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Gujarat High Court · body

2020 DIGILAW 23 (GUJ)

Bhanubhai Punjabhai Meta v. State Of Gujarat

2020-01-08

A.J.SHASTRI, VIKRAM NATH

body2020
ORDER : A.J. SHASTRI, J. 1. The petitioner has invoked extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, by filing the present petition for seeking following reliefs : “7(A) Be pleased to admit/allow this petition; (B) Be pleased to issue appropriate writ, order or directions and be pleased to declare Rule 3(b) of the Vaidya Panchkarma/Deputy Hospital Superintendent, Class-I of Indian System of Medicine and Homeopathy, Recruitment Rules, 2017 published through Notification dated 2nd November, 2017 by the Health and Family Welfare Department, Sachivalaya, Gandhinagar, State of Gujarat, as ultra vires to Article 14 and 16 of the Constitution as the same prescribes the qualification of Post Graduate Degree in Ayurved for filling up the post of Vaidya Panchkarma, Class-I through direct selection and the same Rule 3(b) may kindly also quashed and set aside as the same is running contrary to Rule 2(a) (I) of the Vaidhya Panchkarma/Deputy Hospital Superintendent, Class I of Indian System of Medicine and Homeopathy, Recruitment Rules, 2017, published through Notification dated 2nd November, 2017 and the Notification dated 07.11.2016 and Schedule-4 published by Government of India, under Indian Medicine Central Council Act, 1970 and therefore, the same may kindly be quash and set aside. (C) Be pleased to issue appropriate writ, order or directions, and be pleased to direct the respondents – authorities to consider the representations made by the Medical Officer (Ayurved) Association as expeditiously as possible and such representation may be decided after giving an opportunity of hearing to the petitioner and the Medical Officer (Ayurved) Association; (D) Be pleased to quash and set aside the Advertisement dated 22.09.2019 being Advertisement No. 24/2019-2020 published by Gujarat Public Service Commission for filling up for the post of the Vaidya Panchkarma/Deputy Hospital Superintendent Class I as the same being contrary to Rule 2(a) (i) of the Vaidya Panchkarma/Deputy Hospital Superintendent Class I of Indian System of Medicine and Homeopathy, Recruitment Rules, 2017 and the Notification dated 07.11.2016 and Schedule – 4 published by Government of India under Indian Medicine Central Council Act, 1970; (E) Pending the admission, hearing and final disposal of this petition, be pleased to grant interim relief and by way of interim order, to restrain the respondent-authorities from undertaking recruitment process for filling-up the post of Vaidya Panchkarma, Class-I though Advertisement dated 22.09.2019 being Advertisement No. 24/2019-2020 published by Gujarat Public Service Commission; (F) Be pleased to pass such orders as thought fit in the interest of justice.” 2. The background of facts emanating the petition are that petitioner is having qualification of Bachelor in Ayurved and came to be appointed as Medical Officer (Class-II). According to the petitioner, the petitioner since having a qualification of Bachelor in Ayurved, has a very brief promotional avenue in respect of higher level post like District Medical Officer as well as the post of Vaidya Panchkarma. The respondent Authority has framed the Medical Officer (Ayurved)/Resident Medical Officer (Ayurved) (Class-II) Recruitment Rules, 2015 which came to be lastly published vide Notification dated 1.7.2015 by the Health and Family Welfare Department, Sachivalya, Gandhinagar, State of Gujarat. By virtue of these Recruitment Rules, the post of Medical Officer/Resident Medical Officer (Ayurved) (Class-II) is to be filled in through direct selection only by virtue of Rule 3 of the Rules and Rule 3(b)(i) of the Rules is requiring a degree of Bachelor of Ayurved Medicine and Surgery (BAMS) obtained from the University established or incorporated under the Central or the State Act. 2.1 According to the petitioner, thus the degree of Bachelor in Ayurved is already a basic degree for appointment to the post of Medical Officer (Ayurved)/Resident Medical Officer (Ayurved) (Class-II) and accordingly, the petitioner was appointed as such and serving as Resident Medical Officer (Ayurved) (Class-II). The petitioner has further asserted that promotions are to be given from the said post to the post of Vaidya Panchkarma/Deputy Hospital Superintendent (Class-I) and District Ayurved Officer (Class-I) and on this position for a period of almost about 11 years, the recruitment is not undertaken by the Authority. It is the case of the petitioner that basically, for the post of Vaidya Panchkarma/Deputy Hospital Superintendent (Class-I), the Recruitment Rules provide for bachelor’s degree till the year 2017. However, in the year 2017, a Notification dated 7.11.2016 came to be published and as per Rule 3(b) of the Rules, a qualification is prescribed of postgraduate degree in Ayurved and in view of such since the promotional avenues of the petitioner have become bleak, challenging Rule 3(b) the present petition is brought before us for seeking reliefs as prayed for. 3. When the hearing has commenced, Shri N.K.Majmudar, learned counsel appearing on behalf of the petitioner has contended that this Rule 3(b) is providing a minimum qualification of postgraduate degree in Ayurved and on that basis, the higher level posts are to be filled in. This Rule 3(b) creates an unreasonable classification between two set of similarly situated persons as for promotion Rule 2(a)(i) makes a Resident Medical Officer/Medical Officer (Class-II) as eligible to be considered for promotion on the post of Vaidya Panchkarma/Deputy Hospital Superintendent (Class-I) on the basis of his/her qualification of Bachelor degree in Ayurveda. However, the Medical Officer (Class-II) actually who is serving with the Authority and having Bachelor’s degree, is treated as ineligible for seeking appointment on the post through direct selection and as such, Rule 3(b) of the Notification dated 2.11.2017 runs counter to the touchstone of Articles 14 and 16 of the Constitution of India and as such, the learned counsel has ultimately requested the Court to set at naught by declaring the same as ultra vires. 4. 4. Shri N.K.Majmudar, learned counsel appearing for the petitioner, has further submitted that even otherwise if the relief prayed for is not granted, the petitioner would be stagnated in the service as there are bleak chances of higher level position and as such Rule 3(b) if not set aside or withdrawn by the Government, the same will have a far reaching consequences upon the petitioner and since that be the position, Rule 3(b) is irrational, arbitrary and violative of Articles 14 and 16 of the Constitution of India. 5. However, while going through the record, we have noticed that almost similar issue has been dealt with by us in another petition being Special Civil Application No.16666 of 2019 reflecting on Page 134 of the appeal compilation, in which at length this issue is decided by us, learned counsel for the petitioner has fairly and candidly submitted that no other distinguishing feature is possible to be submitted before the Court and has left it to the discretion of the Court, without much agitating the case further. 6. Having heard the learned counsel appearing for the parties and having gone through the material on record and having perused the previous order dated 1.10.2019 passed by this Court in the writ petition referred to above, we are not inclined to take a different view. Hence, since the very similar contentions have been answered by us in the earlier decision and there is no other distinguishing feature additionally submitted by the learned counsel for the petitioner and having candidly conceded, we are not inclined the accept the challenge and the petition being devoid of merit, no interference is possible at our end. 7. The conclusion which has been arrived by us in the previous proceedings, we deem it appropriate to quote hereinafter, since we have taken into consideration : “Having heard learned advocate Mr. Majmudar for the petitioners and having gone through the relevant Rules, first of all, Rules dated 1.7.2015, which are known as Medical Officer (Ayurved)/Resident Medical Officer (Ayurved) Class-II Recruitment Rules, has prescribed the eligibility criteria for appointment to the post which is prescribed in Rule 3, which reads as under: 3. To be eligible for appointment by direct selection to the post mentioned in Rule 2, a candidate shall, (a) not be more than 30 years of age. To be eligible for appointment by direct selection to the post mentioned in Rule 2, a candidate shall, (a) not be more than 30 years of age. (b) possess (i) a decree in Bachelor of Ayurved Medicine and Surgery (B.A.M.S.) obtained from any of the Universities established or incorporated by or under the Central or State Act in India; or any other educational institution recognized as such or declared to be deemed as University under section 3 of the University Grants Commission Act, 1956; or possess an equivalent qualification recognised under Indian Medicine Central Council Act,1970. (ii) the basis knowledge of computer application as prescribed in the Gujarat Civil Services Classification and Recruitment (General) Rules, 1967. (iii) adequate knowledge of Gujarati or Hindi or both. (c) have passed the Secondary School Certificate (S.S.C.) Examination or Higher Secondary Certificate (H.S.C.) Examination with Sanskrit as one of the subjects or its equivalent from recognized Institute. 7. A further perusal to the Rules relating to District Ayurved Officer under Directorate of Ayurved Recruitment Rules, 1990 has prescribed the eligibility criteria under Rules 2 and 3 respectively and the ratio for filling up by direct recruitment as well as through promotion shall be of 1:1. Now, as against this, a perusal to the Rules relating to Vaidya Panchkarma/Deputy Hospital Superintendent Class-I of Indian System of Medicine and Homeopathy Recruitment Rules, 2017, has prescribed qualification and required experience in Rule 2. Rule 3 is related to the eligibility criteria for direct selection. These Rules 2 and 3 are referred to on page 71 onwards, which are reproduced hereinafter: 2. Rule 3 is related to the eligibility criteria for direct selection. These Rules 2 and 3 are referred to on page 71 onwards, which are reproduced hereinafter: 2. Appointment to the post of Vaidya Panchkarma/Deputy Hospital Superintendent Class I, in the Gujarat Ayurveda Services under the Directorate of Indian System of Medicine and Homeopathy shall be made either: (a) by promotion of a person of proved merit and efficiency from amongst the persons, who, (i) have worked for not less than eight years in the cadre of Resident Medical Officer (Ayurveda), Class-II or Medical Officer (Ayurveda), Class-II in the Gujarat Ayurveda Services under the Directorate of Indian System of Medicine and (ii) have passed the qualifying examination for computer knowledge in accordance with the provisions of the Gujarat Civil Services Computer Competency Training and Examination Rules, 2006; Provided that where the appointing authority is satisfied that a person having the experience specified in sub-clause (i) above is not available for promotion and that it is necessary in the public interest to fill up the post by promotion even of a person having the experience for a lesser period, it may, for reasons to be recorded in writing, promote such person who possesses experience of a period of not less than two-third of the period specified in sub-clause (i) above; or (b) by direct selection. 3. To be eligible for appointment by direct selection to the post mentioned in rule 2, a candidate shall, (a) Not be more than 40 years of age; (b) possess a degree in Ayurved from recognised Institution or university specified by law in India; (c) possess ten years experience of running a dispensary on Ayurvedic system or combined seven years experience of running dispensary on Ayurvedic system and running hospital on Ayurvedic system and (d) possess adequate knowledge of Gujarati, Hindi and Sanskrit. Provided that the qualification regarding experience may be relaxed at the discretion of the Gujarat Public Service Commission in Cadre of a candidate belonging to the Scheduled Caste/Scheduled Tribe if at any stage of selection, the Gujarat Public Service Commission is of the opinion that sufficient number of candidates from these communities possessing, the requisite experience are not likely to be available to fill up the vacancies reserved for them: Provided further that, the upon age limit may be released in favour of a candidate who is already in the service of the Government of Gujarat in accordance with the provisions of the Gujarat Civil Services, qualification and recruitment (General) Rules, 1967, as amended from Time to time. Provided also that the upper age limit may be required in favour of a candidate possessing exceptionally good qualification as experience or both; Provided also that the preference may be given to a candidate possessing post graduates decree or diploma in Ayurved.” 8. From the conjoint reading, it appears that the case which is put up by the petitioners to be treated on equal pedestrian, is apparently illogical in view of the aforesaid eligibility criteria prescribed in the Rules. There appears to be no hostile discrimination of any nature, on the contrary each higher level post has prescribed relevant criteria specifically and therefore simply because the members of the petitioner Association holding the qualification of Bachelor in Ayurved is no circumstance which may permit the petitioners to be considered for the higher level post, i.e. Vaidya Panchkarma Class-I. A bare perusal of Rule 3(b) has specifically provided that to be eligible for the post, i.e. Vaidya Panchkarma/Deputy Hospital Superintendent Class-I, it has clearly prescribed that to be eligible for appointment by direct selection, one must have a postgraduate degree in Ayurved obtained from any of the Ayurveda Universities and must have 5 years’ experience on the post not below the rank of Resident Medical Officer (Ayurved) Class-II or allied requirements which are mentioned therein. This apparent reading, in the considered opinion of this Court, is neither discriminatory nor irrational or illogical which may attract violation of Articles 14 and 16 of the Constitution in any form and as such, each post has prescribed specific qualificatory criteria and is not possible to be confused at the instance of the petitioners. We see no merit in the challenge made by the present petitioners. We see no merit in the challenge made by the present petitioners. The contentions which have been raised have no merit. Accordingly, the petition stands dismissed with no order as to costs.” 8. In view of aforesaid situation which is prevailing on record and in view of no other contentions or the material differently pointed out to us, we are not inclined to deviate ourselves from the earlier view which has been taken in the writ petition referred to above. Accordingly, the present petition stands dismissed with no order as to costs.