IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7241 of 2005 1. Dr. Ramesh Chandra Jha, aged about 56 yrs, S/o Sri Chandrachur Jha, resident of Cheria Bariarpur, P.S. Cheria Bariarpur, District-Begusarai, presently working as Lecturer in the Department of surgery, Government Ayurvedic Medical College, Patna. 2. Dr. Deovrat Narayan Singh, aged about 52 yrs, S/o Late Udit Narayan Singh, residing of Bhojpur Colony, Ashok Nagar, Road.-8, Patna-20, presently posted as a Superintenent, Patna Ayurvedic Medical College and Hospital, Patna. 3. Dr. Indu Mishra, aged about 52 yrs., W/o Dr. S.N. Mishra, residing at Block No.-4, Flat No. 60 Rajendra Nagar, Patna- 16, Presently posted as the Principal Incharge, Patna Ayurvedic Medical College and Hospital Patna. ------ Petitioners Versus 1. The State of Bihar through its Secretary cum Commissioner, Department of Health Education (Deshi Chikitsa) and Family Welfare, Government of Bihar, Patna. 2. The Joint secretary, Department of Health Education (Deshi Chikitsha) and Family Welfare, Government of Bihar, Patna. 3. The Director, (Indigenous Medicine) Health Department, Government of Bihar, Patna. 4. The Secretary, Central Council of Indian Medicine, Institutional Area, Janakpuri, New Delhi. 5. The Union of India. 6. The Secretary, AYUSH Department of Health, New Delhi. ------- Respondents ----------- For the Petitioners :- Mr. Rajni Kant Pathak. For the Respondent No.4 :- Mr. Binod Pathak For the Union of India :- Mr. Sarvadeo Singh For the State :- Mr. Sanjay Kumar For the Intervener :- Mr. Basant Kumar Choudhary 11 29.4.2009 I.A. No. 2369 of 2008 Heard Mr. Basant Kumar Chaudhary in support of the prayer made in I.A. No. 2369 of 2008 filed by one Sumeshwar Singh seeking intervention in this writ application on the ground that the P.G. Degree in the subject of Ayurvedic is a requisite for appointment/ 2 promotion which is to be made after 1.7.1989 and if that is not followed, any Under- Graduate or Graduate appointed to a teaching post will prejudice the purpose of the Government of prescribing P.G. qualification as an essential prerequisite for holding any teaching post. Mr. Chaudhary, however when asked as to how the aforesaid philosophy of education in the subject of Ayurveda would be relevant for the limited nature of relief in this writ application, he would frankly concede that such issue may be raised in a separate writ petition by the petitioners. He would, however still insist that since the decisions dated 18.4.1997 of the Central Government and that of Government of Bihar dated 14.5.2005 were valid decisions, the prayer of the petitioners has to be rejected in the light of the stand taken by the State of Bihar as also the Government of India. Considering the aforementioned aspects, specially that the petitioners have only assailed the correctness of the two letters containing the decision of the Govt. of India 3 dated 28.4.1997 (Annexure-9A) and its consequential dependent decision of the Govt. of Bihar dated 14.5.2005, which now stand nullified by the subsequent decision of the Govt. of India dated 5.3.2008 (Annexure-R/1), and keeping in view the provisions of Chapter- XXIC of the Patna High Court Rules, this Court would hold that the applicant, namely, Sumeshwar Singh is neither the necessary party nor the proper party in relation to the aforesaid relief prayed in this writ application. If the intervener is aggrieved by the decision of the Government of India dated 5.3.2008, he may file his own writ application because as an intervener respect of he cannot claim any relief. Accordingly, the prayer of the applicant, namely, Sumeshwar Singh for intervention in I.A. No. 2369 of 2008, is hereby rejected. Coming to the merits of this case, this Court would find necessary to quote the relief prayed in paragraph no.1 of this writ application, which reads as follows:- “1. That, this is an application for issuance of a writ, order or direction 4 in the nature of certiorari for quashing the resolution issued under the signature of Joint Secretary, Government of Bihar, Department of Health, Medical Education and Deshi Chikitsa, Bihar vide memo no.- 435 (Deshi Chikitsa) dated 14.05.2005 (Annx. 9B) whereby and whereunder the respondents have taken a decision in the light of a letter issued by the Government of India dated 28.04.1997 that promotional avenue will be given only to such teachers who have acquired the qualification of Post Graduates with effect from 01.07.1989 and non P.G. teachers will not be given promotion with effect from 01.07.1989. The petitioners also challenge the communication contained in letter dated 28.04.1997 issued by the Director, I.S.M. (Annx. 9A).” The operative portion of the aforementioned order dated 14.5.2005 reads as follows:- ^^jkT; ljdkj us bl laca/k esa iw.kZ :i ls fopkjksijkUr ;g fu.kZ; fy;k gS fd Hkkjr ljdkj ds i=kad&,u- ch- ,Q-&409 10@10@1996 fnukad 28-4-97 ds vkyksd esa dsoy mUgha v/;kidksa dks izksUufr ns; gksxh tks 1989 ds fofu;e ds vk/kkj ij LukrdksRrj ;ksX;rk rFkk vU; ;ksX;rk,W j[krs gksaA fnukad 1-7-89 ds ckn xSj LukrdksRrj/kkjh vk;qosZfnd v/;kidksa dks izksUufr ugha nh tk;sxhA** It would, therefore, be clear that the basis of issuance of resolution of the Government of Bihar was the letter of the Government of India dated 28.4.1997. The 5 Government of India has already filed a supplementary counter affidavit on 25.3.2009 and has clarified the aspect by taking in the following stand:- “2. That the Central Council of Indian Medicine constituted under the Indian Medicine Central Council Act, 1970 (for short the Act) is the apex expert body in the matters of standards of education in the Indian Systems of Medicines namely Ayurveda, Siddha and Unani Tibb. The Council had, in pursuance of section 22 and in compliance with section 36 of the Act, laid down regulations governing the minimum standards of education in Indian Medicines in 1986. These were amended through the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicines( Amendment) Regulation, 1989, which came into effect on 1st of July 1989. These regulations inter-alia lay down post-graduate qualification in the relevant discipline as essential qualification for appointment to the post of teachers on or after 1.7.1989. The Central Council of Indian Medicine had though its letter dated 29th March 1996 informed all the state Governments and the Union Territories that the requirement of post- graduate qualification for appointment of teachers in the Ayurveda colleges will not be essential in the case of further promotion of teachers appointed prior to 6 1st July, 1989. The CCIM (the 4th Respondent) has already submitted a copy of this letter dated 29th March 1996 as Exhibit R-3 along with its affidavit of 22nd March 2006. The Govt. of Indian in the Ministry of Health & F.W. had, through its letter No. V.26015/10/92-AE dated 28th April, 1997 addressed to the President, Central Council of Indian Medicine, desired that the Council should cancel this clarificatory letter of 29th March 1996 and inform all concerned. The Council, however, did not agree to the views of the Ministry of Health & F.W. and reiterated its stand that postgraduate qualification for promotion would not be applicable to teachers appointed prior to 1st July, 1989. The Govt. of India in the Ministry of Health & Family Welfare (Department of AYUSH) has subsequently withdrawn its previous letter dated 28th April 1997 and informed the Central Council of Indian Medicine accordingly vide letter No. C.1101/02/2008-EP dated 5th March 2008 (a copy of which is annexed as R-1).” In the said affidavit, the aforementioned order dated 5th March, 2008 has been annexed as Annexure- R-1 which only conveys the decision of the Government of India to the Secretary of the Central Council of Indian Medicine (CCIM) that the earlier order of the Ministry of Health dated 28.4.1997 was being withdrawn and therefore, 7 the decision may be communicated to all the State Governments, Universities and Medical Colleges. Since, the Government of India has withdrawn the letter dated 28.4.1997 by virtue of its letter dated 5th March, 2008, which came into being after filing of this writ application, this Court, taking into account the subsequent events, would hold that Annexure-9B would no longer remain operative and would not be made applicable after the Government of India had withdrawn its earlier order dated 28.4.1997 (with effect from 5.3.2008). Since, nothing more has been prayed in this writ application beyond quashing of the letters dated 14.5.2005 and 28.4.1997 respectively, this Court, by recording the aforementioned statements of the Government of India, would dispose of this writ application. It will, however, always be open for the parties to re-determine their status and right in the light of the stand of the Central Government. Rsh (Mihir Kumar Jha, J.)