JUDGMENT : Shree Chandrashekhar, J. The State of Jharkhand through its Principal Secretary of the Department of Health, Medical Education and Family Welfare and other Officers of the said Department and the Superintendent of Patliputra Medical College Hospital, Dhanbad (in short, the State of Jharkhand) have come together to challenge the order dated 27th September 2021 passed in WP(S) No. 1180 of 2019. 2. By the office order dated 28th February 2019, the respondent was relieved from the Department of Radiology at Patliputra Medical College and Hospital with a direction to handover the charge to the Head of the Department after obtaining a no dues certificate and tender his joining at the headquarters. This office order has been quashed by the writ Court by the aforesaid order dated 27th September 2021. 3. Briefly stated, pursuant to an advertisement issued on 7th October 1994 for appointment of the Resident Medical Officers in different Medical Colleges in the erstwhile State of Bihar the respondent was appointed as Resident Doctor on a tenure post. Before that, the respondent was working as Medical Officer at Primary Health Centre, Siswan since 11th March 1988. Later on, the Bihar Medical Education Service Admission to Cadre and Cadre Posts Rules, 1997 (in short, Bihar Education Service Cadre Rules) were framed whereunder the Resident Doctors and Registrars were to be made the Lecturers. In terms of Clause 5 (kha) thereof, the Resident Doctors and Registrars working in different Medical Colleges were provided the option to opt for the Bihar Medical Education Service Cadre or to remain in their parent cadre/original cadre. The case pleaded by the respondent herein before the writ Court was that he was appointed as Resident Doctor on 21st May 1997 in the Department of Radiology and since then he had been working on the post of Lecturer. However, by the office order dated 20th February 2019 issued by the Department of Health, Medical Education and Family Welfare a general direction was issued that all Senior Residents Doctors who worked for more than three years shall be relieved and, in compliance of the said office order, the respondent was relieved by the office order dated 28th February 2019 and directed to tender joining at the Headquarters. 4. 4. In the background of the aforesaid facts, the respondent challenged the office order dated 28th February 2019 inter-alia on the grounds that (i) by virtue of Clause 5(kha) of Bihar Education Service Cadre Rules he stood absorbed on the post of Lecturer and (ii) the state authorities having accepted his eligibility and applicability of Clause 5(kha) issued Notification dated 1st September 2015 as amended by the Notification dated 20th May 2016 treating him as a Lecturer. The State of Jharkhand opposed the writ petition by raising a specific plea as regards eligibility of the respondent to hold the post of Lecturer. 5. The writ Court took note of the order passed by the Jharkhand High Court in WP(S) No. 595 of 2002 and the judgment in “N.T. Devin Katti and Others v. Karnataka Public Service Commission and Others” (1990) 3 SCC 157 and came to a conclusion that the stipulation circulated vide letter dated 20th February 2019 are not applicable to the respondent as he was no more a Senior Resident and, therefore, quashed letter no. 420 dated 28th February 2019. 6. In the order dated 27th September 2021 passed in WP(S) No. 1180 of 2019, the writ Court held as under: “13. From the counter-affidavit filed by the respondents it appears that a specific plea has been taken that since petitioner does not fulfill the requisite qualification i.e. Post Graduate Degree in the relevant field and also failed to enhance his qualification during his service tenure, he cannot be treated as Lecturer. The entire arguments advanced by learned counsel for the respondent-State is based on the aforesaid premise, which are not acceptable to this Court on the ground that 2018 Rules is not applicable in the case of the petitioner. As the petitioner becomes a lecturer by operation of law, letter dated 20.02.2019 issued by the Deputy Secretary, Department of Health, Medical Education and Family Welfare is not applicable to the petitioner since petitioner cannot be treated as a Senior Resident. 14. Earlier this petitioner along with similarly situated Doctors moved this Court in W.P.(S). As the petitioner becomes a lecturer by operation of law, letter dated 20.02.2019 issued by the Deputy Secretary, Department of Health, Medical Education and Family Welfare is not applicable to the petitioner since petitioner cannot be treated as a Senior Resident. 14. Earlier this petitioner along with similarly situated Doctors moved this Court in W.P.(S). No. 595 of 2002 and the Hon’ble Court vide its order dated 14.01.2004 was pleased to dispose of the said writ petition observing therein that, “If such representations are filed by the petitioners, the Secretary shall consider the cases of the petitioners and after enquiry into the matter, shall take a decision and pass an appropriate reasoned order, and if it is found that the petitioners were holding teaching post on 21.05.1997 and had given option for their retention in teaching cadre in terms of 1997 Rules, he shall issue appropriate orders in that regard …………..”. Admittedly, petitioner was holding teaching post on 25.09.1997 and had also given option for retention in teaching cadre in terms of 1997 Rules. 15. As a sequitur to the aforesaid rules, regulations, judicial pronouncements and legal propositions, this Court declares that the letter dated 20.02.2019 is not applicable to the petitioner as he is not a Senior Resident. Further letter No. 420 dated 28.02.2019 (Annexure-7) is hereby quashed and set aside. 16. Since this Court vide its order dated 07.01.2020 observed that joining of the petitioner shall be subject to outcome of the present writ application, the respondents are directed to act accordingly in view of the observations made therein and pass appropriate orders in that regard. 17. Resultantly, the instant writ petition stands allowed.” 7. We have considered the rival contentions and, after having examined the materials on record, find that the writ Court committed a serious error in law in interfering with the office orders dated 20th February 2019 and 28th February 2019. This is not in dispute that the respondent opted for the Bihar Medical Education Service Cadre by tendering an option on 28th September 2000 and he was working on the post of Lecturer since then. This is not in dispute that the respondent opted for the Bihar Medical Education Service Cadre by tendering an option on 28th September 2000 and he was working on the post of Lecturer since then. This is also not in dispute that, after bifurcation of the erstwhile State of Bihar, a decision was taken by the newly created State of Jharkhand on 27th February 2004 in line with the Bihar Education Service Cadre Rules to the effect that the posts of Resident Doctor and Registrar shall be converted to the post of Lecturer and, in terms thereof, a Notification dated 07th May 2015 was issued by the Department of Health, Medical Education and Family Welfare. In the list of Lecturers appended to the said notification the respondent was included at serial no. 11, which was modified by an order dated 20th May 2016 wherein the respondent’s name was placed at serial no. 16. However, the plea taken by the State of Jharkhand in its supplementary counter-affidavit dated 25th February 2020 was not addressed by the writ Court. The State of Jharkhand has set up the stand that the respondent no.1 does not possess a postgraduate degree and, that, the rules framed by the Medical Council of India prescribed that a postgraduate degree is a mandatory qualification for the post of Lecturer. 8. The Medical Council of India (in short, MCI) made Regulations in exercise of the powers conferred by section 33 of the Indian Medical Council Act, 1956 for maintaining the standard of teaching in various departments of Medical Colleges and Institutions imparting graduate and postgraduate medical education. Regulation (3) of the Minimum Qualifications for Teachers in Medical Institution Regulations, 1998 as amended from time to time provided that the minimum qualifications for appointment as a teacher in various departments of Medical College or Institution shall be as specified in the Schedules-I and II appended to the Regulations. Clause (1) to the Schedule-I provided that all medical teachers must possess a basic university or equivalent qualification included in any one of the Schedules to the Indian Medical Council Act, 1956. Initially, the requisite educational qualification for the post of Assistant Professor/Lecturer was (i) a recognized postgraduate qualification in the subject and (ii) three years teaching experience in the subject in a recognized medical college as Resident/Registrar/Demonstrator/Tutor. Initially, the requisite educational qualification for the post of Assistant Professor/Lecturer was (i) a recognized postgraduate qualification in the subject and (ii) three years teaching experience in the subject in a recognized medical college as Resident/Registrar/Demonstrator/Tutor. Later on, vide Notification dated 24th July 2009, certain changes were incorporated in the qualification requirement but a postgraduate degree in the subject was retained for appointment on the teaching post. 9. The validity and primacy of the Regulations framed by the MCI fell for consideration before the Hon’ble Supreme Court on several occasions and, recently, the Hon’ble Supreme Court has held in “Rajendra Chaudhary v. State of U.P” (2020) 13 SCC 278 that the Regulations framed by the MCI relating to the conditions of the service of Professors in Medical Colleges shall prevail over the service rules framed by the State of Uttar Pradesh. Simply put, the rules framed by the Medical Council of India are binding and cannot be tweaked by the State authority. While the State is entitled to make a rule providing a qualification higher than the qualification fixed by the Medical Council of India but in no case a lesser qualification can be provided by the State or its instrumentalities for making appointment on a post which is regulated under the MCI rules. The initial appointment of the respondent was on the post of Medical Officer on 11th March 1988 and later on he was given a fresh appointment on 21st May 1997 on the post of Resident Medical Officer pursuant to a selection exercise conducted in terms of Notification No. 163(17). The Bihar Education Service Rules under Clause 5(kha) provided that the posts of the Resident Doctor and Registrar shall be converted to the post of Lecturer. This is a fundamental requirement that for appointment on a government post the applicant must possess the minimum educational qualification and any mistake committed by the examining body or the authority in accepting candidature of an ineligible candidate shall not vest any legal right in him to continue on the post for which he does not possess essential educational qualification. 10. In “State of Gujarat v. Arvindkumar T. Tiwari” (2012) 9 SCC 545 the Hon’ble Supreme Court has observed as under: “14. 10. In “State of Gujarat v. Arvindkumar T. Tiwari” (2012) 9 SCC 545 the Hon’ble Supreme Court has observed as under: “14. A person who does not possess the requisite qualification cannot even apply for recruitment for the reason that his appointment would be contrary to the statutory rules, and would therefore, be void in law. Lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to serious illegality and not mere irregularity. Such a person cannot approach the court for any relief for the reason that he does not have a right which can be enforced through court. (See Prit Singh v. S.K. Mangal and Pramod Kumar v. U.P. Secondary Education Services Commission.)” 11. The stand set up by the respondent that in Clause 5(kha) of the Bihar Education Service Cadre Rules an additional qualification of holding a postgraduate degree cannot be read for absorption of a Resident Medical Officer on the post of Lecturer inasmuch as no such qualification was prescribed under Clause 15 of the advertisement vide Notification No. 163(17) cannot be accepted. In our opinion, the Resident Medical Officers and Registrars who had submitted their option for Medical Education Service Cadre must possess the minimum educational qualification for the post of Lecturer. As noticed above, even before the Notification dated 24th July 2009 a postgraduate qualification in the subject was the necessary educational qualification for appointment on the post of Assistant Professor/Lecturer. Even otherwise, there cannot be a law by virtue of which a person shall be automatically deemed to hold the post of Lecturer notwithstanding the said person not possessing the minimum educational qualification. In CWJC No. 5577 of 1997 in which the notification issued for relieving the Resident Medical Officer/Surgical Officer/Registrar to the Health Services Cadre (similar to the present notification dated 20th February 2019) on completion of their tenure was considered by the High Court but the issue of qualification was not raised by any party and therefore learned Single Judge also did not consider this issue whether to treat such officers as Lecturers, without having essential qualification(s). 12. CWJC No. 5577 of 1997 was disposed of by an order dated 14th January 1999 with the following observations: “8. 12. CWJC No. 5577 of 1997 was disposed of by an order dated 14th January 1999 with the following observations: “8. In this context the petitioners are aggrieved by the impugned order at Annexure-3 by which it has been stated that the persons holding tenure posts of Resident Medical/Surgical Officer/Registrar on completion of their tenure shall automatically be reverted back to the basic Health Service Cadre. The petitioners are objecting the said clause in the impugned order at Annexure-3. The petitioner’s contentions are that since they are continuing in the post of Resident Medical/Surgical Officer/Registrar on the day when rule came into force, and thereafter they have exercised their option to remain in the Medical Education Cadre, they become Lecturer by operation of law. This right which has been given to them under the rule framed under Art. 309 of the Constitution and cannot be taken away by the executive direction contained in Annexure-3. 9. This contention raised by the petitioners is substantially correct, and in paragraph nos. 24 to 25 of the writ petition and also in para-27 of the writ petition these contentions have been raised by the petitioner. In the counter affidavit those averments have not at all been properly answered. Apart from that it is well settled that a right conferred to a person on the basis of Rule under Art. 309 is a right conferred to the incumbent concerned under a law. It is also well settled that the rules framed under Art. 309 are legislative in character. Such right given under a law can be given even with retrospective effect. Therefore, the right created under such law cannot be overridden by the executive circulars as is sought to be done by annexure-3. 10. This Court is of the opinion that those petitioners who are Resident Medical Officers and Registrars on the date of coming into force the said rule, namely, 21st May, 1997 and those who have exercised their option, they become Lecturer by operation of law, and in their cases annexure-3 will not apply. Annexure-3 is therefore modified to the extent indicated above. 11. This writ petition is thus allowed to the extent indicated above…”. 13. Annexure-3 is therefore modified to the extent indicated above. 11. This writ petition is thus allowed to the extent indicated above…”. 13. The reliance placed by the writ Court on “N.T. Devin Katti and Others v. Karnataka Public Service Commission and Others” (1990) 3 SCC 157 is also misplaced inasmuch as “N.T. Devin Katti” was a case of appointment of a candidate who was otherwise eligible. In “N.T. Devin Katti” the Hon’ble Supreme Court observed that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection. But if he is eligible and otherwise qualified, he must be considered for selection in accordance with the existing rules. 14. In “N.T. Devin Katti” the Hon’ble Supreme Court held as under: 11. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing rules or government orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing rules and government orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection is accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature.” 15. The plea put forth by the respondent that having worked for long nineteen years as a Lecturer he has acquired a vested right and must be deemed to be holding the post of Lecturer is also liable to be rejected. The learned senior counsel for the respondent relied on a decision in “Dr. M.S. Mudhol and Another v. S.D. Halegkar and Others (1993) 3 SCC 591 to submit that after lapse of nineteen years it was not fair and proper on the part of the State of Jharkhand to send back the respondent in the original cadre. The learned senior counsel has laid specific stress on paragraph nos. 6 and 7 of the reported judgment which read as under: “6. Since we find that it was the default on the part of the 2nd respondent, Director of Education in illegally approving the appointment of the first respondent in 1981 although he did not have the requisite academic qualifications as a result of which the 1st respondent has continued to hold the said post for the last 12 years now, it would be inadvisable to disturb him from the said post at this late stage particularly when he was not at fault when his selection was made. There is nothing on record to show that he had at that time projected his qualifications other than what he possessed. If, therefore, in spite of placing all his cards before the selection committee, the selection committee for some reason or the other had thought it fit to choose him for the post and the 2nd respondent had chosen to acquiesce in the appointment, it would be inequitous to make him suffer for the same now. Illegality, if any, was committed by the selection committee and the 2nd respondent. They are alone to be blamed for the same. 7. Whatever may be the reasons which were responsible for the non-discovery of the want of qualifications of the 1st respondent for a long time, the fact remains that the court was moved in the matter after a long lapse of about 9 years. The post of the Principal in a private school though aided, is not of such sensitive public importance that the court should find itself impelled to interfere with the appointment by a writ of quo warranto even assuming that such a writ is maintainable. This is particularly so when the incumbent has been discharging his functions continuously for over a long period of 9 years when the court was moved and today about 13 years have elapsed. The infraction of the statutory rule regarding the qualifications of the incumbent pointed out in the present case is also not that grave taking into consideration all other relevant facts. In the circumstances, we deem it unnecessary to go into the question as to whether a writ of quo warranto would lie in the present case or not, and further whether mere laches would disentitle the petitioners to such a writ.” 16. In “Dr. M. S. Mudhol” the appointment on the post of the Principal of a Higher Secondary School was challenged nine years after the appointment was made on the ground that he did not possess minimum qualification. The Hon’ble Supreme Court having found that on the date of the proposed removal from the post of Principal the incumbent had acquired requisite teaching experience and, that, the infraction regarding the qualification of the incumbent was also not that grave. Taking into consideration all other relevant facts, the Hon’ble Supreme Court held that it would be inequitous to make him suffer for the fault of the respondent. Taking into consideration all other relevant facts, the Hon’ble Supreme Court held that it would be inequitous to make him suffer for the fault of the respondent. Having thus considered every aspect of the matter, we find that whether or not the respondent possesses the minimum educational qualification for appointment on the post of Lecturer was overlooked by the writ Court. The writ Court mis-interpreted the order passed by the Patna High Court in CWJC No. 5577 of 1997 that by operation of law the respondent who gave an option for joining the Bihar Medical Education Service Cadre shall be automatically treated as Lecturer. 17. We are therefore of the considered opinion that the writ Court’s order dated 27th September 2021 warrants interference and is accordingly set aside. 18. LPA No. 12 of 2022 is allowed. 19. Within six weeks all admissible post retiral benefits shall be paid to the respondent by calculating his pension according to the last grade pay drawn by him. 20. I.A. No. 456 of 2022, I.A. No. 2396 of 2022 and I.A. No. 8437 of 2023 stand disposed of.