IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 WP(C).No. 35714 of 2007(B) -------------------------------------- PETITIONER(S): ---------------------- 1. DR.S.PRIYA, SREEVAS, PALACE ROAD, VAKKAM P.O., THIRUVANANTHAPURAM WORKING AS TUTOR (LECTURER) (ON STUDY LEAVE), DEPARTMENT OF ROGANIDANA, GOVERNMENT AYURVEDA COLLEGE, TRIPUNITHURA. 2. DR.SHIJI, PADMAVILSOM BUNGLAW, PERMPUZHA P.O., KOLLAM, WORKING AS TUTOR (LECTURER) (ON STUDY LEAVE), DEPARTMENT OF AGADATHANTRA, GOVERNMENT AYURVEDA COLLEGE, THIRUVANANTHAPURAM. 3. DR.AJITHA.K., BUNGLAVIL HOUSE, VAKKOM, THIRUVANANTHAPURAM, WORKING AS TUTOR (LECTURER) (ON STUDY LEAVE), DEPARTMENT OF KRIYASAREERA, GOVERNMENT AYURVEDA COLLEGE, THIRUVANANTHAPURAM. BY ADV. MR.P.SREEKUMAR MR.K.S.MANU (PUNUKKONNOOR) RESPONDENT(S): ------------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. CENTRAL COUNCIL OF INDIAN MEDICINE REPRESENTED BY ITS SECRETARY, INSTITUTIONAL AREA, JANAKPURI, NEW DELHI- 110 058. 3. KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. * ADDL. R4 IMPLEADED ADDL. R4: DR.AJITHKUMARI AMMA, LECTURER, KRIYA SAREERA, GOVERNMENT AYURVEDA COLLEGE, THIRUVANANTHAPURAM. * ADDL. 4TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 24/02/2009 IN I.A.15399/2008. WP(C).No. 35714 of 2007(B) **ADDL. R5 IMPLEADED ADDL. R5: DR.JULARANI P., LECTURER, DEPARTMENT OF RACHANA SHARIR, GOVERNMENT AYURVEDA COLLEGE, TRIPUNITHURA. ** ADDITIONAL 5TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 17/06/2009 IN I.A.6981/2009. R1 BY SR. GOVERNMENT PLEADER SMT.T.B. REMANI. R2 BY ADV. MR.P.PARAMESWARAN NAIR,ASST.SG. R3 BY ADV. MR.ALEXANDER THOMAS, SC, KPSC. ADDL. R4 & R5 BY ADV. MR.ELVIN PETER P.J. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/11/2009, ALONG WITH WPC NO. 12267 OF 2009, WPC NO. 12268 OF 2009 AND WPC NO. 25170 OF 2009, THE COURT ON 04/12/2009 DELIVERED THE FOLLOWING: WP(C).No. 35714 of 2007(B) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE GO(P)NO.264/2007/H&FWD DATED 02/08/2007 ISSUED BY THE 1ST RESPONDENT. EXT.P2: COPY OF THE RULES NOTIFIED AS PER GO(P)NO.4/98/P&ARD DATED 20/01/1998 ISSUED BY THE 1ST RESPONDENT. EXT.P3: COPY OF THE INDIAN MEDICINE CENTRAL COUNCIL (POST GRADUATE AYURVEDA EDUCATION), REGULATIONS 2005 ISSUED BY THE 2ND RESPONDENT. EXT.P4: COPY OF THE NOTIFICATION DATED 20/04/1999 ISSUED BY THE 3RD RESPONDENT. EXT.P5: COPY OF THE PETITION DATED 17/09/2007 SUBMITTED BY THE 2ND PETITIONER AND ADDRESSED TO THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R4(a): COPY OF THE ORDER DATED 03/02/2003 ISSUED TO THE 1ST PETITIONER. EXT.R4(b): COPY OF THE ORDER DATED 19/11/2002 ISSUED TO THE 2ND PETITIONER. //TRUE COPY// P.S. TO JUDGE rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 35714/2007-B, 12267/2009-C, 12268/2009-C & 25170/2009-M - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of December, 2009. JUDGMENT These writ petitions concern a common question regarding the interpretation of the Special Rules, viz. Kerala State Ayurveda Medical Education (Teaching) Services Special Rules, 2007, produced as Ext.P1 in W.P.(C) No.35714/2007, and they are therefore disposed of by a common judgment. 2. The petitioners in W.P.(C) Nos.12267/2009 and 12268/2009 are the additional respondents in W.P.(C) No.35714/2007. The petitioners in W.P.(C) N.35714/2007 and W.P.(C) No.25170/2009 are additional respondents 4 to 6 in W.P.(C) N.12268/2009. 3. W.P.(C) No.12268/2009 is filed mainly seeking for implementation of Ext.P8 order and for a direction to promote the petitioner to the post of Senior Lecturer. The said order is under challenge in W.P.(C) No.25170/2009. 4. The petitioner in W.P.(C) No.12268/2009 is a Lecturer in the Department of Kriya Sareera, whereas additional respondents 4 to 6 are wpc 35714/07, etc. 2 Lecturers in Roganidhana, Agadathantra and and Kriyasareera respectively. They were appointed through the Public Service Commission as Tutors in the respective departments. The petitioner in W.P.(C) No.12268/2009 was appointed as per order dated 19.11.2002 (Ext.P2). The post of Tutor has been later redesignated as Lecturer. Ext.P4 Special Rules were published with effect from 4.8.2007. It is the contention of the petitioner that even though in Ext.P4 Special Rules it is specified that a Postgraduate Degree in Ayurveda in the concerned subject is required for promotion as Senior Lecturer, the teaching staff having postgraduate degree in any subject in Ayurveda are entitled to rely upon the clause providing for relaxation as per Note 5 to Rule 5 for the purpose of promotion. It is the case of the petitioner that the petitioner who is having M.D. (Ayurveda) in Salyathantra, is thus entitled to be promoted to the post of Senior Lecturer in the Department of Kriya Sareera wherein she is working as Lecturer. There are three posts remaining vacant and the petitioner being the seniormost qualified Lecturer, is entitled to be promoted. Earlier, the petitioner approached this Court by filing W.P.(C) No.21970/2008 and as per Ext.P7 judgment, this Court directed the first respondent to consider and pass orders on the representation filed by the petitioner wherein she claimed promotion in the Department of Kriya Sareera. Accordingly, by Ext.P8 the wpc 35714/07, etc. 3 Government after accepting the request of the petitioner, directed consideration of the petitioner and 12 others to the post of Senior Lecturer on the basis of the qualification obtained by them, viz. P.G. Degree in any subject. 5. But when the select list was published as per Ext.P9, the Departmental Promotion Committee did not consider their claim in spite of Ext.P8 direction issued by the Government, on the ground that the P.G. degree possessed by the petitioner is not in Kriya Sareera, but it was in Salyathantra. By Ext.P10, persons included in the select list, were promoted. Thereafter, the petitioner submitted Ext.P11 representation seeking for promotion. It is at that stage, the petitioner approached this court seeking various reliefs. 6. This Court passed an interim order on 19.6.2009 directing the first respondent to consider the case of the petitioner for provisional promotion in the light of Ext.P8 Govt. Order. Thereafter, the Government passed Ext.P12 order rejecting the representation. This led to the petitioner filing C.O.(C) No.860/2009. 7. Writ Petition No.12267/2009 is filed by the petitioner who is a Lecturer in the Department of Rachana Sarir, seeking for a direction to the first respondent to promote the petitioner as Senior Lecturer (Asst. wpc 35714/07, etc. 4 Professor) in the Department of Rachana Sarir based on her P.G. qualification in M.D. (Ayurveda) in Salyathantra. Similar contentions have been raised in the said writ petition. She has also filed C.O.(C) No.857/2009. 8. The case pleaded by the petitioners in W.P.(C) No.35714/2007 and 25170/2009 in a nutshell, is that Note 5 to Rule 5 of the Special Rules will not enable the persons like the petitioners in the other writ petitions to claim promotion based on their postgraduate qualification in any subject. It is the case of the petitioners that the Government had published Special Rules earlier, as per Ext.P2 produced in W.P.(C) No.35714/2007, for the first time which was published in the Gazette on 31.1.1998. The said Special Rules were introduced after effecting departmentalisation. The Central Council of Indian Medicine has issued a Regulation called 'Indian Medicine Central Council (Postgraduate Ayurveda Education) Regulations, 2005 contemplating the scheme of P.G. Education in the field of Ayurveda which is produced as Ext.P3 in W.P.(C) No.35714/2007. The qualification required for the P.G. teachers is prescribed as post graduation in the concerned subject and it is accordingly the Government introduced the postgraduate course in Ayurveda in different colleges and the minimum qualification for promotion is also fixed accordingly. In W.P.(C) wpc 35714/07, etc. 5 No.35714/2007 the challenge is raised against Notes 2 and 5 of Rule 5 of the Present Special Rules on the ground that it goes against the prescriptions of the Special Rules itself. Shri P. Sreekumar and Shri Jaju Babu, learned counsel appearing for the petitioners in W.P.(C) Nos.35714/2007 and 25170/2009 vehemently argued elaborating the above pleadings. 9. In W.P.(C) No.25170/2009, the petitioners have raised various grounds for challenging the orders passed by the Government directing consideration of the promotions of persons having postgraduate degree in any subject. It is pointed out that the Notes to Rule 5 will not help those persons to claim promotion and only those teachers who are having post graduation in the concerned subject, will be eligible for promotion. 10. The first respondent has filed a detailed counter affidavit in W.P. (C) Nos.12267/2009 and 12268/2009 opposing the prayers of the petitioners. 11. Shri Elvin Peter, learned counsel appearing for the petitioners in W.P.(C) Nos.12267/2009 and 12268/2009 raised the following contentions: Note 5 to Rule 5 fixing qualifications for promotion to the post of Senior Lecturer shows that P.G. qualification (Ayurveda) in any subject on the date of coming into force of the Special Rules will be accepted as P.G. degree in the concerned subject and as the Special Rules Ext.P4 have come wpc 35714/07, etc. 6 into force on 4.8.2007, the petitioners are entitled for consideration for promotion to the higher post based on their P.G. qualification. It is submitted that Ext.P4 Special Rules have been brought into force in supersession of the earlier Special Rules published as per notification dated 20.1.1998. It is thus pointed out that as the Statutory rules have clearly granted exemption/relaxation in favour of Lecturers who are in service on the date of coming into force of the Special Rules, which is a well recognised method, the entitlement of the petitioners for promotion cannot be denied at all. It is further submitted that in Ext.P8 the Government has considered this aspect in detail and the Departmental Promotion Committee cannot ignore, while publishing the select list as per Ext.P9, the directions issued by the Government in Ext.P8. This is only in tune with the Special Rules. It is further pointed out that in Ext.P12, presently the Government has taken a different stand evidently based on the pressure exerted by other Lecturers and service organisations. It is further argued that a reading of Ext.P12 shows that the Government proposes to bring various aspects before the Public Service Commission to seek their advice and issue suitable modifications/clarifications to Ext.P4 Special Rules and the said decision is clearly against the Special Rules. The entitlement of the petitioners for promotion as per the Special Rules cannot be denied on the wpc 35714/07, etc. 7 ground that the Government proposes to amend/modify the Special Rules. It is also pointed out that the Departmental Promotion Committee or the Public Service Commission cannot overlook the specific clauses in the Special Rules and cannot overlook the method that is prescribed by the Special Rules. Reliance is placed on the following decisions of this Court and Apex Court: T. Padmanabhan v. FACT Ltd. and others (ILR 1985 (2) Ker. 126), C.L. Verma v. State of M.P. and another (AIR 1990 SC 463), Pankajakshan v. State (1996 (2) KLT 124), Abdul Rasheed v. K.P.S.C. (2002 (3) KLT 405), Inder Parkash Gupta v. State of J & K and others {(2004) 6 SCC 786) and P.S.C. v. Abdul Rasheed (2007 (3) KLT 881). 12. The first respondent has filed a detailed counter affidavit in the matter explaining the stand taken in Ext.P12. It is explained that the view taken by the Government in Ext.P8 is by a mistake. It is not in tune with the provisions of the Special Rules which is liable to be corrected. Various aspects have been pointed out in detail in the counter affidavit. 13. Therefore, the decision turns upon the true interpretation of the Special Rules. Before that, the history regarding the introduction of Department system in the Government Ayurveda Colleges, has also to be wpc 35714/07, etc. 8 noticed. It is pursuant to the same that the Special Rules were published in 1998 and 2007. In the counter affidavit filed by the first respondent in para 8, those aspects have been pointed out and reliance is placed on Exts.R1(a) to R1(c) orders also. Relevant portion of the said para is extracted below: “Government as per G.O.(Rt) No.143/96/H& FWD dated 19.03.1996 have introduced Department system in accordance with Central Council of Indian Medicine regulations in all the Government Ayurveda colleges in the state. Previously promotion of teaching staff in various categories were being made from the common seniority list and transfers made interdepartmentally without giving due consideration to their qualification and specialization. Since Department system is a newly introduced system, orders specifying the guidelines, exercise of option would have to be issued. Accordingly Government as per G.O.(Rt) 881/96/H&FWD dated 8.4.1996 issued the guidelines for the implementation of the Department systems in Government Ayurveda colleges in the state. A true copy of the G.O.(Rt)881/96/H&FWD dated 8.4.96 is produced herewith and the same may be marked as Ext.R1(a). Accordingly, all the teaching staff who were in service at the time of issuance of Ext.R1(a) have exercised their option for department. Based on the option exercised by the teaching staff, Government have finalized the option exercised by the teaching staff, strictly in accordance with the guidelines in Ext.R1(a) and issued orders as per G.O.(Rt) 257/98/H&FWD dated 9.9.1998 and G.O.(Rt) N.258/98/H&FWD dated 10.9.1998. Copies of the same are produced herewith and the wpc 35714/07, etc. 9 same may be marked as Ext.R1(b) and R1(c). At the time of finalization of option as per Ext.R1(b) and R1(c) some of the teaching staff possessed Post Graduate degree in subjects other than concerned and allied.” 14. Since the parties are in dispute regarding the effect of Note 5 to Rule 5 of Ext.P4 and the interpretation of the same will go to the root of the matter, I will first consider the same. 15. Ext.P4 Special Rules is of the year 2007, published as per notification dated 4.8.2007 in supersession of the notification dated 20.1.1998 and other orders concerning the subject. There are six categories of posts, going by sub-rule (2), viz. Director, Principal, Professor, Reader, Senior Lecturer and Lecturer. Category 3, viz. the post of Professor is separately provided in each of the 14 different departments. Similarly, the post of Reader and Senior Lecturer are thus provided in 14 departments mentioned therein. Rule 3 provides for the method of appointment and there is a common saving clause concerning all the categories to the effect that “Saving:- those who are in service on the date of commencement of these rules shall be deemed to have been appointed under these provisions.” Sub-rule (4) concerns qualification regarding age and sub-rule (5) concerns other qualifications. For the post of Senior Lecturer, the method of wpc 35714/07, etc. 10 recruitment is by promotion and by direct recruitment and for promotion, the qualifications prescribed in column 3 are the following: “(1) A Postgraduate Degree in Ayurveda in the concerned subject from any of the Universities in Kerala or from any other University recognized by any of the Universities in Kerala; (2) Teaching experience for a minimum period of 3 years in the concerned Department in Government Ayurveda Colleges; and (3) Permanent 'A' Class Registration with Travancore Cochin Medical Council (Council of Indigenous Medicine).” For the post of Lecturer, the following qualifications have been prescribed and the method of filling up the post is by direct recruitment. “Lecturer 1. By direct recruitment: A postgraduate Degree in the concerned subject from any of the Universities in Kerala or from any other University recognized by any of the Universities in Kerala. In the absence of person with Postgraduate Degree, in the concerned subject, person with Graduation will be considered.” Notes 1 to 7 are extracted below: “Notes- (1) In accordance with these Special Rules, Postgraduate Degree in the concerned subject has been made compulsory qualification for appointment by promotion and by direct recruitment to the post of Professor, Reader (Associate Professor) and Senior Lecturer (Assistant Professor) (2) If Postgraduate qualification holders for the following subjects are not available Postgraduate qualification obtained in the wpc 35714/07, etc. 11 subject as noted against the subject shall be admissible. Name of Subject Discipline of Postgraduation 1. Swastha Vritha 1. Kayachikitsa 2. Basic Principles 2. Agada Tantra 1. Kayachikitsa 2. Dravya Guna 3. Padarth Vigyan Samhita/Ithihas 1. Basic Principles 4. Rog Vigyan 1. Kayachikitsa 5. Rachana Sharir/ 1. Sharir Kriya Sharir 2. Basic Principles 6. Shalakya 1. Shalakya/Shalya 7. Nishetna Avum Ksha-Kiran 1. Shalya/Shalakya (3) The teaching staff in service as on the date of coming into force of Special Rules and who have been recruited before 1.7.1989 shall be exempted from acquiring the PG Degree qualification. (4) The Postgraduate Degree of the University of Kerala, in the subject given in column (1) of the Table shown below shall be treated as Postgraduate Degree in the subject shown against each in column (2) thereof for the purpose of these rules. (1) (2) Kayachikitsa (Panchakarma) Kayachikitsa Kayachikitsa (Marma) Salya Kayachikitsa (Netra) Salakya Kayachikitsa (Visha) Agadathantra Dravyaguna and Rasasasthra (Dravyaguna) Dravyaguna Dravyaguna (Rasasasthra) Rasasasthra Dravyaguna (Pharmacy) Bhaishajyakalpana (5) The teaching staff having Postgraduate Degree in Ayurveda in any subject on the date of coming in force of Special Rules will be accepted as PG Degree in the concerned subject irrespective of their option of the Department. wpc 35714/07, etc. 12 (6) The PG Degree in Ayurveda acquired by the teaching staff who were undergoing PG Degree Course at the time of Departmentalization will be accepted as PG Degree in the concerned subject irrespective of their option of the Department. (7) Teachers in service and recruited after 17.1989 but recruited before 31.1.1998 and do not possess the PG Degree qualification in the concerned subject or in allied subject shall be given five more years time with effect from 31.1.2003 to acquire the prescribed qualification.” 16. The argument raised by the learned counsel for the petitioners is that going by Note 5, persons like the petitioners who are having post graduate degree in Ayurveda in any subject on the date of coming into force of Ext.P4 Special Rules, are eligible for promotion. It is contended by the learned counsel appearing for the contesting respondents that reference to the date of coming into force of the Special Rules in Note 5 is the date of coming into force of the Special Rules originally as per notification dated 20.1.1998 and published in the Gazette dated 31.1.1998. It is pointed out that wherever in Ext.P4 Special Rules reference is made to the date of coming into force of the said Special Rules, the same has been clearly specified by employing the words “these special rules” which is absent in Note 5 wherein the emphasis is clearly made on “date of coming into force of the Special Rules.” It is pointed out that the words in Note 5 as pointed out above, have relevance in this context, as otherwise the intention of the wpc 35714/07, etc. 13 Special Rules will be defeated. 17. It is evident from the facts pointed out in the counter affidavit filed by the first respondent in para 8 that the Department system was introduced by the Government as per G.O.(Rt) No.143/96/H&FWD dated 19.3.1996. This was in accordance with the Central Council of Indian Medicine Regulations. A common seniority list was in force at that point of time and postings/transfers/promotions were being made interdepartmentally without considering their qualification and specialization. By Ext.R1(a) order, the Department system was introduced and various departments have been formed. By Ext.R1(b), the method of finalisation of the option was also formulated. It was finalised also. Thus, there cannot be any dispute that many of the persons who have given option were having P.G. qualification in different subjects when they opted for particular departments. 18. Learned counsel appearing for the contesting respondents submitted that the Special Rules of the year 1998, viz. Ayurveda Collegiate Teaching Service Rules, has got its own importance in the matter. A reference to the Special Rules of the year 1998 is also relevant. Therein also, the categories of Professor, Reader, Lecturer and Tutor have been earmarked for respective departments mentioned therein. Accordingly, wpc 35714/07, etc. 14 qualifications have been prescribed as per Rule 5. As regards the post of Lecturer, which has to be filled up by promotion, a post graduate degree in the concerned subject is specified. This is so in the case of direct recruitment also. For the post of Tutor, a First or Second Class degree in Ayurveda from any of the Universities is specified and the postgraduate degree in the concerned subject is only shown as a desirable qualification. Note 1 to Rule 5 is to the following effect: “In accordance with these Special Rules, Post Graduate degree in the concerned subject has been made compulsory qualification for appointment by promotion and by direct recruitment to the posts of Professor, Reader (Associate Professor) and Senior Lecturer (Assistant Professor)” . Note 2 is also important which specifies that Professors now in service and those who have completed 50 years shall be exempted from acquiring the P.G. degree qualification. Going by Note 3, teachers in service who do not possess the P.G. qualification, are given five years time to acquire the prescribed qualification. It is also specified that those who get promoted during this period and do not acquire the prescribed qualification, during the period, shall be reverted. Therefore, Notes 1 to 3 above are really important to understand the Special Rules which were brought into force in the year 2007 also. In Note 7 of the Special Rules of the year 2007, five wpc 35714/07, etc. 15 more years from 31.1.2003 have been granted to acquire the prescribed qualification, obviously in extension of the five year period granted as per Note 3 to the Special Rules of the year 1998. Therefore, the scheme provided in these two rules are therefore really important. In fact, in Note 6 to Rule 5 of the Special Rules, 2007 it is provided that “the P.G. degree in Ayurveda acquired by the teaching staff who were undergoing P.G. degree course at the time of departmentalization as per order dated 19.3.1996, will be accepted as P.G. degree in the concerned subject irrespective of their option of the Department.” 19. It is in these circumstances, we will have to analyse Note 5 to Rule 5 of Ext.P4 Special Rules. The saving clause under rule 3 providing for the method of appointment in respect of various posts employs the words “ date of commencement of these rules.” Note 1 to Rule 5 providing for qualifications, employs the words “in accordance with these special rules”. Note 3 therein employs the words “as on the date of coming into force of the Special Rules” and Note 5 also employs the words “on the date of coming into force of the Special Rules.” Thus, the date of coming into force of the Special Rules itself is given a specific mention in various places of the rules. There cannot be any dispute that going by the Special Rules of the year 1998, the postgraduate degree in the concerned subject wpc 35714/07, etc. 16 was made compulsory, but with certain exceptions in giving promotion, i.e. to acquire the qualification five year period is granted with a specific condition that those who do not acquire the prescribed qualification within the period stipulated, will be reverted. In Note 1 to Rule 5 also, the same position is reiterated, in that, under the 2007 rules also, post graduate degree in the concerned subject has been made compulsory qualification for appointment by promotion and by direct recruitment to various posts including the post of Senior Lecturer. 20. Note 3 is in tune with the 1998 Special Rules also, that those who are recruited prior to 1989, are exempted from acquiring the P.G. Degree qualification. Therefore, the significance of Note 5 can be understood only if it is analysed in the light of the provisions earlier discussed. It has to be read along with the relevant clauses of 1998 and 2007 rules and the scheme for departmentalisation brought out as per Exts.R1(a) to R1(c). If Note 5 is carved out and treated in isolation alone, the meaning as sought to be introduced by the petitioners could be attached to it. But the same will defeat the very scheme under