IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10461 of 2005 =========================================================== Dr.Uma Shankar Chaturvedi, son of Dr. Parasnath Chaturvedi, resident of Kishori Bhawan, Pirmohani, P.S.-Kadamkuan, District-Patna. .... .... Petitioner. Versus 1. The State of Bihar through the Secretary, Department of Medical Education, Family Welfare and Indigenous Medicine, Government of Bihar, Patna. 2. Additional Secretary, Department of Medical Education, Family Welfare and Indigenous Medicine, Government of Bihar, Patna. 3. Deputy Secretary, Department of Medical Education, Family Welfare and Indigenous Medicine, Government of Bihar, Patna. 4. Director, Indigenous Medicine, Department of Medical Education, Family Welfare and Indigenous Medicine, Government of Bihar, Patna. 5. Dr. Devbrat Narayan Singh, Reader, Government Ayurvedic College, Patna. 6. Dr. Dineshwar Prasad, Lecturer, Government Ayurvedic College, Patna. .... .... Respondents. WITH =========================================================== Civil Writ Jurisdiction Case No. 5929 of 2005 =========================================================== Dr. Deovrat Narayan Singh, son of Late Udit Narayan Singh, resident of Mohalla- Bhojpur Colony, Ashok Nagar, Road No.8, Kankarbagh, Patna-20. .... .... Petitioner. Versus 1. The State of Bihar through its Chief Secretary, Government of Bihar, Old Secretariat, Patna. 2. The Chief Secretary, Government of Bihar, Old Secretariat, Patna. 3. The Commissioner-cum-Secretary, Department of Finance, Government of Bihar, Old Secretariat, Patna. 4. The Secretary, Department of (Medical Education Family Welfare & Indigenous System of Medicine) Health, Government of Bihar, New Secretariat, Patna. 5. The Joint Secretary, Department of (Medical Education, Family Welfare & Indigenous System of Medicine) Health, Government of Bihar, New Patna High Court CWJC No.10461 of 2005 dt.14-01-2015 - 2 - Secretariat, Patna. 6. The Deputy Secretary, Department of (Medical Education, Family Welfare & Indigenous System of Medicine) Health, Government of Bihar, New Secretariat, Patna. 7. The Director, Indigenous System of Medicine, Department of (M.E.F.W. & ISM) Health, Government of Bihar, New Secretariat, Patna. .... .... Respondents. WITH =========================================================== Civil Writ Jurisdiction Case No. 11257 of 2005 =========================================================== Dr. Saroj Kumar Mishra, son of Late Mathuresh Mishra, resident of Mohalla- Mungeriganj, within the Municipality of Begusarai, P.S.-Begusarai, District- Begusarai. .... .... Petitioner. Versus 1. The State of Bihar through the Commissioner, Health Department, Government of Bihar, New Secretariat, Patna. 2. The Director, Health Services (Indigenous), Bihar, Patna. 3. The Principal, Government of Ayodhya Shiv Kumari Ayurvedic College, Begusarai. 4. Dr. Sumeshwar Singh, son of Late Mangru Singh, resident of village and P.O.- Penar, P.S.-Nokha, District-Rohtas. 5. Dr. Binod Pathak, Reader-cum-Incharge, Principal, Government Ayodhya Shiv Kumari Ayurvedic College, Begusarai. .... .... Respondents. WITH =========================================================== Civil Writ Jurisdiction Case No. 13770 of 2008 =========================================================== Dr. Deovrat Narayan Singh, son of Late Udit Narayan Singh, resident of Mohalla- Bhojpur Colony, Ashok Nagar, Road No.8, Kankarbagh, Patna-20. .... .... Petitioner. Versus 1. The State of Bihar through its Chief Secretary, Patna. 2. The Chief Secretary, Government of Bihar, Patna. Patna High Court CWJC No.10461 of 2005 dt.14-01-2015 - 3 - 3. The Principal Secretary, Department of Health, Government of Bihar, New Secretariat, Patna. 4. The Director, Directorate of Health (Indigenous System of Medicine), Government of Bihar, Patna. 5. The Union of India through the Ministry of Health & Family Welfare, Department of Aayush, New Delhi-110001. 6. The Central Council of Indian Medicine through its Secretary, 65-66 Institutional Area, Janakpuri, New Delhi-110058. .... .... Respondents. =========================================================== Appearance : For the Petitioners : Mr. Rajendra Narayan, Sr. Adv. Mr. J.P. Kishore, Adv. For the Respondents : M/s Uma Shankar Chaturvedi, Brajesh Kumar, Arvind Kumar and Mrinalini Kumari, Advocates. For the Union of India : Mr. Sujeet Kumar Sinha, Adv. =========================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH C.A.V. JUDGMENT Date: 14-01-2015 These four writ petitions have been filed at different times by different doctors of Ayurvedic Medicine and have a common issue. The issue is with regard to their promotions as teachers in Ayurvedic Medical Science in Government Ayurvedic Medical Colleges. The common question is with regard to the interpretation of the relevant clauses of the Indian Medicine Central Council (Minimum Standard of Education in Indian Medicine) Regulation, 1986, as amended from time to time, especially in 1989 and the effect of its further amendment in the Patna High Court CWJC No.10461 of 2005 dt.14-01-2015 - 4 - year 2012. These regulations are made with reference to Section- 22 read with Section-36 of the India Medicine Central Council Act, 1970 (Parliamentary Act No.48 of 1970). In these four writ petitions, though the question of law involved is of general application for all Ayurvedic doctors, there are six doctors involved who are divided in two groups. One consists of two doctors, who are mere graduates, having the degree of Bachelor in Ayurvedic Medicine Science (BAMS). They are Dr. Deovrat Narayan Singh and Dr. Saroj Kumar Mishra. The second group consists of four doctors who have Post Graduate degrees in Ayurvedic Medical Science i.e. MD (Ay.) MS (Doctorate in Ayurvedic Medical Science). They are Dr. Dineshwar Prasad, Dr. Sumeshwar Singh, Dr. Binod Pathak and Dr. Uma Shankar Chaturvedi, for the sake of brevity the two sets of doctors aforesaid would be referred to Non PG doctors and PG doctors. 2. The contention of the PG doctors would be that after the amendment to the regulations in 1989, no doctor having no PG educational qualification, however senior they may be, could not be promoted to the post of Reader or Professor as the amendment to the regulations in 1989 clearly provided the educational qualification for the post of Reader and Professor to be minimum Post Graduate. The non PG doctors contend that Patna High Court CWJC No.10461 of 2005 dt.14-01-2015 - 5 - they having been recruited in the teaching branch prior to 1989 amendment to the regulations, the minimum educational qualification provided for the purpose of Reader and Professor by the 1989 regulation, would not apply to them and their promotion would be dependent upon their seniority. They are entitled to be promoted to the post of Reader and Professor notwithstanding that they not having acquired any Post Graduate degree in Ayurvedic Medicine. It is the correctness of the opposite stands taken by the two groups that has to be seen. 3. Mr. Rajendra Narayan, learned senior counsel, with his usual ability and persuasion, has tried to impress upon the Court that the amendment to the regulations prescribing minimum educational qualification for the post of Reader/Professor as made in 1989, if read with relevant part of the amendment to the regulations as made in the year 2012, would clearly show that the amendment is prospective in its application. Meaning thereby it would have no application to persons who were already Lecturers prior to 1989 amendment without Post Graduate degree. They would, accordingly, be entitled to promotion to the post of Reader and Professors depending upon their seniority and of course availability of posts. To support this contention, he has relied upon the series of circulars issued by the Central Government, the Patna High Court CWJC No.10461 of 2005 dt.14-01-2015 - 6 - Central Council for Indian Medicine, the State of Bihar and consequential steps taken pursuant thereto. In fairness to the learned senior counsel, it must be noted that he has brought to the notice of the Court certain orders of this Court to buttress his submissions, which would be appropriately dealt in course of this judgment. 4. Before proceeding, I would like to clear a general misconception. In absence of statutory rules it is open to the executive to provide various qualifications and conditions for appointment and promotion by executive instructions and circulars including clarificatory circulars, but, once statutory rules have been framed in respect of any subject then so far as those subjects/ matters are concerned, the power of the executive to explain by executive instructions is taken away. In case of any dispute with regard to interpretation of any part of any statutory rule, ultimately, it would have to be decided by Courts and not by executive instructions. The reason is simple. Once statutory rules are framed then it has to have one and only one meaning which can only be authoritatively laid down, in case of any dispute, by a Court of competent jurisdiction. The executive may have varying interpretation under varying circumstances. For example, in the present case, once the 1989 amendment to the regulations, which Patna High Court CWJC No.10461 of 2005 dt.14-01-2015 - 7 - are statutory in nature, having been framed, issued and enforced with reference to Section-22 read with Section-36 of the Act, the Central Council on 03.06.1991 issued circular that PG is not relevant for pre 01.07.1989 appointees. On 19.06.1991 the State Government took a contrary stand. Then on 29.03.1996 State revised its stand in line with Central Council. Then on 28.04.1997 Government of India disagreed with Central Council and again it reiterated its stand on 01.02.2006 but suddenly on 05.03.2008 the Government of India changed its stand and fell in line with the Central Council. The statute remained the same but the stand of the executive vacillated. This is why ultimately it is the authoritative pronouncement by the Court upon the interpretation of the statute that would bind the parties including the executive and not vice-versa. 5. I may note that for the purposes of these writ petitions and the issue involved therein, I do not propose to go into minute details of facts because once the law is settled it would be upon the authorities to give effect thereto appropriate to the facts of individual cases. 6. Dr. Deovrat Narayan Singh has the non PG qualification of Bachelor of Ayurvedic Medical Science (BAMS). He joined the service under the State Government as Ayurvedic Patna High Court CWJC No.10461 of 2005 dt.14-01-2015 - 8 - Medical Officer at Pakur on or about 22.06.1976. He came in at Government Ayurvedic College as Ayurvedic Medical Officer on 10.10.1982 and then became a Demonstrator in the Government Ayurvedic Medical College, Patna with effect from 01.09.1982. He became Lecturer on 19.07.1988 at Patna and was promoted to the post of Reader with effect from 13.09.2004, which was later cancelled by State and stayed by this Court. He, inter alia, seeks promotion as Reader and further to the post of Professor, being the senior most teachers with effect from 01.10.1999. The group of PG doctors contends that as on the date of notification, amending the regulations in 1989, he was Lecturer and did not ever acquire Post Graduate qualifications, he is not competent to be considered for promotion to the post of Reader much less Professor much less on the basis of his seniority. 7. Dr. Saroj Kumar Mishra is also a BAMS i.e. non PG. He was appointed by the State Government on or about 30.06.1975 as a Vaidya (Ayurved doctor). He later became Demonstrator at Government Ayurvedic College, Begusarai on or about 28.08.1982 and was appointed as a Lecturer on or about 24.01.1991 allegedly upon abolition of post to Demonstrator and merging it with that of Lecturer where he is stuck and he seeks promotion to the post of Reader and Professor further upon his Patna High Court CWJC No.10461 of 2005 dt.14-01-2015 - 9 - seniority. 8. Dr. Dineshwar Prasad obtained Post Graduate qualification being MD in Ayurvedic Medical Science in the year 1981 and joined the State Government service through selection process conducted by the Bihar Public Service Commission on 10.06.1986 as Ayurvedic Medical Officer in the Welfare Department. Later, through the Bihar Public Service Commission, he became Ayurvedic Medical Officer in the Health Department on or about 01.04.1987 and then joined as Lecturer in Government Ayurvedic College on or about 31.07.1990. He has grievance with regard to denial of his promotion and challenges promotion to non PG teachers. 9. Dr. Sumeshwar Singh obtained Post Graduate qualification of MD in Ayurvedic Science in the year 1991, where after he joined as Ayurvedic Medical Officer in the State Government and then on or about 16.05.1997 joined as Lecturer in Government Ayurvedic College and was promoted to the post of Reader on or about 06.06.2007. His promotion is in question and he questions the promotion of others. 10. Dr. Binod Pathak obtained Post Graduate qualification of MD in Ayurvedic Science in the year 1989 and joined the State Government service in the year 1994 as Medical Patna High Court CWJC No.10461 of 2005 dt.14-01-2015 - 10 - Officer (Ayurved) on or about 29.05.1997. He joined at Government Ayurvedic Medical College at Patna as Lecturer and was later transferred to Begusarai. On 06.06.2007 he was promoted to the post of Reader and then with effect from 17.07.2010 he has been Incharge Principal of Government Ayurvedic College at Begusarai. His promotion is under challenge and he challenges the promotion given to others. 11. Dr. Uma Shankar Chaturvedi was a Graduate when he joined as Medical Officer under the State Government in the year 1987. In 1990 he enhanced his educational qualification by obtaining Post Graduate degree in Ayurvedic Medical Science and joined as Lecturer in Government Ayurvedic College on 07.12.1990. He seeks his promotion as Reader and then as Professor upon his seniority by challenging the promotion to others. 12. From these basic facts as noted above, three things are clear. First, Dr. Deovrat Narayan Singh became the Lecturer on or about 19.07.1988 prior to the 1989 amendments to the regulations and Dr. Saroj Kumar Mishra became Lecturer from Demonstrator on 24.01.1991, after the 1989 amendment to the regulations. Both of whom never acquired Post Graduate qualifications in Ayurvedic Medical Science and the third the Patna High Court CWJC No.10461 of 2005 dt.14-01-2015 - 11 - other four Post Graduate teachers joined as Lecturers with Post Graduate qualifications after the amendment in 1989 to the regulations. 13. At this stage, I deem it proper to first consider various orders which had been passed by this Court in various proceedings taken up by various doctors. There are several orders but suffice to say that all those orders are only noticing the circulars issued either by the Central Council of Indian Medicine, the State of Bihar, the Government of India and their interplay. None of those have touched upon the interpretation to the rules which were statutory rules as at no earlier point of time any of those Courts were invited to interpret them. 14. In my view, those decisions of this Court have to be limited and restricted to the facts of those cases, which may be required to be gone into again upon the interpretation of the statute, with which the circulars of one or the executive authority may or may not be consistent. The legal issue being decided consequences would follow upon the facts of the individual cases notwithstanding earlier orders in such circumstances. 15. The Parliament enacted and enforced the Indian Medicine Central Council Act, 1970 (Act No.48 of 1970) to provide for the constitution of a Central Council of Indian Patna High Court CWJC No.10461 of 2005 dt.14-01-2015 - 12 - Medicine and maintenance of a central register of Indian Medicine and for matters connected therewith. Indian Medicine in terms of Section-1 (e) meant system of Indian Medicine commonly known as Ashtang Ayurveda, Siddha or Unani or Tibb. The Central Council under Section-1 (c) means the Central Council of Indian Medicine constituted under Section-3 of the Act. In terms of Section-1 (g) “prescribed” means prescribed by regulation. In terms of Section-1 (h) “recognized medical qualification” means any of medical qualification including Post Graduate medical qualification of Indian Medicine included in the second, third or fourth Schedule to the Act. Section-22 of the Act, inter alia, empowers the Central Council to prescribe the minimum standards of education in Indian medicine required for granting recognized medical qualification by Universities, Boards or medical institutions in India. Section-36 confers powers on the Central Council to frame regulations with the previous sanction of the Central Government by notifications, inter alia, to carry out the purposes of the Act and, in particular, with regard to course of study proficiency therein, standards of staff, equipment etc. 16. It appears that on 15thof May, 1986, the Central Council of Indian Medicine with previous sanction of the Central Government and superseding all previous regulations except for Patna High Court CWJC No.10461 of 2005 dt.14-01-2015 - 13 - anything done or omitted to be done before such supersession framed and notified the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) Regulations, 1986 (hereinafter 1986 regulations for brevity), which was notified in Gazette of India on 31stof May, 1986. Regulation 5 of these regulations provided for minimum standards for Ayurvedacharya course, which is specified in Schedule-1, the object whereof is to produce graduates of profound scholarship, having a deep basis for Ayurved, with scientific knowledge who would be able and efficient teachers, research workers, physicians and surgeons. In Schedule-1, apart from other things, there is prescribed qualification for teaching staff which is quoted hereunder:- “13. Qualifications prescribed for Teaching Staff: Essential : (a) Degree/diploma in Ayurved from a University established by law or a statutory Board/ Faculty/Examining Body of Indian Medicine or equivalent. OR Ayurvedacharya of All India Ayurved Vidyapeeth. OR Other eminent Ayurvedic scholars of established repute though not having any degree/diploma, but fit for teaching Ayurvedic subjects. (b) Teaching experience in any institution for ten years, five years and three years for the post of Professor, Reader and Lecturer respectively. Patna High Court CWJC No.10461 of 2005 dt.14-01-2015 - 14 - (c) Knowledge of Sanskrit. Desirable: (a) Post-graduate qualification in Ayurved from a recognized institution/university established by law. (b) Original published papers/books on the subject.” 17. From the aforesaid 1986 regulations, it is clear that for teaching graduate course, the teaching staff had to have certain qualifications and experience as noted above. One thing is important. It clearly specifies that the teaching staff should desirably have Post Graduate qualification from a recognized institution/university established by law. It was not mandatory but envisages the clear intention of the Central Council of Indian Medicine to enhance the educational qualification to Post Graduate level in respect of teachers which clearly includes Lecturers, Readers and Professors. It gives clear indication to all teachers about desirability of enhancing their educational qualification suitably notwithstanding that they are to teach undergraduate or graduate students. 18. Now, we come to the amendment made to the regulations in 1989. These regulations were notified on 05th of August, 1989 in the Gazette of India and had been issued by the Central Council of Indian Medicine with the previous sanction of the Central Government on 30thof July, 1989. By these Patna High Court CWJC No.10461 of 2005 dt.14-01-2015 - 15 - regulations Schedule-1 of the 1986 regulations was substituted. We are concerned with Clause-14 of the 1989 amendment regulations, which provides for qualification and experience of teaching staff, which is quoted hereunder:- “14. Qualifications and experience for teaching staff: (Applicable for recruitments made after 1st July, 1989) (i) Essential: (a) A degree in Ayurved from a University established by law or a Statutory Board/Faculty, Examining Body of Indian Medicine or its equivalent as recognized under Indian Medicine Central Council Act, 1970. (b) A post-graduate qualification in the subject/specialty concerned included in the schedule to Indian Medicine Central Council Act, 1970. (c) Adequate knowledge of Sanskrit. (ii) Experience: (a) For the post of Professor- Total teaching experience of ten years in the Department is necessary out of which there should be five years teaching experience as Reader/Asstt. Professor or ten years experience as a Lecturer in the concerned subject wherever the posts of Reader /Asstt. Professor do not exist. (b) For the post of Reader- Total teaching experience of five years in the subject is necessary out of which there should be three years teaching experience as Lecturer in the subject Patna High Court CWJC No.10461 of 2005 dt.14-01-2015 - 16 - concerned. (c) For the post of Lecturer- No teaching experience is required. (iii) Desirable Original published papers books on the subject.” 19. Here, it may be noted that there was a conscious departure from the earlier 1986 regulations where Post Graduate degree was merely desirable. In these 1989 regulations what is desirable is only original published paper books on the subject but, in the essential qualification, a degree and a Post Graduate qualification in the subject/specialty concerned have been now provided. It is made applicable for all recruitment to be made after 1stof July, 1989. It is the effect of this amendment that is questioned. 20. My simple understanding of this Clause-14 read as a whole is that anyone who has to be considered for appointment to the post of Lecturer, Reader or Professor after 1stof July, 1989 has to comply with the essentialities and experience as now provided under the 1989 regulations. The exception would be that a person who had earlier been recruited as a Lecturer or as a Reader or as a Professor prior to 1989 who could have been a non Post Graduate but now and henceforth a non Post Graduate could not be recruited or brought in on the aforesaid three posts. Patna High Court CWJC No.10461 of 2005 dt.14-01-2015 - 17 - The PG qualification has now become essential and hence mandatory. 21. In my view, the circulars that had been issued by the Government of India on 28.04.1997 and on 01.02.2006 were correct and consistent with the 1989 amended regulations and the circular of the Central Council of Indian Medicine dated 03.06.1991 and the withdrawal of Government of India’s earlier circular by circular dated 05.03.2008 was clearly wrong. The circular of the State Government dated 19.06.1991 was correct and consistent with the 1989 amendment of the Regulation and its withdrawal on 29.03.1996 was erroneous. I will come to the discussion with the case laws on this aspect after completing the sequence of regulations. 22. Now, we may refer to the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) (Amendment) Regulations, 2012, which were issued with the previous sanction of the Central Government on 25.04.2012 and notified on 26thof July, 2012, whereby the Schedule-1 was again substituted. In these 2012 regulations, we would be concerned only with Clause-12 thereof, which is quoted hereunder:- “12. Qualifications & Experience for teaching staff for UG teachers: Patna High Court CWJC No.10461 of 2005 dt.14-01-2015 - 18 - (Applicable for direct recruitment but age will be relaxed in case of promotion) (i) Essential : (a) A degree in Ayurved from a University established by law or a statutory Board/Faculty/ Examining Body of Indian Medicine or its equivalent as recognized under Indian Medicine Central Council Act, 1970. (b) A Post-graduate qualification in the subject/specialty concerned included in the schedule to Indian Medicine Central Council Act, 1970. (ii) Experience: (a) For the Post of Professor: Total teaching experience of ten years in concerned subject is necessary out of which there should be five years teaching experience as Reader/Associate Professor in concerned subject. (b) For the post of Associate Professor (Reader): Teaching experience of five years in concerned subject. (Reader will be treated as Associate Professor). (c) For the Post of Asst. Professor (Lecturer): (age not exceeding 40 years). No teaching experience is required. Lecturer will be treated as Asst. Professor. (d) Qualification for the post of Head of the Institution (Principal/Dean/Director): The qualification and experience prescribed for the Post of Professor shall be essential for these posts. Note:- In absence of the candidate of Post- Patna High Court CWJC No.10461 of 2005 dt.14-01-2015 - 19 - graduate qualification in concern subject the candidate of the following subjects as mentioned against them shall be eligible for the post of Lecturer/Asst. Professor:- Speciality required Name of the allied subject. 1. Swastha Vritta 1. Kayachikitsa 2. Agadtantra 2. Dravyaguna/Rasashastra 3. Rog vigyan 3. Kayachikitsa 4. Rachna Sharir 4. Shalya 5. Kriya Sharir 5. Samhita Siddhant 6. Shalakya 6. Shalya 7. Panchkarma 7. Kayachikitsa 8. Balroga 8. Prasuti & Striroga/ Kayachikitsa 9. Kayachikitsa 9. Manasroga 10. Shalya 10. Nischetana evam Ksha-Kirana. a. The above provision of allied subject will be allowed for five years. b. The teacher (s) who had been considered eligible in the