Point of Law: Rules and Regulations framed under the repealing Act shall prevail as per Section 61(2).

JUDGMENT :

SUNEET KUMAR, J.

1. Affidavit of service has been filed. Despite notice, no one has put in appearance on behalf of the seventh respondent nor any counter affidavit has been filed.

2. Heard learned counsel for the petitioner and learned standing counsel for the State-respondents.

3. The instant petition is directed against the order dated 28 October 2020, passed by the third respondent, Principal Secretary, Department of Medical Health and Family Welfare, Government of U.P. at Lucknow, appointing the seventh respondent as Director of Institute of Mental Health and Hospital, Agar [Mental Health Institute].

4. The short question arises for determination in the instant petition is as to whether the seventh respondent possesses the requisite qualification for being appointed Director of Mental Health Institute.

5. It is not in dispute that the Government is the appointing authority of the Director and the Rules and Regulations framed by the State Government is applicable to the appointment made in the Mental Health Institute, including, for the post of Director. The State Government vide Government Order dated 29 August 2015, made applicable the provisions of the Uttar Pradesh State Medical Colleges Teachers’ Service Rules, 1990 [Service Rules, 1990] upon the post of Director and teaching staff of the Medical Health Institute. It is further noted in the Government Order that the Mental Health Institute is affiliated to Dr. B.R. Ambedkar University, Agra. The Government Order clearly provides that the created post of Director and other teaching faculty shall be governed by Service Rules, 1990. The relevant portion of the Government Order dated 29 August 2015, is extracted:

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6. Rule 8 of Service Rules, 1990, as amended by Second Amendment Rules, 2005, notified on 12 August 2005, provides the academic qualifications for appointment. It is mandated that for recruitment of a candidate to various categories of posts must possess the qualifications prescribed by the Medical Council of India [MCI] from time to time. The relevant portion of the Rules is extracted:

“8. Academic Qualifications - (1) A candidate for recruitment to the various categories of posts in the service other than the department of Pharmacy must possess the qualifications prescribed by the Medical Council of India from time to time.”

7. It is relevant to point out that academic qualification prior to amendment of the Rules was the same. The MCI prescribed the academic qualifications in Minimum Qualifications for Teachers in Medical Institutions Regulations, 1998 (amended upto 8 June 2017). Schedule-I provides qualifications for the post of Principal/Dean/Director of Medical Institution, which reads thus:

Requirements of Academic Qualifications, Teaching and Research Experience: