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2010 DIGILAW 257 (CHH)

State of C. G. v. Punilal Chauhan

2010-10-26

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2010
JUDGMENT Sunil Kumar Sinha, J. 1. Being aggrieved with the order dated 5th of February 2010 passed in W.P. No. 3083/2005 by the learned Single Judge of this Court, the State has filed this appeal. 2. The facts, briefly stated, are as under: The Respondent was working as an Ayurved Compounded. He passed Ayurved Ratna from Hindi Sahitya Sammelan, Prayag. Some juniors to the Respondent were promoted to the post of Assistant Ayurved Medical Officer, but the Respondent was not promoted, therefore, the Respondent preferred the said writ petition for considering of his case for promotion to the post of Assistant Ayurved Medical Officer from the date of promotion of his juniors i.e. 29.08.2000. The State contended that the Respondent was not possessing requisite qualification for promotion to the post of Assistant Ayurved Medical Officer. The Respondent obtained the degree of Ayurved Ratna in the year 1995, which was not a recognized degree as per letter dated 13.08.2004 (Annexure R/1 in the writ petition) issued by the Assistant Secretary (Regn.), Central Council of Indian Medicine, New Delhi. It further contended that 40% posts of Assistant Ayurved Medical Officer were to be filled through promotion from the Compounders, who are Ayurvedic Graduates. Since the Respondent was not having the qualification of Ayurvedic Graduate, it was not possible to promote the Respondent to the post of Assistant Ayurved Medical Officer. The learned Single Judge, referring to the judgment of Delhi Pradesh Registered Medical Practitioners v. Director of Health, Delhi Admn. Services and Ors. (1997) 11 SCC 687, held in para 9 of the order that the Respondent has obtained Ayurved Ratna examination certificate from Hindi Sahitya Sammelan, Prayag, in the year 1995. Thus, the stand of the State that the Respondent does not possess the requisite qualification, as the Ayurved Ratna examination certificate granted by Hindi Sahitya Sammelan, Prayag, was not recognized, was correct and proper. Thus, the stand of the State that the Respondent does not possess the requisite qualification, as the Ayurved Ratna examination certificate granted by Hindi Sahitya Sammelan, Prayag, was not recognized, was correct and proper. However, considering the various provisions of M.P.(C.G.) Public Health (Indian Systems of Medicine and Homeopathy) Class III Ministerial Services Recruitment Rules, 1987 (hereinafter referred to as "the Rules, 1987"), the learned Single Judge held that for promotion to the post of Assistant Ayurved Medical Officer, only 3 years experience was required as per Rule 14 of the Rules, 1987; the Respondent was having that experience; and it was no where provided that the candidate should have minimum qualification as prescribed for appointment on the post of Assistant Ayurved Medical Officer directly or otherwise. Thus, the learned Single Judge held that there was no minimum qualification for appointment by promotion on the post of Assistant Ayurved Medical Officer, except 3 years experience on the post of Compounder. The learned Single Judge, thus allowed the writ petition and directed that the Appellant authorities shall consider the case of the Respondent afresh for promotion on the post of Assistant Ayurved Medical Officer from the date his juniors were promoted to the said post, in accordance with law. 3. Mr. Kishore Bhaduri, learned Additional Advocate General appearing on behalf of the State/Appellants argued that Rule 14 of the Rules, 1987 relates to conditions of eligibility for promotion. He referred to Schedule IV prepared under Rule 14 and argued that apart from the criteria of 3 years experience on the post of Compounder, the essential criteria for promotion to the post of Assistant Ayurved Medical Officer was that the Compounder to be considered in the feeder cadre must be Ayurvedic Graduate. His submission was that the learned Single Judge lost sight of this provision and has wrongly held that except the criteria of experience of 3 years, there was no other condition for promotion to the post of Assistant Ayurved Medical Officer and the order impugned vitiates. 4. On the other hand, Mr. Prateek Sharma, learned Counsel appearing on behalf of the Respondent opposed these arguments and supported the order passed by the learned Single Judge. 5. We have heard the learned Counsel for the parties at length and have also perused the records of the writ appeal as also the writ petition. 6. 4. On the other hand, Mr. Prateek Sharma, learned Counsel appearing on behalf of the Respondent opposed these arguments and supported the order passed by the learned Single Judge. 5. We have heard the learned Counsel for the parties at length and have also perused the records of the writ appeal as also the writ petition. 6. It was not disputed before us or before the learned Single Judge that the Respondent did not posses the qualification of Ayurvedic Graduate as the Ayurved Ratna examination certificate granted by Hindi Sahitya Sammelan, Prayag was not recognized by the concerned authorities. If we go through the provisions of Rule 14, which relates to conditions of eligibility for promotion, it provides that subject to the provisions of Sub-rule (2) the departmental promotion committee shall consider the cases of all persons who on the First day of January of that year have completed not less than such number of years of continuous service (whether substantive or officiating as specified in column (4) of schedule IV), in the post mentioned in column (2) of the said schedule or any post or posts declared equivalent thereto by the Government. Schedule IV corresponding to Rule 14 is divided into 5 columns. Column No. 1 shows Serial Number: column No. 2 shows the name of the post from which promotion is to be made; column No. 3 shows the name of the post to which promotion is to be made; column No. 4 shows the requisite experience; and column No. 5 shows about the members of departmental promotion committee. 7. In case on hand, we are concerned with Category III under Establishment of Divisional Organisation, SI. No. 6. 7. In case on hand, we are concerned with Category III under Establishment of Divisional Organisation, SI. No. 6. The relevant portion of Schedule IV is quoted as under: SCHEDULE IV S. No. Name of post be made Name of post is to be made Requisite experience Member of committee (1) (2) (3) (4) (5) Establishment of Divisional Organisation Category-I 1 X X X X 2 X X X X 3 X X X X 4 X X X X Category-II 5 X X X X Category-III 6 Compounder (1) 40% from compounders who are Ayurvedic Graduates Assistant Ayurvedic Medical Officer relieving Assistant Ayurvedic Medical Officer Junior Research Ayurvedic Medical Officer 3 years District Ayurved Officer (Senior) Member or Superintendent Hospital Pharmacy Though it has been mentioned in column No. 4 that the experience for promotion to the post of Assistant Ayurved Medical Officer from the post of Compounder should be 3 years, but at the same time, it has also been provided in column No. 2 that the feeder cadre for such promotion would be the cadre of Compounder and that would be 40% from the Compounders who are Ayurvedic Graduates. Various provisions of these columns (columns 2 to 5) are to be read together and nothing can be read in isolation. When in column No. 2, it has been clearly provided that the Compounders who are Ayurvedic Graduates are to be considered for promotion, a Compounder, who in fact was not an Ayurvedic Graduate cannot be considered for promotion to the post of Assistant Ayurved Medical Officer in light of the provisions of Rule 14 read with Schedule IV Category III SI. No. 6 of the Rules, 1987. 8. Admittedly, the Respondent was not having the requisite qualification, I as he was not an Ayurvedic Graduate. Therefore, the case of the Respondent was not liable for consideration for promotion to the post of Assistant Ayurved Medical Officer and the writ petition filed by the Respondent, in view of the above, was liable to be dismissed. 9. Mr. Prateek Sharma also argued that the requiremeni of Ayurvedic Graduates is specially meant for 40% of the total strength of feeding cadre Compounders, who posses that qualification, but it is not an essential qualification for the other Compounders who are in the feeder cadre having 3 years experience. 10. The argument advanced by Mr. 9. Mr. Prateek Sharma also argued that the requiremeni of Ayurvedic Graduates is specially meant for 40% of the total strength of feeding cadre Compounders, who posses that qualification, but it is not an essential qualification for the other Compounders who are in the feeder cadre having 3 years experience. 10. The argument advanced by Mr. Sharma cannot be accepted in light of the provisions of Rule 8 and Schedule III of the Rules, 1987. Rule 8 relates to direct recruitment and the minimum qualification for appointment to the post of Assistant Ayurved Medical Officer as prescribed in Schedule III is L.A.P. Bhisgacharya & Ayurvedacharya with B.A. Part I. Therefore, a Compounder not being an Ayurvedic Graduate, in fact, would not be eligible for consideration for promotion to the post of Assistant Ayurved Medical Officer, as he would be lacking in basic qualification. Therefore, the above interpretation given to the provisions of Rule 14 and Schedule IV of the Rules, 1987 cannot be accepted. 11. For the foregoing reasons, the writ appeal is allowed. The impugned order passed by the learned Single Judge is set aside and the writ petition filed by the Respondent is hereby dismissed. 12. No order as to cost.