given to do certain thing in a certain manner, then, in order to be valid the act must be done in the prescribed manner alone relying on the decision of the Hon''ble Supreme Court in Dhanajaya Reddy v. State of Karnataka, (2001) 4 SCC 923, State of Kerala v. Kerala Rare Earth Minerals Ltd., (2016) 6 SCC 233 and Union of India v. Tulsiram Patel, (1985) 3 SCC 398. 67. Mr. Suresh, therefore, submits that when nothing has been mentioned of the requirement of publication of amended recruitment rules under the Rules and Regulations and Bye-laws, and when the laid down procedures had been followed by the authorities, nothing remained to be done. It has been strenuously argued by Mr. Suresh that there is no provision under Bye-laws, Rules and Regulations of the RIMS which stipulate that the recruitment rules have to be notified. Thus, according to him, absence of notification cannot nullify the recruitment rules which had already been amended by following the procedures and approved by the competent authority. 68. This Court is of the view that mere absence of requirement of such notification under the rules cannot be the reason for not notifying recruitment rules. The recruitment rules are essentially in the nature of statute. Under Article 309 of the Constitution, conditions of service including recruitment rules are to be framed by the appropriate Legislature and till such laws are enacted, the President or the Governor has been delegated the authority to frame such rules. Though Article 309 of the Constitution may not be applicable to the present case, as the RIMS is managed by a Society, this cannot distract from the view that the recruitment rules for various posts including the post of Director are of vital nature and of public importance which have to be framed by the appropriate and competent authorities only. As to the requirement and eligibility for holding public posts, rules governing these are required to be made available in public domain either by way of publication in the gazette or any other method that may be prescribed. Even if no such procedure or method is mentioned, the authorities concerned are under an obligation to make such rules known to the public for the reasons already elaborated by the Hon''ble Supreme Court in the decisions cited by the petitioners. It may be also noted that even if there is no specific provision under the Bye-laws or the Rules and Regulations of the RIMS for publication of the recruitment rules, it was directed to be notified by the Ministry when the same was approved by the Ministry in their letter dated 10.08.2016 and also clearly indicated in the decision of the Executive Council in their 47th meeting. Therefore, it is quite evident that the RIMS authorities were directed to notify the amended recruitment rules as mentioned in the aforesaid letter and decision of the Executive Council. Therefore, this Court would hold that non notification of the amended recruitment rules would strike at the root of the amendment process of the recruitment rules and these cannot be enforced even if the same are said to have been validly amended by the competent authority till these are notified. 69. This Court, in view of the above, endorses the stand of the petitioners that the amended Recruitment Rules of the Director, RIMS would be unenforceable till the same are notified. 70. This issue can be considered from another perspective. In a society governed by Rule of law like ours, citizens have a right to know the law which governs them. Therefore, for all the laws of the land to be enforceable, these must be notified and placed in the public domain. This requirement would equally apply in respect of those rules which govern public offices and posts. The public have the right to know as to the qualifications of those who hold public offices and posts. Director of RIMS is certainly an important public post, though his service conditions may be governed by rules that may be framed by the RIMS Society, which is also a State within the meaning of Article 12 of the Constitution of India. Every citizen, and not only the employees of the RIMS have a right to know about the eligibility conditions and qualifications for holding the said post. If any person is found to be appointed to the post of Director, RIMS who may not possess the requisite qualifications, not only the employees of the RIMS but also the public at large would have a legitimate right to challenge the same, which can be possible only when such eligibility criteria is made public, which can be done only when it is notified. Under the Indian jurisprudence, a writ of quo warranto would lie against a person holding a public office who lacks eligibility or when such an appointment is contrary to the statutory rules. Everyone, whether a member of the public or an employee of the RIMS, has a stake as far as eligibility of the holder of the post is concerned. Therefore, recruitment rules laying down the eligibility criteria for any public post need to be notified and brought to public domain. In that view of the matter, it matters not even if the rule and regulations governing RIMS are silent about requirement of notification of the recruitment rules for the post of Director, RIMS, as it is a mandate of law to notify. Accordingly, if the recruitment rules for the post of Director, RIMS have not been notified and brought to public domain, the same cannot be enforced. In such an event, the impugned advertisement dated 16.8.2016 based on a non enforceable recruitment rules cannot be sustained. 71. The other issue raised by the petitioners is that while framing the recruitment rules, proper procedure had not been followed. In this regard, it has been submitted by the petitioners that assuming that the Director is the competent authority to amend the recruitment rules for the post of Director, it is clearly mentioned in the Schedule 1, Sl. No. 22.b that such a power of the Director has to be exercised as per norms of the Central Government. In this regard, the respondents have drawn attention of this Court to the various procedures stipulated in the Office Memorandum O.M. No. 20/30/67-Est. (D) dated 11.08.67, No. 2/58/68-Estt (D) dated 22.05.68 & No. 2/61/69-Estt(D) dated 13.08.1969 issued by the Ministry of Home Affairs, Government of India relating to procedure to be followed for framing/amendment of recruitment rules. The procedure involves, inter alia, consultation with the Department of Personnel & AR as provided under para 2 (viii) of the said procedure. Similarly, under para 2 (ix) thereof, the recruitment rules so approved should be notified. It has been the contention of the petitioners that in the present case at the time of amendment of the recruitment rules for the post of Director none of these procedures mentioned above were followed as the Department of Personnel & AR was not consulted nor the said recruitment rules notified as required. Accordingly, it has been submitted that the procedures having not been followed, it cannot be said that the provisions of Schedule 1, 22.b had been scrupulously followed and as such, the recruitment rules cannot be said to be validly amended. 72. As regards the contention of the petitioners that due process had not been followed for amendment of the recruitment rules, this Court would hold that every infraction of any procedure may not render any act illegal or vitiate the action taken, unless such procedure is of such fundamental nature without which the action taken could not be said to be complete or such omission prejudicially affects others. Considered from the above perspective, even if it is held that at the time of amendment of the recruitment rules the Department of Personnel and AR had not been consulted, this Court is of the view that the said lack of consultation cannot be said to be of such a fundamental nature that it would vitiate the amendment process. However, the same cannot be said about the requirement of notification of the recruitment rules. It is now too fundamental to ignore the proposition of law that any law will become effective only when the same is notified. 73. The other ground raised by the petitioners in challenging the validity of the recruitment rules is that the recruitment rules suffer from the vital defect of non adherence to the MCI Regulations which are binding upon all medical colleges including RIMS. As regards this proposition of law that the guidelines issued by the MCI Regulations relating to experience, eligibility qualification for teaching as well as non teaching posts including the post of Director are binding, there is no dispute at the Bar. It has been stated by the petitioners that the MCI Regulations specifically provide that for appointment to the post of Director the minimum experience required is 10 years as Professor/Associate Professor/Reader in a Medical College/Institute out of which at least 5 years should be as a Professor in a Department. It has been further provided under the MCI Regulations that preference may be given to Heads of Departments. However, in the recruitment rules no such provision for 5 years experience as Professor has been provided nor for any preference for the Heads of Departments and as such it has been contended that recruitment rules cannot be said to be in consonance with the MCI Regulations and to that extent the recruitment rules for the post of Director cannot be sustained for having violated the mandatory provisions of the MCI Regulations. The petitioner in W.P.(C) No. 722 of 2016 had specifically pleaded about these mandatory requirements under the MCI Regulations. However, the same not having been specifically denied by the Respondents and also in view of the admitted position of law that MCI Regulations would have binding effect, this Court would hold that the recruitment rules for the post of Director, RIMS suffer from a fatal defect and cannot be sustained and as a consequence the impugned advertisement being not based on valid and enforceable rules, cannot be sustained. 74. Mr. Suresh, Ld. Counsel for the respondents, however, has contended that the MCI Regulations also provides for Director of affiliated teaching hospital which does not insist on experience of 5 years in the grade of Professor as in the case of Director of Medical Institution. He submits that since the RIMS is affiliated to Manipur University, the requirement laid down by the MCI for Director of affiliated hospital should be applicable. This Court, however, in the present case, cannot accept this without proper pleadings, as there is not even a faint suggestion or whisper in the pleading of the respondents for such a contention. 75. As regards the plea of the petitioners that necessary relaxation clause as regards the upper age limit or the experience should be included in the recruitment rules, that is completely within the wisdom and domain of the rule making authorities and this Court cannot give any specific direction for inclusion of any such relaxation clause. However, considering the fact that the authorities themselves have stated in their order dated 14.12.2016 that the matter can be placed before the Executive Council for appropriate consideration, the competent authority including the Executive Council may consider providing any relaxation clause in respect of the upper age limit or the qualifications as sought by the petitioners in the recruitment rules. This Court is of the view that this exercise must be undertaken by the authorities before they finalise the amendment of the recruitment rules and notify the same. 76. Regarding the contention of the petitioner in W.P.(C) No. 766 of 2016 that as the vacancy to the post of Director arose on 14.09.2015, it should be filled up on the basis of the recruitment rules existing at the of time of occurrence of vacancy, this Court cannot accept such a contention in as much as it is settled that for appointment under the direct recruitment, the recruitment rules as existing at the time of initiation of recruitment process would be applicable and not on the date of occurrence of vacancy as in the case of promotion. In the present case, the post of Director, RIMS is not a promotional post but to be filled up by direct recruitment or deputation. 77. Mr. Suresh had also contended that the writ petition, W.P.(c) No. 766 of 2016 is not maintainable as a similar writ petition filed by him i.e., W.P.(C) No. 13 of 2011 seeking similar reliefs was closed as not pressed and it would be deemed that the petitioner had abandoned his claim. In support of his contention, Mr. Suresh relied upon the decision of the Hon''ble Supreme Court in Sarguja Transport Service v. State Transport Appellate Tribunal, AIR 1987 SC 88 in which it was stated in para 7 thereof as follows. "7. The Code as it now stands thus makes a distinction between "abandonment" of a suit and "withdrawal" from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in sub-rule (3) of Rule 1 Order 23 of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying Rule 1 Order 23 of the Code is that when a plaintiff once institutes a suit in a court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the court to file fresh suit. Invito beneficium non datur - the law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of Rule 1 Order 23 . The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a court. In the case of abandonment or withdrawal of a suit without the permission of the court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub rule (4) of Rule 1 Order 23 of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the court." As regards this contention, this Court holds that even if the petition W.P.(C) No. 766 of 2016 is held to be not maintainable, since similar pleas had been raised in the other two writ petitions, such a contention of the respondents would become irrelevant as far this case is concerned. 78. As regards the allegation of the petitioners in W.P.(C) No. 676 of 2016 that the impugned advertisement was issued to oust their candidature, this Court is also at a loss as to understand the reason behind amending the recruitment rules of the Director in the midst of the recruitment process initiated by the advertisement issued on 24.06.2015. The respondents stated that the decision to increase the age of superannuation of Director to 65 years in the 42nd meeting of the Executive Council of RIMS was reviewed in the 45th Executive Council meeting held on 20.11.2014. However, perusal of the proceedings of the 45th meeting of the Executive Council would reveal that there was no Agenda for increase of the age of superannuation for the post of Director but it relates to Medical Superintendent and the post of HOD. Agenda No. 5 and resolution of the 45th meeting of the Executive Council is accordingly reproduced herein below : "Agenda Item No. 5: a. To increase age of Superannuation of the Medical Superintendent to 65 years from the existing 62 years. b. To increase age of holding the post of HOD from the existing 62 years to 65 years. The EC considered the proposals and it was observed that since in most of the Hospitals under the Ministry, the age of superannuation for the post of Medical Superintendent is 62 years, the proposal cannot be agreed to. However, the Chairman asked Director, RIMS to submit a consolidated proposal for considering the age of Superannuation for the posts of Director, Medical Superintendent, Dean and other HOD''s in RIMS together, as the matter requires more examination in the Ministry by 30th November, 2014 for detailed examination." From the above it will be clear that the Agenda was not relating to enhancement of the age of superannuation of the post of Director though in the meeting Chairman asked Director, RIMS to submit a consolidated proposal for considering the age of Superannuation for the posts of Director, Medical Superintendent, Dean and other HOD''s in RIMS together, as the matter requires more examination in the Ministry. In that view of the matter, it could not be said as contended by the respondents that the 45th Executive Council meeting held on 20.11.2014 reviewed the earlier decision of the 42nd Executive Council for enhancement of the age of superannuation of the post of Director to 65 years. 79. The respondents also contended that in the above background, the age of retirement of Director was 62 years at the relevant time. This is incorrect, in as much as at the relevant time the age of superannuation of the post of Director already stood at 65 years by virtue of the earlier decision taken in the 42nd meeting of the Executive Council and no decision was taken in the 45th Executive Council meeting to reduce to 62 years. 80. Respondents also contended that after considering the order passed by this Court in W.P.(C) No. 617 of 2015 on 30.07.2015 which is reproduced above, it was decided to enhance the age of superannuation for the post of Director, RIMS from 62 to 65 years. Accordingly, a decision was taken under Agenda Item No. 5 in the 46th meeting of the Executive Council for enhancement of the age of superannuation to the post of Director from 62 to 65 years. This Court is of the view that such a decision was not necessary and in fact redundant in as much as the 42nd meeting of the Executive Council of the RIMS had already taken a decision to enhance the age of superannuation for the post of Director from 62 to 65 years. It is to be noted that though the impugned advertisement was purportedly issued after the 46th meeting of the Executive Council held on 20th October, 2015 there was no recommendation by the Executive Council for modification/amendment of the recruitment rules for the post of Director. However, the respondent no. 1 vide letter dated 06.04.2016 while informing about the enhancement of the age of superannuation for the post of Director, RIMS from 62 to 65 years directed the Director, RIMS to issue necessary notification and also make necessary modification in the MOA and Bye-laws of the Institute and thereafter, to submit a proposal to modify the recruitment rules for the post of Director, RIMS to the Ministry along with draft recruitment rules. Thus, it is clearly evident that only by the aforesaid letter, modification for the recruitment rules for the post of Director, RIMS was initiated by the Ministry. In response to the direction, the then Director submitted the draft amendment to the recruitment rules by letter dated 25th April, 2016. This Court has highlighted this only to underscore the fact that the circumstances and the reasons for amending the recruitment rules after the advertisement was issued on 24.06.2015 has not been clearly spelt out because of which this Court is also of the view that the apprehension expressed by the petitioners that the amendment of the recruitment rules in the midst of a recruitment process is to oust the candidature of the petitioners cannot be said to be mere figment of imagination or an unwarranted speculation. 81. Accordingly, for the reasons discussed above, this Court holds that when the impugned advertisement dated 16.08.2016 was issued there were no valid amended recruitment rules for the post of Director, RIMS on which basis the impugned advertisement was issued, and as such the impugned advertisement cannot be sustained and is, accordingly, set aside. 82. As regards the recruitment rules for the post of Director, in the backdrop of what had transpired as discussed above, the so called amended recruitment rules for the post of Director annexed as Annexure H/4 to the affidavit of the Respondent no. 1 in W.P.(C) No. 676 of 2016 is also declared to be invalid and the amendment of the recruitment rules needs to be reconsidered by the authorities including the Executive Council for inclusion of the relaxation clause or other amendments sought by the petitioners as also mentioned in the order dated 14.12.2016, before the authorities proceed to finalise and notify the recruitment rules. 83. It is accordingly, directed that the recruitment process for appointment of the post of Director, RIMS be initiated de-novo after finalising the recruitment rules after considering the claims of the petitioners and others for appropriate amendment as indicated above. A fresh advertisement, thereafter, is to be issued based on the recruitment rules that may be finalised and notified as mentioned above. 84. Since the post of Director (RIMS) has been lying vacant since 14.09.2015, it is desirable that the post be filled up on regular basis at the earliest. The authorities are expected to complete the process of amendment of the recruitment rules, notification of the same and initiate the process for recruitment by issuing a fresh advertisement etc. for filling up the post of Director, RIMS on regular basis within a period of 3 (three) months from today. 85. The writ petitions are allowed partly to the extent indicated above.