Non-Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal Nos. 6667-6668 of 2019 (Arising out of SLP (C) Nos. 24803 - 24804 of 2018)

Dr. Professor Rajendra Chaudhary & Anr..   .... Appellant(s)

Versus

The State of Uttar Pradesh & Ors.    …. Respondent (s)

J U D G M E N T

L. NAGESWARA RAO, J.

Leave granted.  

1. The  controversy  in  the  above  Appeals  is  regarding

reservations  to  be  applied  for  appointment  by  direct

recruitment to the posts of Professor in Medical Colleges in

the  State  of  Uttar  Pradesh  and  enhancement  of  the

maximum age limit from 45 years to 65 years.  There was

no  direct  recruitment  to  the  posts  of  Professors  in  12

Government Medical Colleges (Allopathy) for 12 years prior

to 2015.  An advertisement was issued on 21.12.2015 by

the  Uttar  Pradesh  Public  Service  Commission  seeking

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applications  for  appointment  by  direct  recruitment  to  47

substantive vacant posts of Professors in various Allopathic

Medical  Colleges.   The  said  advertisement  was  subject

matter of challenge in a Writ Petition filed in the High Court

of Judicature at Allahabad.  Apart from other grounds, the

main point raised by the Writ Petitioners was that no posts

were reserved for Scheduled Castes, Scheduled Tribes and

Other Backward Class candidates.  The enhancement of the

upper  age  limit,  from  45  years  to  65  years,  was  also

questioned in the Writ Petition on the ground that it was in

violation of Uttar Pradesh State Medical Colleges’ Teachers

Services  (Second  Amendment)  Rules,  2005  (for  short,

‘Service  Rules’).    Another  advertisement  was  issued  on

24.10.2017  revising  the  eligibility  criteria  pertaining  to

educational qualifications.   

2. The  High  Court  dismissed  the  Writ  Petitions  by

rejecting the submissions relating to the reservations and

enhancement  of  the  upper  age  limit.   Hence,  these

Appeals.   

[2]

3. The two points that fall for our consideration in these

Appeals are:

a) Whether the advertisement impugned in the Writ

Petition  is  violative  of  Uttar  Pradesh  Public  Service

(Reservation  for  Scheduled  Castes,  Scheduled  Tribes  and

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

Reservation Act): and  

b) Whether enhancement of the upper age limit for

appointment to the post of Professor by direct recruitment

is contrary to the Uttar Pradesh Medical Colleges Teachers’

Service (Second Amendment) Rules, 2005.   

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

4. The main contention of the Writ Petitioners belonging

to reserved categories is that the advertisement issued for

appointment by direct recruitment to the post of Professor

in  Government  Medical  Colleges  is  contrary  to  the

Reservation  Act  as  no  reservations  were  provided  for

reserved  category.   They  relied  upon  Section  3  of  the

Reservation Act to submit that reservation is mandatory for

appointment by direct recruitment in public service.  The [3]

percentages of reservation for recruitment to be made as

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

follows:

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

For better appreciation of the dispute, it is relevant to

reproduce  Section  3  of  the  Reservation  Act  which  is  as

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

Twenty-seven per cent:    

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

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

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

(5) The State Government shall for applying the reservation under sub section (1), by a notified order,  issue  a  roster  comprising  the  total  cadre strength  of  the  public  service  or  post  indicating therein the reserve points and the roster so issued shall  be  implemented  in  the  form  of  a  running account from year to year until the reservation for various  categories  of  persons  mentioned  in  sub- section (1)  is  achieved and the operation of  the roster  and  the  running  account  shall,  thereafter, come  to  an  end,  and  when  a  vacancy  arises thereafter in public service or post the same shall be filled from amongst  the persons belonging to the  category  to  which  the  post  belongs  in  the roster.”

     5. The  Appellants  placed  before  us  the  Service  Rules

which govern the recruitment to the posts of Professors in

Government  Medical  Colleges.   Rule  5  of  Service  Rules [5]

provides for recruitment to the posts of Professors covered

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

Appendix  ‘A’  to  the  Service  Rules  gives  the  sanctioned

strength  in  all  the  specialties/  departments  in  the

Government Medical Colleges.  There are two Categories in

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

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

posts  that  are  to  be  filled  up  by  direct  recruitment.

According to the Appellants, the total number of posts and

vacancies in the entire cadre has to be taken into account

for providing reservations for appointment to the posts of

Professors.  They allege that the action of the Respondents

in  not  providing  reservations  on  the  ground  that  the

number  of  vacancies  available  in  each  speciality/

department was less than four was unjustified.

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

providing  reservations  for  appointment  by  direct

recruitment to  the posts of Professors.   According to the

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

promotion and remaining 25 per cent by direct recruitment.

Reservation for candidates belonging to Scheduled Castes,

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Scheduled Tribes and Other Backward Classes category is

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

has been incorporated by reference into the Service Rules.

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

The proviso makes it clear that the total number of posts

belonging to  each speciality/  department  in  Category ‘A’

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

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

be  speciality/  department  wise.   Reference  is  drawn  to

Section  3  of  the  Reservation  Act  to  contend  that  the

percentage of vacancies fixed therein relate to the stage of

direct recruitment only.  Relying upon the note to Appendix

‘A’,  the  Respondents  urge  that  reservations  for

appointment  by  direct  recruitment  can  be  implemented

only in  case there are more than four  posts  available  in

each department.  It is the submission of the Respondents

that the available posts in all  the departments were less

than  four.   Though  five  posts  were  available  in  General

Medicine and General  Surgery specialties,  the number of

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

view  of  an  interim  order  passed  by  the  High  Court  of

[7]

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

Therefore, the State submitted that reservations could not

be provided for in the advertisement in accordance with the

Service Rules.  Reliance was placed on a judgment of this

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

support of the submission that the entire cadre cannot be

taken into account for providing reservations.  In support of

the  above  submission,  the  Respondents  relied  upon  a

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

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

7. Rule  6  of  the  Service  Rules  makes  reservation

applicable  for  appointment  to  direct  recruitment  to  the

posts of Professors.  There is no dispute that the proviso

postulates that each speciality/ department in Category ‘A’

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

posts earmarked for promotion to the extent of 75 per cent

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

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

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

the Service Rules would disclose that the departments to

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

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which  advertisement  was  issued  for  appointment  of

Professors  have  less  than  four  posts,  except  two

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

these  two  departments,  only  two  posts  of  Professors  in

each  department  were  available  for  being  filled  up.

Therefore,  only  four  posts  in  each  department  were

available for being filled up by direct recruitment as per the

advertisement dated 21.12.2015.   

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

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

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

advertisement  dated  21.12.2015  which  is  the  subject

matter  of  these  Appeals.   The  High  Court  upheld  the

notification by holding that there is no infringement of the

Service Rules.   

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

Allahabad  considered  the  applicability  of  reservations  to

Scheduled Castes under the Reservation Act, as applicable

to the aided institutions.  It was held that the Reservation

Act cannot be pressed into service where the number of

3 Service Bench No.4292 of 2016

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posts in the cadre are less than five.  After considering the

facts placed before us and the submissions made on behalf

of  the  Appellants  and the  Respondents,  we are  satisfied

that no error has been committed by the Respondents in

not  providing  reservations  for  appointment  by  direct

recruitment to the post of Professor in Government Medical

Colleges.  The unit of appointment is speciality/ department

and  the  number  of  posts  available  in  each  speciality/

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

of the Service Rules refers to direct recruitment which is the

subject  matter  of  the  advertisement.   The  Appellants’

contention  that  the  cadre  of  Professors  in  all  the

departments put together has to be taken into account for

providing reservations has rightly been rejected by the High

Court of Judicature at Allahabad.   

Enhancement of Upper Age Limit:  

10. Rule 9 of  the Service Rules  provides that  maximum

age limit  for  appointment  to  the  post  of  Professor  is  45

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

limit  of  65  years  prescribed  by  the  advertisement  is

[10]

contrary  to  Rule  9 of  the Service Rules.   The Appellants

argued that the enhancement of the upper age limit was

done by a Government Order dated 06.02.2015.  According

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

Constitution  of  India  could  not  be  overridden  by  an

executive order.   

11. The  Respondents  contended  that  minimum

qualifications  for  teachers  in  Minimum  Qualifications  for

Teachers  in  Medical  Institutions  Regulations,  1998  (for

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

Council  of  India  (MCI)  governing  the  maximum  age  for

appointment of Professors in Medical Colleges. They have

been amended from time to time.  According to the said

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

The Government considered it appropriate to enhance the

upper age limit for appointment of direct recruitment to the

post  of  Professor  from  45  years  to  65  years.   The

Government Order issued on 06.02.2015 for increasing the

age  has  not  been  challenged  by  the  Appellants.   The

Respondents relied upon the judgment of the High Court of

Judicature  at  Allahabad in  the case of  Dr.  Juhi  Singhal

[11]

(supra) which pertains to the same advertisement that is

the  subject  matter  of  these  Appeals.   Reliance  is  also

placed upon the judgment in Navyug Abhiyan Samiti  v.

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

concerned with  the  appointment  to  the  post  of  Principal

(Allopathy) and the challenge of the Writ Petitioners therein

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

years.  The Division Bench examined the provisions of the

MCI  Regulations  referred  above,  by  which  the  maximum

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

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

Regulations shall prevail over the provisions of Rule 9 of the

Service Rules.  The Special Leave Petition filed against the

said judgment was dismissed by this Court on 08.05.2019.

It was stated on behalf of the Government that no direct

recruitment  to  the  posts  of  Professors  in  Government

Medical Colleges could be made for 12 years prior to 2015

since  eligible  and  competent  persons  were  not  coming

forward to participate in the selections.  To ensure larger

participation for  selection to  the  posts  of  Professors,  the

Government  was  of  the  view  that  the  upper  age  limit

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

behalf of the Government that no prejudice is caused to the

Petitioners by the increase in the maximum age.   

 12. Having considered the submissions of the parties, we

approve the finding recorded by the High Court that the

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

years is not vitiated.  The High Court rejected the challenge

to  the  enhancement  of  upper  age  limit  for  direct

recruitment to the post of Professor in  Dr. Juhi Singhal

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

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

the High Court was of the view that the Government Order

dated 06.02.2015 only supplements the Rules and does not

supplant them.  The High Court further observed that the

relaxation was done in view of the shortage of teachers in

Medical  Institutions  who are qualified for  appointment to

the posts of Professors.  The relaxation of the upper age

limit was applicable only to those departments where 25

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

departments,  the  State  Government  decided  not  to  fill

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

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Bench  of  the  High  Court  followed  the  same  logic  and

reasoning while considering the increase of upper age limit

to the post of Principals in Government Medical Colleges.

We  see  no  reason  to  disagree  with  the  said  findings

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

doubt that the Regulations framed by the MCI relating to

the conditions of service of Professors in Medical Colleges

shall prevail over the Service Rules framed by the State of

Uttar Pradesh.   The Government Order dated 06.02.2015

has not been challenged by the Appellants for which reason

they cannot make any grievance about the same.   

13. The  posts  of  Professors  in  Government  Medical

Colleges  being  manned  for  15  years  prior  to  2015  by

unqualified persons indicates the distressing state of affairs

of  medical  education  in  the  State  of  Uttar  Pradesh.   To

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

make appointments by increasing the maximum age limit.

The sincere attempt made by the State to have qualified

doctors holding the posts of Professors has not yielded any

results  due  to  the  pendency  of  cases  which  are  filed

challenging  the  advertisement.     The  Respondents  are

[14]

directed to expedite the process of selection to the posts of

Professors and make appointments at the earliest.            

14. For  the  aforementioned  reasons,  the  Appeals  are

dismissed.    

              ..…...........................J.

                                                                  [L. NAGESWARA RAO]

                                                                 . ….......................J.

                                                               [HEMANT GUPTA]

New Delhi, August 28,  2019  

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