IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 547 of 2006 Reserved on.: 18.08.2009 Date of decision: 06.10.2009 State of H.P and another …Petitioners Versus Dr. Ved Prakash …Respondent. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting?1 Yes. For the petitioners: Mr. Ram Murti Bisht and Mr. Vikas Rathour, Deputy Advocate General. For the respondent: Mr. H.K.Paul, Advocate. Per Deepak Gupta, J. This writ petition by the State is directed against the order of the learned H.P.State Administrative Tribunal dated 17th May, 2005 passed in O.A. No. 650 of 1995 whereby it allowed the original application filed by the respondent and directed that he be treated to be a Lecturer from the date of appointment and be given notional seniority w.e.f. 30.1.1978 with all consequential benefits. However, the monetary benefits were restricted to a period of 38 months prior to the date of filing of the Original Application. Aggrieved by this order the State has filed this writ petition. Briefly stated, the facts of the case are that the respondent had acquired bachelor degree in Ayurveda (GAMS) in 1976. He was selected to the post of Lecturer in a private college i.e. HIM 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. 2 Ayurvedic College, Paprola on 19th March, 1977. Later he was offered a regular/temporary post of Lecturer in the same college. This college was taken over by the Government on 3rd March, 1978 and an agreement was executed between the State and the management of the College for taking over the college and the services of the employees. The contention of the respondent was that he had been continuously working as Lecturer till 29th July, 1983 when he proceeded on study leave to acquire Post Graduation qualification in Ayurveda. He has relied upon certain documents wherein it has been shown that the respondent was working as Lecturer in the HIM Ayurvedic College, Paprola. The petitioner-State had shown the respondent as Ayurvedic Chakitsa Adhikari (hereinafter referred to as ACA) and not as Lecturer. According to the State the respondent could not be appointed as Lecturer since he did not possess the essential qualification of post graduation. According to the State, the respondent for the first time exercised his option to go to the teaching cadre in 1990 and therefore, he was promoted to the post of Lecturer in the year 1991. Since the respondent never objected to his appointment as ACA in 1980 he could not be permitted to challenge the same at a belated stage. The plea of limitation was also raised. The learned Tribunal brushed aside the plea of limitation only on the ground that the plea had not been specifically taken in the reply to the Original Application. The tribunal held that the respondent was appointed as Lecturer and continued to work as such. According to the Tribunal merely because he was described as ACA would not make any difference and therefore, held that the 3 respondent was entitled to be treated as Lecturer from the very beginning. Hence, the present writ petition. We have heard Shri Ram Murti Bisht, learned Deputy Advocate General for the State and Shri H.K.Paul learned counsel for the respondent. The main contention of the State before us is that after the College was taken over on 3rd March, 1978 services of the respondent were taken over as ACA since he had not done his post graduation which was the essential qualification for the post of Lecturer. Services of other similarly situated persons were also taken over as ACAs. The respondent did not challenge his appointment as ACA and had willingly joined the same. He thereafter went for Post Graduation. Even after he obtained a post graduate decree he continued to work as ACA. It was only in 1990 that he first opted that he be taken on the teaching side. The State has also relied upon judgements passed in the case of the Principal of HIM Ayurvedic College Dr.Dhani Ram Acharya and others employees of HIM Ayurvedic College. The cases of these persons were identical to that of the respondent. They had filed writ petitions before this Court, which were rejected. Thereafter they approached the Apex Court. The Appeals filed before the Supreme Court were dismissed as withdrawn and fresh writ petitions were filed challenging the R & P Rules framed by the H.P.Government. These writs were transferred to the H.P.State Administrative Tribunal on its establishment and the same were dismissed by the Tribunal on 15th December, 1986. According to the State the Tribunal failed to take into consideration the earlier decision rendered by it in identical matters. 4 When the services of the respondent were taken over the services of many other employees were also taken over. Even the Principal of HIM Ayurvedic College was absorbed only as ACA. An order was passed on 8th April, 1983 wherein the respondent was specifically shown to have been absorbed as ACA. This order was never challenged by the respondent. However, this order dated 8th April, 1983 was challenged by various other employees as also the Vaid Hakim Parishad (Kangra), Himachal Pradesh, in a number of writ petitions being CWPs No. 238/1983, 240/1983, 241/198, 243/1983, 244/1983, and 303 of 1983. The persons who filed these writ petitions were all senior to the present respondent and their names figure higher than the name of respondent in the office order dated 8th April, 1983. The writ petitions were dismissed in limine on 12th December, 1983. Thereafter, it appears that the said persons filed Special Leave Petitions in the Apex Court. The Appeals filed before the Apex Court were withdrawn with liberty reserved to them to file fresh writ petitions in which they challenged the Recruitment and Promotion Rules framed under Article 309 of the Constitution of India for the Ayurvedic College Paprola. In these rules the essential educational qualification for demonstrator and later lecturer was post graduation. The post of demonstrator was to be filled in from amongst ACA possessing post graduation qualification. Identical qualifications were laid down for lecturers in 1985. These rules were challenged in various writ petitions which were later transferred to the Tribunal. The Tribunal disposed of these petitions on 15th December, 1986. The respondent who could have also challenged the rules as well as his designation as ACA at that stage did not challenge the same. It 5 would be pertinent to mention that the Tribunal held that the rules were valid. It was held that as per the rules framed in 1980 only those possessing post graduation decrees could be appointed to the teaching post. The Tribunal specifically rejected the contention of the petitioner that since in some States the essential qualification was only graduation in Ayurveda, similar conditions should be applicable in H.P. also. The rules were held to valid. The Tribunal held that merely because rules prescribed a higher qualification then those prescribed by the Central Council of Indian Medicine will not itself render the rules arbitrary. It would not be out of place to mention that the petitioners before the Tribunal were all persons who were much senior to the respondent and in fact one of the original petitioners Dr. Dhani Ram Acharya was the Principal of the HIM Ayurveda College. We are of the considered view that the learned Tribunal gravely erred in not taking into consideration the fact the earlier decision taken in petitions filed by those persons who were senior to the respondent. Those persons had lost their case and if the respondent was granted seniority it would amount to giving him benefit which had been denied to his seniors. The main stand of the respondent is that he was working as Lecturer in Ayurvedic College since 1978 and the rules for lecturer were framed for the first time in the year 1985. We cannot lose sight of the fact that prior to 1985 the post of Lecturer did not exist and in 1980 only the post of Demonstrator existed. Qualifications both under the 1980 and 1985 Rules for Demonstrator and Lecturer is Post Graduation. Merely because the Central Council of Indian Medicine has laid down that Post Graduate Degree is not essential qualification is not 6 a ground to strike down the Rules. It was for the employer to decide what should be the essential qualification. The State has in its wisdom decided that Post Graduation should be the essential qualification. In addition thereto, the petitioner having accepted his posting as ACA and working as such till the year 1991 cannot after more than a decade turn around and say that he was doing the work of Lecturer. The petitioner who was working in the same College could not have been unaware of the litigation filed by his other colleagues. It would be a great travesty of justice if the persons who approached the Court at the earliest stage are denied relief but a person who comes to Court 12 years later is granted the benefit which would make him senior to the persons to whom he was admittedly junior in the Private College. The learned Tribunal should not have brushed aside the objection of limitation in the peculiar facts and circumstances of the case. In view of the above discussion, we are of the considered view that the original application filed by the respondent was highly belated. We also find that the Tribunal was bound by the earlier judgement rendered by a coordinate Bench and could not have taken a different view. Consequently, we allow the writ petition, set aside the impugned order of the learned Tribunal and the Original Application filed by the appellant shall be deemed to be dismissed. ( Deepak Gupta ), J. 6th October, 2009 ( V.K.Ahuja), J. ™