IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY EIGHTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE G.BHAVANI PRASAD WRIT PETITION NO : 6072 of 2007 Between: 1 Dr. P. Surya Bhagawan S/o. Gangadhara Rama Rao College, Rajahmundry, E.G. District. 2 Dr. K.S.N. Murthy S/o.Late Papa Rao, Rajahmundry, E.G. District. ..... PETITIONER(S) AND 1 The State of A.P., Rep. by its Principal Secretary to Government of Andhra Pradesh, Health, Medical and Hyderabad. 2 The Commissioner, Department of Ayush, 5th Floor, APGLI Building, Tilak Road, Abids, Hyderabad, A.P. 3. Dr. S.Praveen Kumar, 48 years, Asst. Professor, JSPS Govt. Homoeo Medical College, Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, order or direction more particularly one in the nature writ of Certiorari calling for the records relating to the G.O.Ms.No. 69 H.M. & F.W. (1.2) Department) 14-3-2005 issued by the 1st Respondent and the order dt. 14-12-2006 in O.A.No. 5155 of 2005 passed by the Hon'ble Andhra Pradesh Administrative Tribunal, Hyderabad and Set-aside the same as illegal and void and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:MR.KAKARAVENKATA RAO Counsel for the Respondents No.1 and 2: GP FOR SERVICES I Counsel for the respondent No.3: Dr. K. Lakshmi Narasimha The Court made the following : HON’BLE SRI JUSTICE GHULAM MOHAMMED AND HON’BLE SRI JUSTICE G.BHAVANI PRASAD Writ Petition No.6072 of 2007 ORDER: (Per Hon’ble Sri Justice Ghulam Mohammed) This writ petition is filed challenging the order dated 14-12- 2006 dismissing the O.A.No.5155 of 2005 on the file of Andhra Pradesh Administrative Tribunal, Hyderabad, thereby upholding the Andhra Pradesh Homoeopathy Medical Service Rules, 2005 (for short ‘2005 Rules’) framed vide G.O.Ms.No.69, Health, Medical and Family Welfare (I.2) Department, dated 14-03-2005. 2. The details relevant and necessary for deciding the writ petition are that the petitioners filed the above O.A. aggrieved by G.O.Ms.No.69, dated 14-03-2005 to the extent of imposing the condition that the candidate/employee must possess the Post-graduate degree in the subject speciality of any recognised University or any Statutory Board of the State Government, after having undergone regular study of not less than three years duration, for the purpose of promotion from the post of Lecturer to Assistant Professor and from Assistant Professor to Professor. The first petitioner herein is working as Assistant Professor in Dr. A.R. Government Homoeo Medical College, Rajahmundry, East Godavari district, while the second petitioner is working as Lecturer in the same college. The first petitioner was promoted as Assistant Professor on 01-09-1989 while the second petitioner is working as Lecturer, right from the date of his appointment as Lecturer. The main grievance of the petitioner is that the official respondents are effecting promotions in accordance with Rules framed vide G.O.Ms.No.69, which are contrary to Central Council of Homoeopathy (Minimum Standards of Education) Regulations, 1983 (for short ‘the Regulations’), as amended from time to time. 3. It is the case of petitioners that they are working in the field of Homoeopathy, which is one of the three medical wings and therefore governed by the Rules and Regulations framed by Central Council of Homoeopathy, which is constituted by the Government of India in exercise of powers under Sections 20 and 33 of Homoeopathy Central Council Act, 1973. According to petitioners, the qualification for appointment to the post of Professor in Homoeopathy is post-graduation in Homoeopathy with two years of experience as Reader or a degree in Homoeopathy with six years of teaching experience or diploma in Homoeopathy of not less four years duration with 10 years teaching experience in the subject concerned in Homoeopathy College. Further, the qualification for holding the post of Assistant Professor in Homoeopathy is post-graduation in Homoeopathy or a degree in Homoeopathy with four years of professional experience. It is averred that the Central Council of Homoeopathy has made provision for the teaching staff to acquire the post-graduate qualification–M.D. (Homoeo) within certain time from the date of commencement of Homoeopathy Amendment Regulations, 2001 and such staff can acquire post-graduate qualification externally i.e. without attending the College. 4. It is the main case of the petitioners that the Central Council had given an opportunity to the teaching staff as well as Medical Officers to acquire P.G. qualification – M.D. (Homoeo) externally, without attending the college, in respect of all graduates whether they are in service or not till 2007. 5. While so, the Government of Andhra Pradesh have issued G.O.Ms.No.69 dated 14-03-2005 framing Andhra Pradesh Homoeopathy Medical Service Rules, 2005 and Annexure-II to the said G.O. stipulates that the appointment to the post of Professor (for UG courses) shall be by way of promotion and the employee/candidate must possess Post- graduate degree qualification in the subject speciality concerned of any recognised university or any Statutory Board of the State Government after having undergone regular study of not less than (3) years duration, and must have five years teaching experience in the subject. The petitioners are aggrieved to the extent of imposition of this condition. The Tribunal, after considering the rival contentions and the qualifications prescribed for promotion to the post of Professor/Assistant Professor, upheld the 2005 Rules and observed that promotions have to be effected in accordance with 2005 Rules and accordingly dismissed the O.A. Aggrieved thereby, the present writ petition is filed by the applicants 1 and 2 in O.A.No.5155 of 2005. 6. Heard learned senior counsel, Sri E.Manohar appearing for the petitioners, learned Government Pleader for official respondents and Dr. K.Lakshmi Narasimha appearing for third respondent and perused the record. 7. Learned senior counsel appearing for the petitioners has drawn our attention to the Homoeopathy (Minimum Standards of Education) Regulations, 1983 (as amended upto September, 2002) issued by the Central Council of Homoeopathy and contended that Regulation 11 stipulates that the essential qualifications for the post of Professor in Homoeopathic subjects is post-graduate qualification with two years of experience as Reader, or a Degree in Homeopathy with six years of teaching experience as Reader, or Diploma in Homoeopathy of not less than four years duration with ten years of teaching experience in the subject concerned in a Homeopathic college. Learned senior counsel contended that the condition of three years regular study for acquiring post-graduate degree is not stipulated by Regulation 11 of the said Regulations and as such, the 2005 Rules to that extent are contrary to the Regulations. 8. Learned senior counsel has also contended that there is no distinction made by the Regulation with regard to the acquiring of post- graduate degree – M.D. (Homoeo) by regular study or by external study, therefore the imposition of the condition of three years regular study is not at all warranted. 9. Learned senior counsel further submitted that the State Government have framed 2005 Rules under Article 309 of the Constitution of India and the Rules are not in conformity with the Regulations framed by the Central Council of Homoeopathy and that the Homoeopathy Central Council Act, 1973 will prevail over the 2005 Rules when such Rules are inconsistent or repugnant to the Central Act. 10. Learned senior counsel for the petitioners has drawn our attention to G.O.Ms.No.227, Health, Medical and Family (R1) Department, dated 28-07-2004 whereunder the Government accorded permission to conduct M.D.(Homoeo) external course at JSPS Government Homoeopathy College, as already provided for by the Central Council of Homoeopathy and accepted by NTR University of Health Science, Vijayawada, pending framing of admission Rules and that further action was ordered to be taken. 11. Learned counsel appearing for the third respondent, who was impleaded in the writ petition, contended that the first petitioner alone is eligible for promotion to the post of Professor, whereas the second petitioner being the Lecturer, is in the feeder category to the post of Assistant Professor. He further contended that there are 26 vacancies and as such, the first petitioner and others will be entitled to promotion. Learned counsel further submitted that the State Government under proviso to Article 309 can frame its own Rules for regulation of services and further, the subject-matter of ‘Education’ is also enumerated in Seventh Schedule of the Constitution of India - Entry 25 in the Concurrent List and the State is empowered to impose reasonable conditions regarding the services. Learned counsel for the third respondent has placed reliance on the decision of the Supreme Court in GOVT. OF A.P. Vs. R.MURALI BABU RAO [1] in support of the proposition that promotion shall strictly be made in conformity with the Rules framed under proviso to Article 309 and not in accordance with recommendations of any expert body and the Rules so framed shall override the conflicting recommendations made to the Government. He also relied upon another decision of Apex Court in DR. GANGA PRASAD VERMA Vs. STATE OF BIHAR [2] and contended that the Regulations framed are only directory and not mandatory. 12. We have considered the submissions of the learned senior counsel, learned Government Pleader for first and second respondents and learned counsel for the third respondent, and perused the material on record. 13. The point that arises for consideration in this writ petition is whether the State Government can impose the condition of ‘regular study of not less than (3) years duration’ before acquiring Post-graduate qualification for promotion to the post of Professor, when the Regulations framed under the Central Act do not differentiate between ‘regular candidate’ and ‘external candidate’? 14. At the outset, it is to be seen that the petitioners are aggrieved to the extent of imposing the condition of regular study of three years duration for acquiring post-graduate degree in the speciality concerned. It is to be noted that subjects, qualifications and eligibility in respect of ‘Homoeopathy’ is regulated by Central Council of Homoeopathy, which was constituted by the Central Government under the provisions of Homoeopathy Central Council Act, 1973. Further, the Council has also framed Homoeopathy (Minimum Standards of Education) Regulations, 1983, and Regulation 11 prescribes the qualification etc., of teaching staff, and it shows the minimum qualifications and age for appointment of teaching staff to various posts shall be in accordance with Annexure-E; for the post of Professor in Homoeopathic subjects, the candidate/employee must possess post-graduate qualification in Homoeopathy with two years of experience as Reader, or a Degree in Homoeopathy with six years of teaching experience as Reader, or Diploma in Homoeopathy of not less than four year duration with ten years teaching experience in the subject concerned in a Homoeopathic college. The Central Council of Homoeopathy had framed the regulations called ‘the Homoeopathy (Post Graduate Degree Course) M.D. (Hom.) Regulations, 1989, which was amended in 1992 and ultimately Amendment Regulations of 2001 came into force and presently holding the field. The amended Regulation in Part-VI has made a special provision for External candidates and the admission criteria, reads as follows: “14. Notwithstanding anything contained in these regulations, the University may allow admission of external candidates to appears in the Post Graduate examination for a period of eight year from the commencement of the Homoeopathy (Post Graduate Degree Course) M.D. (Hom) (Amendment) Regulation, 2001, for three subjects, namely, Materia Medica, Homoeopathic Philosophy and Repertory only subject to the fulfilment of the following conditions, namely: I. Admission to the examination: 1) A candidate who has passed the final examination of a diploma course in Homoeopathy of not less than four years duration shall be eligible for admission to the examination as an external candidate, if such candidate: a) holds full time regular post not below the rank of Assistant Professor, or b) has teaching experience of not less than seven years in a recognised Homoeopathic Medical College, or c) has ten years of professional experience. 2) The candidate shall register his name two years before the final examination. 3) The candidate shall prepare and submit to his Supervisor/Guide a dissertation nine months prior to the holding of the final examination. The Supervisor/Guide approve the same six months prior to the holding of the final examination.” The amended Regulations of 2001, more particularly Regulation 11, do not differentiate between acquiring of Post-graduate qualification by regular study, or external study i.e. without attending the college. The amended Regulations of 2001 have been framed by the Central Council of Homoeopathy under Sections 20 and 33 of Homoeopathy Central Council Act, 1973, which was enacted by Parliament. When there is no such distinction, the State Government framed 2005 Rules vide G.O.Ms.69, stipulating the condition that the post- graduate degree in the subject speciality shall have to be acquired after undergoing ‘regular study’ of not less than three years duration for the purpose of promotion from Assistant Professor to Professor. A reading of the said G.O., shows that the 2005 Rules have been framed in exercise of powers conferred by the proviso to Article 309 of the Constitution of India. Thus, the 2005 Rules framed by the Government of Andhra Pradesh are inconsistent and contrary to amended Regulations of 2001, to the extent of acquiring post-graduate qualification by three years regular study for promotion to the post of Professor. Admittedly, the course, syllabus and eligibility for M.D. (Homoeo) is regulated by the Central Council of Homoeopathy throughout the country and the Central Council derives its powers under the Act. The State Government cannot frame Rules in contravention of a Central Act, which is enacted by Parliament. 15. It is seen from the record that when similar clarification is sought by the Universities of Kerala and Calicut regarding equivalency of M.D.(Hom) of regular and external candidates, the Central Council of Homoeopathy, constituted under the Act, vide its communication in F.No.14-1-/2005/CCH, dated 25-05-2005, informed that the Executive Committee of the Council held its meeting on 23-03-2006 and resolved as follows: “ The Executive Committee resolved that the M.D.(Hom.) qualification of any University awarded to regular and external candidates as per the provisions of Homoeopathy (Post Graduate Degree Course) M.D.(Hom) Regulations (as amended) if included in the Second Schedule of Homoeopathy Central Council Act, 1973, are at par for all purposes including the service matters. The Central Council in its meeting held on 24-03-2006 agreed with the said decision taken by the Executive Committee in the matter.” Thus, it can be safely concluded that the qualification of M.D.(Homoeo) acquired by regular and external candidates has to be treated at par for all purposes including the service matters. This decision was taken by the Central Council constituted under the Central Act. Therefore, 2005 Rules prescribing three years regular study is not in consonance with the decision of the Central Council under the Act, which will oversee, regulate and make Regulations relating to the ‘Homoeopathy’ branch. Apart from the above, the Government of Andhra Pradesh vide G.O.Ms.No.227, dated 28-7-1984 have accorded permission to start M.D.(Homoeo) external course at J.S.P.S. Government Homoeopathy Medical College, Hyderabad, by referring to the provisions prescribed by the Central Council of Homoeopathy and NTR University has already consent for starting such course. All the above circumstances point to the conclusion that there is no distinction between regular and external candidates. In fact, the main aim of starting M.D.(Homoeo) external course is to give opportunities to the Homoeopathy Doctors, who possess Degree and Diploma and have prescribed experience in teaching or practice, so that the existing vacuum of P.G. cadre in Homoeopathy Medical Colleges, Dispensaries and Hospitals could be overcome. 16. It is pertinent to refer to the letter No.5991/HE.1/2005-5, dated 26-05-2008 sent by Commissioner, Department of AYUSH, A.P., Hyderabad, to the Secretary, Health Medical and Family Welfare Department, A.P., submitting proposal for amendment to the 2005 Rules. Other amendments are also proposed, but for the purpose of this writ petition, the relevant amendment is in respect of Category-II - Professor (for U.G. courses), which is to the effect that the candidate ‘must possess Post-graduate degree qualification in the subject/speciality concerned of any recognised University or any Statutory Board of State Government’. Thus, the earlier requirement of ‘regular study of not less than three years duration’ is sought to be deleted. Learned Government Pleader has produced before us copy of the Letter No.9259/I.2/08, dated 05-11-2008, addressed by Ex-officio Secretary to Government, Health, Medical and Family Welfare Department, Hyderabad, to the Secretary, Andhra Pradesh Public Service Commission, Hyderabad, whereunder the concurrence of the Commission was sought for deletion of the condition that the ‘candidate/employee has to undergo regular study of not less than three years duration’ before acquiring qualification of M.D.(Homoeo). The concurrence of the Commission is awaited. It is to be noticed that the G.A. Department and Law Department have already agreed for such amendment. 17. Learned Government Pleader has now produced G.O.Ms.No.400, Health, Medical and Family Welfare (I.2) Department, dated 18-11-2008, wherein the Government of Andhra Pradesh have issued amendments to 2005 Rules and the purport of the amendments is that the ‘regular study of not less than three years duration’ has been deleted. Thus, the regular and external candidates, who have acquired M.D.(Homoeo), have to be treated on par in all respects including the service matters. Even assuming that the statutory Rules framed under proviso to Article 309 have overriding effect on the Regulations, in view of the subsequent amendments, the case of the petitioners have to be considered in accordance amended 2005 Rules as the order of status quo as on 16-03-2008 had been ordered to be maintained, pending disposal of writ petition. 18. In the instant case, both external as well as regular candidates form one class and having obtained post-graduate degree, they have to be treated alike. Excluding external candidates from the zone of consideration for promotion to higher category amount to violation of Articles 14 and 16 of the Constitution of India. Further, the denial of opportunity to external candidates though they have vast teaching experience is not just and proper and there cannot be mini-classification so as to exclude similar category of candidates. Both have to be treated equally and promotions have to be effected as they possess the required qualifications and they are entitled to be considered for promotion in accordance with Rules. In fact, the external candidates have experience in teaching or practice and they would normally put in considerable service and in the guise of ‘regular study of three years’, the juniors cannot march over the external candidates, who have sufficient experience in teaching or practice in Homoeopathy, and get faster promotions than the employees who have joined the service much earlier. 19. The first petitioner is working as Assistant Professor while the second petitioner is a Lecturer. It is seen from the seniority list of Assistant Professors/Assistant Research Officer prepared as per G.O.Ms.No.69, petitioner No.1 is shown at Sl.No.14 with 14 years of teaching experience in the category of Assistant Professor. Petitioner No.2 is a Lecturer and he is in the feeder category to the post of Assistant Professor and he cannot claim promotion to the post of Professor as petitioner No.1. 20. Having regard to the facts and circumstances, for the reasons stated above, and also the subsequent development by which the condition of ‘three years regular study’ for acquiring post-graduate qualification has been deleted, we are of the considered opinion that the Tribunal has committed an error of jurisdiction and impugned order is quashed to the extent of upholding the said condition and excluding the external candidates who acquire M.D. (Homoeo) qualification from the zone of consideration for promotion to the post of Professor/Assistant Professor. The case of petitioners has to be considered for promotion, in accordance with amended 2005 Rules. 21. Accordingly, the writ petition is allowed. No order as to costs. ___________________________ GHULAM MOHAMMED, J. __________________________ G.BHAVANI PRASAD, J. 28th November, 2008. bsc [1] (1988) 2 SCC 386 [2] 1995 Supp (1) SCC 192