K. Vinod Chandran, CJ.—The writ petitioners are aggrieved with the prescription of upper age limit, as per Annexure-P/17 order, which is alleged to be in violation of the Teachers Eligibility Qualifications in Medical Institution Regulations, 2022; brought out by the National Medical Council (for brevity ‘NMC’).

2. The petitioners are specifically aggrieved with (i) clause (f) of Rule 6 of Chapter 6 of the Senior Resident/Tutor Bihar Medical Education Service, Recruitment, Appointment & Promotion (Amendment) Rules 2013, produced as Annexure- P/16, which provides for a 5 year relaxation in the age limit for members of the Bihar State Health Service cadre and the (ii) upper age limit fixed in Annexure-P/13 advertisement issued for selection and appointment of Senior Residents/Tutors in the Bihar Medical Education Service; fixed in the light of resolution dated 07.01.2016 passed by the General Administration Department, Government of Bihar, produced as Annexure-P/17. The petitioners specifically refer to the regulations of the NMC produced at Annexure-P/4, wherein Senior Residents with post graduation, should be below 45 years of age at the time of initial appointment. The upper-age hence should have been prescribed as 45 years by the State, is the contention.

3. We have heard learned Counsel for the petitioner, Mr. Jagjit Roshan and learned Advocate General, Mr. P. K. Shahi.

4. The learned Counsel for the petitioner points out that when the NMC provides for appointment of Senior Residents, whose initial appointment should be below 45 years of age, the Government could not have provided for an upper age limit of 37 for the general category, 40 years for the backward and extremely backward category and 42 years for the SC/ST category. It is the contention of the petitioner that there is dearth of medical professionals and the entire vacancies would not be filled up, even if all the qualified candidates are appointed; much less if such a restriction in upper age limit is made. The public would suffer insofar as no medical aid will be available, only for reason of the posts remaining vacant, because of the upper age limit prescribed by the State Government, which is also in violation of the Regulations of the NMC. The learned Counsel would also submit that, in any event if the relaxation as available to government employees in the amended rules is made applicable, SCs and STs above 45 years would be appointed, which would be in violation of the NMC Regulations.

5. The learned Advocate General pointed out that the prescription of the NMC, is only a bench mark which cannot be diluted by the State. The learned Advocate General would rely on the decisions in Dr Spriha Smriti and Another vs. The State of Bihar and Others in L.P.A. No.1105 of 2017 decided on 16.01.2018 and Dr Nishant vs. The State of Bihar and Others in C.W.J.C. No.6780 of 2024 decided on 29.04.2024, one of which decisions relied on two earlier Division Bench decisions of this Court.

6. Dr. Nishant (supra) considered a similar contention with respect to the maximum age prescribed for appointment to the post of Assistant Professors, which prescription was said to be in conflict with the regulation of NMC. The regulations of the NMC provided for the maximum limit upto which a qualified person can be appointed as 70 years. This Court held that the prescription of the NMC is not mandatory so as to oblige every appointing authority to prescribe 70 years as the maximum age. Referring to Dr. Professor Rajendra Chaudhary and Another vs. State of U.P. and Others; (2020) 13 SCC 278, the Division Bench found that the Hon’ble Supreme Court, in the cited decision, approved the enhancement of upper age limit from 45 years to 65 years, which was contrary to the maximum age prescribed of 45 years in the Medical College Teacher Service Rules, 2005, brought out by the State. Even in that case, despite the MCI having prescribed 70 years, the Hon’ble Supreme Court approved the enhancement to 65 y