i£!r^ HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (S) No.3259 of 2010 PETITIONERS: RESPONDENTS: Dr. Jagadish Prasad Banerjee and others. Versus State of CG and others. QRDER FQR CONSIDERATION Sd/- R.N. Chandrakar Judge HON'BLE SHRI DHIRENDRA MISHRA, J 3 Sd/- Dhirendra Mishra Judge ^ POST FOR ORDER ON J8 NOVEMBER, 2010 Sd/- JUDGE t&./11/2010 iffl-'^' ~ ^•"^,,, /?^ ??£--, %*-'%A ''a^. HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (sl No.3259 of 2010 Division Bench : Hon'ble Shri Dhirendra Mishra, & Hon'ble Shri R.N. Chandrakar. JJ Petitioners Respondents 1. 2. 3. Versus Dr. Jagadish Prasad Banerjee, S/o Gautam Das, aged about 53 years, Posted Marwahi, Community Health Centre, Disttr. Bilaspur (CG) Dr. Prashant Jha, S/o shri Naresh Jha, aged about 55 years, posted at Dallirajhara, Distt. Durg (CG) Dr. Om Prakash Agrawal, S/o Late Shri Sundarlal Agrawal, aged about 52, posted at Govt. Homeopathy Dispensary, Mainpur, Distt. Raipur (CG) State of Chhattisgarh, Through ; Secretary, Department of Health & Family Welfare, DKS Bhavan, Raipur (CG) Director, Health Services, DKS Bhavan, Raipur (CG) Chhattisgarh Public Service Commission, Through its Secretary, Raipur (CG) Present: Shri Sunil Otwani, counsel for the petitioners. Shri V.V.S. Murthy, Deputy Advocate General for the State. Shri P.P. Sahu, Counsel for the intervener. ORDER ^PT (Passed on J^November, 2010) PerR.N. Chandrakar, J Heard on I.A. No.02, application for permission to intervene in the instant petition. 02. The interveners are Assistant Medical Officer (Homeopathy). They are working with the State Government for the last 20 years. They have prayed for permission to intervene in the petition on the ground that they are eligible for appointment on the post of Medical Officer (Homeopathy) by way of promotion and having minimum qualification in accordance with the Madhya Pradesh Public Health (Indian System of Medicine and Homeopathy) (Gazetted) Service Recruitment Rules, 1987 (in short "Rules, 1987") and amended Rules, which are under challenge in this petition. The locus standi of the interveners is not disputed by learned counsel appearing for the petitioners. In these circumstances, the application (I.A.No.02) is allowed and the interveners are permitted to intervene in the petition. 03. The petitioners by the instant petition have prayed for issuance of a writ of mandamus commanding the respondents to consider the cases of the petitioners and if found suitable, they should also be promoted to the post of Medical Officer (Homeopathy) {in short "MO(H)"}. They have also prayed for issuance of a suitable writ/direction for declaring the amendment introduced at SI.No.9 in Schedule-IV of the Rules, 1987 by virtue of Notification dated 23.7.2008 as ultra vires Articles 14 & 16 ofthe Constitution of India. y ,^M^ 04. Briefly stated, grievance of the petitioners is that they are diploma holders of Homeopathy and Biochemistry (D.H.B.) and are working on the post of Assistant Medical Officer (Homeopathy) {in short "AMO(H)"} for the last many years. At the time when they did their diploma, the diploma course was of two years, however, with the efflux of time, the duration of the course has been increased to four years. Service conditions of the petitioners are governed by Chhattisgarh Public Health (Indian System of Medicine and Homeopathy) (Gazetted) Service Recruitment Rules, 1987. They are holding substantive post of AMO (H) and their next promotional post is of MO(H). However, names of the petitioners have not been forwarded to respondent No.3 for the purpose of promotion on the ground that they are diploma holders of two years course, whereas for the purpose of promotion to the post of MO(H),only those AMO(H) would be considered who are having four years' diploma course in Homeopathy. 05. Shri Sunil Otwani, learned counsel for the petitioners would argue that under the Rules, 1987, there is no provision for filling up the post of MO(H) by promotion from the feeder cadre of AMO(H) and service conditions of the AMO(H) were governed by the Non-Gazetted Rules and there was disparity in the pay-scale ofAMO (Junior Division) and AMO (Senior Division). The M.P. State Administrative Tribunal vide its order dated 24 April, 1989 on Original Application of Shashkiya Homeopathy Chikitsak Sangh, Bhopal and another, abolished the post ofAMO (Junior Division) of Homeopathy and further directed that the junior AMO (H) shall be absorbed as AMO (H) Senior Grade and would be entitled to the same pay-scale as that given to AMOs holding four years' diploma. In view of the above order of the Tribunal, the erstwhile State of Madhya Pradesh took a decision on 25.9.1990 (Annexure P/2) abolishing the post ofAMO(H) (Junior Division) and it was also decided that all AMOs (H) shall be entitled for the pay-scale of Senior Grade w.e.f. 24 April, 1989. A decision was further taken by the State Government to fill up 75% post of MOs (H) by promotion from the feeder cadre of AMOs (H) and accordingly, number of AMOs (H), having qualification of two years' diploma course, were promoted to the post of MO (H) in the year 1995, vide order dated 21st February, 1995. Dr. Satyanarayan Mishra and Dr. Rajendra Singh Rai, having two years' diploma course were granted promotion to the post of MO(H) and they are presently working on the post of MO(H) in the State of Chhattisgarh. 06. It is further submitted that the State Government in exercise of powers under Article 309 of the Constitution of India made an amendment in the Rules, 1 987 and provided that 50% of the posts of MO(H) are to be filled up by direct recruitment and 50% by virtue of promotion from the post of AMO(H). However, the qualification, which was prescribed for the purpose of promotion, is still the same as prescribed in Schedute-111 appended with the Rules, which was existing at the time of framing of the Rules. Differentiation between the AMOs having two years' diploma course and four years' diploma course for the purpose of promotion to the post of MO is discriminatory and the same is in violation of Articles 14& 16 of the Constitution. There is nothing on record to demonstrate that the nature of work on the post of MO requires higher efficiency, which can be expected only from diploma holders of four years and the same cannot be discharged by the diploma holders of two years course. Reliance is placed on the decisions of the Hon'ble Supreme Court in the matters of N. Abdul Basheer and others Vs. K.K. Karunakaran and others and Food Corporation of India etc. Vs. Om Prakash Sharma and others . 07. The State Government, in their counter affidavit as also in their oral submission, submitted that the post of AMO (H) was a Class-111 post and the eligibility criteria for the said post was diploma in Homeopathy Medicine and Biochemistry, whereas under the Rules, 1987, the post of MO (H) was a Class-ll post and the required qualification under the Rules was four years' diploma from any University or Board or Council, recognized from the Central Council of Homeopathy with five years experience in any recognized government or private institutions. Subsequently, when two years' course of Homeopathy Medicine and Biochemistry was abolished and four years' diploma course and 5 1A years' degree course was introduced; the post of AMO (H) has been made supernumerary post. Under the Rules, 1987, there was no promotional avenues for the AMOs (H), and therefore, with a view to grant them promotional avenues, because the basic qualification of AMO was at par with the promotional post, Schedule-11 was amended and 50% of the posts of MOs are presently to be filled up by promotion of AMOs (H), provided the candidate fulfills the eligibility criteria prescribed for the post of MO(H). ' AIR 1989 SC 1624 2 AIR 1998 SC 2682 ^..-^WriB. :f-"i:St. It is settled position of law that the State has the prerogative to fix the minimum eligibitity criteria for the post of MO and the petitioners cannot challenge the qualification prescribed for the MO (H) by the State Government under the Rules, 1987 only on the ground that the same deprives them from promotional avenues. Since the post of AMO (H) has been made supernumerary and the petitioners are AMOs (H) with diploma oftwo years (DBH), they are provided with time-scate/up- gradation/time-bound scale increase in payment etc. so that they are not deprived of financial benefits. 08. Shri P.P.Sahu, learned counsel appearing on behalf of the interveners, who were also appointed on the post of AMO (H), would argue that the interveners considering their future prospects of service, completed four years' diploma course - Diploma in Homeopathy Medicine and Surgery (D.H.M.S.) - during their service period after obtaining prior permission from the State Government. There is a difference between diploma courses in Homeopathy i.e. DHB and DHMS as DHMS also consists of study of surgery and therefore, their qualification cannot be compared with the qualification of those candidates, who have done their diploma on the subject of Medicine only. The qualification of five years' degree course or four years' diploma course from any University or Board or Council recognized from the Central Council of Homeopathy (in short "CCH") with five years' experience in any recognized government or private institutions, has been prescribed by the State Government and the same is not open to challenge by the petitioners on any ground as it is settled law that classification based on educational qualification is a valid classification. Reliance is placed on the decision in the matters of Assam State Electricity Board and others Vs. Gajendra Nath Pathak and others3, M.P. Electricity Board Vs. S.S. Modh and others4 and M. Rathinaswami and others Vs. State of Tamil Nadu and others . 09. Heard learned counsel for the parties and perused the material available on record. 10. The petitioners are presently working as AMO (H) having educational qualification of two years Diploma in Homeopathy and Biochemistry. Grievance of the petitioners is that under the amended Rules, 1987, 50% posts of MO (H) are to be filled up by direct recruitment, whereas 50% posts are to be filled up by promotion from AMOs (H), vide Notification dated 23rd July, 2008. However, the minimum qualification prescribed in Schedule-111 made under Rule 8 for appointment on the post of MO (H) has not been amended and because of the same, the petitioners have been excluded from the zone of consideration. The contention of the petitioners is that prescribing the eligibility criteria of four years diploma course for the purpose of promotion to the post of MO (H) from AMO (H) is discriminatory as the same differentiates between AMOs (H) having two years' diploma course and four years' diploma course, which is violative ofArticles 14 & 16 ofthe Constitution. 11. The State Government in exercise of powers conferred under Article 309 of the Constitution made the Rules, 1987 and notified the same ,in the year 1 988. Rule 4 deals with the constitution of service, 3 AIR 1997 SC 338. 4AIR 1997 SC 346' 5 (2009) 5 SCC 625 ^d-^-^ /'»/"-4 whereas Rule 5 deals with the classification, scale of pay, etc. The method of recruitment is given in Rule 6. Rule 8 prescribes the eligibility criteria for direct recruitment. Rule 8(2) provides that the candidate must possess the educational qualification prescribed for the service as shown in Schedule-111, whereas Rule 11 provides for direct recruitment by selection/competitive examination. Rule 13 deals with appointment by promotion, whereas Rule 14 deals with the conditions of eligibility for promotion. 12. From perusal of the entire scheme of the Rules, 1987 and the schedules framed thereunder, it is clear that the post of AMOs (H) is not included in the constitution of service as per Section 4 under Schedule-1. 13. Service conditions of AMO (H) are governed by Chhattisgarh Public Health (Indian Systems of Medicine and Homeopathy) Class-111 Ministerial Services Recruitment Rules, 1987 (in short "Class-lll Recruitment Rutes"). Rule 14 of Class-lll Recruitment Rules prescribes conditions of eligibility for promotion. Under Rule 13 a Department Promotional Committee is to be constituted with members mentioned in Schedule-IV for making a preliminary selection for promotion, of eligible candidates. The post on which promotion is to be made and requisite qualification and experience are prescribed in Schedule-IV made under Rule 14. Thus, from the scheme of Class-lll Recruitment Rules, it is clear that there is no provision of promotion for AMO (H) (Senior Grade). 14. In compliance of the order of the Tribunal, the post of AMO (H) (Junior Grade) was abolished and equivalent post of AMO (H) (Senior Grade) was created and all the AMO (H) were made entitled to receive senior pay-scale. Under Rule 6 as per Schedule-11 of the Rules, 1987, 100% posts of MO (H) were initially to be filled up by direct recruitment. The State Government in exercise of powers under Article 309 of the Constitution substituted Schedule-1, vide notification dated 23 July, 2008, and constituted 16 posts of MO (H) and also substituted Schedule-11 and provided for filling up of 50% posts of MO (H) by direct recruitment and rest of the 50% by promotion. Schedule-IV was also substituted. In Entry No.9 a provision was made for promotion ofAMO (H) to the post of MO (H) and minimum experience of five years with educational qualification of degree or four years' diploma from any institution recognized by the CCH was prescribed. 15. In the matter of N. Abdul Basheer, graduates and non- graduates Preventive Officers in the Excise Department were eligible for promotion to the post of Second Grade Excise Inspectors. An amendment was made to Special Rule 2 prescribing a rule of quota fdr promotion, whereby the relevant service rules were amended by notification and the ratio of 1:3 between graduates and non-graduates was introduced into the Special Rules in the matter of promotion from the category of Excise Preventive Officer to that of Second Grade Excise Inspectors. Dismissing the appeal, the Hon'ble Supreme Court held that for promotion to the post of Second Grade Excise Inspector, from the post of Excise Preventive Officer, the prescription of a ratio dividing the quota of promotion between graduates Preventive Officers and non- graduate Preventive Officers is invalid on the ground that it violates y/""^ "\ "S»A. ^ ,:^"''. 10 Articles 14 & 16 ofthe Constitution. It was further observed that "s/nce the conditions ofemployment and the incidents ofservice recognize no distinction between graduate and non-graduate Officers and for all material purposes they areeffectively treated as equivalent, it could not be said that the ratio 1:3 between graduates and non-graduates was supportable on the ground that the recognition of graduation was recognition of merit, and that more merit in the post of Excise Inspectors would be conducive to better administrative efficiency. 16. In Food Corporation of tndia , considering the facts of the case, the Hon'ble Supreme Court observed that no material has been brought on record by the Corporation to justify the amendment introducing a classification between graduates and non-graduates and accordingly, held that the amendment to the regulations makings differentiation between the graduates and non-graduates in the matter of promotion on the post of AG-1 and AG-11 offend the equality clause and therefore, unconstitutional. 17. In the case of Assam Electhcity BoarcP, the respondents were matriculate or non-matriculate and were appointed by the appellant Board as Subordinate Engineer Grade-11. The High Court allowing the petitions of the respondents directed the Board to take necessary steps to consider the cases of the respondents for promotion to the higher post, and it was further directed that they would be treated alike the Junior Engineers for further promotion. Allowing the appeal of the Board, the Supreme Court held that for the purpose of promotion to the post of Executive Engineer, classification on the basis of educational qualification viz. between 11 diploma holders and non-diploma holders or between diploma holders and graduate engineers, is a valid classification. 18. In the matters of M.P. Electricity Boarcf^ also, the Supreme Court held that for the purpose of absorption/promotion on the post of Assistant Engineer, fixing the minimum qualification of Engineering Degree or Diploma cannot be faulted. 19. In M. Rathinaswamr', the question which arose for consideration before the Supreme Court was with regard to the validity of the amended Tamil Nadu Revenue Subordinate Service Rules by which directly recruited Assistants were given preferential treatment by placing them above the senior promotee Assistants and making them eligible for promotion as Deputy Tehsildars on completion of five years of service as Assistants, and it was held thus: "In the present case, both the directly recruited Assistants and promoted Assistants have been integrated into one cadre of Assistants. No doubt, even after this integration for further classification for promotion higher educational qualifications can possibly be a rational basis, but there can certainly be no further classification between direct recruits and those promotee Assistants who have acquired the graduation qualification whether before joining as JuniorAssistant or thereafter. Once a promotee becomes a graduate, there cannot be any rational basis for dischmination againsthim vis-a-vis direct recruits. As regards the non graduate promotee Assistants, ordinarily it is for the State Government to decide whether their qualification has a reasonable relation to the nature of duties and responsibilities that go with and are attendant to the promotional post of Deputy Tehsildar. Whether the differences in the educational qualifications .;c*^* ^ -ft . ^- 1^T^I rt- ^' "^ ' f\ 's.-1K%. 12 /s sufficient to give any preferential treatment to one class of candidates against another, should ordinarily be teff to the executive authohties to decide. The executive authohties have expertise in administrative matters, and it /s ordinarily not proper for the Supreme Court to sit in appeal over their decisions unless it is something totally arbitrary or shocking. Whether graduate degree is a sufficient basis for classification for promotion vis-a-vis non-graduates, and whether such classification has rational relation to the nature of duties of a Deputy Tehsildar, is for the State Government to decide, and not the Court. Hence, the validity of impugned Rule is upheld to the extent it gives preference to the directly recruited Assistants over the promoted Assistants who are non graduates." 20. In the instant case, indisputably, the eligibility criteria for recruitment on the post of MO (H) was fixed as five years' degree or four years' diploma course from any University or Council or Board recognized from CCH with five years' experience in any recognized Government or private institution, as is evident from Column (6) of Schedule-111 framed under Rule 8. Even after substitution of Schedule-111 vide amendment in the Rules in the year 2008, there is no change in the educational qualification prescribed for the above post. It is settled law that it is for the Government to decide upon consideration which in its judgment should underlie a policy to be formulated by it for prescribing minimum qualification for a post, and it is not for the Courts to adjudicate upon such policy decisions unless it is something totally arbitrary or shocking. From the return filed by the State, it is clear that AMOs (H) with diploma of two years are provided with time-scale/up- 13 gradation/time-bound scale increase in payment etc. so that they are not deprived of financial benefits. 21. On the basis of aforesaid discussions, we find no substance in this petition, the same deserves to be dismissed and is, accordingly, dismissed. dn Sd/- Dhirendra Mishra Judge Sd/- RJ4. Chandrakar Judge