w^ '^.^•^-•••""" ^edon..^-^^^............- ^,Shn...^T'-"':;:^oc^ 2-\^ ^ R-tc'A'R^ (1) SB //,')/* /J-^e'-3/ ri"7 ^ AMENDED PETITION IN THEHON'BLE HIGH COURT OF C.G. AT BILASPUR W.P. No. 3083 OF 200S PETITIONER If RESPONDENTS VERSUS :1. 2. 3. Punilal Chauhan, aged about 36 years, son of Shri Nanku Ram Chauhan, Ayurved Compounder, Govt. Ayurved'ik Aushdhalaya, Jatri, Tahsil & District Raigarh (C.G.) ^tate of Chhattisgarh through the Secretary Department of Health, Dau Kalyan Singh Bhawan, Mantralaya, Raipur (C.G.) The Director Bhartiya Chikitsa Padhati Evam Homeopathy, Behind D.K.S. Bhawan, Raipur (C.G.) The District Ayurvedik Adhikari, Near Shriram Colony Beladula Road, Raigarh (C.G.) ^ ^ WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTIQN OFINDIA _^<; ^F^ r^^re^. HIGH COURT OF CHHATTISGARH : BILASPUR PETITIONER RESPONDENTS WRIT PETITION N0. 3083 OF 2005 Punilal Chauhan Versus State of Chhattisgarh &"0thers '.- -^ Post for pronouncement ofthe order on $' d'ay of February, 2010 Sd/- Satish K. Agnihotri Judge ,v> v\ \. HIGH COURT OF CHHATT1SGARH : BILASPUR PETITIONER RESPONDENTS WRIT PETITION N0. 3083 OF 2005 Punilal Chauhan Versus State of Chhattisgarh & Others (Writ Petition underArticle 226/227 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri Prateek Sharma, counsel for the petitioner. Shri N.N. Roy, Panel Lawyerforthe State. ORDER (Delivered on this _5_day of February, 2010) 1. By this petition, the petifioner seeks for issuance of a direction to the respondent authorities to consider his case for promotion to the post of Assistant Ayurved Medical Officer from the date of promotion ofhisjuniors i.e. 29-8-2000. 2. The relevant facts, in nutshell, for adjudication of the case, as projected by the petitioner, are that the petitioner was appointed as Ayurved Compounder by order dated 29-6-1963. Thereafter, the petitioner passed Ayurved Ratna from Hindi Sahitya Sammelan, Prayag. The persons, who were juniors to the petitioner, have been promoted, but the petitioner has not been promoted so far. Being aggrieved by the said action, the petitioner has preferred a petition before this Court being writ petition No.3062 of 2004 (Puni Lal Chauhan v. The State of Chhattisgarh & Others). The said writ petition was disposed of by this Court by order dated 4-1-2005 (Annexure - P/7) with a direction to the petitioner to file a detailed representation before the respondent authorities. In compliance of ,'J - the order passed by this Court, the petitioner submitted his representation 10-1-2005 (Annexure - P/8), which was rejected by the Director, Indian Systems of Medicine and Homeopathy by order dated 27-4-2005 (Annexure - P/9) on the ground that the petitioner has not obtained the requisite qualification for his promotion to the post of Assistant Ayurved Medical Officer. Thus, this petition. Shri Prateek Sharma, learned counsel appearing for the petitioner, would submit that the representation made by the petitioner has not been considered by the respondent authorities in its true perspective, because the qualification which the petitioner possesses is sufficient for his promotion. Despite being eligible, in view of Rule 14 of the M.P./C.G. Public Health (Indian Systems of Medicine and Homeopathy) Class III Ministerial Service Recruitment Rules, 1987 (for short "the Rules, 1987"), for promotion to the post of Assistant Ayurved Medical Officer, the respondent authorities have deliberately not promoted the petitioner whereas the juniors to the petitioner have already been promoted. The respondent authorities have wrongly interpreted the provisions ofRules, 1987. On the other hand, Shri N.N. Roy, learned Panel Lawyer, appearing for the State, would submit that the petitioner was not found eligible for promotion to the post of Assistant Ayurved Medical Officer, because the petitioner is not having the requisite qualification. The petitioner obtained the degree of Ayurved Ratna in the year, 1995 which is not a recognized degree as per the letter dated 13-8-2004 (Annexure - R/1) issued by the Assistant Secretary (Regn.), Central Council of Indian Medicine, New Delhi. Shri Roy would further submit that only 40% posts of Assistant Ayurved Medical Officer were to be filled through promotion from the Compounders, who were Ayurved Graduates. The petitioner is not having the qualification of Ayurved Graduate. The petitioner has not impleaded the juniors, who were promoted to the post of Assistant Ayurved Medical Officer, as a necessary party. 5. I have heard teamed counsel appearing for the parties, perused the pleadings and the documents appended thereto. 6. The qualification for appointment by direct recrujtment to the post of Assistant Ayurved Medical Officer is prescribed under Schedule III, Rule 8 of the Rules, 1987 i.e. L.A.P. Bhisgacharya & Ayurvedacharya with B.A. Part I. Rule 13 provides for appointment by promotion from the post of Compounder to the post of Assistant Ayurved Medical Officer. Under Schedule IV Rule 14 of the Rules, 1987 no minimum qualification has been prescribed, except three years experience on the post of Compounder. 7. According to the petitioner, the petitioner has obtained Ayurved Ratna examination certificate from Hindi Sahitya Sammelan, Prayag, in the year 1995. Thus, the petitioner is having requisite qualification for promotion on the post of Assistant Ayurved Medical Officer under the Rules, 1987. 8. The tetter dated 13-8-2004 (Annexure - R/1) of the Assistant Secretary (Regn.), Central Council of Indian Medicine, New Delhi addressed to the Registrars of all State Boards/Councils, clearly state that the Ayurved Ratna qualifications awarded by Hindi Sahitya Sammelan, Prayag from 1931 to 1967 only were recognized for registration relying on a decision of the Supreme Court in Delhi Pradesh Registered Medical Practitioners v. Director of Health, Delhi Admn. Services and Others . Thus, any qualification obtained from Hindi Sahitya Sammelan, Prayag after 1967 was not recognized. 9. The petitioner has obtained Ayurved Ratna examination certificate from Hindi Sahitya Sammelan, Prayag, in the year 1995. Thus, the stand of the State that the petitioner does not possess the requisite qualification, as the Ayurved Ratna examination certificate granted by Hindi Sahitya Sammelan, Prayag, was not recognized, is correct and proper. 10. The second contention of Shri Sharma that since no qualification was prescribed for promotion from the post of Compounder to the post of Assistant Ayurved Medical Officer, the qualification prescribed for direct recruitment under Schedule III Rule 8 of the Rules, 1987 i.e. L.A.P. Bhisgacharya & Ayurvedacharya with B.A. Part 1 is not applicable to the present case. 11. The petitioner has obtained, admittedly, higher secondary qualification and the subsequent Ayurved Ratna examination certificate granted by Hindi Sahitya Sammelan, Prayag has already been declared as not recognized as aforestated. 12. Rules 8 (2) and 14 ofthe Rules, 1987 read as under: "8. Condition of eligibility of direct recruits.—Inorder to be eligible to be selected, a candidate must satisfy the following conditions, viz.- (1) XXX XXX XXX XXX XXX XXX XXX XXX XXX 1 (1997)118cc 687 (2) Educational Qualifications.—A candidate must possess the educational qualifications specified for the post in column (5) ofSchedule II. 14. Conditions of Eligibility for Promotion.—(1) Subject to the provisions of sub-rule (2) the departmental promotion committee shall consider the cases of all persons who on the First day of January of that year have completed not less than such number of years of continuous service [whether substantive or officiating as specified in column (4) of schedule IV], in the post mentioned in column (2) of the said schedule or any post or posts declared equivalent thereto by the Government. The promotions to the clerical posts in which Accounts Training is compulsory will be made only from the persons in which Accounts Training is compulsory will be made only from the persons in the next Junior posts where persons have qualified in accounts, persons who were promoted without qualifying in accounts against the prescribed posts will have to qualify in accounts within a period of 2 years from the date of promotion : Provided that any junior person shall not be considered for selection grade/promotion in preference to the person senior to him only on the basis of his completing the prescribed service. (2) The field of Selection shall ordinarily be limited to seven times the number of officers to be included in the select list, in respect of posts filled on the basis of merit-cum-seniority and five times the number of officers to be included in the select list in respect of post filled on the basis of seniority-cum- merit. Provided that if the required number of suitable officers are not available to the field, so determined, the field may be enlarged to the extent considered necessary by the committee by mentioning the reasons in writing." c'i 13. The Supreme Court in R. Prabha Devi and Others v. Government of India, through Secretary, Ministry of Personnel and Training, Administrative Reforms And Others , observed as under: "15,....The prescribing of an eligibility condition for entitlement for consideration for promotion is within the competence of the rule-making authority. This eligibility condition has to be fulfilled by the Section officers including senior direct recruits in order to be eligible for being considered for promotion. When qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment. Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst person eligible. Seniority cannot be substituted for eligibility nor it can over-ride it in the matter of promotion to the next higher post. The rule in question which prescribes an uniform period of qualified service cannot be said to be arbitrary or unjust violative of Articles 14 or 16 of the Constitution. It has been rightly held by the Tribunal:" 14. In State of U.P. and Others v. J.P. Chaurasia and Others , the Supreme Court observed as under ; "29....In service matters, merit or experience could be the proper basis for classification to promote efficiency in administration. He or she tearns also by 2 (1988)28cc 233 3 (1989)13cc 121 experience as much as by other means. It cannot be denied that the quality of work performed by persons of longer experience is superior than the work of newcomers. Even in Randhir Singh case, this principte has been recognised. O. Chinnappa Reddy, J. observed that the classification of officers into two grades with different scales of pay based either on academic qualification or experience on (s/'cor) length of service is sustainable. Apart from that, higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is very common in career service....." 15. The Supreme Court in Dr. Ganga Prasad Verma and Others v. State of Bihar and Others , observed that "where the language of the Act is clear and explicit, the Court must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature. The interiection of the preposition 'or' at the underlined place amounts to judicial legislation or supplying omission which is impermissible in the process of construction ofthe Regulation." 16. In State of M.P. andAnother v. Dharam Bir , the Supreme Court observed as under: "33. The post in question is the post of Principal of the Industrial Training Institute. The Government has prescribed a Degree or Diploma in Engineering as the essential qualification for this post. No one who does not possess this qualification can be appointed on this post. The educational qualification has direct nexus with the nature of the post. The principal may also have an occasion to take classes and teach the students. A "1995Supp(1)SCC192 5 (1998)63cc 165 6 a person who does not hold either a Degree or Diploma in Engineering cannot possibly teach the students of Industrial Training Institute the technicalities of the subject of Engineering and its various branches." 17. The Supreme Court in Rajasthan Public Service Commission vs. Kaila Kumar Paliwal and Another6, observed as under: "9. The services of the teachers working in the schools in the State of Rajasthan are governed by the Rajasthan Educational Service Rules, 1970 and Rajasthan Education (Subordinate Services) Rules, 1971. Subordinate service consists of the posts as specified in the schedule appended thereto. A Teacher Grade-111 as also a Laboratory Assistant come within the purview of the term 'subordinate services'. The minimum qualification for holding the post of a Teacher Grade- III is Matriculation with certificate of training, whereas that of Laboratory Assistant is Secondary with Science as an optional subject. 13. Posts of Head Master, it would bear repetition to state, are governed by the 1970 Rules. Five years' teaching experience is required for consideration for appointment to the post of Head Master which in turn is referable to teaching in certain capacity on certain categories or posts. 14. It is, therefore, difficult to accept that those who had been holding posts of Teacher Grade-111 with the minimum educational qualification of Matriculation or Secondary Education with a certificate in training would be entitled to teaching in secondary classes or higher classes." 18. It is not in dispute that the educational qualification prescribed for direct recruitment is in column (5) of Schedule II (s;'c column (5) (2007) 10SCC 260 ^;;l-^'aa%. //^ \ g l^t^?-°&9^s§S ^ of Schedule III) under Rule 8 (2) of the Rules, 1987 is L.A.P. Bhisgacharya & Ayurvedacharya with B.A. Part I. 19. Rule 14 of the Rules, 1987 provides for conditions of eligibility for promotion. There is qualification prescribed as specified in column (4) of Schedule IV, wherein no educational qualification for promotion on the post of Assistant Ayurved Medical Officer is provided, but only 3 years experience on the post of Compounder is provided. It is no where provided that the candidate should have minimum qualification as prescribed for appointment on the post of Assistant Ayurved Medical Officer directly or otherwise. Thus, it is clear that there is no minimum qualification for appointment by promotion on the post of Assistant Ayurved Medical Officer, except three years experience on the post of Compounder. 20. The contention of learned counsel appearing for the State that the Compounder should have been 3 years experience with the requisite qualification of Ayurved Graduate is nowhere found in the Rules, 1987, deserves to be rejected. 21. In J.P. Chaurasia (supra), it is well established principle of law that in service matters, merit or experience could be the proper basis for classification to promote efficiency in administration, as explained in Dr. Ganga Prasad Verma (supra) that if the language of the Act is clear and explicit, the Court must give effect to it, whatever may be the consequences. In Dharam Bir (supra), rule, which was under consideration, clearly provides for the qualification for direct recruitment as well as by promotion, which was the same in both cases. 10 22. The eligibility criteria and the minimum qualification as laid down in Rajasthan Educational Service Rules, 1970 was considered by the Supreme Court in Rajasthan Public Service Commission (supra), wherein in column (3) details of method of recruitment with percentage was prescribed for both the methods of appointment. 23. A common thread running into aforestated decisions is that if the minimum qualifications have been prescribed under the statutory rules and regulations then experience alone cannot be criteria for consideration on promotion. In the case on hand, no minimum qualification has been prescribed; the experience would be taken as qualification for consideration on promotion. 24. Having regard to the above legal position where there is no minimum qualification prescribed for promotion from the post of Compounder to the post of Assistant Ayurved Medical Officer, it appears that the intention of the legislature was clear that if a Compounder worked for 3 years, his experience would be the minimum qualification for promotion to the post of Assistant Ayurved Medical Officer. It is further well settled that the provisions of the statutory rules and regulations cannot be supplanted either by notifications or executive instructions, though it has not been j. brought into the notice of the Court that there was any subsequent notification, executive instruction or amendment in the rules. 25. It is a trite law that casus omissus is not permissible in order to give an explanation to the provisions of a statutory rule. The Court has to examine the language, if it is plain and unambiguous, the explanation may defeat the intention of the legislature, which has been expressed in the statutory rules or regulations. 11 IL- 26. In P.T. Rajan v. T.P.M. Sahir and Others , the Supreme Court observed as under: "48. Furthermore, even if the statute specifies a time for publication of the electoral roll, the same by itself could not have been held to be mandatory. Such a provision would be directory in nature. It is a well-settled principle of law that where a statutory functionary is asked to perform a statutory duty within the time prescribed therefor, the same would be directory and not mandatory. (See Shiveshwar Prasad Singh v. Disthct Magistrate of Monghyr, Nomita Chowdhary v. State of W.B. and Garbari Union Coop. Agricultural Credit Society Ltd. v. Swapan KumarJana). 50. The Court cannot, it is trite, supply casus omissus. Reference in this regard may be made to Baliram Waman Hiray (Dr.) v. Justice B. Lentin wherein it was observed : (SCC p. 443, para 27) '27. Law must be definite, and certain. If any of the features of the law can usefully be regarded as normative, it is such basic postulates as the requirement of consistency in judicial decision-making. It is this requirement of consistency that gives to the law much of its rigour. At the same time, there is need for flexibility. Professor H.L.A. Hart regarded as one of the leading thinkers of our time observes in his influential book 'The Concept pf Law', depicting the difficult task of a Judge to strike a balance between certainty and flexibility: "Where there is obscurity in the language of a statute, it results in confusion and disorder. No doubt the courts 7 (2003) 8 SCC 498 12 so frame their judgments as to give the impression that their decisions are the necessary consequence of predetermined rules. In very simple cases it may be so; but in the vast majority of cases that trouble the courts, neither statute nor precedents in which the rules are legitimately contained allow of only one resiflt. In most important cases there is always a choice. The judge has to choose between alternative meanings to be given to th.e words of a statute or between rival interpretations of what a precedent amounts to. It is only the tradition that judges 'find' and do not 'make' law that conceals this, and presents their decisions as if they were deductions smoothly made from clear pre-existing rules without intrusion of the judge's choice." 27. For the reasons mentioned hereinabove, it is held that no minimum qualification, as prescribed for direct recruitment on the post of Assistant Ayurved Medical Officer, is prescribed under the Rules, 1987 for promotion from the post of Compounder to the post of Assistant Ayurved Medical Officer, except three years experience. 28. In the result, the writ petition is allowed. Thfi respondent authorities are directed to consider the case of the petitioner afresh for promotion on the post of Assistant Ayurved Medical Officer from the date his juniors were promoted to the said post, in accordance with law. 29. There shall be no order asto costs. _ ._ ___ . _ __ Gowri Sd/- Sadsh K. Agnihotri Judge