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Himachal Pradesh High Court · body

2005 DIGILAW 146 (HP)

VED PARKASH SHARMA v. STATE OF H. P.

2005-05-17

BAKHSHISH KAUR, D.S.AMIST

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ORDER Bakhshish Kaur, Chairman - Dr. Ved Parkash Sharma, applicant is aggrieved by the inaction on the part of the respondents in not assigning him seniority as lecturer in Government Ayurvedic College Paprola from the date of his initial appointment. He is also aggrieved by the order passed by the competent authority whereby his representation was rejected. He has therefore, sought the following reliefs: "(i) The respondents, may be directed to treat the applicant as lecturer with effect from the date of his appointment as lecturer i.e. 2.4.1977 and give all consequential benefits of promotion etc. (ii) The respondents may be directed to promote the applicant to the post(s) of Assistant Professor/Sr. Lecturer and Associate Professor from the due date with all consequential benefits, (iii) The office order annexure A-7 dated 26.12.1994 may kindly be quashed and set aside. (iv) The respondents may be directed to produce the entire record and the costs of this O.A. be also awarded in favour of the applicant and against the respondents, (v) Any other or further order as may be warranted by the facts and circumstances of the case to which the applicant may be found entitled to, may also kindly be passed in the interest of justice." 2. The respondents have resisted the claim of the applicant qua the relief claimed by him alleging that the office order dismissing his representation is legal based on figure and facts. He shall be promoted to the next higher post when he will become eligible as per Recruitment and Promotion Rules of the higher post. Therefore, OA is liable to be dismissed. 3. We have heard Sh. H.K. Paul, learned Counsel for the applicant and Sh. Chirag B. Singh, learned Deputy Advocate General for the respondents. 4. There is practically no controversy so far as the factual aspects are concerned, therefore, need to be noticed in brief before we discuss the rival contention. The applicant had acquired Bachelors Degree in Ayurveda (GAMS) from Dayanand Ayurvedic College, Jallander in 1976. He had studied Sanskrit subject up to the metric standard and also Prajna. As per letter dated March 19, 1977 of Principal HIM Ayurvedic College, Paprola he was selected for the post of lecturer, on adhoc basis. Latter on vide annexure A-2 dated 13.1.1978 he was offered regular (temporary) post of lecturer in the pay scale of Rs. 350-25-650. He had studied Sanskrit subject up to the metric standard and also Prajna. As per letter dated March 19, 1977 of Principal HIM Ayurvedic College, Paprola he was selected for the post of lecturer, on adhoc basis. Latter on vide annexure A-2 dated 13.1.1978 he was offered regular (temporary) post of lecturer in the pay scale of Rs. 350-25-650. The applicant had been performing the duties of lecturer in HIM Ayurvedic Degree College, Paprola (in short Degree College). The Degree College was taken over by the Government on 3.3.1978 and an agreements to this effect was executed which is annexure A-3. Clause-3 of the agreement provides that the right of the employees will be protected as there was no other Government Ayurvedic College in the State, therefore, no rules were framed under Article 309 of the Constitution of India. 5. The respondents admit the taking over of the Degree College by the Government w.e.f. 3.3.1978. It is also admitted that the applicant had obtained degree of Ayurvedic (GAMS). It is denied that he had worked as lecturer in Government Ayurvedic College Paprola prior to 1992. 6. Mr. H.K. Paul learned Counsel for the applicant contended that the applicant has been continuously working till July 29, 1983 when he proceeded on study leave to join the institute of Post Graduate Teaching & Research Gujarat Ayurved University, Jamnagar (Gujarat) to acquire M.D. qualification and certificate to this effect was issued by the Principal which is annexure A-4 wherein it has been specifically mentioned that the applicant has been working as lecturer under him in Erstwhile Him Ayurvedic College, Paprola w.e.f. 2.4.1977 to 2.3.1978 and w.e.f. 3.3.1978 to 29.7.1983. The study leave was sanctioned Jay respondent No.1. 7. It is admitted fact that the pay scale of lecturer. Demonstrator and Ayurvedic Chikitsa Adhikari were identical prior to 7.10.1986 on which date the post of Ayurvedic Chikitsa Adhikari was declared and notified as gazetted Class-II. whereas the posts of Demonstrator and lecturer of Govt. Ayurvedic College Paprola remained as Class-Ill. The respondents had taken specific stand that promotional avenue were created in the department by creating 6 posts of Senor Ayurvedic Chikitsak. Therefore, applications were obtained including the applicant who was eligible for the post of demonstrator, lecturer as well as to the newly created posts of senior Ayurvedic Chikitsak (Specialist). But in the first instance the applicant did not exercise his option. Therefore, applications were obtained including the applicant who was eligible for the post of demonstrator, lecturer as well as to the newly created posts of senior Ayurvedic Chikitsak (Specialist). But in the first instance the applicant did not exercise his option. Later on when he was again asked as to whether he wanted to join teaching cadre, on receipt of his option on 24.8.1990 his case was sent for classification of the posts of demonstrator/lecture and therefore he was promoted as lecturer. 8. On behalf of the respondents a point 01 limitation was also raised but it is pertinent to mention here that in reply to the OA no averment has been mentioned that OA is barred by limitation. Thus Mr. Paul, in support of his arguments has relied upon Smt Bhuri Bai (dead) by LRs. and others v. State of Madhya Pradesh, 1987 (Supp) SCC 690. The observation relevant for discussion of this case are as under :- "As regards the question of limitation, we have pointed out often enough that the plea of limitation is not a proper one to be taken by the state. That was perhaps the reason why the Government very properly did not raise the plea of limitation in defence to the action of the applicants. We do not think that the High Court was justified in taking up the question suo motu and finding that the suit was barred by limitation." 9. The thrust of the arguments advanced by Mr. Chirag B. Singh, learned Deputy Advocate General is that as the applicant did his post graduation in 1986 and he has exercised his option in teaching cadre in 1990, therefore, he was promoted to the post of lecturer in the year 1991 on the recommendation of departmental promotion committee. He had never objected his appointment as Ayurvedic Chikitsa Adhikari, therefore, at this stage he can not be considered from the date of initial date of appointment particularly as lecturer. 10. The competent authority while dismissing the representation of the applicant vide order Annexure A-7 has also observed that on the recommendation of the screening committee, the services of Dr. Ved Parkash were taken over as Ayurvedic Chikitsa Adhikari vide order dated April, 1983 and at that time he never objected to his appointment, therefore, the application submitted at this belated stage seems to be an after thought. Ved Parkash were taken over as Ayurvedic Chikitsa Adhikari vide order dated April, 1983 and at that time he never objected to his appointment, therefore, the application submitted at this belated stage seems to be an after thought. His option for teaching cadre was received in the year 1990 on the basis of which he was promoted in the year 1991. 11. Whether the appointment letters appointing the applicant as lecturer referred to above can be ignored or required to be looked into ? It appears that the authority concerned has totally ignored this aspect. Annexure A-1 is appointment letter issued on 19.3.1977 by the Principal of the Degree College informing the applicant that he has been promoted further to the post of lecturer on 13.1.1978. Another letter was issued by the Principal of Degree College whereby the applicant was offered (temporary) regular post of lecturer. Annexure A-4 is also a letter issued by the Principal of Ayurvedic College Paprola wherein it is certified that the applicant has worked as lecturer in the erstwhile Him Ayurvedic College, Paprola w.e.f. 2.4.1977 to 2.3.1978 and w.e.f. 3.3.1978 to 29.7.1983. He was relieved on 29.7.1983 to join the Institute of Post Graduate Teaching & Research, Gujrat Ayurved University, Jamnager (Gajrat) as per direction received from the Director of Ayurveda. Annexure A-5 is the letter whereby the applicant along with others were granted study leave for doing post graduation. No doubt the applicant therein has been described as Ayurvedic Chikitsa Adhikari along with others, but it is also admitted, as also pleaded by the respondents that he pay scale and status of lecturer, demonstrator and Ayurvedic Chikitsa Adhikari were idetnical prior to 7.10.1986. Thus the appointment letters and the certificates referred to above would not take away the status of lecturer on which post the applicant was appointed. 12. For the first time the Recruitment and Promotion Rules for the post of lecturer (Ayurveda) (hereinafter referred as the Rules) in the pay scale of Rs. 750-25-850-30-1000 was notified on 15.5.1995. Earlier to that there was no recruitment and promotion rules for the post of lecturer (Ayurveda). These rules were brought into force with immediate effect and not from retrospective date. Meaning thereby the classification prescribed by these rules cannot be made applicable to the appointment of the lecturers including the applicant who was appointed as lecturer in March, 1977. Mr. Earlier to that there was no recruitment and promotion rules for the post of lecturer (Ayurveda). These rules were brought into force with immediate effect and not from retrospective date. Meaning thereby the classification prescribed by these rules cannot be made applicable to the appointment of the lecturers including the applicant who was appointed as lecturer in March, 1977. Mr. Paul learned Counsel for the applicant contended that the fundamental right accrued in favour of the applicant cannot be made so as to contravene his fundamental right as he was already appointed prior to the notification of the Rules for the post of Lecturer. In support of his argument he has placed reliance on State of Gujarat v. Raman Lal Kashave Lai (SC), 1983(1) SLR 581. 13. Our attention has also been drawn to Union of India and others v. Tushar Ranjan Mohanty and others, 1994(5) SCC 450. Under Head Note-C it has been held as under :- "The legislature and the competent authority under Article 309 of the Constitution of India have the power to make laws with retrospective effect. This power, however, cannot be used to justify the arbitrary, illegal or unconstituional acts of the Executive. When a person is deprived of an accrued right vested in him under a statute or under the Constitution and he successfully challenges the same in the court of law, the legislature cannot render the said right and the relief obtained nugatory by enacting retrospective legislation. "The retrospective operation of the amended Rule 13 cannot be sustained. The retrospective amendment of Rule 13 takes away the vested right of respondent No. 1 and other general category candidates senior to respondents 2 to 9. Therefore, Rule 13, to the extent it has been made operative retrospectively, is unreasonable, arbitrary and, as such, violative of Articles 14 and 16 of the Constitution of India. The operative operation of the rules has to be struck down." 14. In the Rules notified in May 15, 1985 copy whereof has been placed on record it is mentioned that these Rules shall come into force with immediate effect. Meaning thereby that it will come into force not from the retrospective date but with immediate effect. Therefore, the appointment of the applicant as lecturer as per annexure A-1 and A-2 did not suffer from any infirmity. Meaning thereby that it will come into force not from the retrospective date but with immediate effect. Therefore, the appointment of the applicant as lecturer as per annexure A-1 and A-2 did not suffer from any infirmity. The Rules do not suggest/provide anywhere that the earlier appointments already made will be nullified. 15. The applicant in his rejoinder has taken a specific plea that Him Ayurvedic College which was a private college was affiliated to Punjab State Faculty of Ayurveda and Unani System of Medicine at Chandigarh. This faculty was governed by the rules of C.C.I.M. (Central Council of Indian Medicine) and was recognized by this Council. The applicant joined as lecturer in accordance with the rules applicable at that time to the teaching staff of the CCIM and continued to serve as a lecturer from April 2, 1977 to 29.7.1983 including the period from 2.4.1977 to 2.3.1978, when it was a private college. It is also mentioned that he was paid salary of a lecturer from 2.4.1977 to 29.7.1983 which fact can be ascertained from the relevant pay books. He has also worked as .an Examiner (Theory and Practical) of B.A.M.S. & G.A.M.S. Classes in the following Universities during 2.4.1977 to July, 1983. (i) HP University Shimla. (ii) Gur Nanak Dev University, Amritsar. (iii) Punjab State Faculty of Ayurveda & Unani System of Medicine, Chandigarh. 16. According to the University Rules, only a member of the Teaching cadre can serve as an Examiner for Theory and Practical. Thus the contention of the respondents that the applicant has not served as lecturer in Govt. Ayurvedic College, Paprola is against official record. He had also undergone Re-orientation training course, organized by the National Institute of Ayurveda, Jaipur under Central Government sponsored scheme w.e.f. 15.6.1981 to 25.7.1981. He was sponsored for the training by the Director of Ayurveda in the capacity of lecturer. All these facts show that he has not served as lecturer in private college but also in Government college. The respondents had not filed supplementary affidavit for controverting the specific plea taken by the applicant for the period he had been working as lecturer. Rule for demonstrator were framed in the year 1980. All these facts show that he has not served as lecturer in private college but also in Government college. The respondents had not filed supplementary affidavit for controverting the specific plea taken by the applicant for the period he had been working as lecturer. Rule for demonstrator were framed in the year 1980. It is, therefore, contended that the demonstrator and Ayurvedic Chikitsa Adhikari both were feeder categories for lecturer, though in 1983 the applicant was promoted as lecturer and the rule for the lecturers were made in 1985, therefore, it cannot be declared as un-qualified, which post he is possessing since 1983. 17. With this background we are of the considered view that the applicant had been working as lecturer and also that the pay scale/status of demonstrator, lecturer and Ayurvedic Chikitsa Adhikari were identical, therefore, period during which the applicant has worked as Ayurvedic Chikitsa Adhikari as well as lecturer has to be taken into consideration for the purpose of promotion. The period during which he has been working as lecturer cannot be washed away or given a go by. The applicant had earlier filed OA 2368/93 which was treated as representation to the Secretary Ayurveda with further direction to consider the case of the applicant on merits. No doubt his representation vide Annexure A-7 was dismissed but a careful reading of the same would reveal that the competent authority has nowhere discussed in the order or taken into account the documents particularly Annexure A-1 and A-2 vide which the applicant was initially appointed as, lecturer and subsequent period referred to above when the applicant had been working as lecturer. In fact, it is simply mentioned that on the recommendation of the screening committee the services of the applicant were taken over as Ayurvedic Chikitsa Adhikari and at that time he never objected as Ayurved/c Chikitsa Adhikari. Simply because he has not objected appointment as Ayurvedic Chikitsa Adhikari is not enough to disentitle the claim of promotion because the Rules for the first time for the post of Lecturer (Ayurveda) were notified on 15.5.1985 which came into force with immediate effect. Simply because he has not objected appointment as Ayurvedic Chikitsa Adhikari is not enough to disentitle the claim of promotion because the Rules for the first time for the post of Lecturer (Ayurveda) were notified on 15.5.1985 which came into force with immediate effect. If he has already been appointed and working as Lecturer prior to the notification of the Rule of 1985 which were not applicable with retrospective effect then on this ground also his claim cannot be set aside being not maintainable as he did his graduation in the year (?)1986. In view of the aforesaid, the original application is allowed. Respondents are directed to treat the applicant as lecture w.e.f. his date of appointment. He may be given notional seniority from 30.1.1978 i.e. from the date he was regularly appointment as lecturer with all consequential benefits. However, the momentary benefits accrued, if any, shall be restricted to 38 months prior to the filing of the original application.