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2023 DIGILAW 322 (RAJ)

Anju Shrivastava v. State

2023-01-30

PUSHPENDRA SINGH BHATI

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JUDGMENT : PUSHPENDRA SINGH BHATI, J. 1. These Civil Writ Petitions have been preferred claiming the following reliefs: In S.B. Civil Writ Petition No. 6704/2015: “It is, therefore, respectfully prayed that this writ petition may kindly be allowed and this Hon’ble Court may kindly be allowed and this Hon’ble Court may be pleased to issue appropriate writ, order or direction: (a) the respondents may kindly be directed to given the appointment to the petitioner with all consequences benefits on the post of Ayurved Chikitsak in pursuance of the advertisement dated 01.06.2013 (Annexurre-11). (b) the respondents may kindly be directed to issue or prepare fresh merit list with add the name of the petitioner. (c) any other appropriate writ, order or direction which this Hon’ble Court deems just and proper on the facts and in the circumstances of the case may also be passed in favour of the petitioner with cost of the petition.” In S.B. Civil Writ Petition No. 13863/2015: “It is, therefore, respectfully prayed that this writ petition may kindly be allowed and this Hon’ble Court may be pleased to issue appropriate writ, order or direction: (a) the respondents may kindly be directed to given the appointment to the petitioner with all consequences benefits on the post of Ayurved Chikitsak in pursuance of the advertisement dated 01.07.2013 (Ann.8) (b) the respondents may kindly be also directed to issue or prepare fresh merit list with add the name of the petitioner. (c) any other appropriate writ, order or direction which this Hon’ble Court deems just and proper on the facts and in the circumstances of the case may also be passed in favour of the petitioner with cost of the petition.” 2. The controversy in both the connected petitions is similar, and for the purpose of adjudication, S.B. Civil Writ Petition No. 6704/2015 is taken as the lead case and the factual matrix of the same is being taken. 3. The short controversy that comes up for consideration before this Court is whether the Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Service Rules, 1973 (hereinafter “Rules of 1973”) is inconsistent with the provisions of law contained in Indian Medicine Central Council Act, 1970 (hereinafter “Act of 1970”) and if so, which would prevail. 4. 3. The short controversy that comes up for consideration before this Court is whether the Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Service Rules, 1973 (hereinafter “Rules of 1973”) is inconsistent with the provisions of law contained in Indian Medicine Central Council Act, 1970 (hereinafter “Act of 1970”) and if so, which would prevail. 4. It is the contention of the learned counsel for the petitioners that the petitioners are eligible for the post of ‘Rural Ayurvedic Chikitsak (Women) as per the Act of 1970 but has been incorrectly held to be ineligible by the respondent no. 2-Department under the Rules of 1973 and that in such event of inconsistency between a Central legislation and a State legislation, then the Central legislation must prevail. 4.1 In this regard, reliance was placed upon the judgment rendered by the Hon’ble Division Bench of this Court in the case of Rajasthan Pradesh Vaidya Samiti vs. State of Rajasthan and Another, 1988 (2) WLN 553 . Relevant portion of the said judgment as relied upon by learned counsel for the petitioner is reproduced as hereunder: “9.....We have already said that the provisions made under the State Act in respect of registration are clearly repugnant to the provisions of the Central Act and they must give way to the provisions of the Central Act.....” 5. On the other hand, it is the contention of the learned counsel for the respondents that there is no inconsistency between the Central and State legislation, and that it is the prerogative of the State to prescribe additional eligibility criteria, especially when the Central legislation does not contain any repealing clause to this effect. 6. Brief facts of the case as placed before this Court by learned counsel for the petitioners are that in the year 2003, an advertisement dated 06.10.2003, was issued by the respondent-department for appointing ‘Ayurved Chikitsak’ on temporary as well as contract basis. And that the petitioner applied for the same and was selected for the said post on contract basis on 25.05.2004 and issued an appointment letter on 26.05.2004. 6.1 Subsequently, in the year 2008, an advertisement was issued by the respondent-department on 21.07.2008 inviting applications for the post of “Rural Ayurvedic Chikitsak.” That the petitioner applied for the same, and was duly selected and joined the duty on 06.06.2009. 6.1 Subsequently, in the year 2008, an advertisement was issued by the respondent-department on 21.07.2008 inviting applications for the post of “Rural Ayurvedic Chikitsak.” That the petitioner applied for the same, and was duly selected and joined the duty on 06.06.2009. 6.2 That the said selection came to be challenged before this Hon’ble Court, at Jaipur Bench, and this Court vide order dated 29.04.2011, set aside the entire select list and directed the concerned respondents to conduct the entire process afresh, and in the meanwhile, they were also directed not to disturb the existing select list, for the said process. 6.3 That in the year 2012, the respondent-department issued an advertisement dated 01.06.2013 for the post of ‘Rural Ayurvedic Chikitsak’ whereby the respondent-department issued the provisional merit list, wherein the present petitioner's name was not present. 7. Learned counsel for the petitioners submitted that the petitioner has been working on the post of ‘Rural Ayurvedic Chikitsak’ since 05.06.2009, in pursuance of the selection made vide advertisement issued 21.07.2008. 7.1 Learned counsel for the petitioners further submitted that although the respondent-department issued an advertisement on 30.04.2012, in pursuance of the judgment passed by the Hon’ble Court, at Jaipur Bench on 29.04.2011 and that an interview letter was issued to that effect on 07.06.2012, however the respondent-department has not, till date, issued a fresh selection list in pursuance of the same, and therefore the prior selection list dated 02.06.2009 whereby the petitioner was selected is still in force. 7.2 It is further submitted that, without declaring the result of the advertisement dated 30.04.2012, the respondent-department issued a fresh advertisement dated 01.06.2013 and issued a provisional merit list to that extent, wherein the petitioner’s name was not present. 7.3 It is also submitted that the cut-off percentage for female candidates was 69.73 and that, despite the petitioner scoring 72.65, her name was not mentioned in the provisional merit list. 7.4 It is further submitted that in S.B. Civil Writ Petition No. 13863/2015, vide order dated 01.07.2015, this Court directed for one post of ‘Ayurvedic Chikitask’ to be kept vacant in the selection process in question. And in S.B. Civil Writ Petition No. 6704/2015, vide order dated 07.02.2015, this Court directed for one post of ‘Ayurvedic Chikitask’ to be kept vacant in the selection process in question. 8. And in S.B. Civil Writ Petition No. 6704/2015, vide order dated 07.02.2015, this Court directed for one post of ‘Ayurvedic Chikitask’ to be kept vacant in the selection process in question. 8. On the other hand, learned counsel for the respondent submitted that while the petitioner had duly applied for the post of ‘Ayurvedic Chikitsak’ under the category of ‘General (Women)’ upon the verification of the documents submitted by the present petitioner it was found that she was registered with Central Council of Indian Medicine on 07.12.2012; whereas as per terms and conditions mentioned in the advertisement dated 06.01.2013, it was categorically mentioned that the candidate is required to be registered with the Indian Medicine Board/Council authorized by the Central Council of Indian Medicine. 8.1 It is further submitted that the petitioners were not eligible to be selected to the post of ‘Ayurvedic Chikitsak’ as they were not registered with the Indian Medical Board of Rajasthan; a prerequisite as mentioned in the advertisement issued by the respondent- department and under the Rajasthan Indian Medicine Act, 1953. 8.2 It was also submitted that in order to be eligible, the petitioners were required to be graduates with a degree in Ayurveda from a University established by law in India and recognized under the Indian Medicine Central Council Act, 1970; as mentioned in the Schedule appended to the Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Service Rules, 1973, and were required to be qualified from an institution recognized by the Board of Indian Medicine, Rajasthan under the Rajasthan Indian Medicine Act, 1953. 8.3 it was further submitted that the aforementioned advertisement was issued in accordance with the provisions of law contained in the Rajasthan Indian Medicine Act, 1953; the relevant provision of law being Section 52 of the Act. For the sake of brevity, the said Section is reproduced hereunder: 52. Reservation of certain appointments to Vaidyas, etc. 8.3 it was further submitted that the aforementioned advertisement was issued in accordance with the provisions of law contained in the Rajasthan Indian Medicine Act, 1953; the relevant provision of law being Section 52 of the Act. For the sake of brevity, the said Section is reproduced hereunder: 52. Reservation of certain appointments to Vaidyas, etc. who have qualified themselves from educational institutions recognised by the Board - Except with the special sanction of the State Government, no person, other than a registered Vaidya, Hakim Naturopathy and Yoga Chikitsak or Midwife who has qualified himself or herself from an institution recognised by the Board for the purpose, and is a domiciled resident of Rajasthan, shall be competent to hold an appointment as medical officer of health or as Vaidya, Naturopathy and Yoga Chikitsak Hakim, midwife or other medical officer in an Ayurvedic or Unani Tibbi Naturopathy and Yoga Chikitsak Hospital, infirmary, dispensary, lying in hospital, surgical institution or maternity house maintained by or under the control of the State Government or a local authority: Provided that Vaidyas, Hakims Naturopathy and Yoga Chikitsak and midwives in the employ of the State Government or a local authority on the date on which this Act comes into force shall continue to hold their appointments. 9. In his rejoinder arguments, learned counsel for the petitioners submitted that the petitioners are duly registered with the Central Council of Indian Medicine (CCIM), New Delhi and have been allotted registration numbers accordingly, and are therefore entitled to practice anywhere in India. And that, the present petitioners are both eligible, under the Act of 1970. 10. Heard learned counsel for the parties and, perused the record of the case as well as the judgment cited at the Bar. 11. This Court observes that the advertisement, dated 01.06.2013, (at Annex-11) issued by the State categorically requires that the candidates must be registered with the Indian Medicine Board, Rajasthan. 12. This Court further observes that it is not contended that the petitioners are recognized by and registered with the Central Council of Indian Medicine, but that the additional criteria as laid down by the State vide the aforementioned advertisement was not duly complied with by the petitioners within the stipulated time frame. Thus, there is no inconsistency between the Central and the State legislation. 13. Thus, there is no inconsistency between the Central and the State legislation. 13. This Court thus finds that the case law cited on behalf of the petitioners does not apply in present factual matrix and thus renders no assistance to their case. 14. Resultantly, the present petitions are without merit and are hereby dismissed. All pending applications, if any, also stand disposed of.