WP(C) 896/2007 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY JUDGMENT AND ORDER (ORAL) The common attribute of the assailments laid in the writ petitions constituting the batch is a strident impeachment of the Employment Notice dated 16.12.2006 is sued by the Secretary to the Govt. of Assam, Health and Family Welfare Departmen t (for short hereafter referred to as the ’Department’) inviting applications fr om intending candidates with the qualifications prescribed for a walk-in Inte rview for the posts of Demonstrator/Registrar/Resident Physician/Resident Surgeo n etc. lodged in the various departments as referred to therein. Incidental and consequential directions have been sought for as perceived in the individual fac ts for appointments and/or continuance of the petitioners to some of such posts in which they claim a right therefor. 02. I have heard Mr. DK Mishra, Senior Advocate, Mr. M Bhuyan, Mr. A M Bujarbaruah, Mr B Goswami and Mr. D Mazumdar, Advocates for the petitioners an d Mr. D. Saikia, learned Standing Counsel for the Department representing the of ficial respondents. 03. As the pleaded facts have distinguishable features, though impug nment as alluded hereinabove, in essence is common, it would be discreet to bri efly outline the same individually. WP(C) NO.6321/2007 04. The petitioner after obtaining her MBBS Degree claims to have co mpleted the Three Years Post Graduate Degree Course as D.N.B. (Diploma of Nation al Board, Govt. of India) in General Surgery. She having responded to the Adver tisement No.3/2005 issued by the Deputy Secretary, Assam Public Service Commissi on(for short, hereafter referred to as the ’Commission’) published in the local daily Assam Tribune inviting applications from suitable candidates amongst ot hers for 5 posts of Registrar/Resident Physician/Resident Surgeon of Surgery and one post of Registrar of Paediatric Surgery lying vacant in the three Medical C olleges of the State under Health & Family Welfare (B) Department, she was duly allowed to participate in the process and in the select list dated 28.2.2006 d rawn up by the Commission, she figured at Sl. No.16 vis-a-vis the Department of Surgery and at Sl No.3 for Paediatric Surgery. Consequent thereto, appointment s of selectees at Sl Nos. 1 to 5 in the Department of Surgery were made in order of merit. However, though the post of Paediatric Surgery had been earmarked for a general candidate, the selectee at Sl No. 2 belonging to Schedule Tribe(P) w as appointed. Incidentally, the candidate at Sl No.1 had forfeited his claim fo r such appointment. According to the petitioner, having regard to the fact that the post was not meant for any reserved category candidate, the induction of the selectee No.2 was illegal and in violation of her right. Moreover, though the v alidity of the select list subsisted till 28.2.07, the impugned advertisement d ated 16.12.06 was published for filling up 15 posts of Registrar/Demonstrator o f Surgery lying vacant in the three Medical Colleges of the State. 05. The State respondents in their affidavit contend that 5 posts of Registrar/Demonstrator in Surgery were filled up directly in accordance wit h merit from the select list dated 28.2.06 and therefore considering the positio n of the petitioner therein, she cannot have any reason cognizable in law to be aggrieved. According to the respondents, the lone post of Registrar of Paediat ric Surgery was initially acknowledged to be an unreserved one, though in terms of the relevant roster, it was required to be filled up by a Schedule Tribe(P) candidate in order to clear the backlog vacancies. The above error having been detected, the Department through its Deputy Secretary vide No.HLB.156/2002/Pt/87 dated 15.11.06 requested the Assam Public Service Commission (hereafter for sho rt referred to as the Commission) to recommend the name of the Schedule Tribe(P) candidate and second nominee in the select list dated 28.2.2006 to fill up the said post. The answering respondents have stated that thereafter, the post w as accordingly filled up by selectee No.2. According to them, as in any view of the matter, the Schedule Tribe (P) candidate was higher in order of merit than t he petitioner, no right of her stood infringed thereby. The answering respondents have clarified that though the Commission had initiall y prepared a list of 19 candidates for recruitment against 5 posts of Registrar /Demonstrator in Surgery, the same was realigned in terms of the Assam Fiscal Re sponsibility and Budget Management Act,2005 (hereafter for short referred to as the ’2005 Act’) and accordingly the it recommended 5 candidates in the modifie d select list dated 27.7.2006 who are eventually appointed. 06. The State respondents have further averred that after the public ation of the advertisement No. 3/05 in March, 2005, one post of Registrar of Sur gery felt vacant. Thereafter in March, 2006, 2 such posts were created and still thereafter following two rounds of promotion of Registrar /Demonstrator/Residen t Physician of the Department of Surgery to the next higher grade in the months of July and September, 2006, 12 more posts in the said rank fell vacant. As a r esult, 15 posts of Registrar/Demonstrator /Resident Surgeon of Surgery Departmen t that had fallen vacant were advertised vide the impugned Employment Notice dat ed 16.12.06 for fresh recruitment. The necessity for fresh appointments under Re gulation 3(f) of the Assam Public Service Commission (Limitation of Function) Re gulation, 1951 (hereafter for short also referred to as the Regulation) instead of regular appointments was in the immediate exigencies of service. 07. Whereas, in her affidavit in reply, the petitioner while general ly reiterating her challenge made in the writ petition, has asserted that the a ppointment of one Dr Abhijeet Dutta on 27.1.2006 was in violation of 2005 Act an d that a post of Registrar , Paediatric Surgery is still lying vacant, she, by her additional pleading has brought on record, various official correspondences in her endeavour to demonstrate that the process for creation of the new post s brought within the purview of the impugned Employment Notice had been initiate d in the year 2004 i.e. much before the publication of the advertisement No.3/20 05 and thus could have been reasonably anticipated to be assimilated in the earl ier process. The plea that the provisions of the Assam Women (Reservation of Vac ancies in Service and posts) Act,2005 (for short hereafter referred to as the ’W omen Reservation Act’) had been violated in making appointments against the pos ts of Registrar/Resident Physician/Resident Surgeon of Surgery (5 posts adverti sed and one anticipated) has been raised as well. WP( C) NO. 6414/2006 08. The petitioners herein, too had offered their candidature pursua nt to the advertisement No.3/05 as above and on completion of the selection proc ess, were empanelled in the select list dated 28.2.06 wherein, the name of the p etitioner No.1 appeared at Sl No.3 for the post of Demonstrator of Physical Scie nce and Medicine and that of the petitioner No.2 at Sl No.8 for the post of Regi strar of Anesthesiology/Anesthetist in order of merit. Vide the above advertisem ent, applications from suitable candidates were invited to fill up 3 posts of Re gistrar of Physical Science and Medicine and 9 posts of Anesthesiology/Anestheti st for the three Medical Colleges of the State. The petitioners have averred th at thereafter, in terms of the said select list, appointments were made to the r espective posts in order of merit. However, though the select list remained vali d till 28.2.2007, the impugned advertisement meanwhile was published on 16.12.20 06 for filling up 6 posts of Demonstrator of Physical Science and Medicine and 4 posts of Registrar of Anesthesiology/Anesthetist under Regulation 3(f) of the Regulations. On queries being made by them, they were told that inspite of thei r selection, they could not be accommodated against the posts earlier advertised in view of the 2005 Act. The petitioners have contended that this enactment was not applicable to their selection process, the same having been initiated prior to the enforcement thereof and have therefore pleaded unfairness in action resu lting in discrimination against them. While maintaining their same stand vis-a-vis the select list dated 28.2.06 whic h stood modified in compliance of the prescriptions of the 2005 Act, the State respondents in their affidavit, have insisted that candidates recommended by t he Commission were duly appointed against the posts available strictly in order of merit. They have clarified that all the appointees to the 9 posts of Registr ar of Anesthesiologist /Anesthetist and 3 posts of Demonstrator of Physical Scie nce and Medicine had duly joined their service and that therefore, the select li st prepared for the earlier process stood wholly exhausted. According to them, t he fresh exercise initiated by the impugned Employment Notice dated 16.12.06 w as necessary to fill up 4 vacant posts of Registrar of Anesthesiologist /Anesth etist , the same having arisen following two rounds of promotion in the months o f July and September, 2006. Similarly, 3 posts of Demonstrator of Physical Scie nce and Medicine had fallen vacant after the advertisement No.3/05 in March/05 a nd still thereafter 3 additional posts were created in March, 2006 and therefore 6 posts of Demonstrator of Physical Science and Medicine too had been advertise d tobe filled up. Exigencies of service has been cited to be the reason to fill up these posts under Regulation 3(f) of the Regulations instead of regular appo intments. 09. By an additional affidavit, the State respondents have disclosed the detailed particulars of the promotions in the Departments of Physical Scien ce and Medicine, Anaesthesia Surgery and Medicine by way of reinforcement of the statements in their first counter. According to them, though the process for c reation of posts referred to in the chart appended to their first affidavit had commenced on 17.06.05 and that eventually the Finance Department had agreed to t he proposal on 10.2.06. It was thereafter that Vide No.HLB 225/2005/11/27 dated 27.3.2006, HLB.225/2005 /11 dated 27.3.06 and HLB.225/2005/13 dated 29.3.06, a t otal of 153 posts in the three Medical Colleges were created out of which 29 wer e in the rank of Registrar/Demonstrator. The respondents have insisted that the posts that had fallen vacant due to promotion in the months of July, 2006 and S eptember,2006 as well as the new posts created in the month of March, 2006 coul d not be anticipated at the time of forwarding the request for the initiation of the earlier process by letter No.HLB 56/2002/308 dated 08.11.2004 to the Com mission, which led to the publication of the advertisement No.3/05 in the month of March2005. In their additional affidavit filed later on, the State respondents sought to cl arify further the dates on which the posts of Registrar/Demonstrator in the rel evant departments had fallen vacant as hereunder :- Sl No. Department Date of Vacancy number. of post Reason 1. Pathology 17/4/05 2 Promotio n to the post of Assistant Professor. 2. Surgery 23/6/06 1 Dismissa l of the earlier incumbent. 3. F & SM July/06 September/06 March,2006 3 3 Promotion New post. These clarifications, the State respondents have provided amongst others to expl ain some inadvertent mistakes in the chart to the above effect appended to their first affidavit. 10. In their supplementary affidavit, the State respondents have ave rred that at the time of the advertisement No.3/05, 3 posts of Demonstrator in P hysical Science and Medicine were advertised, whereof 2 were made for the Assam Medical College and one for the Gauhati Medical College. Though another post was available at Assam Medical College, the same had not been advertised and there fore, in terms of the 2005 Act, it was not available to be filled up from the se lect list dated 28.2.06 which was modified on 27.7.06. The affidavit in reply of the petitioners being in plain reiteration of the averments made in their wri t petition, it is inessential to traverse the same. WP( C) NO. 6455/2006 11. The petitioner had participated in the selection process initiat ed by advertisement No.3/05 and in the select list dated 28.2.06, he was enliste d at Sl. No.5 for the post of Registrar of Medicine. By this advertisement, 8 su ch posts were to be filled up. As inspite of his above position in the select li st, he had not been appointed and instead, during the validity of the select lis t dated 28.02.06, the impugned Employment Notice was issued to fill up amongst others 11 vacant posts of Registrar of Medicine, the petitioner has laid the pr esent challenge. Though the vires of Section 7(1)(g) of the 2005 Act had been i mpugned, noticeably, in course of the arguments, the same was not pursued. 12. The State respondents have averred that though the petitioner’s name appeared at sl No.5 of the select list, the same having been redrawn by t he Commission in terms of the 2005 Act, he did not figure in the modified list dated 27.07.06. It had been sought to be clarified in course of the arguments th at the fresh list having been prepared to accommodate the equal number of candid ates for the posts advertised by taking into account amongst others the law of reservation, the petitioner being at sl No.4 of the unreserved candidate could not be accommodated as the posts advertised could accommodate only 3 general ca tegory candidates in order of merit. The answering respondents have maintained that the impugned Employment Notice has been issued for filling up 11 posts w hich have arisen due to 2 rounds of promotion in the months of July and Septembe r, 2006 and that the appointments to the posts earlier advertised having been made in compliance of the relevant provisions of the law adhering to the merit of the candidates selected, the challenge is misplaced. 13. Referring to the various correspondences pertaining to the pro motion and the creation of posts as referred to in the pleadings of the State r espondents, the petitioner has reiterated that sufficient number of vacancies in fact had either existed or could be anticipated at the time of the publicati on of the advertisement No.3/05 and that therefore, denial of his appointment i s an obvious infringement of his vested legal right rendering the impugned Empl oyment Notice invalid in law. WP( C) No. 64/07 14. The petitioner had associated himself with the selection process commenced by advertisement No.3/05 and in the select list dated 28.2.06 his nam e figured at Sl No.18 for the post of Demonstrator in Pathology. Incidentally, h e was third in order of merit vis-a-vis the general category candidates. Accord ing to him, though at the relevant time, 24 vacancies in the said post had exist ed, only 11 were advertised. He is aggrieved by the impugned Employment Notice d ated 16.12.06 which according to him, had been published without exhausting the select list dated 28.2.06 qua, the vacancies ought to be filled up on the basis thereof. He has repudiated as well, the enhancement of the minimum academic qual ification of Post Graduate Degree in the concerned discipline to be violative of the Assam Medical Education Service Rules, 2006 (hereafter for short referred t o as 2006 Rules) and the Minimum Qualification for teachers in Medical Institu tions Regulatiion,1998 (hereafter for short referred to Regulation, 1988) framed by the Medical Council of India. 15. The State respondents while referring to the Department’s letter s dated 8.4.2004, 2.2.05, 4.6.05 and 27.12.05 thereby requesting the Commission to advertise the posts of Registrar/Demonstrator and those equivalent thereto in the three Medical Colleges of the State, have stated that on the culmination of the selection process that followed, the select list dated 28.2.06 was prepared by the Commission. As the same was not inconformity with the provisions of the 2005 Act, the Department requested the Commission vide letter No.HLB.106/2006/57 dated 5.7.06 to remodel the same accordingly and thereafter it (Commission) vid e its letter No.90/APSC/DE-3/3/2005-5 dated 27.7.06 furnished the modified list of the selected candidates. While reaffirming that the appointments from the s aid modified list were accordingly made strictly in order of merit, the answer ing respondents have asserted that the enhancement in the entry level academi c qualification for the post of Registrar/Demonstrator and posts equivalent th ereto in the Medical Colleges of the State from MBBS to PG Degree in the conc erned subject was prescribed vide the departmental letter No. HLB 280/2006/25 d ated 4.10.06. According to them, the upgradation in the minimum academic qualifi cation was essential to effectuate promotions to the next higher rank of Assista nt Professor for which PG Degree was an imperative criterion as per the norms of the Medical Council of India. They have clarified that 13 posts referred to by the petitioner and averred to be vacant at the time of the advertisement No.3/05 , were in fact, available to be filled up thereafter following promotion as well as creation of new posts. WP(C) NO. 140/2007 The petitioner at the time of the publication of the Advertisement No.3/2005, ha d been serving as Registrar in the Department of Medicine under Regulation 3 (f ) of the Regulations, Eight posts of Registrar of Medicine having been advertise d vide Advertisement No.3/2005 the petitioner offered his candidature and in the select list dated 28.02.2006, his name appeared at Sl. No.28 in order of meri t. According to the petitioner, at all relevant times, there were, in fact, 1 9 vacancies in the post of Registrar of Medicine, though, only 8 had been adv ertised. Out of the remaining 11, some were held on ad-hoc basis by appointees under Regulation 3(f) like him. On the completion of the said process, by order dated 04.10.2006 the services of some of such ad-hoc appointees includi ng the petitioner were terminated. As it was represented to him that appoint ments to these 11 posts would also be made on regular basis from the same select list, he refrained from challenging the termination of his service. However, by the impugned employment notice dated 16.12.2006, a fresh proce ss was started to fill up these posts under Regulation 3(f), thereby, by implica tion seeking to replace one ad-hoc by another. Contending it to be impermissibl e in law, this employment notice and the process related thereto has been assail ed by him. He has also impugned the prescription of minimum academic qualificat ion of post graduate degree repudiating it to be in violation of the Regulation 1998 framed in exercise of powers conferred by section 33 of the Medical Council Act, 1956. 16. The State respondents in their affidavit, while reiterating thei r stand with regard to the commencement of the process vide the Advertisement No . 3/2005, modification of the original select list dated 28.02.2006 on 27.07.20 06, in compliance of the 2005 Act and the enhancement of the minimum academic qu alification at the entry level, have asserted that the 11 posts referred to by t he petitioner fell vacant only in the year 2006 and, therefore, could not have b een integrated in the earlier process. WP(C) NO. 896/2007 According to the petitioner, he was selected in the year 2004 to be appointed as Demonstrator of Pathology (Blood Bank) at Silchar Medical College and was appoi nted as such under Regulation 3(f) of the Regulations. However, in absence of th e post of Demonstrator of Pathology, he was posted as Demonstrator of Blood Bank in the Pathology department of the said College. His initial term of such appoi ntment was thereafter extended from time to time. In response to the Advertisem ent No.3/2005, he applied for the post of Demonstrator/Registrar in various disc iplines including Pathology. In the select list dated 28.02.2006, his name did n ot figure amongst the recommended candidates for the post of Registrar/Demonstra tor of Pathology, but was included in the list for Radiology at Sl. No. 20. He was, however, not appointed against the 6 posts advertised for the department, w hereafter, on 03.10.2006 his appointment under Regulation 3(f) was cancelled. A ccording to him, no one has yet been appointed against the post, which he had be en holding. Claiming a preference by dint of his status as a scheduled caste ca ndidate, the petitioner has pleaded that, in fact, more than 6 posts were lying vacant in the Department of Radiology at the time of the advertisement. He too, has questioned the validity of the enhancement of the minimum academic qualific ation to that of post graduate degree as prescribed by the impugned employment n otice dated 16.12.2006. The petitioner has complained that though in response t o the impugned advertisement, he sought to participate in the process, he was no t permitted to do so. 17. The State respondents in their counter, while reiterating their averments bearing on the select list dated 28.02.2006, 2005 Act and the appointm ents to the advertised posts in order of merit, have additionally stated that th e decision to raise the minimum academic qualification, is also geared to improv e the quality of teaching in the three Medical Colleges of the State. According to them, the insistence for this higher academic qualification is also to diver t medical graduates without post graduate degree to the State Health Service Sec tor and, thus, promote public health. They have also referred to pay scale to t he teachers of the Medical Colleges of the State as accorded by the All India Co uncil of Technical Education since 1996, which warranted upgradation in the mini mum academic qualification. While pleading that the enhancement in the academic qualification as insisted upon, does not detract from the minimum prescribed b y the Medical Council of India by the Regulation 1998, the State responden ts have endorsed this initiative as a policy decision of the Government on valid considerations. While clarifying that the petitioner was not allowed to participate in the process initiated by the impugned notice dated 16.12.2006 as he lacked in the prescribed academic qualification, the answering respondents ha ve maintained that the posts of Registrar/Demonstrator of Radiology involved the rein, had fallen vacant and/or created after the Advertisement No. 3/2005 had be en issued. They have denied the preferential right claimed by the petitioner as a member of the scheduled caste community for appointment against the post of D emonstrator/Registrar of Radiology Department in the earlier process. His claim vis-a-vis the post of Demonstrator/Registrar, Pathology has been dismissed on t he plain ground that he had not been selected therefor. They have affirmed that all posts involved in the earlier process have since been filled up strictly in accordance with the law adhering to the order of merit as reflected in the modi fied select list dated 27.07.2006. Whereas, the additional pleadings of the pet itioner are by way of repetition of the averments made in the writ petition, the Medical Council of India impleaded as respondent No. 4, in its affidavit has cl arified that the academic qualification prescribed by the Regulation 1998, among st others, for the post of Tutor/Demonstrator/Registrar etc., is the minimum qua lification therefor, which does not permit of any relaxation thereof. WP(C) NO. 4788/2007 18. The petitioner claims to have been appointed as a Registrar of O bstetrics and Gynaecology under Regulation 3(f). By order dated 18.11.2005 he wa s posted at Silchar Medical College, Silchar. The initial term of such appointm ent was extended from time to time. Though, no post of Demonstrator/Registar/Res ident Physician in the Department of Obstetrics and Gynaecology was included in the Advertisement No. 3/2005 to be filled up, by order dated 03.10.2006 his serv ices, as above, were terminated along with other similarly placed appointees. I t was represented by the departmental authorities that though the services of Re gulation 3(f) appointees had been terminated to accommodate the candidates selec ted by the Commission in the above process