WP(C) 1479/2010 BEFORE THE HON’BLE MR JUSTICE B. K. SHARMA B. K. Sharma, J The matter relates to appointment of Lecturer in Homoeopathic Medical Co lleges in the State of Assam. The petitioners involved in all the 4 (four) writ petitions are aggrieved by deprivation of participation in the process of select ion for the said post on the ground of being not eligible in terms of the prescr ibed qualification and experience, which is Post Graduate qualification in Homo eopathy or a degree in Homoeopathy with 4 (four) years of professional experienc e. The qualification shall be the one included in the 2nd schedule of Homoeopath y Central council Act, 1973 (hereinafter referred to as the Act) . All the writ petitions having raised the common issue which is as to whether the petitioners are eligible to offer their candidature for the said post in terms of the afores aid qualification, they have been heard together. 2. The few basic facts as may be necessary to answer the issue raised in ea ch one of the writ petitions, are briefly discussed below :- 3. WP(C) 1479/2010 : The petitioners involved in this writ petition, initially obtained diplo ma in Homoeopathic Medicine and Surgery (DHMS). Till the year 2002-03, the DHMS was the recognized medical qualification in Homoeopathy, in terms of the Schedul e-II to the Homoeopathic Central council Act, 1973. With effect from 4.2.99, the Central Council of Homoeopathy stopped admission to the diploma course in Homoe opathy by the Homoeopathy (Diploma Course) (Amendment) Regulations, 1998. Thus, the 1997-98 was the last session of diploma course conducted by the Board of Hom oeopathic System of Medicine, Assam and the candidate of that session passed out in the year 2002-03. 4. The petitioners after obtaining the diploma, also obtained degree in Hom oeopathic Medicine and Surgery (BHMS), particulars of which are indicated in par agraph 4 of the writ petitions. Under Section 33 of the aforesaid Act, the Centr al Council of Homoeopathy is empowered to make regulations with the previous san ction of the Central Govt. by notification in the official gazette to carry out the purposes of the Act. In exercise of powers under Section 20 and Section 33 o f the Act, the Central Council of Homoeopathy made Homoeopathy (Minimum Standar ds of Education) Amendment Regulation, 2002, prescribing the qualification for L ecturer in Homoeopathy . The qualification is as quoted above. 5. Under Section 24 of the Assam Homoeopathy Medicine Act, 1955, the Assam Homoeopathy Rules, 1958 have been framed. Rules 26 to 36 lay down the method and procedure for registration as Homoeopathic Practitioner. Under Rule 32, every p ractitioner, whose application for registration has been accepted by the Board i s granted a certificate in form ’D’. Such a practitioner is also granted a licen ce to practice Homoeopathy in form ’E’. Under Rule 33, the Board prepares and ma intain separate registers of Homoeopathic Practitioners of the State. According to the petitioners, the provisional experience referred to in the above qualific ation and experience obtained after a practitioner is granted a licence to pract ice homoeopathy and he is registered as Homoeopathic Practitioner. 6. Under Assam Homoeopathic Rules, 1958, till the year 1978, 2 (two) types of registration numbers were issued by the Board, which are Class - A and Class - B. For Clause- A registration, medical practitioner should be institutionally qualified as per the qualification included in the 2nd schedule of the Act which is DHMS. Clause - B registration has been stopped since 1978. As per the system and practice in vogue, the DHMS qualification holders are registered as Class - A Homoeopathic practitioner and the BHMS graded qualification when acquired by such practitioners, same is added in their previously issued certificate. 7. The petitioners are all registered as Class - A homoeopathic practitione rs and such registration was after acquiring the DHMS qualification. The registr ation and the dates of registration as such are indicated in paragraph 9 of the writ petition. It is in reference to such dates of registration, it is the stand of the petitioners that they fulfill to the requirement of 4 (four) years of pr ofessional experience. 8. The Assam Public Service Commission (for short APSC) vide advertisement dated 17.6.08 invited applications from eligible candidates for appointment to 3 2 posts of Lecturer in the Homoeopathic Colleges of Assam under Health and Famil y Welfare Department, Govt. of Assam. The educational qualification prescribed i n the advertisement was the one quoted above. In response to the said advertisem ent, the petitioners offered their candidatures. However, a controversy arose as to how the prescribed 4 (four) years professional experience is to be counted ; namely, whether such experience is accountable after obtaining DHMS and registr ation or such experience is to be counted from the date of obtaining the BHMS. T he petitioners have referred to Annexure - P/5 letter dated 30.6.08 addressed to the members of the Executive Committee, Central Council of Homoeopathy, Assam b y the Central Council of Homoeopathy, New Delhi enclosing therewith the minutes of the 126th meeting of Executive Committee of HCC, held on 26.3.2008 at New Del hi. Under additional agenda item, the Executive Committee resolved as follows :- ANY OTHER ITEM WITH THE PERMISSION OF THE CHAIR 1. Letter No. 76/08 dated 20.06.2008 from Joint Secretary, the Homoeopathic Medical Association of India (Assam Branch) was considered and the Executive Co mmittee decided that professional experience starts from the date of registratio n of the practitioner with State Board/Council. 9. Placing reliance on the said resolution of the HCC, the petitioners have asserted that 4 (four) years of professional experience is to be counted from t he date of their registration as practitioners with State Board irrespective of whether such registration was after obtaining the DHMS or BHMS. 10. Pursuant to the aforementioned advertisement and candidatures offered by the candidates, the APSC short listed 53 candidates which excluded the petition ers for interview. According to the petitioners, such short listing of candidate s is on the basis of recognizing four years of professional experience after the qualification of BHMS to the exclusion of the professional experience gathered after DHMS. In response to the objection raised in this regard, the APSC by its letter dated 5.8.09 sought for a clarification from the Appointing Authority i.e . the Govt. of Assam in the Health and Family Welfare Department. Responding to the said letter, the Govt. of Assam in the Health and Family Welfare (B) Departm ent, intimated the APSC vide its letter dated 16.10.2009 that the professional e xperience is to be counted from the date of permanent registration with the Stat e Homoeopathic Board after obtaining the BHMS and graded BHMS degree. For a read y reference, the said letter dated 16.10.2009 (Annexure- P/8) is quoted below :- GOVERNMENT OF ASSAM HEALTH & FAMILY WELFARE (B) DEPTT. DISPUR :: GUWAHATI-6 No. HLB.406/2009/7 Dated Dispur, the 16th October, 2009 From : Shri B. Singh, ACS, Joint Secy. To the Govt. of Assam, Health & Family Welfare (B) Deptt. Dispur, Guwahati-6. To : The Deputy Secretary, Assam Public Service Commission, Jawaharnagar, Khanapara, Guwahati-22. Sub : An application U/s. 6 of RTI Act, 2005. Ref : Your letter No 36.PSC/DR-3/4/98-99 Dtd. 05.08.2009. Sir, With reference to your letter on the subject cited above, I am directed to furni sh the following information point wise for taking necessary action from your en d. (A) Professional experience means experience gathered during practice after getting permanent registration as per Homoeopathic Central Council Act, 1973 und er State Homoeopathic Board. (B) The qualification required for the post of Lecturer is BHMS Degree of Gr aded BHMS Degree. So, the professional experience is to be counted from the date of permanent registration in the State Homoeopathic Board after obtaining BHMS and graded BHMS Degree. Yours faithfully, Deputy Secy. To the Govt. of Assam, Health & Family Welfare (B) Deptt. 11. If the professional experience of four years is counted from the date of acquiring BHMS and not on the basis of DHMS registration, the petitioners are n ot eligible to be considered for appointment as Lecturer. According to the petit ioners, the stand of the Govt. of Assam is not sustainable in law. In this conne ction, it has been stated that there being no distinction between the profession al experience gathered after DHMs and BHMS and that there being no change in reg istration number, etc. after acquiring BHMS, the said professional experience is to be counted from the date of registration. It has been stated that in the reg istration certificate of a DHMS practitioner, the newly acquired qualification o f BHMS is just noted in the said previously issued registration certificate with out any indication as to the effect of the same. 12. The petitioners having been deprived of consideration for being appointe d as Lecturer in Homoeopathic Colleges on the aforesaid analogy of lacking 4 (fo ur) years professional experience, have filed the writ petition challenging thei r exclusion from the purview of selection. 13. WP(C) 1426/2010 In this writ petition also, same is the grievance as in WP(C) 1479/2010 with the exception that the petitioners involved in this writ petition could app ear in the interview conducted by the APSC pursuant to the interim order passed on 4.3.2010. It is the further stand of the petitioners that unlike them the pet itioners involved in WP(C) 1479/2010 having approached the Court belatedly after the selection, irrespective of the common grievance relating to the interpretat ion of professional experience , the said petitioners are not entitled to any r elief. 14. WP(C) 1971/2010 and WP(C) 1179/2010 4.1 The petitioners involved in these two writ petitions are BHMS. Their pra yer is to count their professional experience from the date June-July, 2004 wh en they applied for permanent registration of obtaining the BHMS degree. 15. The petitioners were issued with the provisional registration certificat e in June, 2003 and thereafter although they had applied for registration under the Board but such registration was not granted, as there was delay in granting necessary recognition to the Institution/ University in which they had under gon e the course. The petitioners were granted permanent registration on 7.10.2006 p receded by provisional registration pursuant to the Annexure-J notification date d 20.7.2006 issued by the Govt. of India, amending 2nd schedule to the Homoeopat hy Council Act, 1973 incorporating under the head Assam and after the serial N o. 3 E, the following Sl. No. and the entries. 1 2 3 4 3F Dibrugarh University, Dibrugarh Bachelor of Homoeopathic Medicine and Su rgery BHMS 2004 onwards 16. Thus, the degree of BHMS obtained by the petitioners was recognized retr ospectively i.e. 2004 and according to the petitioners they continued to gather experience on the basis of the provisional certificate of registration issued in June, 2003 and during the pendency of their application for permanent registrat ion, which was eventually issued in October, 2006, which otherwise would have be en issued in 2004. Some amount of controversy has been raised as to fulfilling t he professional experience of four years by the petitioners even if their perma nent registration is anti-dated to 2004, taking into account the APSC advertisem ent dated 17.6.2008. Stand of the respondents : 17. In the affidavit-in-opposition filed by the Central Council of Homoeopat hy, New Delhi i.e. the respondent No.4, the stand of the petitioners regarding p rofessional experience has been supported. Referring to the essential qualificat ion and experience for the post of Lecturer in Homoeopathic subjects, it has bee n stated that professional experience starts from the date of registration of pr actitioner with the State Board/Council irrespective of the fact whether the pra ctitioner is registered on the basis of DHMS or BHMS. 18. It has been stated that registration (on regular basis) is issued once o nly by the State Board /Council and the same is Permanent Registration for all p urposes, and therefore, professional experience should be counted from the date of registration of the practitioner with the State Board / Council, irrespecti ve of his diploma or degree qualification. It has further been stated that if a registered practitioner acquires a higher qualification later on, the said quali fication is simply added in the previously issued registration certificate and t here is no change in the registration number. It has also been stated that the m inimum eligibility for registration is any recognized medical qualification in H omoeopathy included in the 2nd and 3rd schedule of the Act of 1973, which includ es DHMS qualification. 19. Reacting to the stand of the State Government that the professional expe rience is to be counted from the date of permanent registration after obtaining BHMS or graded BHMS degree, it has been stated that the same is against the spir it of Section 15(1) and (2) of the Act of 1973, since registration on regular b asis is issued once only by the State Board / Council, which is permanent regis tration for all purposes. It has been specifically stated that professional expe rience starts from the date of registration of the practitioner with the State B oard / Council, irrespective of the fact whether the practitioner is registered on the basis of DHMS or BHMS qualification. 20. In the counter affidavit filed by the Govt. of Assam in the Health and f amily Welfare Department, the stand in the aforementioned communication dated 16 .10.2010 (Annexure-P/8) has been reiterated. However, it has also been stated th at the final authority being the Central Council, New Delhi, it will abide by th e decision of the said Council. 21. In the counter affidavit filed by the private respondents, it has been s tated that the professional experience is required to be counted and can be coun ted only from the date of acquiring the degree qualification. According to the s aid respondents, the expression with relating to the professional experience h as to be construed to be professional experience of 4 (four) years after obtaini ng the degree qualification as the said experience is relatable to the education al qualification of BHMS. Arguments : 22. I have heard Mr. P.K. Tiwari and Mr. B.D. Goswami, learned counsel repre senting the petitioners involved in WP(C) 1479/2010 and WP(C) 1426/2010 respecti vely. I have also heard Mr. D.A. Kayum, learned counsel representing the petitio ners in the other two writ petitions i.e. WP(C) 1971/2010 and WP(C) 1179/2010. M r. B. Gogoi, learned Standing Counsel, Health has also been heard and so also Mr . N. Choudhury, learned counsel representing the private respondents. 23 While Mr. P.K. Tiwari, learned counsel argued that the interpretation so ught to be given by the private respondents in respect of 4 (four) years of prof essional experience is a wrong interpretation, Mr. N. Choudhury, learned counsel representing the private respondents supporting the said interpretation submitt ed that any other interpretation will be absurd. Mr. B.D. Goswami, learned couns el appearing for the petitioners in WP(C) 1426/2010 submitted that the petitione rs involved in WP(C) 1479/2010 having approached the writ court belatedly, they are not entitled to any relief. Mr. Tiwari, learned counsel representing the pet itioners, upon a reference to the proceedings in the said writ petition submitte d that since the writ petition was filed well ahead of the selection, it will be unjust and improper to shut the door of the writ court, on the ground of delay in approach. He submitted that the petitioners involved in both the writ petitio ns being on equal footing, it will be unjust to deprive the petitioners in WP(C) 1479/2010 from participation in the selection process, merely because the petit ioners involved in the other writ petition i.e. WP (C) 1426/2010 could participa te in the selection process on the strength of an interim order. He further subm itted that the issue is one and the same, which is as to whether four years prof essional experience has to be counted from the date of registration irrespective of the qualification of DHMS or BHMS. 24. Mr. B.D. Goswami, learned counsel for the petitioners involved in WP(C) 1426/2010, in addition to the aforesaid submission, also made submissions in res pect of the claim of the petitioners involved in the other two writ petitions, n amely, WP(C) 1971/2010 and WP(C) 1179/2010. According to him, irrespective of re trospective amendment referred to above, even from the date of making the applic ation for registration, the petitioners having not completed four years so as to conform to the requirement of four years of professional experience, they are n ot entitled to appear in the selection. 25. Mr. D.A. Kayum, learned counsel appearing for the petitioners in WP(C) 1 971/2010 and WP(C) 1179/2010 submitted that the petitioners having been provisio nally registered on obtaining the BHMS degree followed by their applications for permanent registration, which was granted to them in October, 2006, they are en titled to count their professional experience from 2004, more so, when the amend ment to the Act of 1973 was made retrospectively incorporating Dibrugarh Univers ity as one of the authority to confer such degree. 26. Mr. N. Choudhury, learned counsel representing the private respondents s ubmitted that when any addition to qualification, experience is prescribed, it w ould only mean acquiring experience after obtaining the professional experience of four years being relatable to the educational qualification of BHMS. The expr ession with will have to be understood in that context and in reference to the said qualification and thus, there is no question of counting the professional experience, which the petitioners might have gathered before obtaining the degre e qualification i.e. BHMS. 27. While Mr. P.K. Tiwari, learned counsel for the petitioners have referred to the decisions reported in 2000(1)SCC 128 (Anil Kumar Gupta and ors. Vs. Muni cipal Corporation of Delhi & ors) ; 1995(3) SCC 486 (Madan Lal Vs. State of Jamm u and Kashmir) and 2000(4) SCC 30 ( A.K. Raghumani Singh and Ors Vs. Gopal Chand ra Nath and others) , Mr. B.D. Goswami, learned counsel representing the other p etitioners has referred to the decision reported in 1995 Supp (3) SCC 332 (Subha sh Shriram Dhonde Vs. State of Maharastra). On the other hand, Mr. N. Choudhury, learned counsel appearing for the private respondents has placed reliance on th e decisions reported in 1991 Supp(1) SCC 367 (Sheshrao Jangluji Bagde Vs. Bhaiyy a s/o. Govindrao Karale and others), 1993 Supp(2) SCC 419 (M. B. Joshi and other s Vs. Satish Kumar Pandey and others), 1992 Supp (1) SCC 584 (N. Suresh Nathan a nd another Vs. Union of India and others) and AIR 1952 SC 369 (Aswini Kr. Ghosh and another Vs. Arabinda Bose and another). Appreciation and findings : 28. I have given my anxious consideration to the submissions made by the lea rned counsel for the parties and have also given my consideration to the materia ls on record. 29. In N. Suresh Nathan (supra), a three Judges Bench of the Apex Court allo wing the appeal and noticing the practice being followed in the Department that in the case of diploma holder Junior Engineers who obtained the degree during se rvice, the period of 3 (three) years’ service in the grade for eligibility for p romotion as degree holders commenced from the date of obtaining the degree and t he earlier period of service as diploma holders was not counted for this purpose , held that if the past practice is based on one of the possible constructions w hich can be made of the rules then upsetting the same would not be appropriate. The dispute in the said case was whether a diploma holder Junior Engineer who ob tains a degree while in service becomes eligible for appointment as Assistant En gineer by promotion on completion of 3 (three) years service including therein t he period of service prior to obtaining the degree or the 3(three) years service as a degree holder for this purpose is to be reckoned from the date he obtains the degree. 30. Upholding the plea of the degree holders that the three years’ of experi ence is to be counted from the date of obtaining the degree, the Apex Court trac ing back the past practice being followed in the Department, which was in favour of the degree holders, held that the said past practice being one of the possi ble constructions which can be made of the rules instead of upsetting the same, it would be appropriate to do so. It was in that context, the question was answe red in favour of the degree holders. It will be pertinent to mention here that t his case was pertaining to promotion and it was in that context the eligibility criterion of experience was to be determined. 31. In Sheshrao Jungluji Bagde (Supra), the Apex Court dealing with the requ irement of practical experience in the particular field which was prescribed as and observed that normally the experience, unless the context otherwise demand s, it should be taken as experience after acquiring the minimum qualifications r equired, and therefore, necessarily will have to be posterior to the acquisition of the said qualification. 32. in M.B. Joshi (Supra), the Apex Court dealing with the seniority and len gth of service for promotion to the post of Assistant Engineer from Sub-Engineer prescribing separate quota for those who acquired Engineering Degree during the course of service and completed 8(eight) years qualifying period of service, he ld that the entire length of their service as Sub-Engineer, irrespective of the date of attaining the degree qualification has to be taken into account in absen ce of any specific rule to the contrary, more so, when the practice of determini ng seniority in that way was already in vogue. In the said case, N. Suresh Natha n case (supra) was referred to. In paragraph 11 and 12 of the said judgement, it has been observed thus :- 11. A perusal of the above observations made by this Court clearly sho w that the respondents diploma-holders in that case had admitted the practice fo llowed in that department for a long time. It was clearly laid down in the above case that if the past practice is based on one of the possible constructio ns which can be made of the rules then upsetting the same now would not be appro priate. It was clearly said \it is in this perspective that the question raised has to be determined.\ It was also observed as already quoted above that the Tri bunal was not justified in taking the contrary view and unsettling the settled p ractice in the department. That apart the scheme of the rules in N. Suresh Natha n’s case was entirely different from the scheme of the Rules before us. The rul e in that case prescribed for appointment by promotion of Section Officers/Jun ior Engineers provided that 50 per cent quota shall be from Section Officer s possessing a recognised degree in Civil Engineering or equivalent with t hree years’ service in the grade failing which Section Officers holding Diplo ma in Civil Engineering with six years’ service in the grade. The aforesaid r ule itself provided in explicit terms that Section Officers possessing a re cognised Degree in Civil Engineering was made equivalent with three years’ servi ce in the grade. Thus, in the scheme of such rules the period of three years’ se rvice was rightly counted from the date of obtaining such degree. In the cases i n hand before us, the scheme of the rules is entirely different. 12. In the cases before us 50 per cent of the posts of Assistant En gineers has to be filed by direct recruitment of persons having degree of gradu ation