Dr Narendra Kumar vs Pg Institute Of Medical Education And ... on 16 May, 2018

[Cites 20, Cited by 1]

Central Administrative Tribunal - Chandigarh

Dr Narendra Kumar vs Pg Institute Of Medical Education And ... on 16 May, 2018

1. The challenge in the instant Original Application (OA), instituted by applicant, Dr. Narendra Kumar, Additional Professor, Department of Radiotherapy, Post Graduate Institute of Medical Education & Research, Chandigarh (hereinafter to be referred to as "PGIMER"), is to the impugned advertisement dated 19.7.2017 (Annexure A-1), and the criteria of qualifications and experience prescribed for Faculty Posts, in the Department of Radiotherapy, PGIMER, Chandigarh (Annexure A-2).

2. The matrix of the facts and the material, which needs a necessary mention, for the limited purpose of deciding the core controversy, involved in the instant OA, and exposited from the record, is that the PGIMER, invited applications from Indian Nationals, for direct recruitment, of different categories of the faculty posts, in various disciplines, as per the details prescribed therein, in the impugned advertisement, Annexure A-1. The qualification/experience prescribed by the PGIMER for the post of Professor (Radiotherapy), was stated to be

-2- O.A.No.060/00863/2017 arbitrary, illegal & against the norms, set up by the Medical Council of India (for brevity "MCI").

3. Aggrieved thereby, the applicant, who did not fulfill the prescribed qualification / experience, has preferred the instant OA challenging the impugned advertisement, Annexure A-1 and criteria, Annexure A-2, on the following grounds:-

(i) That the impugned advertisement and the criteria are not as per regulation 32 of the Regulations of 1967. As per Regulation 32, the age, experience and other qualifications for the appointment to a post has to be specified by the Institute keeping in view the qualification and experience prescribed by the Central Government for similar posts. The MCI with the prior approval of the Central Government has prescribed the relevant qualifications for the post of Professor.

(ii) That the impugned criteria is not a rule framed by the Central Government under the PGIMER Rules, 1967, nor it is a regulations framed by the Institute with a prior approval of the Central Government under the PGIMER Regulations, 1967. The impugned criteria is just an Executive instruction issued under Regulation 32 of the Regulations mentioned above. Neither it is as per the requirement of Regulation 32 nor it is as per the requirement of the Regulations of 1998 mentioned above. This criteria does not have any legislative sanction. It is beyond the powers of the Institute. It is void ab initio. The criteria is not only in violation of Regulation, 32, Regulations of 1998 but also in violation of Articles 14 and 16 of the Constitution of India.

(iii) That the PGIMER, Chandigarh is an institution of national importance created under a Parliamentary Legislation by that name under the Central Act 51 of 1996. It is a body corporate and in terms of S. 5 of the Act, the Institute consists of 20 - members - the Vice - Chancellor of the Punjab University, the Director General of Health Services of India the Director of the Institute, all ex- officio, three representatives of the Central Government to be nominated by the Central Government, one each from the Ministries of Finance, Education and Health and Family Planning; seven persons of whom one is to be a non - medical Scientist representing the Indian Science Congress Association to be nominated by the Central Government four representatives of the medical faculties of Indian Universities also to be nominated by the Central Government according to the rules and three members of Parliament, two being from the Lok Sabha and one from the Rajya Sabha. The Central Government nominates one of the members other than the Director as the Institute President. The Institute has a Governing Body in which vests the executive Power. The Chief Executive Officers is the Director. Sections 12 and 13 of the Act indicate respectively the objects and functions of the Institute. The Institute has been conceived as one of excellence in its field providing physical and intellectual milieu for young scientists working in the multiple disciplines of medicines, to advance the frontiers of knowledge, to render humane service to the sick and the suffering and to train medical and paramedical manpower. The appointment in the Institute has to be in accordance with the objectives mentioned above. MCI with prior approval of the Central Government has framed regulations known as Minimum Qualifications for teachers in Medical Institutions Regulations, 1998. These regulations are therefore, regulations framed by the Central Government. These would apply to all Medical Colleges and institute and respondent institute is mentioned in Schedule-I of the MCI Act, 1956, after the Panjab University.

(iv) That it is an established principle of law that the provisions of an Act, Rule and Regulations are to be interpreted in such a way that the object and purpose behind the Act is fulfilled and no such interpretation or practice can be allowed which defeats the very object of the Act. If there is any deficiency in any legislative measure, the deficiency can be supplied by the Court so that the purpose at the object of the Act is fulfilled.

(v) That the intention of the Act and the Rules and the procedure is that nobody can be appointed as Professor unless he has held the post of Associate

-3- O.A.No.060/00863/2017 Professor and the Additional Professor. The person who is eligible for the post of Professor has to be an Additional Professor either in this institute or an institute of similar nature. An Additional Professor holds higher post than Associate Professor. An Associate Professor holds a higher posts than Assistant Professor. No Non-Additional Professor / Associate Professor can be appointed as Professor either by promotion or through direct recruitment.

(vi) That the applicant had joined the institute as Assistant Professor on 24.1.2008 Thereafter he was promoted as Associate Professor in 2011 and thereafter he was further promoted as Additional Professor in 2014. The teaching experience of the applicant as Associate Professor from July, 2011 has to be treated as teaching experience as Associate Professor although he was prompted as Additional Professor in 2014. The applicant fulfils the criteria of teaching as well as research as per the Regulations of 1998. The applicant has rather an additional teaching experience as Additional Professor. The teaching experience of Additional Professor is also liable to be counted as the teaching experience of Associate Professor. In this way, the applicant is eligible to be appointed as Professor as per the Regulations of 1998. The impugned criteria and the impugned advertisement have disabled the applicant to apply and therefore, the applicant is an aggrieved person.

(vii) That while framing the criteria, as per regulation 32 mentioned above, similar qualifications as determined by the Central Government for other institute had to be kept in view while issuing the impugned criteria. Perusal of the regulations of 1998 will reveal that these regulations are framed for teachers in medical institutions. This regulation is applicable to the respondent institute. The perusal of impugned criteria will reveal that for the post of Professor, the qualifications have to be as in part-II of the third schedule to the Indian Medical Council Act, 1956 and a candidate for the post of Professor has to also fulfill the conditions specified in Sub-section 3 of Section 3 of the Act. The post graduate qualification, MD (Radiotherapy) has to be from any Institute/University recognized by the MCI. The candidate has also to be registered with the MCI. However, the provision of experience of 14 years is entirely arbitrary and violative of Article 14 & 16 of the Constitution of India. The provision cannot make an eligible person under the 1998 Regulations as ineligible. Consequently, the advertisement issued on its basis is also contrary to law.

(viii) That the regulations framed by the MCI are with the prior approval of the Central Government of India. The regulations are, therefore, at the same footing as if the regulations have been framed by the Central Government.

(ix) That while issuing the criteria, the provision of Regulation 32 mentioned above should have been kept in view. For appointment to a post of Professor, minimum period of three years as Associate Professor is necessary as per the 1998 Regulations. Minimum experience of teaching etc. is provided by all the institutes of national importance.

(x) Thus, for all the institutes of national importance minimum qualifications are prescribed. For a post of Professor an experience is provided but the minimum experience as Associate Professor or equivalent is necessary. The impugned criteria is therefore contrary to law.

(xi) That Sections 23 & 24 of the Act grant autonomy to the institute for grant of medical degrees and diplomas etc. All such degrees granted by the institute form part of schedule-I of the Medical Council of India Act.

(xii) That it is totally arbitrary and discriminatory and vioaltive of Articles 14 and 16 of the Constitution of India that for a post of Professor in any medical college, private or government, no person can be appointed as Professor unless he has teaching experience as Associate Professor and therefore, dispensing of this requirement in an institute of national importance is entirely arbitrary and violative of Article 14 of the Constitution of India.

4. Levelling a variety of allegations and narrating the sequence of events, in detail, in all, the applicant claims that the impugned criteria, Annexure A-2, published in impugned advertisement (Annexure A-1),

-4- O.A.No.060/00863/2017 adversely affecting his rights, is arbitrary and illegal. On the strength of the aforesaid grounds, the applicant seeks to quash the impugned advertisement / criteria, in the manner, indicated hereinabove.

5. On the contrary, the respondent has refuted the claim of the applicant and filed its written statement, inter-alia, raising certain preliminary objections of maintainability of the O.A and cause of action, alleging therein, that the applicant has not approached this Tribunal with clean hands. He was selected and appointed as Assistant Professor at the PGIMER, with the same criteria / recruitment rules, and now since the post is reserved for OBC category, and finding himself not eligible, he has challenged that very criteria / recruitment rules, through which he was appointed as Assistant Professor. Since, the applicant is not eligible as per the advertisement, as well as rules, so, his claim has been rightly rejected by the respondent.

6. According to the respondent, earlier also, applicant filed O.A.No. 060/00016/2017 and challenged order dated 30.11.2016 whereby Dr. Bhavna Rai had been declared as eligible for appointment to the post of Professor in Department of Radiotherapy, PGIMER, along with number of other Doctors, in respective disciplines, which was dismissed on 12.7.2017 (Annexure R-1).

7. The case, set up by the respondent, in brief, in so far as relevant is that PGIMER, is an autonomous body created by the Act of Parliament / PGIMER Act, 1966, which has its own rules / regulations for its proper functioning. It also has its own Institute Body and the Governing Body. The institute body is highest body, which is constituted under section 5 of the PGIMER Act, consisting of (a) Vice Chancellor of Punjab University (Ex-officio), (b) Director General of Health Services, Govt. of India, (ex- officio), Director of the institute, (ex-officio), three representatives of the

-5- O.A.No.060/00863/2017 Central Government, to be nominated by the Government, one each from the Ministry of Finance, Education and Health & Family Welfare. Seven persons of whom, one shall be a non - medication scientist, representing the Indian Science Congress Association, to be nominated by Central Government, four representatives of the medical faculties of Indian Universities to be nominated by the Central Government in the manner prescribed by rules and three members of Parliament, of whom two shall be selected from among themselves by the members of the House of the People (Lok Sabha) and one from among themselves by members of the Council of States (Rajya Sabha). It was claimed that as per letter dated 12.1.2010, issued by the Government of India, Ministry of Health & Family Welfare, the requisite eligibility criteria has been laid down for appointment and applicability of revised Assessment Promotion Scheme for faculty posts i.e. Assistant Professors, Associate Professors, Additional Professors and Professors. Different qualification, criteria and experience, is prescribed for different set of categories of faculty members. The relevant criteria / rules were duly approved by the Ministry of Health & Family Welfare.,

8. According to the respondent, that as per rule 7 (5) of the PGIMER Rules, 1968 read with regulation 32 of Regulations, 1967, the Institute body is the competent authority to prescribe the qualifications/ experience etc. for various categories of posts. It was pleaded that since the PGIMER has its own set of rules and regulations, so rules of MCI cannot be made applicable to PGIMER. It was reiterated that as per rule 7(5) and Regulation 32 of the PGIMER, the institute body is competent authority to prescribe qualification/ experience etc. for various categories of posts including faculty posts. As such, the qualification/ experience (Annexure A-2), was rightly prescribed by the PGIMER.

-6- O.A.No.060/00863/2017

9. Instead of reproducing the entire contents of the reply, in toto, and in order to avoid the repetition of facts, suffice it to say that while virtually acknowledging the factual matrix and reiterating the validity of the impugned advertisement/criteria, the respondent has stoutly denied all other allegations and grounds contained in the OA and prayed for its dismissal. That is how, we are seized of the matter.

10. Having heard the learned counsel for the parties, having gone through the record & legal provisions, with their valuable assistance, and after considering the entire matter, we are of the firm view that as there is no merit, so instant OA deserves to be dismissed, in the manner and for the reasons mentioned here-in-below.

11. Ex-facie the main argument of the learned Senior counsel for the applicant that since the qualification / experience (Annexure A-2), is against the criteria laid down by MCI and Regulation 32 of the PGIMER Regulations, 1967, so the impugned advertisement is arbitrary and illegal, is neither tenable nor the observations of the Hon‟ble Apex Court in the case of T.K. Ponnuswamy & Others Vs. The Government of Tamil Nadu & Others, JT 1994 (6) SC 255, are at all applicable to the facts of the present case, wherein it was observed that where rule is not specific (silent), as to whether 6 years‟ service as Deputy Collector or 6 years‟ service in the Revenue Department, is requisite experience for promotion to the post of Deputy Revenue Officer or Deputy Collector, then it should be read as 6 years‟ experience as Deputy Collector, irrespective of the fact whether officer is a Deputy Collector by way of direct recruitment or on account of promotion. As such, the State of Tamil Nadu was directed to accordingly adjudge the rights of the parties.

12. Possibly, no one can dispute with regard to the aforesaid observations but to us, the same would not come to the rescue of the

-7- O.A.No.060/00863/2017 applicant, in the present controversy, in which the criteria of qualification / experience of various posts of faculty members including for the relevant post of Professor (Radiotherapy), are very specific, and duly defined in Annexure A-1 & A-2. It is not a matter of dispute that it was clearly mentioned in Annexures A-1 and A-2, that 14 years‟ teaching & research experience, in a recognized institution, in the subject of specialty, after obtaining the qualifying degree of M.D. is required, for the relevant post of Professor of Radiotherapy. Hence, since the pointed relevant criteria and experience are clearly defined, so the question of any speculative presumption does not arise, at all, as contrary urged on behalf of the applicant.

13. The matter did not rest there. It has been specifically pleaded by the PGIMER in its written statement that the applicant was selected and appointed as Assistant Professor and subsequently promoted in PGIMER, as Associate Professor and then Additional Professor, with the same criteria / recruitment rules. But now since the post to be filled was reserved for OBC category with indicated criteria, so finding himself ineligible, the applicant has challenged same very criteria / rules through which he was appointed as Assistant Professor, and subsequently promoted. This factual matrix has not been disputed by the learned Senior counsel for the applicant. Therefore, once the applicant himself was selected and appointed on the post of Assistant Professor and subsequently promoted to higher posts, with the same criteria, so now he cannot possibly be heard to say that the prescribed criteria was suitable to him and was good, when he was appointed on the post of Assistant Professor and subsequently promoted to higher posts, and now since he did not full the prescribed experience, then the same very criteria was not suitable and is illegal for the post of Professor. He cannot

-8- O.A.No.060/00863/2017 be possibly be permitted to blow hot and cold in the same breath. Hence he is estopped from challenging the same very criteria, by his own act and conduct, in this regard.

14. There is yet another aspect of the matter, which can be viewed entirely from a different angle. It is not a matter of dispute that the present applicant Dr. Narendra Kumar had challenged the earlier advertisement, prescribing the same criteria, by filing O.A.No. 060/00016/2017 on identical grounds. On the contrary, the respondent has also refuted claim of the applicant pleading same grounds of defence, which have been set up by it in the present O.A.

15. Having completing all the codal formalities, all the issues raised and pleaded by the applicant were rejected and the O.A. was dismissed vide a detailed order dated 12.7.2017 (Annexure R-1) by this Tribunal. The operative part of which reads as under:-

"12. At the very outset it will not be out of place to mention here that the applicant was not eligible to be appointed as Professor (Radiotherapy) by way of direct recruitment at the relevant point of time for want of requisite experience. Neither he applied for the said post in pursuance of advertisement (Annexure A- 18 Coolly) issued as per Rules (Annexure R-1/4) nor initially challenged the advertisement and recruitment process. Moreover, he himself declared the respondent no.2 as eligible to be appointed as Professor (Radiotherapy) by way of direct recruitment, as he himself was a member of the Scrutiny Committee.

13. Moreover, it is also not a matter of dispute that the respondent no.2 has already joined the indicated post. Not only that, the process of subsequent selection has since already been completed. As soon as the applicant was confronted with the situation, then he moved an application for amendment of the OA challenging the recruitment rules, providing teaching experience of 14 years, to make a person eligible for the post of Professor in Radiotherapy, by way of direct recruitment, being arbitrary, against the minimum teaching experience prescribed by the Central Government and violative of Articles 14 of the Constitution of India.

14. xxx

15. xxx

16. Ex-facie the arguments of the learned Senior counsel for the applicant, that no doubt the applicant did not possess the requisite teaching / research experience of 14 years at the relevant time, he has not applied for the post of Professor (Radiotherapy) in pursuance of the impugned Advertisement, Annexure A-18, and even held respondent no.2 to be eligible for the post of Professor (Radiotherapy), being a Member of the Scrutiny Committee, but since the applicant was senior to respondent no.2 and Rules providing for 14 years teaching/ research experience, is contrary to the experience prescribed by Medical Council of India (Annexure A-24), so the impugned order & recruitment rules are arbitrary and illegal, are not only devoid of merit but misplaced as well.

17. At the initial stage, the applicant has tried to project that his seniority was ignored, as if it was a selection by way of promotion. However, since the instant matter is a case of direct recruitment, so question of seniority, pales into

-9- O.A.No.060/00863/2017 insignificance, which may be relevant for recruitment by way of promotion only and not otherwise.

18. What cannot possibly be disputed here is that the PGI, Chandigarh is governed by its own Act, Rules and Regulations. It has framed recruitment criteria in pursuance of its rules / regulations. Since the PGI is a reputed research institute, so it has vast legal power to formulate its own rules & regulations, prescribing higher qualifications and experience of specified post as it may deem appropriate. PGI is not legally bound to adopt the experience prescribed by any other Institution as such.

19. In the instant case, the PGI has duly advertised the post as per eligibility criteria, for various posts in its departments. Having completed all the codal formalities and recruitment process, not only that the respondent no.2 was appointed as Professor (Radiotherapy) by way of direct recruitment, but at the same time, dozens of other Doctors were appointed by way of direct recruitment in their respective departments, in furtherance of impugned order, Annexure A-1. Thus, no fault can possibly be found in the recruitment process for the post in question carried out by the PGI authorities.

20. There is yet another aspect of the matter which can be viewed entirely from a different angle. As indicated hereinabove, Dr. Bhavana Rai (Respondent No.2) fulfilled all the essential educational qualifications and requisite experience of teaching / research, as per the relevant rules and regulations, so she applied, successfully cleared the recruitment process and was appointed as Professor (Radiotherapy) by way of direct recruitment. On the contrary, since the applicant did not fulfill the requisite experience of 14 years of teaching/research, so even he did not apply for the indicated post, rather he himself was the Member of the scrutiny committee and held that respondent no.2 was eligible to be appointed on the post of Professor (Radiotherapy) by way of direct recruitment. Neither, he applied for the pointed post nor he challenged the initial advertisement, Annexure A-18 or relevant rules at initial relevant time. Meaning thereby he is not aggrieved, in any manner, in this relevant connection and is a stranger (third party) to the recruitment process, in the real sense. In that eventuality, he is estopped from and has no locus standi to challenge the appointment of respondent no.2, at this belated stage.

21. A person can invoke jurisdiction of this Tribunal under section 19 of the AT Act, only if he is actually aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal. It thus, goes without saying that a total stranger to the service concerned cannot make an application before the Tribunal.

Thus, applicant has no locus standi to file the present OA to challenge the eligibility and appointment of respondent no.2, particularly when he did not apply for the said post in question and he is not in any way aggrieved by the appointment of respondent no.2. In this manner, he appears to have filed the instant OA as a public interest litigation, challenging the eligibility and appointment of respondent no.2, which is not legally permissible as this Tribunal has no jurisdiction to entertain any matter by way of Public Interest Litigation. This matter is no longer res-integra and is now well settled.

22. An identical question came to be decided by Hon‟ble Apex Court in the case of Dr. Duryodhan Sahu V. Jitendra Kumar Mishra, (1998) 7 SCC, 273. Having considered the various aspects of the matter it was ruled that the Administrative Tribunals constituted under the AT Act, cannot entertain a public interest litigation, at the instance of a non aggrieved person. The same view was reiterated by Hon‟ble Supreme Court in the case of Gurpal Singh Vs. State of Punjab & Others, (2005) 5 SCC 136.

23. Again it was held by Hon‟ble Apex Court in the case of R.K. Jain v. Union of India and Others AIR 1993 SC 1769, that offending action can be questioned only by the non-appointee and non-appointee can only be considered to be the person aggrieved, and it has been held in paragraph 74 as under: -

"74. ..... In service jurisprudence it is settled law that it is for the aggrieved person i.e. non-appointee to assail the legality of the offending action. Third party has no locus standi to canvass the legality or correctness of the action. Only public law declaration would be made at the behest of the petitioner, a public spirited person."

24. Sequelly, relying upon its earlier decision in the case of Jasbhai Motibhai Desai v. Roshan Kumar, (1976) 1 SCC 671, Hon‟ble Apex Court has held in the case of Utkal University, etc. v. Dr. Nrusingha Charan Sarangi and others AIR 1999 SC 943, that in order to invoke the writ jurisdiction, the writ petitioner must be a person who has suffered illegal injury and a meddlesome

-10- O.A.No.060/00863/2017 interloper cannot maintain the writ petition, and observed in paragraph 8 as under: -

"8. It is in this context that the submission of the University regarding the locus standi of the first respondent to file the writ petition must also be considered. The University has rightly pointed out that the original writ petition does not disclose any legal injury to the original petitioner/present first respondent, because there is no reason to come to a conclusion that he would have been selected even if all his contentions in the writ petition were accepted. The University has relied upon the decision of this Court in Jashbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed, reported in (1976) 3 SCR 58 at page 71 : (AIR 1976 SC 578 at p. 586) for the purpose of pointing out that the first respondent stands more in the position of a meddlesome interloper than a person aggrieved. There is much force in this contention also."

25. Likewise, Hon‟ble Supreme Court in the case of Dr. N.C. Singhal v. Union of India and others AIR 1980 SC 1255, has held in paragraph 21 as under: -

"21. Having examined the challenge to the promotion of respondents 4 to 24 on merits, it must be made clear that the appellant is least qualified to question their promotions. Each one of them was promoted to a post in suppertime grade II in a speciality other than Ophthalmology and appellant admittedly was not qualified for any of these posts. Even if their promotions are struck down appellant will not get any post vacated by them. ....."

26. Similar is the proposition of law laid down by the Supreme Court in the case of State Bank of India v. Yogendra Kumar Srivastava and others AIR 1987 SC 1399 wherein it was rule, as under: -

"27. Moreover, there is some force in the contention made on behalf of the Bank that as the Probationary/Trainee Officers are not in the Junior Management Grade which is a different cadre, they have no locus standi to challenge any benefit conferred on 'the officers of the Junior Management Grade comprising erstwhile Officers Grade-I and Officers Grade-II, as were in the employment of the Bank prior to October 1, 1979."

27. Thus it would be seen that the ratio of law laid down in the aforesaid judgments, mutatis mutandis, is applicable to the present controversy and is the complete answer to the problem in hand. Therefore, it is held that the applicant, who is a stranger (third party) to the recruitment process in real sense, is neither a person aggrieved nor has a locus standi to file the instant OA and is estopped from filing and maintaining this OA challenging the eligibility criteria and appointment of respondent no.2, particularly when he has not even applied for the indicated post being ineligible. Moreover, it is not a matter of dispute that the respondent no.2 has already joined on the post of Professor (Radiotherapy). Not only that, even process of subsequent similar selection has already been completed. In this manner, the applicant is estopped from and has got no locus standi to challenge the impugned order and action of PGI, at this belated stage."

16. Meaning thereby, the subject matter of the instant OA was directly and substantially in issue in the earlier OA between the same parties, which has already been dismissed vide judgement, Annexure R-1, in the manner, described hereinabove, by this Tribunal. In that eventuality, the instant OA is otherwise barred on the analogy of res-judicata, as contemplated under section 11 of the CPC.

-11- O.A.No.060/00863/2017

17. No doubt, the question of constitutional validity of the impugned rules, regulations and criteria, was left open to be tested in some other appropriate case initiated by a directly affected person, having locus standi, at appropriate stage, but as depicted hereinabove, the applicant, who did not fulfill the requirement of experience, has again filed the present OA, challenging the criteria, on the same ground, which were already rejected.

18. As is evident from the record that the PGIMER, is an autonomous body created by the Act of Parliament, having its own set of rules and regulations for proper functioning of the institute including recruitment of the faculty and staff. The institute body is highest body, constituted under section 5 of the PGIMER Act read with regulation of 32 of the PGIMER regulations. It is the Competent Authority to prescribe the qualification, experience and criteria for various categories of the posts including the Faculty posts. The competent authority, has framed the impugned qualification / criteria, Annexures A-1 and Annexure A-2, as per regulation 32 of Regulations, 1967 read with rule 7 (5) of the PGIMER Rules, 1968.

19. Likewise, on the other end, the learned senior counsel has utterly failed to urge, as to how and in what manner, the impugned criteria, framed under the relevant rules and instructions, is constitutionally invalid. Even otherwise also, no material, much less, cogent, is forth coming on record to assail the constitutional validity of the PGIMER Rules and Regulations, particularly when it is now well settled principle of that the statutory provisions cannot lightly be set aside, unless they are totally contrary to the constitutional provisions, which is totally lacking in the instant petition. Moreover, it is not a matter of dispute that the faculty posts are being filled up since long by the PGIMER on

-12- O.A.No.060/00863/2017 the basis of same very prescribed qualifications and experience, which have stood the test of the time (ages). Therefore, the constitutional validity of the indicated statutory provisions, indeed cannot, possibly, be questioned only on the ground that the applicant did not fulfill the requisite criteria, prescribed in the advertisement or on his wishful thinking and on speculative grounds.

20. Above all, it is now well recognized principle of law that the manner, in which posts are to be filled up, including the methodology and the modalities thereof, is the prerogative of the employer, and that once a policy decision based on expert advice is taken, and all the aspects are thrashed out, it cannot be treated as without application of mind or arbitrary and such functions are best left to the Executive and the Courts should not interfere with the same, in view of the ratio of law laid down by Hon‟ble Apex Court in the cases of State of Andhra Pradesh v. V. Sadanandam AIR 1989 SC 2060, J. Rangaswamy vs. Government of Andhra Pradesh, 1990 (1) SCC 288, Union of India v. S.L. Dutta AIR 1991 SC 363 and V.K.Sood Vs. Secretary Civil Aviation and Ors, 1993 Supp. (3) SCC 9.

21. Sequelly, Hon‟ble Apex Court in the case of P.U.Joshi and Ors. Vs. The Accountant General, Ahmedabad and Ors. AIR 2003 SC 2156, have ruled as under:-

"...Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substruction the qualifications, eligibility criteria and

-13- O.A.No.060/00863/2017 other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/ posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."

(emphasis supplied) Similar view was reiterated in the case of K. A. Nagamani Vs. Indian Airlines & Others, 2009 (5) SCC, 515, by the Hon‟ble Supreme Court.

22. Therefore, it is held that the Institute Body of the PGIMER is very well within its jurisdiction & power and competent to prescribe the qualifications / criteria for recruitment of various categories of posts of Faculty Members, and has rightly laid down the impugned criteria. The alleged parachute guidelines of MCI, cannot legally be imposed, in any manner, on an autonomous National level institute like PGIMER. There is no conflict between the provisions of the PGIMER Act, Rules & Regulations or any other Constitutional provisions. As such, the contrary arguments of the learned counsel for the applicant, stricto sensu, deserve to be, and are hereby repelled, in the present set of circumstances, as the ratio of the law laid down by the Hon‟ble Apex Court, in the indicated judgments, mutantis mutandis, is applicable to the present controversy, and is a complete answer to the problem in hand. Thus, seen from any angle, the instant OA deserves to be dismissed, as well, in the obtaining circumstances of the case.

23. No other point worth consideration has either been urged or pressed by the learned counsel for the parties.

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24. In the light of the indicated prismatic reasons, as there is no merit, so the instant OA is hereby dismissed, as such. However, the parties are left to bear their own costs.

 (P. GOPINATH)                                 (JUSTICE M.S. SULLAR)
   MEMBER (A)                                        MEMBER (J)

                                                    Dated: 16.05.2018
„HC‟

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Central Administrative Tribunal - Chandigarh