Dr. Professor Rajendra Chaudhary vs The State Of Uttar Pradesh

Petition is violative of Uttar Pradesh Public Service

(Reservation for Scheduled Castes, Scheduled Tribes and

Other Backward Classes) Act, 1994 (for short “the

Reservation Act): and

b) Whether enhancement of the upper age limit for

appointment to the post of Professor by direct recruitment

is contrary to the Uttar Pradesh Medical Colleges Teachers’

Service (Second Amendment) Rules, 2005.

Reservation for Appointment by Direct Recruitment to the Post of Professor: -

4. The main contention of the Writ Petitioners belonging

to reserved categories is that the advertisement issued for

appointment by direct recruitment to the post of Professor

in Government Medical Colleges is contrary to the

Reservation Act as no reservations were provided for

reserved category. They relied upon Section 3 of the

Reservation Act to submit that reservation is mandatory for

appointment by direct recruitment in public service. The [3] percentages of reservation for recruitment to be made as

per the roster in accordance with Section 3(5) are as

follows:

• Scheduled Castes : 21 per cent • Scheduled Tribes : 02 per cent • Other Backward Classes : 27 per cent

For better appreciation of the dispute, it is relevant to

reproduce Section 3 of the Reservation Act which is as

follows:

“Section 3: Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes. – [(1) In public services and posts, there shall be reserved at the stage of direct recruitment, the following percentage of vacancies to which recruitments are to be made in accordance with the roster referred to in sub- section (5) in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens, -

(a) In case of Scheduled Caste: Twenty-one per cent;

(b) In the case of Scheduled Tribes: Two per cent;

(c) In the case of Other Backward Classes of citizens:

Twenty-seven per cent:

Provided that the reservation under clause (c) shall not apply to the category of Other Backward Classes of citizens specified in Schedule II:

[4] Provided further that reservation of vacancies for all categories of persons shall not exceed in any year of recruitment fifty per cent of the total vacancies of that year as also fifty per cent of cadre strength of the service to which the recruitment is to be made:

(2) xxx (3) xxx (4) xxx

(5) The State Government shall for applying

the reservation under sub section (1), by a notified order, issue a roster comprising the total cadre strength of the public service or post indicating therein the reserve points and the roster so issued shall be implemented in the form of a running account from year to year until the reservation for various categories of persons mentioned in sub-

section (1) is achieved and the operation of the roster and the running account shall, thereafter, come to an end, and when a vacancy arises thereafter in public service or post the same shall be filled from amongst the persons belonging to the category to which the post belongs in the roster.”

5. The Appellants placed before us the Service Rules

which govern the recruitment to the posts of Professors in

Government Medical Colleges. Rule 5 of Service Rules [5] provides for recruitment to the posts of Professors covered

by Category ‘B” in Appendix ‘A’ by direct recruitment.

Appendix ‘A’ to the Service Rules gives the sanctioned

strength in all the specialties/ departments in the

Government Medical Colleges. There are two Categories in

Appendix ‘A’. Category ‘A’ pertains to posts that are to be

filled up by personal promotion and Category ‘B’ relates to

posts that are to be filled up by direct recruitment.

According to the Appellants, the total number of posts and

vacancies in the entire cadre has to be taken into account

for providing reservations for appointment to the posts of

Professors. They allege that the action of the Respondents

in not providing reservations on the ground that the

number of vacancies available in each speciality/

department was less than four was unjustified.

6. Respondent Nos. 1 and 2 justified their action in not

providing reservations for appointment by direct

recruitment to the posts of Professors. According to the

Rules, 75 per cent of the posts shall be filled by personal

promotion and remaining 25 per cent by direct recruitment.

Reservation for candidates belonging to Scheduled Castes,

[6] Scheduled Tribes and Other Backward Classes category is

provided in Rule 6 of the Service Rules. The Reservation Act

has been incorporated by reference into the Service Rules.

The State contends that the proviso to Rules 6 is significant.

The proviso makes it clear that the total number of posts

belonging to each speciality/ department in Category ‘A’

shall be deemed as a single unit. In other words,

reservation for the posts to be filled up in Category ‘A’ shall

be speciality/ department wise. Reference is drawn to

Section 3 of the Reservation Act to contend that the

percentage of vacancies fixed therein relate to the stage of

direct recruitment only. Relying upon the note to Appendix

‘A’, the Respondents urge that reservations for

appointment by direct recruitment can be implemented

only in case there are more than four posts available in

each department. It is the submission of the Respondents

that the available posts in all the departments were less

than four. Though five posts were available in General

Medicine and General Surgery specialties, the number of

posts to be filled up were only two in each department in

view of an interim order passed by the High Court of

[7] Judicature at Allahabad in Writ - A No. 7910 of 2006.

Therefore, the State submitted that reservations could not

be provided for in the advertisement in accordance with the

Service Rules. Reliance was placed on a judgment of this

Court in State of U.P. v. M.C. Chattopadhayaya1 in

support of the submission that the entire cadre cannot be

taken into account for providing reservations. In support of

the above submission, the Respondents relied upon a

decision of the Full Bench of the High Court of Judicature at

Allahabad in Heera Lal v. State of U.P. & Ors2.

7. Rule 6 of the Service Rules makes reservation

applicable for appointment to direct recruitment to the

posts of Professors. There is no dispute that the proviso

postulates that each speciality/ department in Category ‘A’

shall be deemed as a single unit. Category ‘A’ pertains to

posts earmarked for promotion to the extent of 75 per cent

of the cadre posts. The remaining 25 per cent are to be

dealt with in Category ‘B’ which shall be filled up by direct

recruitment. A perusal of Category ‘B’ of Appendix ‘A’ to

the Service Rules would disclose that the departments to

1 (2004) 12 SCC 333 2 (2010) 82 ALR 453 (FB)

[8] which advertisement was issued for appointment of

Professors have less than four posts, except two

departments i.e. General Medicine and General Surgery. In

these two departments, only two posts of Professors in

each department were available for being filled up.

Therefore, only four posts in each department were

available for being filled up by direct recruitment as per the

advertisement dated 21.12.2015.

8. It is relevant to refer to a judgment of the High Court

of Judicature at Allahabad in Dr. Juhi Singhal & Ors. v.

State of U.P. & Anr.3 which examined a challenge to the

advertisement dated 21.12.2015 which is the subject

matter of these Appeals. The High Court upheld the

notification by holding that there is no infringement of the

Service Rules.

9. A full Bench of the High Court of Judicature at

Allahabad considered the applicability of reservations to

Scheduled Castes under the Reservation Act, as applicable

to the aided institutions. It was held that the Reservation

Act cannot be pressed into service where the number of

3 Service Bench No.4292 of 2016 [9] posts in the cadre are less than five. After considering the

facts placed before us and the submissions made on behalf

of the Appellants and the Respondents, we are satisfied

that no error has been committed by the Respondents in

not providing reservations for appointment by direct

recruitment to the post of Professor in Government Medical

Colleges. The unit of appointment is speciality/ department

and the number of posts available in each speciality/

department is less than five. Category ‘B’ in Appendix ‘A’

of the Service Rules refers to direct recruitment which is the

subject matter of the advertisement. The Appellants’

contention that the cadre of Professors in all the

departments put together has to be taken into account for

providing reservations has rightly been rejected by the High

Court of Judicature at Allahabad.

Enhancement of Upper Age Limit:

10. Rule 9 of the Service Rules provides that maximum

age limit for appointment to the post of Professor is 45

years. It is the case of the Appellants that the upper age

limit of 65 years prescribed by the advertisement is

[10] contrary to Rule 9 of the Service Rules. The Appellants

argued that the enhancement of the upper age limit was

done by a Government Order dated 06.02.2015. According

to them, a rule made under the proviso to Article 309 of the

Constitution of India could not be overridden by an

executive order.

11. The Respondents contended that minimum

qualifications for teachers in Minimum Qualifications for

Teachers in Medical Institutions Regulations, 1998 (for

short, ‘the Regulations’) were framed by the Medical

Council of India (MCI) governing the maximum age for

appointment of Professors in Medical Colleges. They have

been amended from time to time. According to the said

amended Regulations, the maximum age is set at 70 years.

The Government considered it appropriate to enhance the

upper age limit for appointment of direct recruitment to the

post of Professor from 45 years to 65 years. The

Government Order issued on 06.02.2015 for increasing the

age has not been challenged by the Appellants. The

Respondents relied upon the judgment of the High Court of

Judicature at Allahabad in the case of Dr. Juhi Singhal [11] (supra) which pertains to the same advertisement that is

the subject matter of these Appeals. Reliance is also

placed upon the judgment in Navyug Abhiyan Samiti v.

State of U.P. In the said case, the High Court was

concerned with the appointment to the post of Principal

(Allopathy) and the challenge of the Writ Petitioners therein

was relating to the increase of the upper age limit to 65

years. The Division Bench examined the provisions of the

MCI Regulations referred above, by which the maximum

age for the post of Principal was fixed at 70 years and held

that the age of recruitment as prescribed by the MCI in the

Regulations shall prevail over the provisions of Rule 9 of the

Service Rules. The Special Leave Petition filed against the

said judgment was dismissed by this Court on 08.05.2019.

It was stated on behalf of the Government that no direct

recruitment to the posts of Professors in Government

Medical Colleges could be made for 12 years prior to 2015

since eligible and competent persons were not coming

forward to participate in the selections. To ensure larger

participation for selection to the posts of Professors, the

Government was of the view that the upper age limit

[12] should be enhanced to 65 years. It was further argued on

behalf of the Government that no prejudice is caused to the

Petitioners by the increase in the maximum age.

12. Having considered the submissions of the parties, we

approve the finding recorded by the High Court that the

decision to increase the upper age limit from 45 years to 65

years is not vitiated. The High Court rejected the challenge

to the enhancement of upper age limit for direct

recruitment to the post of Professor in Dr. Juhi Singhal

(supra) by holding that the Regulations framed by the MCI

would prevail over the Service Rules. In the said judgment,

the High Court was of the view that the Government Order

dated 06.02.2015 only supplements the Rules and does not

supplant them. The High Court further observed that the

relaxation was done in view of the shortage of teachers in

Medical Institutions who are qualified for appointment to

the posts of Professors. The relaxation of the upper age

limit was applicable only to those departments where 25

per cent or more posts were vacant and in respect of other

departments, the State Government decided not to fill

them up. In Navyug Abhiyan Samiti (supra), the Division

[13] Bench of the High Court followed the same logic and

reasoning while considering the increase of upper age limit

to the post of Principals in Government Medical Colleges.

We see no reason to disagree with the said findings

recorded by the High court. There can be no manner of

doubt that the Regulations framed by the MCI relating to

the conditions of service of Professors in Medical Colleges

shall prevail over the Service Rules framed by the State of

Uttar Pradesh. The Government Order dated 06.02.2015

has not been challenged by the Appellants for which reason

they cannot make any grievance about the same.

13. The posts of Professors in Government Medical

Colleges being manned for 15 years prior to 2015 by

unqualified persons indicates the distressing state of affairs

of medical education in the State of Uttar Pradesh. To

remedy a grave situation, the State has taken a decision to

make appointments by increasing the maximum age limit.

The sincere attempt made by the State to have qualified

doctors holding the posts of Professors has not yielded any

results due to the pendency of cases which are filed

challenging the advertisement. The Respondents are

[14] directed to expedite the process of selection to the posts of

Professors and make appointments at the earliest.

14. For the aforementioned reasons, the Appeals are

dismissed.

..…...........................J. [L. NAGESWARA RAO]

.

….......................J. [HEMANT GUPTA] New Delhi, August 28, 2019

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