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2018 DIGILAW 509 (ALL)

JOGENDRI KAUR v. STATE OF U. P.

2018-02-27

PANKAJ MITHAL, SARAL SRIVASTAVA

body2018
JUDGMENT By the Court.—This is a writ petition filed by the petitioner for quashing of the office order dated 11.4.2016 issued by the Principal Secretary, Department of Medical and Health Services, Government of U.P. at Lucknow i.e. respondent No. 1. 2. The aforesaid order is enclosed as Annexure 5 to the writ petition and it refuses to treat the petitioner as ad hoc Medical Officer (Ayurvedic/Unani) and to regularize her services on the said post. 3. The petitioner has made a further prayer for a direction upon the respondents to regularize her services on the post of Medical Officer (Ayurvedic/Unani). 4. The petitioner claims that she obtained a degree of Bachelor in Ayurvedic Medicines and Surgery i.e. BAMS from Nikhil Bharatvarshiya Ayurved Vidyapeetham, Delhi in 1982 and has been registered with the Bhartiya Chikitsa Kendriya Parishad. 5. The petitioner was appointed w.e.f. 14.9.1987 as a part time Medical Officer (Ayurvedic) and she had joined her duties at Mahila Chikitsalay Naogava, Sadat, Amroha in district Moradabad at that time. 6. The services of the Medical Officer (Ayurvedic/Unani) are governed by the Uttar Pradesh State Medical (Ayurveda/Unani) Services Rules, 1990. The said service rules vide Rule 8 provides for the academic qualification for the post of Medical Officer (Ayurvedic/Unani) inter alia, to be a degree in Ayurvedic or Unani Tib of a University established by law of Uttar Pradesh. The petitioner was not having the degree in Ayurvedic or Unani from any University of Uttar Pradesh. The petitioner apprehending that it will create problem and her salary may be stopped, preferred Writ Petition No. 7727 (SB) of 1992 Dr. (Smt.) Jogendri Kaur v. State of U.P. and others, challenging the above essential qualification of having a degree from a University in U.P. Several other similarly situated part time Medical Officers (Ayurvedic/Unani) also filed separate writ petitions. 7. All the writ petitions so filed were decided by a Division Bench of the Allahabad High Court at Lucknow vide judgment and order dated 18.7.1996 holding the condition for obtaining a degree from any recognized University within the State of U.P. to be ultra vires and commanding the respondents to appoint the petitioners, may be, on ad hoc basis as Medical Officer with a further direction to permit them to work till regularly selected persons join the post or till the services of their services are regularized. 8. 8. It appears that in view of the above decision which attained finality as the Special Leave Petition filed against the same was dismissed on 2.4.1998 by the Supreme Court, the State of U.P. amended the aforesaid Rules vide Uttar Pradesh State Medical (Ayurvedic And Unani) Service (Third Amendment) Rules, 2003 w.e.f. 31.5.2003 and the essential qualification for the post of Medical Officer (Ayurvedic and Unani) for having a degree in Ayurveda or Unani Tib of a University established by law in Uttar Pradesh was deleted and substituted by a degree in Ayurveda or Unani Tib of a University established by law in India, meaning thereby that all persons having a degree in Ayurveda or Unani Tib from any University in India were made eligible for the post of Medical Officer (Ayurvedic/Unani). 9. The petitioner was not given the benefit of the decision of the High Court dated 18.7.1996. She, therefore, initiated proceedings for contempt wherein she was permitted to make a representation regarding her grievances and the same was directed to be decided as per law. 10. The representation of the petitioner came to be rejected vide order dated 6.2.2004. The Principal Secretary, Department of Medical and Health Services, Government of U.P., Lucknow by the said order held that the petitioner is not entitled either to ad hoc appointment or for regularization of her services as Medical Officer as she does not possess the degree mentioned in paragraphs 1 and 2 of the Schedule to the United Provinces Indian Medicine Act, 1939 and secondly the degree possessed by her is not the requisite qualification as prescribed vide Rule 8 of the Uttar Pradesh State Medical (Ayurveda/Unani) Services Rules, 1990. 11. The above order was challenged by the petitioner by means of Writ Petition (Service Bench) No. 1929 of 2005 Dr. (Smt.) Jogendri Kaur v. State of U.P. and others. The said writ petition was finally allowed vide judgment and order dated 3.11.2015 and the order impugned therein dated 6.2.2004 was quashed and a direction was given to the Principal Secretary, Medical and Health Services, U.P., Lucknow to pass a fresh order in accordance with law keeping in mind the earlier decision of the High Court dated 18.7.1996. 12. The said writ petition was finally allowed vide judgment and order dated 3.11.2015 and the order impugned therein dated 6.2.2004 was quashed and a direction was given to the Principal Secretary, Medical and Health Services, U.P., Lucknow to pass a fresh order in accordance with law keeping in mind the earlier decision of the High Court dated 18.7.1996. 12. It is in pursuance of the above that the impugned order dated 11.4.1996 has been passed by the Principle Secretary, Department of Medical and Health Services, U.P., Lucknow again refusing to treat the petitioner as an ad hoc Medical Officer (Ayurvedic/Unani) and from regularizing her services on the said post for want of non fulfilment of the necessary qualification for the post. 13. We have heard Sri Sanjeev Singh, learned counsel for the petitioner and Sri Santosh Kumar Shukla, learned Standing Counsel for the respondent. 14. It was argued that the impugned order is nothing but repeation of the earlier order dated 6.2.2004 which was quashed by the High Court. In the earlier order, the petitioner was denied the benefit of ad hoc appointment/regularization on the post of Medical Officer (Ayurvedic/Unani) for two reasons as already referred to above; whereas in the present order the only reason assigned is that the registration of the petitioner being under paragraph 3 of the Schedule to the United Provinces Indian Medicine Act, 1939 she is not eligible for the post, which aspect was already decided in the previous round of litigation. It was also contended that many similarly situated persons i.e. part time Medical Officers (Ayurvedic/Unani) have already been accorded the benefit of ad hoc appointment and even regularized. 15. Learned Standing Counsel in response argued that the petitioner does not posses the requisite qualification for the post of Medical Officer (Ayurvedic/Unani) as prescribed under law and, as such, she is not entitled either for ad hoc appointment or for regularization. 16. There is no dispute to the fact that the services of the post of Medical Officer (Ayurvedic/Unani) are governed by the above referred service rules as amended in the year 2003. The said amended rules vide Rule 8 provides for the following as the essential qualifications for the post: “8. Academic qualifications.—A candidate for direct recruitment to the various posts in the service must possess the following qualifications: Post Qualifications Ayurvedic and Unani Chikitsa Adhikari, Manager, State Pharmacy, Assistant Manager, State Pharmacy. The said amended rules vide Rule 8 provides for the following as the essential qualifications for the post: “8. Academic qualifications.—A candidate for direct recruitment to the various posts in the service must possess the following qualifications: Post Qualifications Ayurvedic and Unani Chikitsa Adhikari, Manager, State Pharmacy, Assistant Manager, State Pharmacy. (1) Essential: (a) A degree in Ayurveda or Unani Tib of a University established by law in India. Five years’ degree or diploma in Ayurveda or Unani Tib of the Board of Indian Medicine, Uttar Pradesh. (b) Registration as a Vaidya or a Hakeem with the Board of Indian Medicine Uttar Pradesh. (c) At least six month’s professional experience of State Ayurvedic, Unani or Allopathic Hospital or dispensary. (2) Preferential: Post-graduate degree in Ayurveda or Unani Tib from a recognised institution.” 17. A bare reading of the aforesaid provisions reveal that to hold a post of Medical Officer (Ayurvedic/Unani) a person must fulfil all the three conditions (a), (b) and (c) of the aforesaid Rule. The condition (a) is in two parts and conditions (b) and (c) are in addition to it. Therefore, until and unless a person fulfils all the three conditions as laid down above, he or she cannot hold the post of Medical Officer (Ayurvedic/Unani) either on ad hoc basis or on regular basis. 18. The Government Order dated 1.10.1991 provides for absorption/ regularization of part time Medical Officers provided they were appointed before cut off date 17.5.1990 and are eligible to hold the post. The Government order dated 27.11.1998 provided for according ad hoc status to part time Medical Officers (Ayurvedic/Unani) provided they possess the essential qualifications for the post. In other words, the possession of essential academic qualifications for the post of Medical Officer (Ayurvedic/Unani) is a condition precedent for according ad hoc status to the petitioner and for her regularization in service as Medical Officer (Ayurvedic/Unani). 19. The very first condition or the essential qualification for holding the said post is “A degree in Ayurveda or Unani Tib of a University established by law in India”. The petitioner simply possess a certificate of Ayurvedacharya from from Nikhil Bharatvarshiya Ayurved Vidyapeetham, Delhi. The certificate of Ayurvedacharya is not a degree. Secondly, it has not been awarded by any University. Nikhil Bharatvarshiya Ayurved Vidyapeetham, Delhi is not a University. The petitioner simply possess a certificate of Ayurvedacharya from from Nikhil Bharatvarshiya Ayurved Vidyapeetham, Delhi. The certificate of Ayurvedacharya is not a degree. Secondly, it has not been awarded by any University. Nikhil Bharatvarshiya Ayurved Vidyapeetham, Delhi is not a University. No mterial was placed before us to establish that the aforesaid Vidyapeetham is a University and that the certificate awarded by it is a degree. There is no averment in the entire petition that the petitioner possess a degree in Ayurvedia from a recognized University in India. The mere registration of the petitioner with the Bhartiya Chikitsa Kendriya Parishad does not mean that the petitioner possess a degree of Ayurveda from a recognized University in India. 20. Sri Sanjeev Singh, learned counsel for the petitioner on the basis of the letter dated 9.12.2003 of the Assistant Secretary (Registration), Bhartiya Chikitsa Kendriya Parishad has tried to emphasis that the above certificate of Ayurvedacharya issued by the Nikhil Bharatvarshiya Ayurved Vidyapeetham, Delhi has been recognized for the purposes of registration with the Bharitya Chikitsa Kendriya Parishad. The recognition of the above certificate for registration does not make it a degree of a recognised University of India or even an equivalent qualification. In the net result, the above certificate not being a degree in Ayurveda or Unani Tib of a University established by law in India would not be sufficient to make the petitioner eligible for appointment as Medical Officer (Ayurvedic/Unani) 21. In view of the aforesaid facts and circumstances, in the absence of any degree of Ayurveda from a recognized University in India the petitioner is not a qualified person to be given ad hoc or regular appointment as a Medical Officers (Ayurvedic/Unani) in the Department of Medical and Health Services of State of U.P. 22. The above aspect of the matter was not dealt with and considered by the two earlier decisions of the High Court and not even in the decision dated 9.7.2014 passed by the Division Bench in Writ Petition No. 26637 of 2012 Dr. Dhirendra Prakash Tiwari v. State of U.P. and others and connected writ petitions. In all the above matters the Court had proceeded on the assumption that the petitioners do possess the requisite degree and the dispute was confined with regard to the degree by a University in U.P. or outside. 23. Dhirendra Prakash Tiwari v. State of U.P. and others and connected writ petitions. In all the above matters the Court had proceeded on the assumption that the petitioners do possess the requisite degree and the dispute was confined with regard to the degree by a University in U.P. or outside. 23. In this view of the matter, none of the above decisions support the petitioner for getting her ad hoc status and regularization as Medical Officer (Ayurvedic/Unani). 24. Accordingly, we find no merit in the writ petition and the same is dismissed.