By the Court.—We have heard Shri R. K. Ojha, assisted by Shri Arun Kumar Mishra for the petitioners. Shri Zafar Naiyer, Additional Advocate General assisted by Shri Ravi Shanker Prasad appears for the State respondents. Shri V.P. Varshney appears for UP Public Service Commission.

2. By these writ petitions the petitioners have prayed for declaring the Appendix-B, fixing minimum qualifications as per Rule-8 of the U.P. State Homeopathic Education Medical Colleges Regulations, 1990, as ultra vires to the Homeopathy (Minimum Standards of Education) Regulations, 1983, as amended in 2002, published in Extraordinary Gazette dated 12th September, 2002, and further to accept application forms of the petitioners for the post of Lecturers in pursuance to the Advertisement No. 3/2010-11 dated 1.10.2010, and the Advertisement No. 2/2011-12 dated 6.12.2011 published by the U.P. Public Service Commission, in so far as the qualifications for the posts of Lecturers, Readers and Professors in Government Homeopathic Medical Colleges are concerned.

3. It is admitted that the petitioners are not eligible to apply as they do not possess the requisite experience for the post of Lecturer and Reader as prescribed under the U.P. State Homeopathic Medical Colleges Teachers’ Service Rules, 1990. They claim to possess the higher qualification, namely the Post Graduate degree in Homeopathy as against the prescribed qualifications of recognised Diploma and Degree in Homeopathy. The petitioners apprehend that they will be disqualified as they do not have the teaching experience prescribed under the Rules of 1990, which provide that for the post of lecturer, the candidates should have three years’ teaching experience as Demonstrator, and for the post of reader, the candidates should have seven years’ teaching experience in as Lecturer or four years’ experience as Principal of the Private Homeopathy Medical Colleges.

4. It is submitted by Shri R.K. Ojha, that since the Homeopathy Central Council Act, 1973, has been enacted to standardise the Homeopathic medical education under the powers vested in the Parliament under Entry 66 of List III of the 7th Schedule, the regulations framed by the Central Council of Homeopathy will override and supersede the Rules made by the State Government, prescribing the qualifications for appointment of teachers under proviso to Article 309 of the Constitution of India. He submits that once the regulations prescribing qualifications have been tabled before the Parliament, and will be taken to be approved in view of Article 246, the Regulations will supersede the service rules made by the State under the proviso to Article 309 of the Constitution of India.

5. Shri V.P. Varshney appearing for UP Public Service Commission and Shri Zafer Naiyer, Additional Advocate General submit that the similar controversy had engaged attention of the Lucknow Bench of the High Court in Writ Petition No. 1654 (SB) of 2011 (Dr. Ravindra Nath Tripathi v. State of UP and others) decided on 15.9.2011. The Division Bench at Lucknow has dismissed the writ petition on the grounds that the regulations framed by the Central Council of Homeopathy in exercise of its powers under Section 73 of the Act do not have the force as Act of Parliament, and thus the regulations will not supersede the service rules framed by the State of U.P. under proviso to Article 309 of Constitution of India. It was further held that in any case the selections have to be made in view of the prevalent service rules vide Mohd. Raisul Islam and others v. Gokul Mohan Hazarika and others, (2010) 7 SCC 560 and thus the advertisement, so far as it prescribes the qualifications, which are laid down in statutory rules, cannot be changed in the advertised selections.

6. Shri Zafer Naiyer submits that the State Government has not yet taken any final decision with regard to the amendment of the Rules of 1990. The matter is still under consideration of the State Government.

7. Since the