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2021 DIGILAW 1191 (ALL)

Dinesh Singh Rathaur v. State of U. P.

2021-10-06

SUNEET KUMAR

body2021
JUDGMENT : SUNEET KUMAR, J. 1. Affidavit of service has been filed. Despite notice, no one has put in appearance on behalf of the seventh respondent nor any counter affidavit has been filed. 2. Heard learned counsel for the petitioner and learned standing counsel for the State-respondents. 3. The instant petition is directed against the order dated 28 October 2020, passed by the third respondent, Principal Secretary, Department of Medical Health and Family Welfare, Government of U.P. at Lucknow, appointing the seventh respondent as Director of Institute of Mental Health and Hospital, Agar [Mental Health Institute]. 4. The short question arises for determination in the instant petition is as to whether the seventh respondent possesses the requisite qualification for being appointed Director of Mental Health Institute. 5. It is not in dispute that the Government is the appointing authority of the Director and the Rules and Regulations framed by the State Government is applicable to the appointment made in the Mental Health Institute, including, for the post of Director. The State Government vide Government Order dated 29 August 2015, made applicable the provisions of the Uttar Pradesh State Medical Colleges Teachers’ Service Rules, 1990 [Service Rules, 1990] upon the post of Director and teaching staff of the Medical Health Institute. It is further noted in the Government Order that the Mental Health Institute is affiliated to Dr. B.R. Ambedkar University, Agra. The Government Order clearly provides that the created post of Director and other teaching faculty shall be governed by Service Rules, 1990. It is further noted in the Government Order that the Mental Health Institute is affiliated to Dr. B.R. Ambedkar University, Agra. The Government Order clearly provides that the created post of Director and other teaching faculty shall be governed by Service Rules, 1990. The relevant portion of the Government Order dated 29 August 2015, is extracted: ^^funs'kd ekufld LokLF; laLFkku ,oa fpfdRlky;] vkxjkA fpfdRlk vuqHkkx&7 y[kuÅ] fnukad 29 vxLr] 2015 fo"k;% ekufld LokLF; laLFkku ,oa fpfdRlky; vkxjk esa l`ftr funs'kd ,oa 'kS{kf.kd laoxZ ds ,sls in tks Hkkjrh; vk;qfoZKku ifj"kn ls vkPNkfnr gks ds lEcU/k esa mRrj Áns'k jkT; fpfdRlk egkfo|ky; v/;kidksa dh lsok fu;ekoyh 1990 ¼v|ru la'kksf/kr 2006½ rFkk rRØe esa fpfdRlk f'k{kk foHkkx }kjk le;≤ ij fuxZr lqlaxr 'kklukns'kksa }kjk fu/kkZfjr lsok 'krsZ ykxw fd;s tkus ds lEcU/k esaA egksn;] mi;qZDr fo"k;d funs'kd ekufld LokLF; laLFkku ,oa fpfdRlky; vkxjk ds i= la[;k fuŒ@2015@LFkkŒfpŒf'kŒ@,eŒlhŒ,eŒvksŒ fnukad 17-08-2015 dk d`i;k lUnHkZ xzg.k djsaA ekufld LokLF; laLFkku ,oa fpfdRlky;] vkxjk ds fØ;k&dykiksa esa ekufld jksfx;ksa dks mPp dksfV ds funku ,oa mipkj dh lqfo/kk Ánku djus ds lkFk&lkFk LukdksRrj Lrj ij f'k{k.k] Áf'k{k.k ,oa 'kks/k dk;Z lapkfyr djuk Hkh fu/kkZfjr fd;k x;k gSA mDr fu/kkZfjr mn~ns';ksa dh ÁkfIr ds fy;s o"kZ 2008 esa mDr laLFkku ds ikB~;Øe dh lEc}rk MkŒ chŒvkjŒ vEcsMdj fo'ofo|ky; vkxjk }kjk Ánku dh x;h gS rFkk orZeku esa bl laLFkku esa fofHkUu ijkLukrdh; ikB~;Øe lapkfyr fd;s tk jgs gSA** 6. Rule 8 of Service Rules, 1990, as amended by Second Amendment Rules, 2005, notified on 12 August 2005, provides the academic qualifications for appointment. It is mandated that for recruitment of a candidate to various categories of posts must possess the qualifications prescribed by the Medical Council of India [MCI] from time to time. The relevant portion of the Rules is extracted: “8. Academic Qualifications - (1) A candidate for recruitment to the various categories of posts in the service other than the department of Pharmacy must possess the qualifications prescribed by the Medical Council of India from time to time.” 7. It is relevant to point out that academic qualification prior to amendment of the Rules was the same. The MCI prescribed the academic qualifications in Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998 (amended upto 8 June 2017). It is relevant to point out that academic qualification prior to amendment of the Rules was the same. The MCI prescribed the academic qualifications in Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998 (amended upto 8 June 2017). Schedule-I provides qualifications for the post of Principal/Dean/Director of Medical Institution, which reads thus: Requirements of Academic Qualifications, Teaching and Research Experience: Post Academic Qualifications Teaching/Research Experience Principal/Dean/Director of Medical Institution Should possess the recognised postgraduate medical qualification and other academic qualification from a recognised institution with a minimum of ten years’ teaching experience as Professor/Associate Professor/Reader in a medical college/Instt. Out of which atleast five years should be as Professor in a department. Preference for these appointments may be given to the Heads of the Departments. Director/Medical Superintendent of the affiliated teaching hospital Should possess a recognised post graduate medical qualification from a recognised Institution with 10 years Administrative experience. 8. It is urged that petitioner, Associate Professor (Psychiatry) in Mental Health Institute is in-charge Medical Superintendent of the Institute. Petitioner claims that he is qualified under the Regulations, 1998, to be appointed Director of the Medical Health Institute. It is further submitted that seventh respondent is a general surgeon and not having degree in Psychiatry, as such, he does not possess the post graduate medical qualification i.e. M.D. (Psychiatry) as mandated by Regulations, 1998. It is further pleaded that seventh respondent is a Medical Officer of the Provincial Medical Services (P.M.S.) which is a non teaching cadre and it is urged that the seventh respondent is not having the requisite 10 years teaching experience in post graduate course pertaining to Medical Health Institute. It is further urged that a non teacher has been given charge of the post of Director in a teaching and research institute which would have serious adverse impact on the teaching culture of the Mental Health Institute. Courses that are being taught in the institute include (i) M. Phil in Clinical Psychology, (ii) M.Phil in Psychology Social Work, (iii) D.P.N. Diploma in Psychiatric nursing and (iv) M.D. (Psychiatric). All the courses noted hereinabove are post graduate courses. 9. In the counter affidavit, the facts stated in the writ petition has not been denied. It is submitted that the seventh respondent came to be appointed by the Principal Secretary, Department of Medical Health and Family Welfare, Government of U.P. having regard to his administrative experience. All the courses noted hereinabove are post graduate courses. 9. In the counter affidavit, the facts stated in the writ petition has not been denied. It is submitted that the seventh respondent came to be appointed by the Principal Secretary, Department of Medical Health and Family Welfare, Government of U.P. having regard to his administrative experience. It is further submitted that the seventh respondent is having degree in Master of Surgery from Gorakhpur University, and has held various administrative posts and is having administrative experience since 1988. In other words, it is admitted that the seventh respondent lacks the qualification as mandated under the Regulations, 1998 and is not having ten years teaching experience. Further, lacks the essential qualification in Psychiatry. It is further stated by the respondents that the Rules and Regulations framed by the MCI would not apply after the enactment of the National Medical Commission Act, 2019. It is submitted that the Act has dissolved the MCI, therefore, the Rules and Regulations framed thereunder is not applicable. Reliance has been placed on the Government Notification dated 30 January 1995 [Rules 1995], which deals with the appointment to the post of Director to be made by the Secretary, Department of Medical Health and Family Welfare, Government of U.P. The Director shall be the Chief Executive Officer having complete administrative control of the Medical Health Institute. In other words, the respondents have justified the appointment of the seventh respondent as the source of power is traceable to the 30 January 1995 notification. The respondents are silent insofar qualification has been prescribed for the post of Director, which is primarily a teaching post. The rules came to be prescribed by the Government Order dated 29 August 2015, which is binding upon the respondents. 10. I have perused and gone through the provisions of the Rules, 1995. Rule 5 provides for the post of Director. It shall be the Chief Executive Officer of the Institute and shall be appointed by the Secretary to the State Government. Sub-Clause (1) and (2) of Rule 5 is extracted: “5. Director - (1) The Director shall be the Chief Executive Officer of the AMA and shall be appointed by the Secretary to the State Government, in Health Department. (2) The Director shall be the Head of Department and shall exercise the Administrative and financial power of a State level head of Department.” 11. Director - (1) The Director shall be the Chief Executive Officer of the AMA and shall be appointed by the Secretary to the State Government, in Health Department. (2) The Director shall be the Head of Department and shall exercise the Administrative and financial power of a State level head of Department.” 11. Learned Standing Counsel, on specific query, is unable to point out from the Rule that qualification of the Director has been provided therein. Learned standing counsel refers to an advertisement issued in 1997 by the Mental Health Institute, wherein, the requirement for the post of Director is fifteen years administrative experience. In the backdrop of the advertisement, it is urged that having regard to the administrative experience of the seventh respondent, he came to be appointed by the Secretary. Insofar as the Government Order dated 29 August 2015 issued by the Secretary, it has been denied in the counter affidavit. Further, categorical stand has been taken that the rules & regulations framed under the repealed MCI Act would not apply and govern the qualifications of teaching faculty. Averments made in the counter affidavit are misleading and an attempt has been made by the respondents to misrepresent before the Court. The paragraphs have been sworn on record. Section 61(2) of the National Medical Commission Act, 2019, clearly mandates that the educational standards, requirements and other provisions of the Indian Medical Council Act, 1956 and the rules and regulations made thereunder shall continue to be in force and operate till new standards or requirements are specified under this Act or the rules and regulations made thereunder. The relevant portion of the Act is extracted: “61. (1) The Commission shall be the successor in interest to the Medical Council of India including its subsidiaries or owned trusts and all the assets and liabilities of the Medical Council of India shall be deemed to have been transferred to the Commission. (2) Notwithstanding the repeal of the Indian Medical Council Act, 1956, the educational standards, requirements and other provisions of the Indian Medical Council Act, 1956 and the rules and regulations made thereunder shall continue to be in force and operate till new standards or requirements are specified under this Act or the rules and regulations made thereunder.” 12. (2) Notwithstanding the repeal of the Indian Medical Council Act, 1956, the educational standards, requirements and other provisions of the Indian Medical Council Act, 1956 and the rules and regulations made thereunder shall continue to be in force and operate till new standards or requirements are specified under this Act or the rules and regulations made thereunder.” 12. It is further pointed out that on the official website of the National Medical Commission, it is clearly stated that the Rules and Regulations framed under the repealing Act shall prevail as per Section 61(2). Averments made in Para-8 and 10 of the counter affidavit (22 September 2021) is a false and misleading statement. The deponent is liable to be prosecuted for perjury/criminal contempt. 13. Having due regard to the facts and circumstances of the case and the admitted stand of the State, the seventh respondent does not have the requisite qualification for the post of Director of the Medical Health Institute. 14. In view thereof, writ petition is allowed by passing the following orders: (i) the order dated 28 October 2020, passed by the third respondent, Principal Secretary, Department of Medical Health and Family Welfare, Government of U.P. at Lucknow, is set aside and quashed. (ii) the State-respondents are directed to appoint Director in the Medical Health Institute, Agra, strictly, in accordance with the Rules, within two months from the date of receipt of this order. (iii) claim of the petitioner shall also be considered for the post along with other eligible aspirants. (iv) the Court does not propose to proceed for criminal contempt/perjury for filing false and misleading affidavit, accordingly, cost assessed at Rs. 21,000/- is imposed on the third respondent. The cost to be deposited with the High Court Legal Services Committee of this Court within three weeks.