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Himachal Pradesh High Court · body

2007 DIGILAW 162 (HP)

RAJIKA GUPTA v. STATE OF H. P.

2007-05-08

NARINDER SINGH THAKUR, VIJAY PAL SINGH

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JUDGEMENT Narinder Thakur, Vice Chairman:- The applicant has filed this original application mainly praying for following reliefs:- "7.1. That the appointment of respondent No.3 as Lecturer in Kaya Chikitsa vide notification dated 13.11.2000, Annexure-A-9 may kindly be quashed and set aside. The supplementary order dated 26.9.2003, Annexure-A-19 and order dated 6.1.2004, Annexure-A-24 may also be quashed. 7.2. That the order dated 19.7.2003, Annexure-A-18 may be upheld and respondent department may be directed to appoint the applicant as Lecturer, in Chikitsa with effect from the date respondent No.3 junior to the applicant, was so appointed with all consequential benefits. 7.3 that if during the pendency of this original application, respondent No.1 is considered for further promotion, in that event the applicant may also be held entitled to consideration for such promotion(s) from the same date with all consequential benefits." 2. Vide notification dated 13.11.2000 (Annexure-A-9) the respondent No.3 was appointed as Lecturer in Kaya Chikitsa by allegedly ignoring the claim of the applicant despite the fact that the applicant is senior to respondent No.3 is service. The applicant earlier also filed OA No.2474/2003, which was ordered to be treated as representation by this Tribunal alongwith another OA alleging to be of similar nature on 13.5 2003 (AnnexureA-16). However, the said representation was ultimately rejected by the Secretary (Health) on 26.9.2003 (AnnexureA-19) by passing a supplementary order, though the other Original Application was accepted vide order dated 26.9.2003 (Annexure-A-21 & A-22). 3. The grievance of the applicant as could be made out from the prolix pleadings is that the applicant did B.A.M.S. in the year, 1986 and she joined as Ayurvedic Chikitsa Adhikari on 12.2.1992. She did M.D. (Ayurveda) in Kaya Chikitsa (Manas Roga) from Banaras Hindu University in July, 2000 (Annexure-A-2). Recruitment & Promotion Rules for the post of lecturer, were notified on 26.5.1997 (Annexure-A-4). These rules provide for filing up of the posts 100% by way of transfer, failing which, by direct recruitment. Minimum educational qualification is M.D. in particular Branch of speciality and the transfer is to be made from amongst Ayurvedic Chikitsa Adhikaries with three years service. As per the final seniority list dated 31.12.1998 Annexure-A-5. The applicant avers that she submitted her option for being appointed as Lecturer in Kaya Chikitsa vide her representation dated 9.8.2000 followed by another option dated 10.8.2000 (Annexure-A-7). As per the final seniority list dated 31.12.1998 Annexure-A-5. The applicant avers that she submitted her option for being appointed as Lecturer in Kaya Chikitsa vide her representation dated 9.8.2000 followed by another option dated 10.8.2000 (Annexure-A-7). It is further averred that vide memo dated 9.10.2000 (Annexure-A-8), the Director of Ayurveda, informed the applicant that proposal regarding the regular appointment of Lecturer in Institution concerned, was yet to be sent to the Government by the department and that at the appropriate, time, the name of the applicant would also be included in the main proposal. The applicant was directed not to indulge in un-necessary correspondence and she would b*e informed on the action taken regarding her appointment vide notification dated 13.11.2000 Annexure-A-9. The respondent No.3 was appointed as Lecturer in Kaya Chikitsa by ignoring the eligibility & seniority of the applicant. 4. Another contention of the applicant in the original application is with respect to the decision of the respondent Secretary. The applicant avers that she submitted a representation dated 22.11.2000 (Annexure-A-10) followed by reminder dated 23.12.2000. Without any response to her representation, the applicant was in the meanwhile transferred to Panchkarma Department for utilization of her services for teaching purpose. On 8.8.2001 (Annexure-A-14) the applicant was appointed as a Lecturer in Panchakarma on regular basis, where she joined on 8.8.2001 itself. On 15.9.2001 (Annexure-A-15), notification dated 8.8.2001, was modified and the applicant was appointed as Lecturer in Swasthavrirtta. She filed OA No. 2474/2001, which was directed to be treated as representation alongwith another OA No. 2063/2001 of similar situated person with similar proposition. Her representation was rejected on 26.9.2003 and conveyed to the applicant on 22.10.2003. The claim of the applicant was, however, accepted prospectively only. The controversy raised by the applicant, is that the respondent Secretary has initially accepted the claim of the applicant vide order dated 19.7.2003 (Annexure-A-18) and modified the said order vide supplementary order dated 26.9.2003 (Annexure-A-19) and there was no occasion for the respondent Secretary to have changed the earlier decision. More so, when he has allowed the claim of the other applicant in another similar O.A. remaining contentions since, are not very much relevant are not being taken note of. 5. More so, when he has allowed the claim of the other applicant in another similar O.A. remaining contentions since, are not very much relevant are not being taken note of. 5. In the reply filed by the respondents No.1 and 2, it is mainly contended that the post of Lecturer (Kaya Chikitsa) was lying vacant and as such, the options were asked for from the Ayurvedic Chikitsa Adhikaries, in response to which the respondent No.3 has given his option. He has become eligible on 27.7.2000 on completion of three years service as an Ayurvedic Chikitsa Adhikari. As such, when he completed eligibility criteria, he was offered the appointment on the said post by way of transfer. It is stated that at the time of vacancy in the respondent department, respondent No.3 alone was eligible and willing candidate for the said post. To the contrary, the applicant became eligible on 8.8.2000 after joining her duties on completion on her M.D. course, whereas the respondent No.3 was already working in Government Ayurvedic College, Paprola. It is further stated that when the option was received from the applicant, she was transferred as Lecturer in the department of Panchkarma, according to the availability of the post, as there was no vacant post of Kaya Chikitsa. It is further categorically averred that the applicant never opted for Kaya Chikitsa Department prior to 22.11.2000, whereas the respondent No.3 was appointed as Lecturer on regular basis on 13.11.2000. When the options for the post of Lecturer were called for by respondent No.2 on 9.10.2000, the applicant has not opted for the same. 6. With respect of decision of respondent No.1 i.e. Secretary Ayurvedic it has been averred that the same has been taken after due consideration with the Law Department as the matter involved intricate question of law. So far as the other OA is concerned, the same was different from the OA of the applicant and as such, no different decision has been taken. 7. In the reply filed by respondent No.3 it has been averred that the applicant has already accepted the transfer against the post of Lecturer (Panchkarma) on 17.2.2001 (A-11) without demur and as such, she cannot file the present original application. Therefore, the applicant was regularly appointed against said post on 8.8.2001 and again appointed on 15.9.2001 as Lecturer (Swasthvritta) which also she has joined. Therefore, the applicant was regularly appointed against said post on 8.8.2001 and again appointed on 15.9.2001 as Lecturer (Swasthvritta) which also she has joined. Mainly, the respondent No.3 has stressed the point of option as much as respondent No.3 has averred that the applicant has never given any valid and specific option for the post of Lecturer (Kaya Chikitsa) in pursuance to any communication of the respondent department. The options were sought by the respondent department on 3.8.1998, 12.5.1999, 14.7.1999,17.10.1999 and 9.10.2000 and the applicant has never given her option in pursuance to these communications. It is further averred that vide letter dated 10.8.2000 (Annexure-A-7), the applicant has sent only a representation, which clearly shows that the same was not sent in pursuance to any communication of the respondent department seeking options. Annexure-A-7 does not indicate anywhere that the applicant has made a representation for the post of Lecturer (Kaya Chikitsa). The applicant has merely informed the respondent department with regard to her having acquired the M.D. Kaya Chikitsa (Manas Roga). 8. Rejoinder to the replies has been filed mainly reiterating the averments made in the M.A. 9. We have heard the rival contentions of the learned counsels for the parties and gone through the pleadings in detail. 10. There falls two questions, mainly for the our consideration. The first and foremost question that falls is, whether there was any valid option given by the applicant in pursuance to any communication seeking such option and secondly, whether there is an ambiguity in the order of respondent Secretary passed on the representation of the applicant in pursuance to the order of this Tribunal in her earlier original application. 11. Rule 11 of Recruitment & Promotion Rules governing the matter, reads thus: "11. In case of recruitment by promotion, deputation, transfer grade from which promotion/deputation/transfer is to be made:- By transfer from amongst Ayurvedic Chikitsa Adhikaries having rendered three years regular combined with continuous ad hoc (rendered upto 31.3.1991) service in the grade failing which by direct recruitment." 12. The words "by transfer" are very relevant in the present controversy. The post of Ayurvedic Chikitsa Adhikari is a Class-I Gazetted post, whereas the post of Lecturer is a Class-II Gazetted post. The words "by transfer" are very relevant in the present controversy. The post of Ayurvedic Chikitsa Adhikari is a Class-I Gazetted post, whereas the post of Lecturer is a Class-II Gazetted post. Certainly, there can be no promotion from Class-I post to lower post of Class-II, as such the post of Lecturer has been provided to be filled up by way of transfer in the first instance and in case of unavailability, by way of direct recruitment. It is in this context that seeking of option has got relevance and importance as by transfer an incumbent from higher post to the lower post, his service conditions are going to be adversely affected. However, he may do so on his own volition. The Recruitment Promotion Rules, no where speaks of seniority and the same has accordingly been observed by the respondent Secretary in his order. However, the seniority can be one of the point for consideration only when two persons have given their valid options. The law Department has rightly opined that the word "transfer" used in Rule 11 can not be said to be used in general connotation as the transfer is not other similar post of Ayurvedic Chikitsa Adhikari and in the same cadre." Rather, the transfer from one cadre to another cadre amounting to appointment in the another cadre, requires consent or option of the incumbent." 13. In the above factual backdrop, we set ourselves to peruse the alleged options of the applicant. The perusal of Annexure-A-7, amply shows that the same is merely a representation informing the respondent Secretary about acquisition of the degree of M.D. The said Annexure no where contains the word "Kaya Chikitsa" neither it make any reference to the communication of the department seeking for the option. Similar is the case with respect to second alleged from dated 9.8.2000 which we have perused from the record produced by the respondent department. As such, on the date of it, there is no valid and specific option made by the applicant for the post of Lecturer (Kaya Chikitsa). 14. Moreover, when the respondent Secretary, categorically asked for the option vide its letter dated 9.10.2000, the applicant has not given the same, whereas the respondent No.3 has given his option in pursuance to which he was considered. 14. Moreover, when the respondent Secretary, categorically asked for the option vide its letter dated 9.10.2000, the applicant has not given the same, whereas the respondent No.3 has given his option in pursuance to which he was considered. As such, we have no hesitation in coming to the conclusion and holding that the applicant has not made a valid and specific option on 9.8.2000 and 10.8.2000 as alleged. These are merely representation which are of no legal consequences. 15. The second controversy is with respect to the decision of the respondent Secretary. It was argued that there was no occasion for the respondent Secretary to have passed supplementary order on 26.9.2003 when he has already passed order on 19.7.2003. Admittedly, the order dated 19.7.2003, though passed by the respondent Secretary on file, was not communicated to the applicant or any concerned quarter and remained on file. However, before conveying the said order, the respondent Secretary in his wisdom has deemed it proper to seek the legal opinion of the Law Department as has been noted by him at a very outset in the supplementary order that "as the matter involves in Recruitment & Promotion Rules, after due though, I decide to refer the matter to Law Department to go through both the cases, in which I have passed the order, so as to clarify whether the stands taken by the undersigned, as per rules are proper or not". There was no bar for him to have taken legal opinion. As such, the order date 19.7.2003 can at best be treated as his tentative decision which has not attained finality as the same remained on the file. Both these orders were finally conveyed by the Secretary to the parties concerned on 26.9.2003, which were further sent to the parties on 22.10.2003 vide Annexure-A-17. As such, the supplementary order passed by the Secretary concerned is only tentative opinion dated 22.7.2003 and the same cannot be faulted with. No legal right as a matter of fact, has been vested in the applicant by tentative decision taken by the Secretary on 19.7.2003 and we also do not find any infirmity in the final order passed by the Secretary on 26.9.2003. In this regard, the Honble Apex Court in its decision reported in AIR 1996 SC page 1313, para 11, has observed that the decision becomes effective only when it is communicated. In this regard, the Honble Apex Court in its decision reported in AIR 1996 SC page 1313, para 11, has observed that the decision becomes effective only when it is communicated. So, it is not the case of the applicant that the decision of the Secretary dated 19.7.2003, has been communicated to the applicant prior to passing of order dated 26.9.2003. As such, this contention of the applicant too, is rejected. 16. In the light of above discussion, we see no infirmity in the action of the respondent department. As a result, the present original application is dismissed. The interim passed on January 16, 2004, is hereby vacated and the respondent department is at liberty to issue further promotion orders from the due .date. The record of the case, be returned to the learned Additional Advocate General, forthwith.