IN THE HIGH COURT OF JUDICATURE AT PATNA CWJCs No 5795, 13583 of 2007 & 3777, 3467 of 2008 RATIONAL COMMITTEE OF HOMEOPATHIES & ORS - Petitioners (In CWJC No 5795 of 2007) DR NITYA KAUSHAL SINHA & ORS - Petitioners (In CWJC No 13583 of 2007) DR EZAZ ANSARI - Petitioner (In CWJC No 3777 of 2008) DR NAGENDRA PRASAD SINGH - Petitioner (In CWJC No 3467 of 2008) Versus THE STATE OF BIHAR & ORS - Respondents (In CWJCs No 5795 & 13583 of 2007) UNION OF INDIA & ORS - Respondents (In CWJCs No 3777 & 3467 of 2008) *** For the petitioners : M/s Chitranjan Sinha, Sr Advocate & Subodh Kumar, Anurag Kumar Shukla & Vinay Krishna Tripathi, Advocates For the Union of India : Mr S N Pathak, S C C G For the Homoeopathy Council : Mr Asok Kr Sinha, Sr Advocate & Mrs Puspa Kumari, Advocate For the University : Mr Ajay Bihari Sinha, Advocate *** 12 24.06.2008 CWJC No 5795 of 2007: Rational Committee of Homoeopathies & Others -Versus- State of Bihar & Others In this writ application, the Committee of Homoeopathies and some of its members who are all holding Diplomas in Homoeopathic Medicine and Surgery (DHMS) have challenged the advertisement issued by the respondent-Udhmita Vikas Sansthan established as a part of National Rural Health Programme for appointment of Homoeopathic/Ayurvedic/Unani Doctors on contract basis in which so far as Homoeopathies are concerned, the educational qualification, 2 eligibility has been set as Bachelor in Homoeopathic Medicine and Surgery (BHMS) or its equivalent degree. The submission of petitioners is that though the Diploma holders in Homoeopathic Medicine and Surgery (DHMS) are qualified to practice as Homoeopath, by reason of the said advertisement, they are not eligible and the exclusion thereof is arbitrary and unwarranted denying equal opportunity of employment under State to all. In CWJC No 13583 of 2007 : Dr Nitya Kaushal Sinha & Others: The writ petitioners have challenged the action of the respondent in accepting application forms for the above mentioned appointment from DHMS who had got their Diplomas prior to 11.05.1983 which is the date of promulgation and enforcement of Homoeopathy (Graded Degree Course), BHMS Regulations 1983 and Homoeopathy (Degree Course) BHMS Regulations 1983 on the ground that DHMS is not equivalent to BHMS. Not being equivalent, acceptance of their applications is bad. In CWJCs No 3777 and 3467 of 2008: The petitioners have challenged the validity of the State Government notification No 659 dated 01.12.1992 in so far as it declares equivalence of DHMS degrees granted prior to 11.05.1983 and not extending it to all such Diploma holders who had taken admission to such courses in sessions starting prior to the enforcement of the 1983 regulations and following the same course, as earlier prescribed, though degrees may be awarded subsequent to 11.05.1983. In substance, in the first writ application, the challenge is that 3 equals, i e DHMS and BHMS, are being treated unequally. In the second writ application, the challenge is that DHMS and BHMS being unequals cannot be treated equally and in the third, the challenge is that DHMS holders, who have received their Diploma Degrees prior to 11.05.1983 being equal in all respects to DHMS who pursued the same course and whose sessions started prior to 11.05.1983 and to whom Diploma Degrees were awarded after the said date cannot be treated differently and such a treatment would be treating equals unequally. Thus, the challenges are based on Article-14 of the Constitution of India. In the first writ application, it is stated that Diploma in Homoeopathy Degree was in existence since long in Bihar. These degrees i e DHMS were granted by University or Board. BHMS Degrees came into existence in Bihar in 1979 when Degree Courses were introduced. Both DHMS and BHMS are incorporated in the second schedule of the Homoeopathy Central Council Act 1973 (hereinafter referred to as “the Act”) and both are degrees granted by Universities. It is submitted that both being in the second schedule to the said Act and the said Act by virtue of Section 15 being recognized as Medical qualification are held out to be qualifications sufficient for holding office as Homoeopathic Physicians in Government or to practice Homoeopathy in any State. There could be no discrimination between the two and if State were to offer employment then they could not exclude Diploma Degree holders like DHMS and take in only Bachelor degree holders, BHMS. That would be treating equals 4 unequally and would also violate the constitutional mandate of granting equal opportunity to all in public employment. In my view, the contention is not acceptable. Firstly, there is a difference between Diploma and Bachelor’s degree. One is a three years’ course and the other is a four years’ course. Then Section 13 of the Act, in my opinion, only lays down medical qualifications that are granted by University/Board and other medical institutions in India which are to be recognized as medical qualification for the purposes of Act and are specified in second schedule. In my view, merely because DHMS and BHMS are both specified in the second schedule to the Act does not mean that they are presumed to be equivalent. All that Section 13 says that they are recognized medical qualification and not that they are recognized equivalent medical qualification. Coming to Section 15 of the Act, in my view, that only states in the negative. It states that no person can practice Homoeopathy unless he has a medical qualification as recognized meaning thereby a medical practitioner of Homoeopathy must have any of the qualifications as specified in the second schedule. In my view, it only lays down the minimum qualification and not equivalence nor does it in any manner restricts the choice given to the State to choose either any particular qualification for a particular job. In my view, without anything more being said, in this writ petition, DHMS being a Diploma Degree is inherently different from Bachelor Degree (BHMS). Thus, the two being different can be treated differently and the dictum of Article-14 that equals cannot be treated unequally would not apply. On 5 the contrary, if the two are treated equally that itself would amount to discrimination. Here, in public employment, the constitutional mandate is not that all persons should have equal opportunity of employment under the State. The constitutional dictum is that all persons, similarly qualified, must have equal opportunity. In other words, all equals must have equal opportunity. If Diploma degree holders are not equivalent to Bachelor degree holders then choosing Bachelor degree holders for a particular type of employment under the Government cannot be said to be discriminatory in any manner, for Government has a right to choose a better qualified or a higher qualified person for employment. As indicated and held above, the two being essentially different, the same could not be treated as one and, therefore, the argument of Shri Chitranjan Sinha, learned Senior Counsel appearing in support of the first writ application cannot be accepted. In fairness to the petitioners, it must be noted that in past, State was not making any distinction between the two in matters of employment but that does not mean that a State can never make a valid distinction differing from its past practice. The differentiation is based on rational and real criteria and the same cannot be held to be violative of any constitutional mandate. Shri Chitranjan Sinha, learned Senior Counsel then placed reliance on the judgments in the case of Jayant Jairam Rohee – Versus- Maharashtra Public Service Commission being a Division Bench judgment of Bombay High Court since reported in 1986 (2) 6 Service Law Reporter 159 and in the case of Mrs Neelam Verma – Versus- The Thapar Institute of Engineering and Technology at Patiala & Others since reported in 1988 (1) Service Law Reporter 597 being a judgment of a learned Single Judge of the Punjab & Haryana High Court. In my view, the said judgments are clearly distinguishable and have no application to the proposition at hand. In the Bombay case (supra), the Public Service Commission, in view of large number of applicants, decided to call for interview only those Advocates for appointment to the Post of Civil Judge who had practised for five years. This was found to be bad on the ground that the concerned Rules and the advertisement provided for three years of practice which could not be altered by the Commission. In the Punjab & Haryana case (supra), similarly the Court found that the selection was arbitrary inasmuch as for the appointment of Lecturer in Chemistry, the trifurcation of the subject Chemistry excluding Inorganic Chemistry, the branch in which the petitioner had specialized, was contrary to the norms laid down by the UGC, as such, the advertisement was not in accordance with the subject requirement. Such is not the case in the present writ. Coming to the second writ application where the challenge is that Diploma degree holders who had obtained their degrees prior to 11.05.1983, the date of enforcement of the regulations, cannot be said to be equivalent to BHMS. In my view, the challenge must fail. I have noted above that DHMS, without anything more being said, is not equivalent to BHMS but in the present context, the situation, as 7 emanates, is slightly different. It appears that the Parliament enacted the Homoeopathy Central Council Act, 1973 with the intention of inter alia bringing about uniformity in Homoeopathy teaching and practice. Section 20 thereof authorized the Central Council to prescribe minimum standard of education requires for granting medical qualification by the University/Board or Medical Institutions in India. Apparently prior to this, Universities and Boards had prescribed their own standards and their own Diplomas and Degrees. Section 13 of the Act lays down what Degrees or Diplomas would qualify as recognized medical qualification for the purposes of the Act. Apparently, under the Act, though Section 20 authorized framing of regulations prescribing standards, the Regulations were enacted only in 1983 being the Homoeopathy (Degree Course), BHMS Regulations 1983 and Homoeopathy (Graded Degree Course), BHMS 1983. These were published in the gazette on 11.05.1983 which date has been referred to above and below at many places. It is on and from the said date, standards applicable to the entire country were laid down for Diploma Courses and Degree Courses which were materially different inter se. Earlier different Universities and Boards had set different standards even with regard to the Diploma Degrees as Bachelor Degree was not very much in vough. Question arose as to equivalence of DHMS and BHMS. It seems the matter was referred by the Government of India to the Central Council of Homoeopathy under the Act. The Central Council of Homoeopathy, in its meeting held on 09th March 1990, considered the matter and decided 8 that medical qualification in Homoeopathy having four years’ duration obtained after undergoing not less than four years’ study like DHMS, DHMS awarded prior to enforcement of Homoeopathy Diploma Course Regulations 1983 which was also enforced simultaneously with the other Regulations with effect from 11.05.1983 should also be included in the second schedule to the Act meaning thereby it would also be treated as a recognized medical qualification and further and more importantly those were to be treated as equivalent to Degree. The effect was DHMS degrees granted prior to 11.05.1983 were treated by the Central Council to be equivalent to BHMS Degree. This is clearly evidenced by the letter of Central Council of Homoeopathy dated 13.03.1990 to the Government of India (Annexure-2). This letter has no ifs and buts. It does not qualify any further nor does it purports to restrict its application in any manner. By the Central Government communication dated 03.01.1991 (Annexure-3), Central Government forwarded the decision of the Central Council aforesaid to all States clearly pointing out that the Government of India has accepted the recommendation meaning thereby the equivalence of degree to Diploma prior to the said cut off date and then stating that there should be no disparity in pay scales on ground of Degree and Diploma holders as the two were treated equivalent. The petitioners of the second writ application challenged that the acceptance by the Central Government of the recommendation of the Central Council on the ground that it was in fact only for the purposes of equivalence of salary. Their further case is that the 9 recommendation of the Central Council was only for the purposes of service and salary. This stand of petitioners is concurred by the official respondents, i e, the Central Council of Homoeopathy and in particular it is said that this has been clarified by Government of India by their communication dated 20th November 2002 (a decade later), copy whereof has been marked as Annexure-D to the counter affidavit of the Central Council (respondent No 4 in the said writ application). It is, thus, submitted that equivalence is only for the purposes of salary and service benefits and not for all purposes. It is the correctness of this submission that calls for adjudication. In my view, the submission is not correct. A reference to the decision of the Central Council dated 13.03.1990 (Annexure-2), declares four years’ Diploma Course in Homoeopathy (DHMS) equivalent to degree. It does not say that it is restricted to any matter or in any manner much less in respect of service or salary purposes. Then in the substantive part of the communication, the only exception that is important is that DHMS Degree should be awarded prior to the cut off date that is 11.05.1983 when the Regulations came to be enforced. There is certainly no other exception or reservation. It is unqualified except to the extent indicated above. Once such an order is publicly made and the decision of the Central Council is communicated to the Government, it is not open, in my view, to the Government or the Central Council subsequently to qualify the same or try and build in exceptions into it virtually rewriting the same or reinterpreting the same in a different manner. Further, the letter of the Central Government to 10 the Central Council dated 20th November 2002 (Annexure-D) only supports my view. The Central Government, as would be seen from Annexure-3 as referred to above, first accepted the Central Council recommendation and based on that held that there could be no discrimination with regard to pay between the Degree and Diploma holders. Now step by step, authorities are making attempt to restrict or explain what transpired in the meeting of the Central Council on the 09th of March, 1990 without producing any records in support thereof. Years and decades later, clarifications on what was meant is being issued without reference to the contemporaneous documents of that period. In my view, Annexure-D and in particular paragraph-4 (iii) to the counter affidavit of the Central Council clearly shows that the equivalence was a one time relaxation with the cut off date as 11.05.1983. It was made clear that the same equivalence could not operate after the cut off date and a reference to the first letter of the Central Council (Annexure-2) would clearly show that it was considering the matter of equivalence not for service or any purpose but generally. Thus, the contention of the writ petitioner in the second writ petition cannot be accepted. Thus, Diploma degree holders who have got their Diplomas prior to the cut off date 11.05.1983 have to be treated equivalent to Degree holders that is BHMS and their forms are being validly accepted by the respondents. The challenge must fail. One of the apparent reasons for granting this equivalence with a cut off date is that, prior to the promulgation and enforcement of the Regulations with effect from 11.05.1983, there was no uniform standard 11 prescribed by the Central Council. The syllabus and courses differed from University to University, Board to Board, Institution to Institution. There was hardly any clear distinction between DHMS and BHMS prior to 1983 when for the first time uniformity was brought about with clear distinction between the two courses. Coming to the third set of writ petitions, the submission is that once the Central Council held that the person who has pursued the Diploma Course of four years as prescribed prior to the Regulations of 1983 coming into force and were awarded Diploma degree prior to the cut off date were to be treated equivalent to BHMS then restricting it to those persons who got their degree prior to the cut off date as against persons though joining the same very course prior to the cut off date and pursuing the same said four years’ course beyond the cut off date and getting the Diploma degree thereafter could not be excluded. In other words, what is submitted is persons of the Sessions 1979-83 passing the course and getting the Diploma degree prior to 11.05.1983 were treated equal to BHMS but not treating those of 1982-84 Session or 1981 to 1985 batch or 1982 to 1986 Session who were all pursuing the same course and were awarded the same Diploma degree would be bad in law. The Sessions 1979-1983 treated equivalent to BHMS but subsequent sessions which started prior to the cut off date having the same course of the same duration but merely because degrees were awarded after the cut off date could not be treated differently because they were both same and identical and treating them differently would mean that equals were given unequal treatment. In my view, there is 12 substance in the submission. There is no reason why two persons pursuing the same course for the same duration getting the same Diploma can be treated so differently. In one case, it would be equivalent to BHMS and in the other case, it would be totally different from BHMS. That cannot be permitted. It would be a different matter for a person who was to follow the new syllabus under the 1983 Regulations which were differently prescribed under the different Regulations of 1983 itself. In the facts, it would be seen that petitioners of the third set of writ applications had joined Diploma course long before the 1983 Regulations came to be enacted. They were entitled to Diploma degree which could not be any different from the one granted prior to the cut off date but for some reason or the other, the Diploma degrees were granted subsequently. Merely on this ground, they cannot be held to be not equivalent to BHMS because they pursued the same course for the same duration. Thus, even if the degrees were awarded after the cut off date but in respect of a session beginning prior to the 1983 Regulations which session also prescribed the same course for the same duration as those who were awarded their Diploma degrees before the cut off date, there cannot be any distinction. Making a distinction would amount to hostile discrimination. It would clearly be a case of similars being treated dissimilarly which would be violative of Article-14 of the Constitution of India and void as such. Thus, petitioners of the third set of writ applications cannot be debarred from making applications and they would be deemed to be holding degrees equivalent to BHMS and 13 eligible to be considered. Therefore, the first two sets of writ applications are fit to be dismissed and the third is to be allowed. M.E.H./AFR (Navaniti Prasad Singh)