IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP (T) No.3695 of 2008 (OA(D) No. 207/1996) Judgment reserved on: 14.12.2009 Date of decision: 22. 2. 2010 Dr. R.P.Sharma …Petitioner. Versus State of H.P.& Others ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Petitioner : Mr. J.P.Upadhaya, Advocate. For the Respondents : Mr. A.K.Bansal, Addl.A.G. with Mr. R.P.Singh, Asstt. A.G. Kuldip Singh, Judge The petitioner by way of present petition has prayed a direction to the respondents to include the name of petitioner in notification dated 3.1.1996 Annexure ‘A’ against the post of Lecturer. It has also been prayed that respondents may further be directed to assign appropriate place to petitioner in the seniority in the department of Dravya Guna since 13.2.1979. 2. The case of the petitioner is that he has done Ayurvedavachaspati-M.D.(Ay.) in the subject of Dravguna from Punjabi University in the year 1976. The petitioner for about two years had served two Ayurvedic Colleges in Haryana and acquired teaching experience of two years. In the year 1978 some posts of 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 Ayurvedic Chikitsa Adhikari were advertised in Himachal Pradesh, the petitioner applied for the post of Chikitsa Adhikari, he was selected and served Government Ayurvedic Dispensary, Kosrian, District Bilaspur from 11.11.1978 to 10.2.1979. 3. On 3.3.1978 Government of Himachal Pradesh took over Him Ayurvedic College, Paprola which was re-named as Government Ayurvedic College, Paprola. The Government of Himachal Pradesh in order to streamline the working of the Government Ayurvedic College, Paprola was in need of qualified teachers. The petitioner was M.D. in Dravya Guna and was having two years teaching experience, he applied through proper channel for the post of Lecturer in the said College. The application of the petitioner was forwarded by the Chief Medical Officer, Bilaspur to Director Ayurveda vide letter dated 20.12.1978. On 31.1.1979 the Chief Medical Officer, Bilaspur directed the petitioner to report for duties at Ayurvedic College, Paprola, accordingly, petitioner reported for his duty on 13.2.1979 at Government Ayurvedic College, Paprola. The petitioner since then discharged his duties as Lecturer in Government Ayurvedic College, Paprola. 4. The petitioner had been discharging his duties of Demonstrator / Lecturer in Government Ayurvedic College, Paprola since 13.2.1979 but his orders of promotion as Demonstrator (lateron re-designated as Lecturer) on provisional basis were issued on 23.3. 1982. However, the name of petitioner was not shown in the seniority list of Demonstrators/Lecturers issued from time to time. The petitioner made several representations including the 3 representation dated 15.2.1994 which was rejected vide communication dated 23.3.1994. 5. The petitioner had discharged the duties of Demonstrator /Lecturer in the subject of Dravya Guna, he has acquired vested right of regularization as Demonstrator / Lecturer. In the notification dated 3.1.1996 Annexure ‘A’ in the department of Dravya Guna, the name of the petitioner has not been shown, although, one post of Reader, one post of Sr. Lecturer and one post of Lecturer are shown vacant. The petitioner has prayed main relief in the petition by way of direction to respondents to include the name of petitioner against the post of Lecturer in the subject of Dravya Guna in notification dated 3.1.1996. 6. The petition has been contested by the respondents by filing reply dated 15.10.1996. It has been admitted that petitioner alongwith other similarly situated Ayurvedic Chikitsa Adhikaries having M.D. Degrees were asked to join in Government Ayurvedic College, Paprola as Ayurvedic Chikitsa Adhikari in their own pay scales against teaching posts because the college being new Government institution was under staffed. Lateron the Government created seven teaching departments / specialities in the Government Ayurvedic College, Paprola. The petitioner being M.D. in Dravya Guna and as such, was eligible for the post of Demonstrator / Lecturer only in the department of Dravya Guna and Ras-shastra. The provision to fill-up the post of Demonstrator existed in the R & P Rules notified vide H.P.Govt. notification dated 24.5. 1980 for which the petitioner was eligible. The following Ayurvedic Chikitsa Adhikaries having post-graduation degree in 4 Dravya Guna and Ras-shastra were provisionally promoted and deployed against the vacant post of Demonstrators :- (i) Sh. Vishwa Bandhu. (ii) Sh. Somesh Sharma (iii) Sh. S.P.Bansal. (iv) Sh. J.R. Prabhakar. (v) Sh. Satish Balian. (vi) Sh. Rajinder Prasad Sharma. (vii) Sh. S.P.Poswal. 7. The services of Dr. Somesh Sharma and Dr. S.P. Bansal were regularized vide order dated 7.11.1983 on the post of Demonstrator against two vacant posts of Demonstrator in the said speciality. The services of petitioner could not be regularized in view of seniority. Lateron Dr. Somesh Sharma opted for the post of Ayurvedic Chikitsa Adhikari and Dr. J.R. Prabhakar who was senior to the petitioner in the seniority list of Ayurvedic Chikitsa Adhikari was promoted against the vacant post. The Recruitment and Promotion Rules for the post of Demonstrator were finalized in the year 1985. Thereafter process to fill up the vacant post of Lecturer in this speciality was started and Dr. S.P.Bansal was appointed on the basis of seniority to the post of Lecturer on 18.6.1986. Dr. Sadanand Bundela, Ayurvedic Chikitsa Adhikari had also possessed graduation degree of Dravya Guna and Ras-shastra, he opted to teaching side and was promoted to the vacant post of Demonstrator as he was senior to the petitioner. On the basis of Recruitment and Promotion Rules, the services of the petitioner could not be regularized. The petitioner had been working against the post of 5 Demonstrator in the concerned speciality and his salary is being claimed against the vacancy of higher post in the College. It has been submitted that the vacancy has now occurred in the concerned speciality and the petitioner is being considered for regularization. The respondents have filed another reply dated 6.10.2009 in which more or less the same defence has been taken as was projected by them in their reply dated 15.10.1996.The petitioner has filed rejoinder and has submitted that petitioner has taken pre-mature retirement w.e.f. 30.4.2000 which is evident from notification dated 29.4.2000 annexed with the rejoinder. In the rejoinder, the petitioner has reiterated his stand. 8. I have heard the learned counsel for the parties. The petitioner has relied on judgment dated 8.4.2009 in CWP(T) No. 2884 of 2008 in support of his case. The petitioner has retired w.e.f. 30.4.2000 vide notification dated 29.4.2000, therefore, most of claim of petitioner in the petition is of academic interest only. It has been submitted on behalf of the petitioner that most of the persons junior to the petitioner were promoted to the next higher post from time to time falling vacant in the teaching cadre. In other words, the petitioner intends to convey that most of his juniors were given benefit over and above the petitioner but such juniors have not been impleaded as parties in the petition. 9. In the prayer, the petitioner has prayed main direction to respondents that the name of petitioner be included in the notification dated 3.1.1996 in the subject of Dravya Guna against the post of Lecturer. The petitioner does not want specific place in the notification dated 3.1.1996. The respondents in their reply 6 dated 15.10.1996 have stated that vacancy has now occurred in the concerned speciality and petitioner is being considered for regularization. It is unfortunate that even though the reply was filed on 15.10.1996 in which it has been clearly stated that the case of the petitioner is being considered for regularization against the available vacancy but no decision was taken till petitioner retired on 30.4.2000. In the reply dated 6.10.2009, the respondents have also not stated that the case of the petitioner was considered for regularization. 10. It is not the case of the respondents that petitioner is not eligible for regular post of Demonstrator / Lecturer in the subject of Dravya Guna. On the basis of recommendations from the Departmental Promotion Committee, the petitioner and some other doctors were promoted as Demonstrators vide office order dated 23.3.1982 Annexure ’H’. The promotion was described as provisional in the office order dated 23.3.1982. There is nothing on record to show that procedure which was meant for regular promotion was not adopted while making promotions vide office order dated 23.3.1982 Annexure ‘H’. Therefore, expression ‘provisional’ used in office order dated 23.3.1982 would not make the promotion mentioned in office order dated 23.3.1982 ‘provisional’ in absence of other material on record. It can be safely inferred that on 23.3.1982 the petitioner was regularly promoted as Demonstrator. Therefore, petitioner is entitled to counting of his service as Demonstrator which was lateron re-designated as Lecturer from 23.3.1982 onwards. The petitioner has however retired on 30.4.2000. 7 11. No other point was urged. 12. The result of the above discussion, the petition is partly allowed. It is held that the petitioner is entitled to counting his service as Demonstrator / Lecturer in Government Ayurvedic College, Paprola w.e.f. 23.3.1982 with all consequential benefits. February 22, 2010. ( Kuldip Singh ), (GR) Judge.