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Judgment
Md. Mumtaz Khan, J
The instant writ petition under Article 226 of the Constitution of India has been filed by the petitioner praying for issuance of a writ in the nature of
mandamus setting aside the impugned advertisement dated
April 21, 2018 particularly with regard to the post for the faculty of 'Dentistry' in the Andaman and Nicobar Islands Institute of Medical Sciences and
direction for issuance of fresh advertisement by clearly indicating the mode of short listing the candidate in detail and not to give any effect to the
above advertisement till disposal of this writ application.
The petitioner’s case, in brief, is that respondent no. 3 published an advertisement dated April 21, 2018 for various posts in the faculties of
Andaman and Nicobar Islands Institute of Medical Sciences on contract basis inviting candidates to apply with complete bio-data including
professional experience latest by May 11, 2018 subsequently extended till 14thy of November 2018 by corrigendum dated November 5, 2018. The
petitioner in response to the said advertisement applied for the post of Professor 'Dentistry' vide his application dated November 8, 2018 but he was
not considered for the post in spite of having required qualification and teaching experience. Now the petitioner has come to know from a reliable
source that the respondent authorities are going to select doctor working in Dental Colleges for the post of Professor 'Dentistry' by violating the
Medical Council of India rules as stated in the advertisement. Such arbitrary action on the part of the respondent authorities is violative of principles of
natural justice and fair play by not considering the name of the petitioner for the post of professor 'Dentistry'.
Respondent nos.1 to 4 contested instant writ application by filing their affidavit-in- opposition. Respondent no.5 did not appear to contest inspite of
service of notice.
Mr. Arul Prasanth, the learned Advocate appearing for the petitioner, submitted that the impugned advertisement issued by the respondent no. 3 was
completely silent with regard to the mode of selection and there was no whisper whether selection would be made on the basis of written examination,
oral examination and experience or the marks obtained in Post Graduate examination. He also submitted that petitioner inspite of having teaching
experience as required under the Medical Council of India rules and also in terms of advertisement published by the respondent authorities was not
considered for the reason best known to the respondent authorities. On the other hand respondent No. 5 was given appointment though he has got no
requisite qualification as it was evident from the copy of the application that he possessed qualification from Dental College, whereas the rules
recognizes the qualification of Medical College. He also submitted that the petitioner was not at all aware about the appointment of the respondent No.
5 and only at the time of hearing it came to his knowledge and accordingly respondent no.5 was imp-leaded as a party respondent. According to Mr.
Prasanth, there was no transparency in the selection process as no short list was published and only choice candidate was selected and as such the
impugned advertisement only in so far as the post of 'Dentistry' is concerned the same should be set aside and the appointment of respondent no. 5 be
cancelled and a direction be given to the authorities concerned to issue fresh advertisement and see that the appointment should be made as per the
old rules and the petitioner should be appointed in terms of the MCI Rules.
Md. Tabraiz, learned Advocate appearing for the respondent no. 1 to 4 submitted that the petitioner has raised the eligibility criteria of faculty in the
Institute of Medical Sciences which has been fixed by the MCI and as such MCI is a necessary party. But the MCI has not been imp-leaded in the
proceeding and as such this writ application is liable to be dismissed. He further submitted that the petitioner accepted the terms and conditions of the
Notification without raising any objection or protest and applied for the post of Dentistry and participated in the proceeding and became unsuccessful,
as such he can not be permitted to challenge the said Notification.
According to Mr. Tabraiz, rules provides that for the post of Professor in the institute of Medical Sciences, a candidate should possess 8 years of Post
Graduate experience such as 3 years as Associate Professor, 4 years as Assistant Professor and one year as Senior Resident whereas the petitioner
himself possesses Teaching/Research experience of only 7 years out of which one years 10 month from Dental College. He further submitted that the
date of submission of application for faculty was extended till 14th of November 2018 and even the petitioner applied for the post only on November 8,
2018 and in the meantime fresh Notification came as such the eligibility criteria as mentioned in the Notification dated October 31, 2018 will be
applicable.
In reply Mr. Prasanth, the learned Advocate appearing for the petitioner, submitted that MCI is not a necessary party to the instant proceeding nor the
MCI has any role to play in the matter of appointment of faculty and only the respondent authorities shall have to make appointment according to
rules. He also submitted that Notification dated October 31, 2018 published in the Gazette of India on November1, 2018 is not applicable as it came
into force after publication of the impugned advertisement dated April 21, 2018.
I have considered the submissions of learned Advocates appearing for the respective parties and gone through the writ petition, the documents
annexed thereto as also the affidavit in opposition.
It was evident that the advertisement for faculties in the Andaman and Nicobar Islands Institute of Medical Sciences for various posts including post
of Professor 'Dentistry' was issued and published on April 21, 2018 inviting candidates to apply with complete bio data including qualifications and
MCI recognized teaching experiences by May 11, 2018 which was subsequently extended to November 14, 2018. So, the eligibility criteria for
appointment of faculty also shifted till the last date of application. Evidently, on the basis of the impugned advertisement, respondent no. 5 applied for
the post of 'Dentistry' on May 8, 2018 while this petitioner applied on November 8, 2018 with their respective bio-data, requisite qualifications and
experiences. Admittedly, before the closure of the process for the submission of the applications by the candidates, in response to the impugned
advertisement, Notification dated October 31, 2018 published in Gazette of India on November 1, 2018 amending the minimum qualification for teacher
in medical institution (Amendment Regulation) 2018 came into force from the date of publication in the Official Gazette. So, as per the settled
proposition of law, the eligibility criteria of the candidates as per the above Notification, which came into force before closure of the process of
submissions of applications, will be applicable. Furthermore, even the petitioner applied after the above Notification came into force.
According to the present Notification, which amended the minimum qualification for teacher in medical institution, for the post of Professor, the
candidate should possess 8 years of Post P.G. Experience, a postgraduate qualification MD/MS/DNB in the concerned subject having requisite
Teaching/Research experience in the subject as Associate Professor for 03 years and for the post of Associate Professor, the candidate should
possess 05 years of Post Graduate experience having requisite Teaching/Research experience in the subject for 04 years as Assistant Professor in a
permitted/approved/recognized medical college/institution and for the post of Assistant Professor, the candidate should possess Post Graduate
qualification in the subject having requisite Teaching/Research experience in the subject for 03 years as Junior Resident in a
permitted/approved/recognized medical college/institution and one year as Senior Resident. The particulars of qualifications and experience furnished
by the petitioner in his application for the post itself show that the same do not fulfill the criteria as required under the newly amended Regulations of
2018 namely “Minimum Qualification for Teachers in Medical Institutions (Amendment) Regulations, 2018â€.
With regard to the controversy raised by the learned Advocate for the petitioner that Rules recognizes the qualification of Medical College only and
not of any Dental College, I find no merit in the same. The MCI Regulations provides that academic qualification required for the of post of Professor
is post-graduation in the concerned subject. Only with regard to Teaching/Research experience a candidate should have worked as Associate
Professor in a recognized medical college. The term 'Medical College' has been defined in Regulation 2(a) of the Opening of a New or Higher Course
of Study or Training (including Postgraduate Course of Study or Training) and Increase of Admission Capacity in any Course of Study or Training
(including a Postgraduate Course of Study or Training) Regulations, 2000, Medical Council of India, Notification No. M.C.I.34 (41) 2000-Med, dated
August 14, 2000 and published in the Gazette of India, Part III, Section 4, 7th October, 2000.
'Medical College' means any institution by whatever name called in which a person may undergo a course of study or training including any
postgraduate course of study or training which will qualify him for the award of a recognized medical qualification. Thus the above definition set at
rest the controversy raised on behalf of the petitioner with regard to recognized Medical College and Dental College. Moreover, the newly amended
Regulations of 2018 has recognized the Teaching/Research experience as Associate Professor in the subject in a permitted/approved/recognized
medical college/institution and did not confine such experience only from a recognized medical college. It is not in dispute that both the petitioner and
the private respondent possess requisite academic qualification of M.D.S. but in so far as the Teaching/Research experience is concerned the
petitioner has failed to show and satisfy that he has fulfilled the criteria as required under the newly amended Regulations of 2018.
As per Section 11 of the Indian Medical Council Act, 1956, Medical Council of India has a role to play in the matter of recognition of medical
qualification granted by the Universities or medical institutions in India. In the instant proceeding controversy has been raised with regard to
recognition of teaching and experience for the faculty of Dentistry in the Institute of Medical Sciences and as such MCI is a necessary party. But
MCI has not been imp-leaded in the instant proceeding.
Admittedly, petitioner applied for the post of Professor in response to the impugned Notification without any protest or objection and participated in the
proceeding and became unsuccessful. In view of the above, petitioner can not be permitted to challenge the said proceeding or the impugned
advertisement.
Therefore, taking into account the entire circumstances I find no merit in the instant writ application. Accordingly, the instant writ application stands
dismissed. There shall be no order as to costs.
Urgent certified of the order, if applied for, be given to the parties after compliance of necessary formalities in this regard.