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2004 DIGILAW 193 (GAU)

Dhaneswar Kalita v. State of Assam

2004-03-18

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. K.N. Choudhury, learned senior Advocate appearing for the writ Petitioner, Mr. A.S. Choudhury, learned senior Advocate appearing for the newly impleaded Respondent Nos. 5 and 6, Mr. T.C. Chutia, learned standing Counsel for the Assam Public Service Commission and Mr. Mahanta, the learned Govt. Advocate appearing for the Respondents. 2. The matter relates to appointment to the post of Principal of Government Ayurvedic College, Guwahati. Pursuant to an advertisement issued by the Assam Public Service Commission (for short 'the Commission'), the writ Petitioner as well as the private Respondents filed their applications and thereafter, the writ Petitioner was not called for interview on the ground that he lacks the requisite qualifications. The Petitioner, therefore, approached this Court by filing this writ petition and vide interim order dated 7.11.2002 the holding of the scheduled interview was stayed. 3. As per the advertisement issued in the Assam Tribune dated 15th April 2002 for the post of Principal, Government Ayurvedic College, Guwahati (hereinafter referred to as 'the post') one of the essential qualifications is as follows: b) A post Graduate qualification in any subject included in the second schedule of the Indian Medicine Central Council Act, 1970 as amended. 4. The case of the Petitioner is that after obtaining his diploma in Ayurvedic Medicines in the year 1976, he had obtained the degree of M.D. (AY) (Master Degree in Kaya Chikitsa) from the Institute of Post Graduate Education and Research in Ayurveda, Kolkata an institute affiliated to the University of Calcutta. Annexure-II is the certificate to that effect issued by the Vice Chancellor of the University of Calcutta on 25th May 1982. The Petitioner has filed annexure-XI a document published by the Department of ISM and Homeopathy Minister of Health and Family Welfare Government of India under the title Indian System of Medicine and Homoeopathy in India 1998, wherein it is stated that there are as many as 33 Post Graduate Colleges and Institutions in the country imparting post graduate education and facilities in Ayurveda. A list has been appended wherein the name of the institute wherefrom the Petitioner claimed to have obtained the degree has been mentioned along with the year from which the facility was available at that institute i.e. 1979. A list has been appended wherein the name of the institute wherefrom the Petitioner claimed to have obtained the degree has been mentioned along with the year from which the facility was available at that institute i.e. 1979. The Petitioner has also filed a copy of the public notice issued by the Central Council of Indian Medicine published in an Assamese daily "Amar Asom" in its issue dated 6.5.2002 wherein it is stated that the University of Calcutta is imparting post graduate level courses in Ayurveda Vachaspati M.D. in Ayurveda. 5. In this case, there is no dispute at the Bar that as per the advertisement issued in the newspaper for the post, the degree held by the candidate must have been mentioned in the Second Schedule of the Indian Medicine Central Council Act, 1970. There is also no dispute at the Bar that the degree possessed by the Petitioner was not included in the Second Schedule when the advertisement was issued by the Commission on April 15 2002. The Petitioner has produced a copy of the Gazette of India Extraordinary published on October 7, 2003 whereby the Second Schedule of the said Act has been amended as below: NOTIFICATION New Delhi, 7th October 2003 S.O. 1180 (E): The Central Government, by power conferred under Sub-section (2) of Section 14 of The Indian Medicine Central Council Act, 1970 (Act 48 of 1970), and after consultations with the Central Council of Indian Medicine, by above notification, amends the Second Schedule of the Act in the following manner: In Part I Ayurveda and Siddha of the second schedule, after the existing entries in column (2), (3) and (4) of serial No. 116 associated with University of Calcutta, Calcutta under the heading West Bengal, the following entries are inserted, i.e.: 1 2 3 4 University of Calcutta Calcutta Ayurvedic Vachaspati MD (Ayurveda) From 1979 onwards 26015/2/96 from the desk of the commissioner. 6. The above notification, therefore, shows that the degree given by the University of Calcutta. MD (AY) was included in the Second Schedule of the Indian Medicine Central Council Act, 1970 with effect from 1979 onwards. 7. Mr. AS Choudhury, learned Counsel for the Respondent has submitted that in view of the above notification, the degree given by the University of Calcutta has been included in the Second Schedule with effect from 1979 and there is no dispute in the same. 7. Mr. AS Choudhury, learned Counsel for the Respondent has submitted that in view of the above notification, the degree given by the University of Calcutta has been included in the Second Schedule with effect from 1979 and there is no dispute in the same. It is, however, submitted that so far the present case is concerned; at the time of issuance of the advertisement by the Commission and also at the time of filing of the writ petition by the present Petitioner, the degree possessed by the Petitioner obtained from University of Calcutta was not included in the Second Schedule and as such the present case of appointment shall have to be covered in the above light and the Petitioner cannot be allowed to participate in the selection process for lack of requisite qualification at the time of the advertisement. 8. The sum and substance of the Respondent's submission is that as the selection is to be made strictly in accordance with the advertisement dated 15th April 2002 and the subsequent development/gazette notification, which was not brought on record by amending the writ petition cannot be considered. 9. This is not a case where a candidate did not possess the requisite qualification at the time of advertisement and he has obtained the qualification subsequently. The law on that point was settled by the Apex Court by a catena of decisions that the candidate must have the requisite educational qualification on the date of submission of his application form. The Petitioner before us had obtained the degree way back in the year 1989 but it was not included in the Second Schedule and hence the Commission rightly refused to invite the Petitioner for interview. The gazette notification dated 7th October 2003 shows that the said degree conferred by the University of Calcutta stands included in the Second Schedule with effect from 1979. The effect of the said amendment is that the said degree stands included in the Second Schedule since 1979. If we accept the submissions made by the Respondent, it will mean or imply that the amendment made by the Gazette notification dated 7th October 2003 has been given effect from 7th of October 2003 and not from 1979 as provided in the said notification. In view of the above, we hold that the Petitioner Dr. If we accept the submissions made by the Respondent, it will mean or imply that the amendment made by the Gazette notification dated 7th October 2003 has been given effect from 7th of October 2003 and not from 1979 as provided in the said notification. In view of the above, we hold that the Petitioner Dr. Dhaneswar Kalita had the requisite qualifications and accordingly we direct the Commission to invite him for interview, if he is found otherwise eligible. 10. The writ petition stands disposed of. The interim order stands modified. The Assam Public Service Commission is directed to proceed with the matter.