IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1925 of 2005 Date of Decision: 30.4.2009 Satpal Arya. ....... Appellant through Shri Ramesh Hooda, Advocate. Versus Dr.Dalel Singh and others. ....... Respondent no1. through Shri R.K.Malik, Senior Advocate with Shri Ashish Chaudhary,Advocate. None for respondent nos. 2 to 6. Respondent no.7 through Shri Vikas Awasthy, Advocate. None for respondent nos. 8 & 9. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgment and decree dated 28.2.2005 passed by the Additional District Judge, Fast Track Court, Sonepat (hereinafter described as `the First Appellate Court') whereby the appeal of defendant-respondent no.1 was accepted; judgment & decree rendered by the Civil Judge (Junior Division), Gohana were set aside and the suit of the plaintiff-appellant was dismissed. By filing a suit for declaration with mandatory and permanent injunction, the appellant had challenged the appointment of respondent no.1 as Professor of Ayurveda in Mahila Ayurvedic Degree College, Khanpur R.S.A. No.1925 of 2005 -2- .... Kalan (for short, `the College'). It was pleaded in the plaint that the appellant was a permanent member of Maha Sabha Gurukul Vidya Peeth Haryana ( for brevity, `Sabha') and Kanya Gurukul, Khanpur Kalan and, therefore, he was interested in the affairs of the Sabha. It was further pleaded that seven institutions were being run by the Sabha and the College was one of them. The appellant had alleged that respondent no.1 was appointed as Professor of Ayurveda in the College vide order dated 21.7.1997 which order was totally illegal, contrary to the rules and procedure as the same was passed without the recommendation of a duly constituted Selection Committee and without resorting to the process of advertisement etc. The appointment was also alleged to be the result of partisan and favouritism. It was pleaded that the said appointment was due to the collusion of one Jai Singh with respondent no.1 and that prior to this appointment, respondent no.1 was working as a Demonstrator in Government Krishna Ayurvedic College, Kurukshetra. It was further averred that according to the rules and norms fixed by the Central Council of Indian Medicines (for short, `C.C.I.M.'), the necessary qualifications for the post of a Professor were post graduate degree with ten years teaching experience, but the same were not adhered to while making the appointment of respondent no.1, who was not possessed of the said qualifications. The appellant pleaded that on 25.4.1998, the services of respondent no.1 were terminated, but the said termination was challenged by him in C.W.P. No.6601 of 1998 which was disposed of with a direction that an opportunity of hearing be given to him before passing an order terminating his services. R.S.A. No.1925 of 2005 -3- .... He further pleaded that opportunity of hearing was given, but respondent no.1 failed to associate with those proceedings and, therefore, his services were again terminated on 26.4.1999. It was averred that in the year 2002 when an Ad hoc Committee was looking after the affairs of the Sabha, respondent no.1 once again in collusion with Shri Dalip Singh, who was President of that committee, got himself reinstated in service on 7.6.2002. It is this reinstatement which the appellant is aggrieved of and which he has challenged by virtue of the instant proceedings. Notice of the suit was given to the defendants impleaded therein. The Sabha, its President, Principal & Governing Body of the College, who were arrayed as defendant nos. 1 to 4 and respondent nos. 2 to 5 herein, filed their joint written statement contesting the suit. The appointment of respondent no.1 was defended and it was pleaded that the same was by a competent person. They had further pleaded that respondent no.1 was an experienced person and was competent to work as a Professor and that a conscious decision was taken by the management of the College to reinstate him. The State of Haryana and Director of Ayurveda, Haryana also filed their written statement and averred that according to the Ayurvedic Education (Group A and B) Service Rules, 1999 (for short, `the 1999 Rules') which were notified on 26.5.1999, the qualifications for the post of Professor in the concerned subject for direct recruitment were as under:- 1. Post Graduate qualification in the concerned subject as recognised under the Indian Medicine Central Council R.S.A. No.1925 of 2005 -4- .... Act,1970. 2. Degree in Ayurvedic from any recognised University or Statutory Board/ faculty/ examining body of Indian Medicine or its equivalent as recognised under Indian Medicine Central Council Act,1970. 3. Ten years teaching experience including at least 5 years teaching experience as Reader in the subject concerned in any Ayurvedic College. 4. Knowledge of Hindi upto Matric standard. Since other averments made in the suit did not relate to them, they either denied for want of knowledge or did not reply. The CCIM, who was impleaded as defendant no.6, also filed its separate written statement stating therein that it was a statutory body constituted by the Government of India and that it was competent to prescribe the minimum standards of education in Indian Systems of Medicine. It was pleaded that there was no post of Demonstrator as per the rules framed by the CCIM after 11.3.1989 and the post of Demonstrator was re-designated as Lecturer. It was further stated that for the post of Professor, a post graduation degree is essential along with adequate knowledge of Sanskrit and ten years teaching experience. Respondent no.1, who was arrayed as defendant no.9 in the suit, filed his written statement vehemently contesting the averments of the appellant. He pleaded that the appellant had no locus standi to file the suit as it was the internal affair of the management of the College when it R.S.A. No.1925 of 2005 -5- .... resorted to the appointment of the employees. He alleged that the appellant was inimical towards him. Respondent no.1 further alleged that when he was appointed as Professor, the appellant was working as Treasurer of the Committee of the Sabha headed by Shri Hoshiar Singh and was using complete powers of the Managing Committee headed by Behan Subhashni and if his appointment was illegal, why he kept quiet and did not raise any dispute at that point of time. He pleaded that he was having the requisite qualifications and that his appointment was in accordance with the rules and instructions. The plea of mala fide against the appellant was specifically raised. No written statement was filed on behalf of Vice Chancellor of Maharashi Dayanand University, Rohtak, who was impleaded as defendant no.7 in the suit. The appellant filed separate replications refuting the averments made in the written statements. On the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the order of appointment of defendant no.9 as Professor dated 7.6.02 is illegal, null and void and liable to be set aside?OPP 2. If issue no.1 is proved, whether the plaintiff is entitled for relief of permanent injunction, as prayed for?OPP 3. Whether the court has no jurisdiction to try the present suit?OPD R.S.A. No.1925 of 2005 -6- .... 4. Whether the plaintiff has no cause of action and locus standi to file the present suit?OPD 5. Whether the suit is time barred and not maintainable in the present form?OPD 6. Whether the plaintiff is estopped to file the present suit by his own act and conduct?OPD 7. Whether the plaintiff has not come to the court with clean hands?OPD 8. Relief. After appreciating the entire evidence on record, the trial Cout concluded that the suit deserved to be decreed for the reason that the proper procedure for filling up the vacancy of Professor in the College was not followed and also further that respondent no.1 did not fulfill the prescribed qualifications as he was not having a post graduate degree. The suit was accordingly decreed. In appeal, the findings of the trial Court were reversed by the First Appellate Court primarily on the ground that the appellant had no locus standi to challenge the appointment of respondent no.1. Feeling aggrieved by the findings of the First Appellate Court, the appellant has filed the instant appeal. Learned counsel for the appellant has contended that the findings recorded by the First Appellate Court are erroneous and deserve to be set aside. He further contended that the appellant being the Treasurer of the Sabha, had every right to challenge the mis-directed action of the R.S.A. No.1925 of 2005 -7- .... management of the College and, therefore, the finding of the First Appellate Court on the question of locus standi is wrong. He next contended that according to the Rules framed by the Government of Haryana, the following qualifications were essential for the post of Professor:- 1.Post Graduate qualification in the concerned subject as recognised under the Indian Medicine Central Council Act,1970. 2.Degree in Ayurvedic from any recognised University or Statutory Board/ faculty/ examining body of Indian Medicine or its equivalent as recognised under Indian Medicine Central Council Act,1970. 3.Ten years teaching experience including at least 5 years teaching experience as Reader in the subject concerned in any Ayurvedic College. 4. Knowledge of Hindi upto Matric standard. It was submitted that respondent no.1 did not have the above mentioned qualifications and, therefore, his appointment was illegal. It was further submitted that no advertisement was issued before appointing respondent no.1 as Professor. He, thus, prayed that the impugned judgment and decree be set aside. On the other hand, learned counsel for respondent no.1 argued that the appellant did not have the locus to challenge the appointment of respondent no.1 as it is a settled principle of law in service jurisprudence that the appointment of an incumbent can be challenged only by a person, R.S.A. No.1925 of 2005 -8- .... who is so affected by it. He submitted that the appellant being the erstwhile Treasurer of the Sabha, can hardly have any interest in the appointment of respondent no.1. It was contended that the appointment of respondent no.1 was made in the year 1997 when the Punjab Ayurvedic Department (Class I and II) Rules, 1963, as applicable to the State of Haryana, (hereinafter called as `the `1963 Rules') were in force and according to the 1963 Rules, the following qualifications were prescribed for the post of Professor of Ayurveda:- 1. A degree (five years regular course) in Ayurvedic System of medicine of a recognised University or of a Board of Indian System of Medicine established by law or from any Ayurvedic College. 2. Knowledge of Sanskrit of Shastri Standard and in English of Intermediate Standard essential. 3. At least five years experience in teaching in the subject and 5 years clinical experience as a Physician. 4. Preference will be given to candidates with (i) research work (ii) Post Graduate qualification.” It was further contended that since respondent no.1 was adequately qualified for the post of Professor of Ayurveda as per the 1963 Rules, his appointment cannot be termed to be illegal. Learned counsel for respondent no.1 submitted that the services of respondent no.1 were terminated and he filed a writ petition during the pendency of which the impugned order was withdrawn and the management of the College was R.S.A. No.1925 of 2005 -9- .... directed to grant an opportunity of hearing to him before passing an order. He further submitted that thereafter the order of termination was once again passed since respondent no.1 did not participate in the proceedings pursuant to the notice given to him. The said order was challenged by filing a civil suit and during the pendency thereof, respondent no.1 was reinstated on 7.6.2002, but without the benefit of his previous service. Learned counsel for respondent no.1, thus, contended that having been reinstated, the appointment of respondent no.1 would relate back to the original appointment made in the year 1997 and, therefore, his appointment would be governed by the 1963 Rules and not by the Rules which placed them in the year 1999. He further contended that during the pendency of the proceedings, respondent no.1 has, in any case, acquired 12 years experience as Professor and is at the verge of retirement and the proceedings initiated against him are totally malicious and on account of his animosity with the appellant. I have heard the learned counsel for the parties and have perused the impugned judgment, as also the record. The fore-most aspect that has to be dealt with is as to whether the appellant has any locus standi to challenge the appointment of respondent no.1. It was very vehemently urged by the learned counsel for the appellant that the appellant certainly has the locus standi to challenge the appointment of respondent no.1 as he was concerned with the affairs of the Sabha, which were not being conducted fairly. Evidently, then appellant has not made a grievance of the mis-management of the affairs of the Sabha R.S.A. No.1925 of 2005 -10- .... or the College in resorting to the illegal and unauthorised manner of inducting incumbents in service, which, in his opinion, have proved to be detrimental to their interests. His suit is not against the Sabha. He has only made a grievance of the appointment given to respondent no.1. There is not a word in the entire plaint that the affairs of the Sabha or the College are being mis-managed and that has aroused his concern. Nothing has been shown as to how he is directly affected by the appointment of respondent no.1 and if, at all, it impacted the affairs of the Sabha or the College. In any eventuality, there being no grievance against the Sabha or the College, which have outrightly supported the appointment of respondent no.1, I am of the considered opinion that the findings recorded by the First Appellate Court by holding that the appellant does not have any locus to challenge the appointment of respondent no.1 cannot be faulted with. In this view of the matter, the question as to whether respondent no.1 was qualified or not need not be gone into by this Court. That apart, the appellant is not shown to have approached the C.C.I.M., which is the competent authority to prescribe the minimum standard of education and the requisite qualifications for the teaching staff to be appointed in the institutions imparting education in the Indian system of medicine. The only evidence which has been brought on record is that education institution under the name and style of Mahila Ayurvedic Degree College, Khanpur Kalan where respondent no.1 was appointed as Professor is affiliated with Mahrishi Dayanand University, Rohtak. However, there is nothing to show that any grant is released by the said University or the State R.S.A. No.1925 of 2005 -11- .... Government in favour of the College or it is being run at its own costs. Since the College has been shown to have got affiliation with the aforementioned University, the presumption is that the guidelines as laid down by it are being followed by the College while appointing its teaching staff. If that is not so, the College might have been de-affiliated by the University. The appellant has also not shown that he ever approached the authorities of the University and made a grouse that appointment of respondent no.1 was not in accordance with the guidelines issued by it. In the facts and circumstances of the case, the findings of the First Appellate Court, that the 1963 Rules were applicable to the case of respondent no.1, which were repealed by the 1999 Rules and non- possession of degree of post-graduation by him did not vitiate his appointment, are upheld. Therefore, the questions of law framed by the appellant in paragraph 9 of the grounds of appeal and reproduced below stand answered against the appellant and in favour of respondent no.1: 1. Whether a member of Sabha can file a Civil Suit challenging the appointment of Professor on the ground that he does not fulfil the basic qualifications and the appointment is made without following the due procedure? 2. Whether a member of Sabha is competent to file the Civil Suit challenging any action of the Managing Committee if the action is touching with the aims and objects of the Society? R.S.A. No.1925 of 2005 -12- .... 3. Whether the suit under Order 1 Rule 8 C.P.C. or Section 91 C.P.C. is only maintainable challenging the appointment of a Professor by a member of the Sabha? 4. Whether the Central Council of Indian Medicine Rules prescribing the qualifications for the post of Professor are applicable in the present case? 5. Whether the Civil Court can be a mere spectator if it finds that the lives and careers of thousands of students are adversely affected while appointing a person on the post of Professor lacking the academic qualifications and whether the Civil Court can interfere specifically in a suit filed by a person who is a member of the Maha Sabha the highest body of the Society? Accordingly, the judgment & decree of the First Appellate Court are upheld and the appeal is dismissed being without any merit. April 30,2009 ( Mahesh Grover ) “SCM” Judge