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A.F.R.

Court No. - 40

Case :- WRIT - A No. - 15873 of 2021

Petitioner :- Anand Bihari

Respondent :- State Of U.P. And 2 Others

Counsel for Petitioner :- Vineet Kumar Singh,Sr. Advocate

Counsel for Respondent :- C.S.C.,Avanish Mishra,M.N.

Singh,Nipun Singh

Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Vikas Budhwar,J.

1.Heard Sri H.N. Singh, learned Senior Advocate assisted by

Sri Rishabh Srivastava, learned counsel for the petitioner, learned

Standing Counsel for the respondent no. 1, Sri Nipun Singh,

learned counsel for the respondent no. 2 and Sri Avanish Mishra,

learned counsel for the respondent no. 3.

2.This writ petition has been filed for the following relief:-

A. Issue a writ order or direction in the nature of certiorari

calling the respondents to produce the order of the State

Government dated 13 December, 2017 referred in the order

of the Joint Secretary U.P. Public Service Commission

dated 21 December, 2017 and the Hon'ble Court may be

pleased to quash the order of the State Government dated

13 December, 2017, the order of the Joint Secretary U.P.

Public Service Commission dated 21 December, 2017

(Annexure-5) and all the further proceeding of selection on

the post of Lecturer cum Statistician advertised by U.P.

Public Service Commission by Advertisement No. 4/2014-

2015 dated 17.03.2015 including interview of the said

selection scheduled on 9th November, 2021.

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B. Issue a writ order or direction in the nature of certiorari

quashing the qualification prescribed by Medial Council of

India now National Medical Commission (N.M.C.) by

Minimum Qualification for Teachers in Medical

Institutions Regulations, 1998 for the post of Lecturer cum

Statistician in the department of Community Medicine so

far it requires the experience of 3 years as

Tutor/Demonstrator/Resident/Registrar/Epidemiologist/He

alth Officer.

C. Issue a writ order or directions in the nature of

mandamus commanding the respondents to say all

selection proceeding including interview of the post of

Lecturer Statistics advertised by U.P. Public Service

Commission vide advertisement No. 4/2014-2015 dated

17.03.2015 during the pendency of the writ petition before

the Hon'ble Court.

D. Issue any other writ, order or direction which this

Hon'ble Court may deem fit and proper in the facts and

circumstances of the case.

E. Award the cost of writ petition.

3.The submissions of learned counsel for the petitioner are as

under:-

(i) The qualification prescribed by the Medical Council of India for

the post of Lecturer (Statistics) is non workable in as much as there

shall be none who may have three years teaching experience from

such recognized medical college as Resident/ Registrar/

Demonstrator/Tutor.

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(ii) The respondents are neither adhering to the advertisement nor

to the guidelines of the Medical Council of India in connection

with the selection process for the post of Lecturer in Statistics, in-

as-much as the prescribed qualification requiring for three years

teaching experience as Resident/Registrar/Demonstrator/Tutor

contractual basis is not workable and possible hence deserves to be

set aside. Although, the petitioner also possesses the experience

but it was acquired by him subsequent to the advertisement. The

person who possess post graduate in Statistics, cannot possess the

experience of Resident/Registrar/Demonstrator/Tutor, for which

the qualification prescribed by the Medical Council of India is

M.B.B.S. Therefore, a candidate cannot possess both the

qualifications, namely, M.Sc. (Statistics) and M.B.B.S. The

persons who have been short listed, do not possess the required

qualification, as provided in the guidelines of the Medical Council

of India and the advertisement, read with the qualification

letter/impugned order dated 13.12.2017. Only the qualification as

prescribed by the Medical Council of India can be made applicable

for selection on the post of Lecturer (Statistics). Therefore, the

persons short-listed and called for interview, cannot be selected in-

as-much as they do not possess the required qualification,

prescribed by Medical Council of India.

4.Sri Nipun Singh, learned counsel for the respondent no. 2

submits that interview has finally taken place today i.e. 09.11.2021

in which five candidates were called, out of which, four candidates

have turned up to appear in the interview. He submits that selection

has been made in accordance with the qualification and experience

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provided in the "Minimum Qualification for Teachers in Medical

Institutions Regulations, 1998".

5.Sri Avanish Mishra, learned counsel for the respondent no. 3

submits that the petitioner participated in the entire selection

process but when he was not called for interview being not

illegible, only then he filed the present writ petition challenging the

Regulation 1998. Thus, the relief sought by the petitioner is lead to

the principle of approbate and reprobate and therefore, the writ

petition deserves to be dismissed.

6.The learned Standing Counsel supports the impugned order

and submits that the writ petition is hit by the principle of laches

in-as-much as it has been filed to challenge the impugned order

dated 21.12.2017, after more than three years, without any proper

explanation for delay.

7.We have carefully considered the submissions of learned

counsel for the parties and perused the record.

8.The Medical Council of India in exercise of the powers

conferred by section 33 of the Indian Medical Council Act 1956

(102 of 1956) with the previous sanction of the Central

Government has enacted the “Medical Council of India Minimum

Qualification for Teachers in Medical Institutions Regulations,

1998" (As amended up to 08.06.2017) regulating the appointment

of medical teachers, with minimum qualification and experience in

various departments of medical colleges and institutions imparting

graduate and post graduate education.

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9.The qualification for the post of Lecturer in Statistics as

well as of Tutor/ Demonstrator/ Resident/ Registrar/

Epidemiologist/ Health Officer is reproduced below:-

Lecturer in

Statistics

M.Sc

(Statistics)

(i)Requisite recognised

postgraduate qualification in the

subject.

(ii) Three years teaching

experience in the subject in a

recognised medical college as

Resident/Registrar/Demonstrator/

Tutor

Tutor/

Demonstrator/

Resident/

Registrar/

Epidemolo

gist/Health

Officer

M.B.B.S.

10.Thereafter, an advertisement was published by the respondent

no. 2 being Advertisement No. 4/2014-15 date: 17/03/2015 inviting

applications to fill up various posts in different departments in the

State of Uttar Pradesh including the post of Lecturer-Statistic. The

relevant extract of the advertisement is being quoted hereunder:-

“Serial No. 17. Lecturer-Statistician cum Lecturer (A) A

post graduate degree in the concerned subject recognized by

University/Institute.”

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11.The counsel for the respondent no. 2 has argued that there are

number of candidates who had applied for the said post having the

qualification so prescribed by the Medical Council of India but as

on the date of advertisement the petitioner did not have three years

teaching experience in the subject in a recognized medical collage

as Tutor/Demonstrator/Resident/Registrar.

12.Prescription of qualification and other conditions of service is

essentially and primarily the field of policy exclusively with the

domain of the employer subject to the limitation envisaged in the

Constitution of India and it is not for this Court while exercising its

jurisdiction under Article 226 of the Constitution to arrogate to

itself that function. It is neither the function nor the role of the

Court to adjudge or assess the suitability or desirability of a

particular qualification that may be stipulated. Equivalence of

degree and educational qualification is necessarily the function

reserved for the experts in the field namely the academicians.

13.In the case of P.V. Joshi And Others Vs. Accountant

General, Ahemdabad And Others 2003 (2) SCC 632 the Hon’ble

Supreme Court has held as under:-

“10.We have carefully considered the submissions made on behalf of

both parties. 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

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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 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 by us)

14.In the case of Sanjay Kumar Manjul v. U.P.S.C.(2006) 8

SCC 42 the Hon’ble Apex Court has held as under:-

“25. The statutory authority is entitled to frame statutory rules

laying down terms and conditions of service as also the

qualifications essential for holding a particular post. It is only the

authority concerned who can take ultimate decision therefor.

26. The jurisdiction of the superior courts, it is a trite law, would be

to interpret the rule and not to supplant or supplement the same.

27. It is well-settled that the superior courts while exercising their

jurisdiction under Articles 226 or 32 of the Constitution of India

ordinarily do not direct an employer to prescribe a qualification for

holding a particular post.” (Emphasis supplied by us)

15.The Supreme Court in the case of Zahoor Ahmad

Rather Vs. Sheikh Imtiyaz Ahmad (2019) 2 SCC 404 has

held as under:-

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"26. ...... The prescription of qualifications for a post is a

matter of recruitment policy. The State as the employer is

entitled to prescribe the qualifications as a condition of

eligibility. It is no part of the role or function of judicial review

to expand upon the ambit of the prescribed qualifications.

Similarly, equivalence of a qualification is not a matter which

can be determined in exercise of the power of judicial review.

Whether a particular qualification should or should not be

regarded as equivalent is a matter for the State, as the

recruiting authority, to determine. The decision in Jyoti

K.K. [Jyoti K.K. v. Kerala Public Service Commission, (2010)

15 SCC 596 : (2013) 3 SCC (L&S) 664] turned on a specific

statutory rule under which the holding of a higher qualification

could presuppose the acquisition of a lower qualification. The

absence of such a rule in the present case makes a crucial

difference to the ultimate outcome. In this view of the matter,

the Division Bench [Imtiyaz Ahmad v. Zahoor Ahmad Rather,

LPA (SW) No. 135 of 2017, decided on 12-10-2017 (J&K)] of

the High Court was justified in reversing the judgment

[Zahoor Ahmad Rather v. State of J&K, 2017 SCC OnLine

J&K 936] of the learned Single Judge and in coming to the

conclusion that the appellants did not meet the prescribed

qualifications. We find no error in the decision [Imtiyaz

Ahmad v. Zahoor Ahmad Rather, LPA (SW) No. 135 of 2017,

decided on 12-10-2017 (J&K)] of the Division Bench."

(Emphasis supplied by us)

16.The Hon’ble Apex Court in the case of Maharashtra

Public Service Commission Vs. Sandeep Shriram Warade

2019 (6) SCC 362 has held as under:-

“9. The essential qualifications for appointment to a post are

for the employer to decide. The employer may prescribe

additional or desirable qualifications, including any grant of

preference. It is the employer who is best suited to decide

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the requirements a candidate must possess according to the

needs of the employer and the nature of work. The court

cannot lay down the conditions of eligibility, much less can it

delve into the issue with regard to desirable qualifications

being on a par with the essential eligibility by an interpretive

re-writing of the advertisement. Questions of equivalence

will also fall outside the domain of judicial review. If the

language of the advertisement and the rules are clear, the

court cannot sit in judgment over the same. If there is an

ambiguity in the advertisement or it is contrary to any rules

or law the matter has to go back to the appointing authority

after appropriate orders, to proceed in accordance with law.

In no case can the court, in the garb of judicial review, sit in

the chair of the appointing authority to decide what is best

for the employer and interpret the conditions of the

advertisement contrary to the plain language of the same."

(Emphasis supplied by us)

17.More recently three learned Judges of the Supreme

Court in Punjab National Bank Vs. Anit Kumar Das 2020

SCC Online SC 897 has observed as under:-

"21. Thus, as held by this Court in the aforesaid decisions, i t

is for the employer to determine and decide the relevancy

and suitability of the qualifications for any post and it is not

for the Courts to consider and assess. A greater latitude is

permitted by the Courts for the employer to prescribe

qualifications for any post. There is a rationale behind it.

Qualifications are prescribed keeping in view the need and

interest of an Institution or an Industry or an establishment

as the case may be. The Courts are not fit instruments to

assess expediency or advisability or utility of such

prescription of qualifications......"

(Emphasis supplied by us)

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18.A full Bench decision of this Court in the case of Deepak

Singh and Others Vs. State of U.P. and Others (2020) All LJ

596 (FB) held as under:-

“The State Government, while prescribing the essential

qualifications or desirable qualifications are best suited to decide

the requirements for selecting a candidate for nature of work

required by the State Government and the courts are precluded

from laying down the conditions of eligibility. If the language in

the Rules is clear judicial review cannot be used to decide what is

best suited for the employer.” (Emphasis supplied by us)

19.The proposition of law as culled out by the Hon’ble Apex

Court as well as this Court clearly mandates that the Court under

Article 226 of the Constitution of India cannot trench into the

province which is earmarked for the rule making authority and

discharge the role and the function of the experts to prescribe a

particular qualification for a post to be filled namely, the

academicians.

20.The submission of learned Senior Counsel for the petitioner

that there is inconsistency in the prescription of the qualification

provided in the advertisement in question viz a viz the qualification

prescribed by the Medical Council of India in the Regulations of

1998, is thoroughly misconceived. From bare perusal of the

advertisement in question, it is clear that it stipulates the condition

that the qualification prescribed in the Regulations of 1998 is to be

followed and a candidate is to be selected on the basis of said

qualification.

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21.The Hon’ble Apex Court in the case of Asheesh Kumar Vs.

State of U.P. and Others (2018) 3 SCC 55 has cautioned in para

27, as under:-

“27. Any part of the advertisement which is contrary

to the statutory rule has to give way to the statutory

prescription. Thus, looking to the qualification

prescribed in the statutory rules, appellant fulfills the

qualification and after being selected for the post

denying appointment to him is arbitrary and illegal. It

is well settled that when there is variance in the

advertisement and in the statutory rules, it is

statutory rules which take precedence. In this

context, reference is made in judgment of this Court

in the case of Malik Mazhar Sultan & Anr. Vs. U.P.

Public Service Commission & Ors., 2006 (9) SCC

507. Paragraph 21 of the judgment lays down above

proposition which is to the following effect:

"21. The present controversy has arisen as the

advertisement issued by PSC stated that the

candidates who were within the age on

01.07.2001 and 01.07.2002 shall be treated

within age for the examination. Undoubtedly,

the excluded candidates were of eligible age as

per the advertisements but the recruitment to

the service can only be made in accordance with

the Rules and the error, if any, in the

advertisement cannot override the Rules and

create a right in favour of a candidate if

otherwise ot ligible according to the Rules. The

relaxation of age can be granted only of

permissible under the Rules and not on the basis

of the advertisement. If the interpretation of the

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Rules by PSC when it issued the advertisement

was erroneous, no right can accrue onbasis

thereof. Therefore, the answer to the question

would turn upon the interpretation of the Rules.”

(Emphasis supplied by us)

22.There is another aspect of the matter which is to be taken

notice of and be addressed with regard to the undisputed fact that

the advertisement in question as well as the selection for the post

of Lecturer in Statistics is being challenged after a period of 4

years. The advertisement itself was issued way back in the year

2015. The writ petition has been filed in the last of the month of

October, 2021 whereas the date of the interview has been fixed on

09.11.2021. Neither there is any pleading with regard to the

reasons for delay in approaching this Court nor any serious

argument has been raised in this regard by the learned counsel for

the petitioner. Thus, the writ petition is also hit by laches.

23. The Hon’ble Apex Court in the case of P.S. Sadasivaswamy

Vs. State of Tamil Nadu (1975) 1 SCC 152 has considered the

question of laches and held as under:-

“2. .....if the appellant was aggrieved by it he should have approached

the Court even in the year 1957 after the two representations made by

him had failed to produce any result. One cannot sleep over the matter

and come to the Court questioning that relaxation in the year 1971.

…….in effect he wants to unscramble a scrambled egg. It is very

difficult for the Government to consider whether any relaxation of the

rules should have been made in favour of the appellant in the year 1957.

The conditions that were prevalent in 1957 cannot be reproduced now.

…….It is not that 'here is any period of limitation for the Courts to

exercise their powers under Article 226 nor is it that there can never be

a case where the Courts cannot interfere in a matter after the passage of

a certain length of time. But it would be a sound and wise exercise of

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discretion for the Courts to refuse to exercise their extra-ordinary

powers under Article 226 in the case of persons who do not approach

it expeditiously for relief and who stand by and allow things to happen

and then approach the Court to put forward stale claims and try to

unsettle settled matters” (Emphasis supplied by us)

24.The Hon’ble Apex Court in the case of in SS Balu v. State of Kerala

(2009) 2 SCC 479, observed thus:

“17. It is also well-settled principle of law that “delay defeats equity”. …It is

now a trite law that where the writ petitioner approaches the High Court

after a long delay, reliefs prayed for may be denied to them on the ground

of delay and laches irrespective of the fact that they are similarly situated to

the other candidates who obtain the benefit of the judgment.”

(Emphasis supplied by us)

25.Similarly, in the case of Vijay Kumar Kaul v. Union of

India (2012) 7 SCC 610 the Hon’ble Apex Court has held as

under:-

“27. …It becomes an obligation to take into consideration the balance

of justice or injustice in entertaining the petition or declining it on the

ground of delay and laches. It is a matter of great significance that at

one point of time equity that existed in favour of one melts into total

insignificance and paves the path of extinction with the passage of

time.”

(Emphasis supplied by us)

26.The Hon’ble Apex Court in State of Uttar Pradesh v.

Arvind Kumar Srivastava (2015) 1 SCC 347, has observed that:-

“ 22.1. The normal rule is that when a particular set of employees is given

relief by the court, all other identically situated persons need to be treated

alike by extending that benefit. Not doing so would amount to discrimination

and would be violative of Article 14 of the Constitution of India. This

principle needs to be applied in service matters more emphatically as the

service jurisprudence evolved by this Court from time to time postulates that

all similarly situated persons should be treated similarly. Therefore, the

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normal rule would be that merely because other similarly situated persons

did not approach the Court earlier, they are not to be treated differently.

22.2. However, this principle is subject to well-recognised exceptions in the

form of laches and delays as well as acquiescence. Those persons who did

not challenge the wrongful action in their cases and acquiesced into the same

and woke up after long delay only because of the reason that their

counterparts who had approached the court earlier in time succeeded in their

efforts, then such employees cannot claim that the benefit of the judgment

rendered in the case of similarly situated persons be extended to them. They

would be treated as fence-sitters and laches and delays, and/or the

acquiescence, would be a valid ground to dismiss their claim.”

27.Recently, the Hon’ble Apex Court in the Civil Appeal No.

852 of 2020 decided on 31.01.2020 in the case of

Chairman/Managing Director U.P. Power Corpporation Ltd.

& others Vs. Ram Gopal has held as under:-

“16. Whilst it is true that limitation does not strictly apply to

proceedings under Articles 32 or 226 of the Constitution of

India, nevertheless, such rights cannot be enforced after an

unreasonable lapse of time. Consideration of unexplained

delays and inordinate laches would always be relevant in writ

actions, and writ courts naturally ought to be reluctant in

exercising their discretionary jurisdiction to protect those

who have slept over wrongs and allowed illegalities to fester.

Fencesitters cannot be allowed to barge into courts and cry for

their rights at their convenience, and vigilant citizens ought

not to be treated alike with mere opportunists.”

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us)

28.Following the principles of law laid down in the above noted

judgments we find that there is unexplained delay of

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approximately 4 years in filing the present writ petition. Thus, the

present writ petition is also barred by laches.

29.In totality of the matter this Court finds that the post of

Lecturer-cum-Statistician is a specialized post in a medical

fraternity and the prescription of qualification is a specialized task

of the experts being academicians which cannot be made a subject

matter of a judicial review, particularly when there is nothing on

record to show that the rule making authority has no legislative

competence to lay down the qualification.

30.Resultantly, the present writ petition is devoid of merit and is

hereby dismissed.

Order Date :- 9.11.2021

Nisha