Allowed

Dr Hemant Narayan Ray v. the State of Jharkhand through Secretary Deptt of Health Family Welfare and Medical Education

Jharkhand HC11 Apr 2022WPC/265/2022

Case brief

AI extract

What is this about?

Challenge to an office order making Associate Professors Heads of Departments at a medical institute, displacing the senior-most Professors. The court held that MCI/NMC regulations mandatorily require the Head of Department to be of the rank of Professor, that the Governing Body's rotational headship policy could not dilute those standards, quashed the order and directed appointment of the petitio

What did the court decide?

Impugned office order (Annexure-5) quashed and set aside; RIMS directed to appoint the petitioners as Head of their respective Departments subject to their fulfilling other requisite qualifications/cr

Dr Hemant Narayan Ray Vs the State of Jharkhand… — Education and Admissions | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(S) No. 265 of 2022

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Dr. Hemant Narayan Ray

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Dr. Manoj Kumar

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Dr. Hirendra Birua

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Dr. Suresh Kumar Toppo

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….. …. Petitioners

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Versus

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The State of Jharkhand through the Secretary, Department of Health, Family Welfare & Medical Education, Project Building, Dhurwa, Ranchi.

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Rajendra Institute of Medical Sciences (RIMS), through its Director, having its office at RIMS, Bariatu, Ranchi

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Dr. Prakash Kumar, son of Sri Nagina Singh, working as Associate Professor, Department of Cardiology, RIMS, Bariatu, Ranchi

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Dr. Ashok Kumar Sharma, son of Late Ram Chandra Sharma, working as Associate Professor, Department of Microbiology, RIMS, Bariatu, Ranchi

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Dr. Abhishek Ranjan, son of Umesh Kumar Singh, working as Associate Professor, Department of Paediatric Surgery, RIMS, Bariatu, Ranchi.

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Dr. Paras Nath Ram, son of Bhriguashram Ram, working as Associate Professor, Department of Radiology, RIMS, Bariatu, Ranchi

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….. …. Respondents

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CORAM : HON’BLE MR. JUSTICE DR. S.N. PATHAK

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For the Petitioners :	------ Mr. Indrajit Sinha, Advocate Mr. Bibhash Sinha, Advocate
For the Respondent-State :	Mr. Gaurav Abhishek, AC to AG
For the RIMS	Mr. Atanu Bannerjee, Advocate
For the R. Nos. 3 to 5	Mr. Punit Kumar, Advocate
-----	Mr. Rishi Bharti, Advocate
CAV On : 14.03.2022	PRONOUNCED ON: 11.04.2022

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Dr. S.N. Pathak, J. Heard the parties.

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Prayer

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In the instant writ petition, petitioners have prayed for quashing of office order (Annexure-5 to the writ petition) as contained in RIMS/ Estb-1/No. NIL (Received by the petitioners on 01.01.2022), whereby the respondent nos. 3 to 6 have been posted to the post of Head of Department of their respective Departments with immediate effect despite

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the fact that they are the Associate Professors. Petitioners have further prayed that after quashing of Annexure-5, appropriate directions may be passed restoring position of the petitioners, who are the senior most Professors in their respective Departments, to the post of Head of Department of their respective Departments.

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Factual Matrix

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Brief facts as delineated in the writ petition is that petitioner no. 1 joined RIMS as an Assistant Professor, Department of Cardiology on 19.04.2010 and subsequently promoted to the post of Associate Professor with effect from 01.06.2012 and thereafter promoted to the post of Professor, Department of Cardiology with effect from 17.10.2017. Petitioner no. 1 thus discharged duties to the post of Head of Department from 19.04.2010 till 31.12.2021.

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Petitioner no. 2 initially joined at RIMS on 29.01.2007 as an Assistant Professor, Department of Microbiology and subsequently promoted to the post of Associate Professor with effect from 08.02.2014 and, thereafter, promoted to the post of Professor, Department of Microbiology with effect from 17.10.2017. He also worked as Head of Department, Department of Microbiology from 01.08.2017 to 10.01.2022.

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Petitioner no. 3 joined RIMS on 07.09.2005 as an Assistant Professor of Paediatric Surgery and subsequently promoted to the post of Associate Professor with effect from 31.07.2008 and further to the post of Professor with effect from 17.10.2017 and he held the post of Head of Department, Paediatric Surgery from 01.10.2017 till 31.12.2021.

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Petitioner no. 4 joined RIMS on 27.01.2007 as an Assistant Professor and subsequently promoted to the post of Associate Professor and Professor with effect from 29.10.2012 and 17.10.2017 respectively. He also held the post of Head of Department, Department of Radiology from 31.01.2015 to 31.01.2022.

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It is case of the petitioners that they are the seniormost Professors of their respective Departments. Petitioner no. 1 is the senior most Professor in the Department of Cardiology, petitioner no. 2 is the senior most Professor in the Department of Microbiology, petitioner no. 3 is the

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seniormost Professor in the Department of Paediatric Surgery and petitioner no. 4 is the senior most Professor in the Department of Radiology and they all continued to work as Head of the Departments of their concerned Departments until recently. On 01.01.2022, petitioners received office order as contained in RIMS/ Estb-1/No. Dated Nil (Annexure-5), issued under the signature of RIMS wherein it has been communicated that the Governing Body of RIMS in its 52^nd Meeting held on 11.10.2021, has taken a decision that in every Department appointment to the post of Head of the Department will be made on rotation basis from amongst the interested senior most Professors/ Associate Professors on the basis of seniority for the maximum period of three years. It has also been decided that in those Departments where the Head of the Department has already completed three years, the said decision will be implemented with immediate effect. In compliance of the decision taken by the RIMS Governing Council, the petitioners who have completed their three years “purported tenure” on the post of Head of Department, have been directed to be replaced by the respondent nos. 3 to 6 in their respective Departments, though they are the Associate Professors. Due to action of the respondents – RIMS, petitioners have been forced to work under their juniors who are otherwise not eligible to become Head of the Department. Being aggrieved petitioners filed their protest by way of representations but no action has been taken to redress grievances of the petitioners and hence this writ petition.

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Arguments Advanced by learned counsel for the petitioners

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Mr. Indrajit Sinha, learned Counsel, assisted by Mr. Bibhash Sinha, Advocate, drawing attention towards the Gazette Notification dated 09.03.2017 (Annexure-2 to the writ petition) assiduously argued that the Medical Council of India, in exercise of powers conferred under Section 33 of the Indian Medical Council Act, 1956, with previous sanction of the Central Government, has come with the Gazette Notification dated 09.03.2017 namely “Minimum requirement for 50 MBBS Admissions Annually Regulation, 2017” which provides that each Department shall have a Head of the Department of the Rank of Professor except in the Departments of Dermatology, Venereology and Leprosy, Psychiatry and

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Dentistry, where Associate Professors can be made as Head of the Department who shall have overall control over the Department concerned.

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Learned counsel further argued that the Indian Medical Council Act, 1956 has been repealed and the National Medical Commission Act, 2019 came into force with effect from 08.08.2019 and the National Medical Commission, in exercise of powers conferred by Section 57 of the National Medical Commission Act, 2019, framed and issued Gazette Notification dated 28.10.2020 namely “Minimum requirements for Annual MBBS Admissions Regulations, 2020” which provides that every Medical College or Medical Institution shall have a College Council comprising of the Head of Departments as Members and Principal/ Dean as Chairperson. Each Department shall have a Head of the Department of the rank of full time Professor who shall have overall control of the Department except in the Departments of Dermatology, Psychiatry and Dentistry where Associate Professor may be Head of the Department who shall have overall control of the Department. Relying upon the Judgment rendered by Hon’ble Apex Court in the case of State of Kerala Vs. Kumari T.P. Roshana and another reported in (1979) 1 SCC 572, para-16 , learned counsel submitted that the Hon’ble Apex Court has clearly held that the Indian Medical Council Act, 1956 has constituted the Medical Council of India as an expert body to control the minimum standards of medical education and to regulate their observance. There is an overall invigilation by the Medical Council to prevent sub-standard entrance qualifications for medical courses.

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Learned counsel further submits that in some Super Speciality Departments of RIMS, Associate Professors were made the Head of the Departments and as such vide office order dated 04.03.2021, RIMS rectified the mistake in light of the MCI/ NMC Notification dated 28.10.2020 and noted that in AIIMS also no Associate Professors are allowed to be Head of the Department and, therefore, directed for handing over of charge of Head of the Department by those Associate Professors to Professors. Learned counsel submitted that the impugned order (annexure-5) has been issued in derogation of directions of the Medical Council of India published in Gazette dated 09.03.2017 and also National Medical Commission vide Notification dated 28.10.2020. As per the said Notification, the person can hold the post

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of Head of the Department only if he/ she is in the rank of full time Professor and thus the person who is working as an Associate Professor, cannot be made as a Head of the Department. Impugned action of the RIMS is illegal and the same has been passed in violation of “Minimum Requirements for Annual MBBS Admission Regulation, 2020” and the same is at the risk of losing recognition of the prestigious medical institution like RIMS from the National Medical Commission.

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Learned counsel further argued that respondent nos. 3 to 6 are not working to the post of a Full Time Professor rather respondent nos. 3 is the Associate Professor in the Department of Cardiology with effect from 2016 and till date has not been promoted to the substantive post of Professor. Respondent no. 4 is the Associate Professor in the Department of Microbiology with effect from 2016 and till date he is not promoted to the substantive post of Professor. Respondent no. 5 has got promotion to the post of Associate Professor in the Department of Paediatric Surgery with effect from 05.02.2020 and till date he has not been granted promotion to the substantive post of Professor. Respondent no. 6 has also got promotion to the post of Associate Professor in the Department of Radiology on 01.07.2016 and till date has not been granted promotion to the substantive post of Professor. Learned counsel further argued that the respondent nos. 3 to 6 does not fulfil the requirements as contemplated in Regulations of 2020 of Medical Council of India/ National Medical Council and as such they cannot be given charge of Head of Department. Petitioners being the senior most Professors cannot be forced to work under their juniors who are not at all eligible to become the Head of the Department. The decision of appointment of Head of the Department on “rotation basis” is totally bad in law. Such practice has neither been adopted in AIIMS nor in any State autonomous medical institutes and as such the same is liable to be struck down by this Court. The impugned order has been issued in contrary to the Regulations of the Medical Council of India as also National Medical Commission and the Governing Council of RIMS cannot take any decision in contrary to the regulation framed by National Medical Commission. The eligibility provided in the “Minimum requirements for Annual MBBS Admissions Regulations, 2020” cannot be diluted by the Governing Council of RIMS.

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Mr. Indrajit Sinha, learned counsel appearing for the petitioners has heavily relied upon the following Judgements:

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(i) Dr. Narayan Sharma and another Vs. Dr. Pankaj Lekkar and others reported in (2000) 1 SCC 44;

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(ii) State of Punjab Vs. Deyanand Medical Colege reported in (2000) 8 SCC 664;

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(iii) State of MP and others Vs. Gopal D. Tirthani and others reported in (2003) 7 SCC 83;

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(iv) Harish Verma and others Vs. Ajay Srivastava and another repoted in (2000) 8 SCC 69

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(v) Sudhir N. Vs. State of Kerala reported in (2015) 6 SCC 685;

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(vi) Maharashtra University of Health V. Paryani Mukesh Jawaharlal and others reported in (2007) 10 SCC 201

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Mr. Indrajit Sinha, learned counsel further argued that the technical objections being raised by the respondents are not tenable in the eyes of law and as such appropriate order may be passed by this Court directing the respondents – RIMS to appoint the petitioners as Head of the concerned Department.

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Per contra, counter affidavit has been filed.

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Mr. Atanu Bannerjee, learned counsel appearing on behalf of respondents – RIMS submitted that the affairs of the RIMS are regulated by the provisions as contained in RIMS Act, 2002; RIMS Rules, 2002 and the RIMS Regulations, 2014. Under Section 12 of the RIMS Act, 2002, the Governing Body of RIMS has been vested with the power and authority with regard to all the administrative and financial matters and in discharge of such powers, the Governing Body of RIMS in its 52^nd Meeting held on 11.10.2021, has taken a conscious decision to appoint Head of Department in different Departments of RIMS on rotation basis. Accordingly, a Professor/ Associate Professor in a Department is to be made Head of the Department on rotation basis for a maximum period of three years and as such the respondent nos. 3 to 6 were made Head of the Departments in different Department of RIMS as per Memo No. 5881 dated 01.01.2022. Learned counsel further argued that Notification issued by the National Medical Council, New Delhi on 28.10.2020 bearing No. MED. (II) 123627 is

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applicable for medical colleges being established from the Academic Session 2021 – 22 onwards whereas the RIMS came into existence on 22.04.2002 as a successor of Rajendra Medical College and Hospital (RMCH) established in 1964, these provisions do not apply to it. There is no regulation pertaining to headship in AIIMS, New Delhi and the State Government. The decision of Headship lies in the hand of the Government for State Medical Colleges and Director/ Governing Body in AIIMS, New Delhi. The Headship is a matter of administration for which as per RIMS Act, 2002, Section 12, vests power with the Governing Body and as such, the Governing Body of RIMS has taken a conscious policy decision with regard to rotational headship in different departments of RIMS.

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Learned counsel further argued that contention of the petitioners that Notification bearing Memo No. 5881, dated 01.01.2022 is repugnant to the provisions contained in Clause No. 17 of RIMS Regulations, 2014 is misleading and hence denied. Learned counsel further argued that so far the Medical Council of India Regulations for “the minimum requirement of 150 MBBS Admissions Annually Regulations, 2017” is concerned, these are directory and not mandatory and the same cannot override or prevail over the decisions taken by the Governing Body of the RIMS in exercise of powers vested under Section 12 of the RIMS Act, 2002. There is no illegally or any infirmity in the impugned office order or the consequential office order and as such the writ petition merits dismissal.

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Further it has been argued that even in other medical institutions the system of rotational headship is in force viz. in the Institute of Medical Sciences, Banaras Hindu University, Varanasi; Jawaharlal Institute of Postgraduate Medical Education & Research (JIPMER), Pondicherry; National Institute of Mental Health and Neuro-Sciences (NIMHANS), Banglore; Jawaharlal Nehru Medical college; Aligarh Muslim University, Aligarh, Uttar Pradesh; Sawai Man Singh Medical College, Jaipur; Chirstain Medical College, Vellore etc. In the Institute of Medical Sciences within the Banaras Hindu University, Varanasi, the rotational headship operates amongst the Professors and/or Associate Professors in the Department and no objection has ever been raised by Medical Council of India. The Regulations framed by the Medical Council of India are directory

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and not mandatory in nature. Drawing attention of this Court towards para15, Annexure-E of the counter affidavit, learned counsel submitted that in various Medical Colleges the Associate Professors are occupying position of Head of the Departments including in the Mahatma Gandhi Medical College, Jamshedpur.

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Mr. Atanu Bannerjee, learned counsel appearing for the RIMS lastly argued that representation made by the petitioners is pending consideration. Since decision to appoint Head of Departments in different Departments of RIMS on rotation basis was taken by the Governing Body of RIMS and as such, the Director, RIMS has forwarded representations to be placed before the Governing Body of RIMS for consideration.

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It has been argued by Mr. Atanu Bannerjee, learned counsel appearing for the RIMS that there cannot be any discrimination as they are getting the same pay scale and as such petitioners cannot be prejudiced as they are getting the same pay scale. It has further been argued that the MCI does not prohibit the rotation system. Placing reliance on para-30 of the counter affidavit, reliance has been placed upon the following Judgments :

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(i) (1988) 2 SCC 386 – Government of Andhra Pradesh and another Vs. Dr. R. Murali Babu Rao and Another and other analogous cases.

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(ii) (1973) 2 SCC 650 – M. Ramanatha Pillai Vs. The State of Kerala and Another and other analogous cases.

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(iii) (1995) 4 SCC 462 - Union of India vs. S.S. Ranade .

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Lastly it was argued that petitioners have not thrown any challenge to the original order and as such the Court should not interfere. Learned counsel further argued that final decision has not been taken by the Governing Body on the representation of the petitioners and as such the petitioners should have await order of the Governing Body. Mr. Atanu Bannerjee further argued that in view of Clause 12 of RIMS Regulation, there is no illegality or any infirmity in the impugned order and the writ petition is fit to be dismissed.

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The same argument was adopted by the counsel for the private respondents.

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Reply of Respondent No. 4

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Respondent no. 4 has also appeared and filed its counter affidavit stating therein that the writ petition is devoid of merits due to nonjoinder of necessary parties like National Medical Commission, New Delhi which is the successor of Medical Council of India, who could say before this Court as to whether the instructions issued by its predecessor is mandatory or directory. The Governing Body of RIMS has been vested with the powers and authority with regard to all administrative and financial matters and as such, any objections raised by the petitioners is not sustainable and writ petition merits dismissal. The decision to appoint Professor/ Additional Professor/ Associate Professor in a Department to be made Head of the Department on rotation basis for a maximum period of three years will give a better chance to improve the institution and any question upon such decision is not sustainable. Respondent no. 4 also submitted that the Notification issued by the National Medical Council, New Delhi on 28.10.2020 is not applicable in the present case as the same is applicable for the medical colleges established from the academic session 2021 – 22 onwards whereas RIMS came into existence on 22.04.2002 and its original predecessor RMCH was established in the year 1964. The conscious policy decision of the Governing Body of RIMS with regard to rotational Headship in different Departments of RIMS has been taken after due consideration and its rampant usage at various other medical institutes and as such no interference is warranted in the instant writ petition.

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It has further been alleged that petitioners themselves were Head of the concerned Departments when they were working as Associate Professor in RIMS in the concerned Departments. As on today in many departments of RIMS, like Urology, Nephrology, Oncology, TB and Chest etc., post of Head of the Departments has been occupied by the Associate Professors and no objection has been raised from any quarter. The private respondents fulfil the requisite qualification and experience of Professor and there is no illegality or any infirmity in their appointments as Head of the concerned Department. The 1999 Regulations are directory in nature and does not use the term “ Post of Professor” but use the term “ rank of Professor” . The private respondents are eligible to be promoted as a

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Professor and as such there is no illegality or any infirmity. Learned counsel has placed reliance in the case reported in 1998(6) Supreme Today 20 – Medical Council of India Vs. State of Karnataka and others etc. .

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Findings of the Court .

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Before delving into merits of the case, this Court at the very outset framed certain issues to be decided for proper adjudication of the writ petition:

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(i) Whether the office order as contained in RIMS/Estb-1/No. Dated Nil, issued under the signature of Director, RIMS (Annexure-5) is contrary to the Regulation of the Medical Council of India and National Medical Commission?

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(ii) Whether Governing Body of the RIMS is empowered to issue such directions contrary to the RIMS Regulation?

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(iii) Whether Headship on rotation basis can be floated when the same is neither in practice either in AIMS or any other Medical Institutions?

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(iv) Whether the Governing Body of the RIMS has taken any decision on the representation of the petitioners?

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(v) Whether respondent nos. 3 to 6 may be appointed as Head of the Department of their respective Departments despite the fact that they are the Associate Professors and ignoring the fact that petitioners are the senior most Professors in their respective Departments?

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(vi) Whether the Regulations framed by the Medical Council of India are directory and not mandatory in nature?

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(vii) Whether respondent nos. 3 to 6 fulfil the requirements as contemplated in Regulations of 2020 of Medical Council of India/ National Medical Council to hold charge of Head of Department?

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(viii) Whether petitioners, being the senior most Professors, can be forced to work under their juniors?

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(ix) Whether the decision of appointment of Head of the Department on “rotation basis” is sustainable in the eyes of law?

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(x) Whether the eligibility provided in the “Minimum requirements for Annual MBBS Admissions Regulations, 2020” can be diluted by the Governing Council of RIMS?

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After hearing counsel for the parties and from perusal of the documents brought on record, this Court is of the view that case of the petitioners need considerations for the following facts and reasons.

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(i) Admittedly the Associate Professors have been made Head of the Department which is against the eligibility criteria and the requirements as they are not working in the rank of Professors. From the Medical Council of India Amendment Notification dated 9^th March, 2017, it is evident that there is clear direction that “Each department shall have a Head of the Department of the rank of Professor except in the departments of Dermatology, Venereology and Leprosy, Psychiatry and Dentistry where Associate Professor may be the Head of the Department who shall have overall control of the Department”. The aforesaid contention has the force of law.

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(ii) It has been held by the Hon’ble Apex Court in clear language that the Medical Council of India Amendment Notification is mandatory and not directory.

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(iii) In the case of MCI Vs. State of Karnataka reported in (1998) 6 SCC 131 , the Hon’ble Supreme Court, while holding that the Regulations of the MCI are binding and mandatory, has further held that all State enactments, rules and regulations framed by the Universities etc. in relation to the conduct of the medicine courses, to the extent they are inconsistent with the Act and the Regulations made thereunder by the MCI, are repugnant by virtue of Article 254 of the Constitution of India inasmuch as the Act is relatable to Entry 66 List 1 Schedule VII of the Constitution of India.

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(iv) The aforesaid view has been reaffirmed by the Constitution Bench of the Hon’ble Supreme Court in the case of Preeti Srivastava (Dr.) Vs. State of M.P. & Others reported in (1999) 7 SCC 120 . In para-57 of the said Judgment, the Hon’ble Court has heldas under

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“57. In the case of Medical Council of India v. State of Karnataka [(1998) 6 SCC 131] a Bench of three Judges of this Court has distinguished the observations made in Nivedita Jain [(1981) 4 SCC 296] . It has also disagreed with Ajay Kumar Singh v. State of Bihar [(1994) 4 SCC 401] and has come to the conclusion that the Medical Council regulations have a statutory force and are mandatory. The Court was concerned with admissions to the MBBS course and the regulations framed by the Indian Medical Council relating to admission to the MBBS course. The Court took note of the observations in State of Kerala v. T.P. Roshana [(1979) 1 SCC 572, 580] (SCC at p. 580) to the effect that under the Indian Medical Council Act, 1956, the Medical Council of India has been set up as an expert body to control the minimum standards of medical education and to regulate their observance. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. There is, under the Act an overall vigilance by the Medical Council to prevent substandard entrance qualifications for medical courses. These observations would apply equally to postgraduate medical courses. We are in respectful agreement with this reasoning.”

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(v) The Hon’ble Supreme Court of India through its various pronouncements has held that the Regulations framed by the MCI are statutory in character and, therefore, binding and mandatory on all concerned Universities and Colleges conducting medicine courses. The Governing Council of RIMS has no legal competence to dilute the requirements laid down by the MCI in its Notification. They cannot prescribe lower qualification for the post of administrative head, that too for a post which will have an overall control over the entire Department.

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(vi) Further, the Hon’ble Apex Court in the case of Maharashtra University of Health Sciences v. Paryani Mukesh Jawaharlal , reported in (2007) 10 SCC 201, has held in para-15 as under :

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“15. MCI has been set up as an expert body to control the minimum standards of medical education and to regulate their observance. The regulations framed by the MCI with the previous sanction of the Central Government, in regard to any of the matters referred to in Section 33 of the Indian Medical Council Act, 1956, will have statutory force and are mandatory. Universities must necessarily be guided by the MCI Regulations. Any regulations made by the

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Universities which are inconsistent with the MCI Regulations, or which dilute the criteria laid down by MCI will not be valid to the extent of inconsistency or dilution. (Vide State of T.N. v. Adhiyaman Educational & Research Institute [(1995) 4 SCC 104] , Medical Council of India v. State of Karnataka [(1998) 6 SCC 131] and Preeti Srivastava (Dr.) v. State of M.P. [(1999) 7 SCC 120] ) It, therefore, follows that if Clauses 56(2) and 57 of amended University Ordinance 1 of 2002 are inconsistent with MCI Regulation 12(4), they will be void to the extent of inconsistency. On the other hand, if the said Clauses merely implement, or make explicit what is implicit in MCI Regulation 12(4), then they will be valid and binding.”

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(vii) The Clause 3.10 of the Gazette notification dated 22.02.2022 i.e. Teachers Eligibility Qualifications in Medical Institutions Regulations, 2022 reads as under:

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“Appointment to the administrative post in Government Institutions including the in-charge arrangements, amongst eligible candidates, shall be on inter-se vertical seniority based on date of entry into the Institution/ Government service.”

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This provision nullifies the rotation policy as floated by the Governing Body of the RIMS.

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(viii) From the Medical Commission Notification dated 28 October, 2020 in the head of Staff Requirements, it has been clearly head as under:

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“2. Each department shall have a Head of the Department of the rank of full time Professor who shall have overall control of the Department except in the departments of Dermatology, Psychiatry and Dentistry where Associate Professor may be the Head of the Department who shall have overall control of the Department.”

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So, it can comfortably be inferred that the Head of the Department shall be in the rank of a Full Time Professor save and except the Departments mentioned aforesaid.

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(ix) The office order dated 04.03.2021 (Annexure-4 to the writ petition), issued under the signature of Director, RIMS, clarifies that even in AIIMS New Delhi, there is no practice to make Assistant Professor as Head of the Department.

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“ ए नई दि ी म ें भी सहायक ा ापक को दिभागा बनान का े ्ቚ चलन नही ह ीं ” ै

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It appears that RIMS has rectified its error and now in the garb of decision of the Governing Body, they are taking a “U Turn” that it is not binding upon them.

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(x) RIMS being an Autonomous Body is bound by the MCI Rules as also the Regulations of the AIMS. If at all RIMS wants to deviate from the aforesaid guidelines of MCI and that of the AIMS, they can do so by going to a higher standards and not to the lower standard, as has been held in the case of Preeti Srivastava (Dr.)(Supra) . This Court is tempted to quote Clause 17 of the Notification dated 8^th September, 2014 published in Jharkhand Gazette (Extraordinary), dated 22^nd September, 2014, which reads as under:

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“17. सेवाश्ऴें वैसे मामल ों में जिनके जलये इन जवजनयम ों में क ई ्ቚावधान नह ों है, रा्ቋ सरकार के सेवक ों पर एवों अखिल भार्ऴ य आयुजवि्ሺान सोंसथान, नई जि्ቤ के कजमिय ों पर लागू ह नेवाले सेवा क सामा्቗ श्ऴो या्ቔा एवों िैजनक भ्ቈा सजह्ऴ वे्ऴन एवों भ्ቈे, अवकाश वे्ऴन, य गिान का समय, जविेश सेवा क श्ऴों से स्ቚ ोंजध्ऴ जनयम ्ऴथा रर्ቦ के ्ቛारा समय-समय पर िार जकये गए आिेश एवों जवजन्ቐय, सोंस्थान के कजमिय ों पर ्ऴब ्ऴ क लागू रहेंगे िब ्ऴक रर्ቦ अपना जनयम नह ों बना ले्ऴा .”

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(xi) From the pleadings and the arguments advanced by counsel for the parties, it is an admitted position by RIMS that the private respondents are not holding the rank of Professor through they are getting the pay scale of the Professor.

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(xii) The petitioners are the senior most Professors of their respective Departments. As per service credentials, the petitioners are the senior most in their respective Departments and have continued to work since long but by the impugned office order, they have been forced to work under their juniors. The respondent nos. 3 to 6 don’t even hold the substantive post of Professor and, therefore, in view of MCI Notification dated 09.03.2017, are ineligible to be placed as the Head of the Departments.

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(xiii) The private respondents are not being holder of substantive post of Professor, do not even compete with the petitioners and are outside the zone of consideration for the post of Head of the Department. The respondent no. 3 is Associate Professor in the Department of Cardiology with effect from 2016 and till date has not been promoted to the substantive post of Professor. The respondent no. 4 is the Associate Professor in the Department of microbiology with effect from 2016 and till date, he has not been promoted to the substantive post of Professor. The respondent no. 5 has got promotion to the post of Associate Professor in the Department of Paediatric Surgery with effect from 05.02.2020 and till date, he has also not got promotion to the substantive post of Professor. The respondent no. 6 has also got promotion to the post of Associate Professor in the Department of Radiology on 01.07.2016 and till date, he has not even been promoted to the substantive post of Professor.

¶126

(xiv) Even assuming that the Governing Council of RIMS has the power as per Section 12 of the RIMS Regulation to take a decision in administrative matters but simultaneously it is the settled principles of law that if the decision at the face of it is illegal and arbitrary, dehors the rules, the High Court can exercise its power of judicial review. Normally the High Court never interferes in the policy decision of the State or the autonomous bodies but here in the instant case, since the Governing Body has taken a decision contrary to the Regulations of Medical Council of India, which is mandatory, the Court has no other options than to interfere in the matter. The arguments advanced by learned counsel for the RIMS that the final order has not been passed, is not accepted to this Court since final order has been merged with Annexure-5 and also in view of the fact that the same has not been communicated to the petitioner.

¶127

Thus the above issues framed are answered accordingly.

¶128

RC/

¶129

¶130

Earlier several chances were given to RIMS to come out with a decision, even the State counsel showed their inability as the RIMS did not reply to their queries and as such they failed to file any counter affidavit.

¶131

As a sequitur to the aforesaid rules, guidelines, judicial pronouncements, this Court is of the view that the impugned office order (Annexure-5 to the writ petition) as contained in RIMS/ Estb-1/No. NIL (Received by the petitioners on 01.01.2022) i.e. the decision of the Governing Body regarding appointment of Associate Professor as Head of the Department being contrary to the MCI Rules, is hereby quashed and set aside. The respondents – RIMS is directed to appoint the petitioners as Head of the respective Departments subject to the condition that they fulfil the other requisite qualification/ criteria as per Rules and Guidelines and if there is no other legal impediments.

¶132

With the aforementioned observations and directions, this writ petition stands allowed.

¶133

(Dr. S. N. Pathak, J.)

¶134

RC/

Dr Hemant Narayan Ray v. the State of Jharkhand through Secretary Deptt of Health Family Welfare and Medical Education

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Dr Hemant Narayan Ray v. the State of Jharkhand through Secretary Deptt of Health Family Welfare and Medical Education

Case brief

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