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2015 DIGILAW 1433 (RAJ)

SHRI RAM SHARMA v. STATE OF RAJASTHAN

2015-07-31

SUNIL AMBWANI, VEERENDR SINGH SIRADHANA

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JUDGMENT : 1. We have heard learned counsel appearing for the parties. 2. This Special Appeal arises out of the judgment of learned Single Judge, dated 07.04.2015, by which she has allowed the writ petition, and has set aside the selection/appointment of respondent No.4- appellant before us in this Special Appeal, on the ground that he was not eligible in accordance with the statutory Service Rules for being considered for appointment as an Associate Professor in the subject of 'Panchkarma', which was advertised, to be filled up by the Rajasthan Public Service Commission(RPSC). 3. The appellant was initially appointed as Medical Officer in the Department of Ayurved Medicine. On account of paucity of Lecturers/teachers, he was sent on deputation in the collegiate branch, and was required to work as Lecturer in Madan Mohan Malviya Government Ayurvedic College since the year 2001. The petitioner and the similarly situated Medical Officers, working as Lecturers in the collegiate branch, represented and were regularized with effect from 28.01.2015. 4. The posts of Associate Professor in the collegiate branch in certain subjects, were lying vacant, and thus, according to the Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Service (Amendment) Rules, 2013, the posts were requisitioned and were advertised, to be filled up by the RPSC. The appellant as well as the respondent, who was the petitioner in the writ petition, applied for the post of Associate Professor in Panchkarma. The appellant did not have the Postgraduate qualification in Panchkarma. He had Postgraduate qualification in 'Kayachikitsa', which was treated as separate subject, on the recommendations of the Central Council of Indian Medicine, after 2002. 5. The RPSC selected the appellant, to be appointed as Associate Professor, treating him to be eligible for the post, and on which the respondent filed a writ petition, which has been allowed, giving rise to this Special Appeal. 6. Learned Single Judge has found that for the post of Associate Professor, condition No.2(kha) of the advertisement, provides a degee in Ayurved from a University established by law in India, or a statutory Board/Faculty/Examining body, or Indian medicine, or its equivalent as recognized under the Indian Medicine Central Council Act, 1970; a Postgraduate qualification in the subject/speciality concerned included in the Schedule to the Indian Medicine Central Council Act, 1970; and teaching experience of 5 years in concerned subject. The desirable qualification for a candidate is research degrees, and that he has made some mark in the areas of scholarship as evidenced by quality or publications, contribution to educational renovation, design of new courses and curricula. 7. Learned Single Judge found that though the petitioner is Postgraduate in the subject of Panchkarma, and had teaching experience of more than five years, the respondent No.4- appellant before us, with Postgraduate qualification in Kayachikitsa, was appointed on the ground that Kayachiktsa is an allied subject of Panchkarma. Learned Single Judge also found that there is nothing to show that subject Kayachikitsa is the speciality to the subject of Panchkarma. On the contrary, as per the Rules of 1973, as amended in 2013, Kayachikitsa is considered as an allied subject to the subject of Panchkarma, and thus he could be considered only if any candidate of Postgraduate qualification in the concerned subject for the post of Lecturer was not available. The note appended under the Schedule is applicable for the post of Lecturer, and for Associate Professor, and that even if it is made applicable to the post of Associate Professor, then also, at the most the subject of Kayachikitsa could be treated as an allied subject to Panchkarma, and not the speciality to the subject of Panchkarma. 8. Learned Single Judge found that no such note is appended for the post of Associate Professor, and as per the conditions in the advertisement, a candidate having Postgraduate qualification in Panchkarma and teaching experience of five years, would only be eligible to apply for the post of Associate Professor- Panchkarma. Learned Single Judge held that apart from the fact that the respondent No.4- the appellant, was not Postgraduate in Panchkarma, he also did not have the requisite teaching experience in the said subject, inasmuch as he would acquire five yeas experience after regularization on the post of Lecturer, and not prior to the date of his regularization. He had failed to produce any material that his experience of teaching, while on deputation, to be taken into consideration against the restriction imposed by the Central Council of Indian Medicine. 9. Learned counsel appearing for the appellant submits that the subject of Panchkarma and Kayachikitsa were separated after the year 2002, and that Kayachikitsa is still treated to be an allied subject in the discipline of Panchakarma. 9. Learned counsel appearing for the appellant submits that the subject of Panchkarma and Kayachikitsa were separated after the year 2002, and that Kayachikitsa is still treated to be an allied subject in the discipline of Panchakarma. The note (i) appended to the Rules is clear on the subject, that in the absence of the candidate of Postgraduate qualification in concerned subject, a candidate having qualification in the allied subject will be treated to be eligible. The note(ii), appended to the Rules, provides further that the teachers who were considered eligible and appointed on the basis of the Rules prevailing at the time of their appointment, shall not be considered ineligible on the basis of these amendment Rules. 10. It is submitted that the appellant is teaching the subject since 23.11.2001, when he was posted in collegiate branch on deputation. The Rules provide for experience of teaching, and not the experience of teaching in any capacity, or by way of regular appointment. The Rules were framed for regularization, but that the same were stayed, and ultimately they come into operation when the services of the appellant were regularized on 28.01.2015. 11. We do not find any substance in the contention of learned counsel appearing for the appellant, inasmuch as the appellant was appointed as a Medical Officer in the Ayurvedic Department in the State of Rajasthan. He was sent on deputation in the collegiate branch, in which he was teaching the subject Kayachikitsa since 2001. He was regularized on the post of Lecturer on 28.01.2015, and thus, the teaching experience in Kayachikitsa on the post could not be counted for the purposes of Associate Professor. He will be entitled for promotion as Associate Professor on completing five years of services, and on which his experience for promotion to the post of Associate Professor may be counted. 12. As regards the qualification for eligibility, learned Single Judge has rightly observed that note(i) appended to the Rules, is applicable for the post of Lecturer, and that in the absence of a candidate with Postgraduate qualification in the concerned subject, the qualification in the allied subject may be taken to be sufficient. 12. As regards the qualification for eligibility, learned Single Judge has rightly observed that note(i) appended to the Rules, is applicable for the post of Lecturer, and that in the absence of a candidate with Postgraduate qualification in the concerned subject, the qualification in the allied subject may be taken to be sufficient. The selection in the present case was on the post of Associate Professor, and not on the post of Lecturer, and thus, the qualification in the allied subject could not be treated to be sufficient, to confer a right on the appellant for selection. The note(ii), appended to the Rules, is also not be applicable, inasmuch as the appellant was not appointed as Associate Professor in Panchkarma in the collegiate branch. He was a Medical Officer, sent on deputation, and that his teaching experience will be counted only after he was regularly appointed as Lecturer, namely when he was regularized as Lecturer on 28.01.2015. 13. We also do not find any substance in the contention of the learned counsel appearing for the appellant, that since the respondent was left as the only eligible candidate for selection, the RPSC could not have appointed him. There is no such principle, nor any precedent to hold that wherever after shortlisting the candidates, only one eligible candidate is selected, he may not be selected on the ground that he is the only one, who qualifies for the post and the post be readvertised. 14. In the aforesaid facts and circumstances, we do not find any good ground to interfere with the judgment of learned Single Judge. 15. The Special Appeal is dismissed.