DR. THINGUJAM ACHOUBA SINGH & ORS.versusDR. H. NABACHANDRA SINGH & ORS. ETC.

332                      [2020]REPORTS
               SUPREME COURT    6 S.C.R. 332                [2020] 6 S.C.R.


A               DR. THINGUJAM ACHOUBA SINGH & ORS.
                                        v.
               DR. H. NABACHANDRA SINGH & ORS. ETC.
                      (Civil Appeal Nos. 2250-2252 of 2020)
B                                APRIL 17, 2020
            [R. BANUMATHI AND R. SUBHASH REDDY, JJ.]
             Service Law: Recruitment – The Regional Institute of Medical
      Sciences (RIMS), Imphal is registered society and running public
      health care institutions in the north east India – Advertisement dated
C
      16.08.2016 was issued by the Ministry of Health & Family Welfare
      inviting applications for the post of Director of RIMS – Writ petitions
      filed for quashing the advertisement on the ground that it did not
      provide relaxation in upper age limit; that the experience of 14
      years for eligibility, as notified in advertisement was contrary to
D     the criteria prescribed by Medical Council of India (MCI); that the
      vacancy to the post of Director had fallen vacant on 14.09.2015,
      as such Regulations which were existing on the date of vacancy
      would apply – In all the three writ petitions, advertisement dated
      16.08.2016 inviting applications to fill up the post of Director was
      under challenge, and no challenge to the Rules and Regulations
E
      governing the recruitment to the post of Director was made – High
      Court however went into the validity of recruitment rules and
      recorded finding that rules were not amended as per the Rules,
      Regulations and Bye-Laws of the Society – Further, notification
      was quashed on the ground that after amendment to the Rules, such
F     rules were not notified to public at large, as such, they were not in
      the public domain – High Court also held that the experience criteria
      as prescribed by the MCI Regulations was not prescribed in the
      advertisement and such regulations would have a binding effect,
      for filling up the post of Director in RIMS – Held: High Court
      committed an error in going into the validity of the Rules, in absence
G
      of any challenge to the same – Not notifying to public at large cannot
      be the ground to invalidate the notification, in the absence of any
      provision to that effect in the Bye-Laws of the Society or the Rules
      and Regulations framed for recruitment to the post of Director – As
      notified in “Minimum Qualifications for Teachers in Medical
H
                                       332
             DR. THINGUJAM ACHOUBA SINGH v.                                333
               DR. H. NABACHANDRA SINGH

Institutions Regulations, 1998” issued by the MCI, the academic            A
qualifications and experience applicable for the post of Director
of medical institutions differed from those applicable for the post of
Director/Medical Superintendent of affiliated teaching hospital –
For the post of Director in a medical institution, ten years’
experience as Professor/Associate Professor/Reader in a medical
                                                                           B
college, out of which at least five years should be as Professor in a
department, is prescribed – However, for the post of Director/
Medical Superintendent of the affiliated teaching hospital the
required experience is ten years only – It is the specific case of the
respondents that the RIMS is an affiliated teaching hospital – In
view of such stand of the respondents it cannot be said that the           C
experience for eligibility notified in advertisement dated 16.08.2016
is contrary to the MCI Regulations – So far as relaxation of upper
age limit is concerned, High Court directed the competent authority
and Executive Council of the Society to consider for providing such
relaxation clause – It is not understandable as to how such direction
                                                                           D
can be given by the High Court for providing a relaxation which is
not notified in the advertisement – While it is open for the employer
to notify such criteria for relaxation when sufficient candidates are
not available, at the same time nobody can claim such relaxation as
a matter of right – The eligibility criteria is within the domain of the
employer and no candidate can seek as a matter of right, to provide        E
relaxation clause – Order of High Court set aside.
      Allowing the appeals, the Court
       HELD: 1. In none of the writ petitions, rules governing
appointment to the post of Director was under challenge, the
High Court has gone into the validity of the Rules, as amended,            F
and held that amendments to the Rules were not carried out by
following the Rules, Regulations and Bye-Laws of the Society.
The specific plea of the respondent authorities in the writ
petitions, that there is no challenge to validity of the rules but
same has been brushed aside by the High Court by merely stating            G
that such an objection is of technical in nature. Such objection
raised should not have been brushed aside by the High Court by
holding that such objection is of a technical nature. In any event,
it was the case of the respondent authorities that the rules
governing appointment were amended by following the rules and
                                                                           H
334           SUPREME COURT REPORTS                      [2020] 6 S.C.R.


A     such amendment was also approved by the competent authority,
      of Ministry of Health & Family Welfare. Further, the fact of not
      notifying the amended rules has also been made basis for grant
      of relief by the High Court. In this regard, the High Court has
      held that not notifying the amended rules would strike at the
      root of the amendment process of the recruitment rules, as such,
B
      unless such rules are notified, the same cannot be enforced. It
      appears from the impugned order itself that it was the specific
      plea in the counter affidavit filed before the High Court that the
      said rules were not framed under Article 309 of the Constitution
      of India and further there is no specific provision in the Rules,
C     Regulations and Bye-Laws of RIMS for notifying the same. It is
      true that in a public institution, rules are required to be made
      available, but at the same time not notifying to public at large
      cannot be the ground to invalidate the notification, in the absence
      of any provision to that effect in the Bye-Laws of the Society or
      the Rules and Regulations framed for recruitment to the post of
D
      Director. [Para 13][339-C-H; 340-A]
             2. A copy of the Regulations titled as, “Minimum
      Qualifications for Teachers in Medical Institutions Regulations,
      1998” (as amended upto 11th March 2017) issued by the Medical
      Council of India is placed on record. As notified in the said
E     Regulations, the academic qualifications and experience
      applicable for the post of Director of medical institutions differ
      from those applicable for the post of Director/Medical
      Superintendent of affiliated teaching hospital. For the post of
      Director in a medical institution, apart from the academic
F     qualifications, ten years’ experience as Professor/Associate
      Professor/Reader in a medical college, out of which at least five
      years should be as Professor in a department, is prescribed.
      However, for the post of Director/Medical Superintendent of the
      affiliated teaching hospital the required experience is ten years
      only. It is the specific case of the respondents that the RIMS is
G     an affiliated teaching hospital. In view of such stand of the
      respondents it cannot be said that the experience for eligibility
      notified in the advertisement dated 16.08.2016 is contrary to the
      Regulations of Medical Council of India. So far as relaxation of
      upper age limit, as sought by the petitioners in one of the writ
H     petitions is concerned, High Court has directed the competent
              DR. THINGUJAM ACHOUBA SINGH v.                                   335
                DR. H. NABACHANDRA SINGH

authority and Executive Council of the Society to consider for                 A
providing such relaxation clause. It is not understandable as to
how such direction can be given by the High Court for providing
a relaxation which is not notified in the advertisement. While it is
open for the employer to notify such criteria for relaxation when
sufficient candidates are not available, at the same time nobody
                                                                               B
can claim such relaxation as a matter of right. The eligibility
criteria will be within the domain of the employer and no candidate
can seek as a matter of right, to provide relaxation clause.
[Para 14][340-D-H; 341-A]
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2250-
                                                                               C
2252 of 2020.
      From the Judgment and Order dated 27.03.2017 of the High Court
of Manipur at Imphal in W.P. (C) Nos. 676 of 2016, 722 of 2016 and 766
of 2016.
      With                                                                     D
      Civil Appeal Nos. 2253-2255 of 2020.
      Sanjay Hegde, Sr. Adv., Preetam Singh, S. Gowthaman, G. Balaji,
Rajeev Sharma, Ms. Radhalakshmi R., Advs. for the Appellants.
      Dr. Rajiv Dhavan, Ajit Kumar Sinha, Sr. Advs., Ms. Punam                 E
Kumari, Abdulrahiman Tamboli, Siddhi Paddia, Abdul Azeem Kalebudde,
A. Rohan Singh, Vivek Kumar Mihir, Vijay Prakash, Ms. Nupur Sharma,
Amrish Kumar Sharma, G.S. Makker, Advs. for the Respondents.
      The Judgment of the Court was delivered by
      R. SUBHASH REDDY, J.                                                     F
      Civil Appeal Nos. 2250-2252 of 2020
      [Arising out of S.L.P.(C) Nos.15093-15095 of 2017]
      1. Leave granted.
      2. These civil appeals are filed, aggrieved by the judgment and          G
order dated 27.03.2017 passed in W.P.(C) No.676 of 2016;
W.P.(C)No.722 of 2016; and W.P.(C)No.766 of 2016, passed by the
High Court of Manipur at Imphal. By the aforesaid impugned order, the
High Court has quashed advertisement dated 16.08.2016, inviting
applications to fill up the vacant post of Director in Regional Institute of   H
Medical Sciences, Imphal.
336            SUPREME COURT REPORTS                          [2020] 6 S.C.R.


A            3. The Regional Institute of Medical Sciences (hereinafter referred
      to as, ‘RIMS’), Imphal is registered as a Society under the Societies
      Registration Act, 1860 in the year 1975. The said Society was initially
      registered as ‘North Eastern Regional Medical College’ and same was
      subsequently re-registered and changed its name as ‘Regional Institute
      of Medical Sciences’ (RIMS). The said Society runs one of the biggest
B
      public health care institutions in the north eastern region of India. The
      affairs of RIMS are governed and regulated by the Memorandum of
      Association (MOA), Rules, Regulations and Bye-Laws of the RIMS.
             4. The post of Director of RIMS was last held by Dr. S. Sekharjit
      Singh and same has fallen vacant on 14.09.2015. Since then the post of
C
      Director was given to some senior professors of the Institute on In-
      charge basis from time to time. At first instance on 24.06.2015, an
      advertisement was issued by the Ministry of Health and Family Welfare,
      Govt. of India for filling up the post of Director, RIMS, Imphal by direct
      recruitment. In the said advertisement, the upper age limit was notified
D     at 50 years, relaxable for Govt. Servants/RIMS officers and specially
      qualified candidates and retirement age was notified at 62 years. The
      writ petitioners in W.P.(C)No.676 of 2016 and some others have made a
      representation dated 01.07.2015 to the Ministry of Health & Family
      Welfare, Govt. of India for changing the age of superannuation from 62
      years to 65 years. All the petitioners in W.P.(C)No.676 of 2016 have
E
      either completed the age of 62 years or are nearing completion of 62
      years. They again submitted representations on 08.07.2015 and
      16.07.2015. Having failed to get any positive response they approached
      the High Court by filing writ petition in W.P.(C)No.617 of 2015 for
      quashing the advertisement with a direction to respondents to fill up the
F     post of Director, in accordance with Clause 12 of the Rules and
      Regulations of RIMS, by fixing the upper age limit for eligibility at 60
      years. In the said writ petition, some interim orders were passed but in
      the meantime, Office Memorandum No.B/1734/96-RIMS(Pt.-I) dated
      20.04.2016 was issued by the Director of RIMS notifying the age of
      superannuation at 65 years, with the approval of Ministry of Health &
G
      Family Welfare, Govt. of India. The said writ petition was withdrawn. It
      appears that, in view of the enhancement of age of superannuation to 65
      years, another advertisement dated 16.08.2016 was issued by prescribing
      the upper age limit of 62 years in the eligibility criteria without any
      relaxation, for Government servants/RIMS officers, also.
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           DR. THINGUJAM ACHOUBA SINGH v.                                          337
  DR. H. NABACHANDRA SINGH [R. SUBHASH REDDY, J.]

       5. When fresh advertisement dated 16.08.2016 was issued by the              A
Ministry of Health & Family Welfare, Govt. of India inviting applications
for the post of Director, writ petition in W.P.(C)No.676 of 2016 was
filed before the High Court of Manipur, mainly on the ground that in the
said notification relaxation for upper age limit was not provided for. As
such, in the said writ petition relief was sought for quashing the
                                                                                   B
advertisement dated 16.08.2016, so far as it relates to non-providing of
relaxation in upper age limit as illegal, with a consequential direction to
the respondents to allow the petitioners therein to participate in the selection
process. Questioning the very same advertisement, one other professor
working in RIMS has filed another writ petition in W.P.(C)No.722 of
2016, mainly on the ground that the experience for eligibility, as notified        C
in the advertisement dated 16.08.2016, was contrary to the criteria
prescribed by Medical Council of India. It was pleaded in the writ petition
that as per the criteria prescribed by the Medical Council of India, to
hold the post of Director, one must have minimum of ten years’ teaching
experience as Professor/Associate Professor/Reader, out of which at
                                                                                   D
least five years should be as professor in a Department. It was his
grievance that instead of notifying the criteria as mentioned above, the
respondents have merely notified fourteen years of experience without
there being a condition of five years of teaching experience as professor.
In the said writ petition, relief sought is to quash the notification dated
16.08.2016 and to renotify the same afresh by prescribing the experience           E
as prescribed by the Medical Council of India and other institutions under
the control of Ministry of Health & Family Welfare, Govt. of India.
       6. One other candidate who was serving as a professor also filed
another writ petition in W.P.(C) No.766 of 2016 challenging the very
same advertisement mainly pleading that the vacancy to the post of                 F
Director has fallen vacant on 14.09.2015, as such, said post has to be
filled up by applying the Rules and Regulations which were existing on
the date of vacancy. He was also one of the applicants who applied for
the post of Director in response to the advertisement dated 24.06.2015
and also advertisement dated 16.08.2016. It was his case in the writ
petition that though he has applied in response to both the advertisements,        G
he has noticed that rules regulating appointment of Director, pursuant to
advertisement dated 16.08.2016 were different than the rules contained
as per advertisement dated 24.06.2015. It was the case of the sole
petitioner that as the post fell vacant on 14.09.2015, rules as on the date
of vacancy ought to be applied to fill up the vacancy and not the amended          H
338             SUPREME COURT REPORTS                            [2020] 6 S.C.R.


A     rules. Incidentally, it was also pleaded that amendment to the rules was
      made without following due procedure as contemplated under Rules
      and Bye-Laws of the Society.
             7. In all these writ petitions, affidavit in reply was filed by the
      respondent therein opposing the relief sought for and denying the various
B     allegations made.
              8. Inspite of the fact that in all the three writ petitions,
      advertisement dated 16.08.2016 inviting applications to fill up the post of
      Director was under challenge, and no challenge to the Rules and
      Regulations governing the recruitment to the post of Director was made;
C     the High Court however has gone into the validity of recruitment rules
      and recorded finding that rules were not amended as per the Rules,
      Regulations and Bye-Laws of the Society. Further, notification is quashed
      on the ground that after amendment to the Rules, such rules were not
      notified to public at large, as such, they were not in the public domain.
      The High Court has also held that the experience criteria as prescribed
D     by the Medical Council of India Regulations was not prescribed in the
      advertisement and such regulations would have a binding effect, for
      filling up the post of Director in RIMS. Consequently, further direction is
      issued to the competent authority to consider providing relaxation in respect
      of upper age limit or the qualification as sought by the writ petitioner
E     therein.
            9. We have heard Sri Sanjay R. Hegde, learned senior advocate
      appearing for the appellants and Dr. Rajiv Dhavan, learned senior
      advocate appearing for the RIMS and perused the impugned order and
      other material placed on record.
F            10. Before we proceed further, we deem it appropriate to refer to
      interim orders passed by this Court on 07.05.2018 and 24.07.2018. By
      order dated 07.05.2018, this Court permitted the respondent authorities
      to proceed with the selection to the post of Director, RIMS, in terms of
      the recruitment rules, as existed on the date of the order, making it subject
G     to result of the Special Leave Petitions. By further order dated
      24.07.2018, this Court permitted the competent authority to finalise the
      selection by declaring the result and make the appointment forthwith
      provisionally, making it subject to the result of the Special Leave Petitions.
            11. During the course of arguments, we were informed that
      pursuant to aforesaid two orders passed by this Court, selection process
H
           DR. THINGUJAM ACHOUBA SINGH v.                                         339
  DR. H. NABACHANDRA SINGH [R. SUBHASH REDDY, J.]

is completed and one Dr. Ahanthem Santa Singh was appointed as                    A
Director, RIMS on 05.10.2018, in terms of advertisement dated
16.08.2016, subject to the outcome of the present appeals. Same is also
challenged subsequently before the High Court by way of writ petition
in W.P.No.1181 of 2018 and same is pending consideration.
      12. Having heard the learned counsel on both sides, we have                 B
carefully gone through the common impugned order passed by the High
Court and other material placed on record.
       13. At the outset, it is to be noticed that though, in none of the writ
petitions, rules governing appointment to the post of Director was under
challenge, the High Court has gone into the validity of the Rules, as             C
amended, and held that amendments to the Rules were not carried out
by following the Rules, Regulations and Bye-Laws of the Society. The
specific plea of the respondent authorities in the writ petitions, that there
is no challenge to validity of the rules but same has been brushed aside
by the High Court by merely stating that such an objection is of technical
in nature. At this stage, it is relevant to note that such objection raised       D
should not have been brushed aside by the High Court by holding that
such objection is of a technical nature. In all these writ petitions in which
common order is passed by the High Court, validity of advertisement
dated 16.08.2016 alone was under challenge. We are of the view that
the High Court has committed, an error in going into the validity of the          E
Rules, in absence of any challenge to the same. In any event, it was the
case of the respondent authorities that the rules governing appointment
were amended by following the rules and such amendment was also
approved by the competent authority, of Ministry of Health & Family
Welfare. Further, the fact of not notifying the amended rules has also
been made basis for grant of relief by the High Court. In this regard, the        F
High Court has held that not notifying the amended rules would strike at
the root of the amendment process of the recruitment rules, as such,
unless such rules are notified, the same cannot be enforced. It appears
from the impugned order itself that it was the specific plea in the counter
affidavit filed before the High Court that the said rules were not framed         G
under Article 309 of the Constitution of India and further there is no
specific provision in the Rules, Regulations and Bye-Laws of RIMS for
notifying the same. It is true that in a public institution, rules are required
to be made available, but at the same time not notifying to public at large
cannot be the ground to invalidate the notification, in the absence of any
                                                                                  H
340             SUPREME COURT REPORTS                            [2020] 6 S.C.R.


A     provision to that effect in the Bye-Laws of the Society or the Rules and
      Regulations framed for recruitment to the post of Director.
              14. The High Court has also noticed that the experience for
      eligibility notified in the advertisement dated 16.08.2016 was not in
      conformity with the Medical Council of India Regulations. In reply
B     affidavit filed before the High Court, while denying such allegation, it
      was pleaded that the qualifications and experience, as notified in the
      advertisement dated 16.08.2016, was in accordance with the “Minimum
      Qualifications for Teachers in Medical Institutions Regulations, 1998”
      (as amended from time to time), framed by the Medical Council of India.
      It was the specific contention of the respondent authorities that as the
C     RIMS is affiliated to Manipur University, the requirement as prescribed
      by Medical Council of India for Director of affiliated hospital should be
      applied. Such plea is not accepted by the High Court on the ground that
      there is no proper pleading in this regard. A copy of the Regulations
      titled as, “Minimum Qualifications for Teachers in Medical Institutions
D     Regulations, 1998” (as amended upto 11th March 2017) issued by the
      Medical Council of India is placed before us. As notified in the said
      Regulations, the academic qualifications and experience applicable for
      the post of Director of medical institutions differ from those applicable
      for the post of Director/Medical Superintendent of affiliated teaching
      hospital. For the post of Director in a medical institution, apart from the
E     academic qualifications, ten years’ experience as Professor/Associate
      Professor/Reader in a medical college, out of which at least five years
      should be as Professor in a department, is prescribed. However, for the
      post of Director/Medical Superintendent of the affiliated teaching hospital
      the required experience is ten years only. It is the specific case of the
F     respondents that the RIMS is an affiliated teaching hospital. In view of
      such stand of the respondents it cannot be said that the experience for
      eligibility notified in the advertisement dated 16.08.2016 is contrary to
      the Regulations of Medical Council of India. So far as relaxation of
      upper age limit, as sought by the petitioners in one of the writ petitions is
      concerned, High Court has directed the competent authority and Executive
G     Council of the Society to consider for providing such relaxation clause.
      We fail to understand as to how such direction can be given by the High
      Court for providing a relaxation which is not notified in the advertisement.
      While it is open for the employer to notify such criteria for relaxation
      when sufficient candidates are not available, at the same time nobody
H     can claim such relaxation as a matter of right. The eligibility criteria will
           DR. THINGUJAM ACHOUBA SINGH v.                                  341
  DR. H. NABACHANDRA SINGH [R. SUBHASH REDDY, J.]

be within the domain of the employer and no candidate can seek as a        A
matter of right, to provide relaxation clause.
       15. For the aforesaid reasons, we allow these appeals and set
aside the impugned common judgment and order dated 27.03.2017 passed
in W.P.(C) No.676 of 2016; W.P.(C)No.722 of 2016; and W.P.(C)No.766
of 2016 by the High Court of Manipur at Imphal. Consequently, the          B
above said writ petitions stand dismissed.
       Civil Appeal Nos. 2253-2255 of 2020
       [Arising out of S.L.P.(C) Nos.4853-4855 of 2019]
       16. Leave granted.                                                  C
      17. These civil appeals are filed by the Union of India and RIMS
challenging the very same order of the High Court by which the
advertisement dated 16.08.2016 has been quashed. For the reasons
recorded while dealing with the appeals arising out of S.L.P.(C)Nos.
15093-15095 of 2017, these appeals also stand allowed and the              D
abovementioned impugned order of the High Court is set aside.


Devika Gujral                                           Appeals allowed.


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                                                                           F




                                                                           G




                                                                           H