Pramod Kumar vs State of Rajasthan

Sangeet Lodha, J.—These writ petitions have been filed by the petitioners aggrieved by rejection of their candidature for the recruitment to the post of Professor (Swastha Vritta/Prasuti & Stree Rog/Sharir Kriya) on the ground of their not possessing the requisite qualification.

The brief facts regarding the appointment of each of the petitioners on various posts, their qualification and the experience acquired, necessary for adjudication of the controversy raised, may be summarised thus:

Dr. Pramod Kumar

The petitioner holding the post of Medical Officer (Ayurved Chikitsak) in substantive capacity, was appointed against the vacant post of Demonstrator (Swasthya Vritta) vide order dated 29.10.93 issued by the Deputy Secretary, Department of Medical & Health (Gr. 4) Ayurved, in his own pay scale on temporary basis for a period of one year or till the availability of candidates selected by Rajasthan Public Service Commission (RPSC). Later, vide order dated 8.9.04 issued by the Department of Medical (Gr. 4) Ayurved, Government of Rajasthan, the posts of Demonstrator in Government Madan Mohan Malviya Ayurved College, Udaipur were abolished and the same were re-designated as ''Lecturer''. Vide order dated 7.1.05, the petitioner was directed to continue to work against the post of Lecturer till further orders. Vide order dated 15.2.12, the petitioner was posted for discharging duties of the post of Professor (Swasthya Vritta) for a period of one year or till further orders, whichever is earlier. Thereafter, the petitioner is continuously working against the post of Professor (Swasthya Vritta) till this date.

Dr. Ramveer Sharma

The petitioner worked as Demonstrator in Bhanwar Lal Duggar Ayurved Vishwa Bharti College, Sardarsahar, a Government aided institution during the period from 17.12.90 to 4.4.96. On being selected by RPSC, vide order dated 13.3.96, the petitioner was appointed on the post of Medical Officer (Ayurved Chikitsak) on probation for a period of two years. The petitioner joined duties on the post of Demonstrator on 6.4.96. Pursuant to the advertisement issued by the RPSC, the petitioner applied for selection to the post of Lecturer (Prasuti Rog). He was kept in the reserved list but could not be appointed on the said post on account of time limit of the reserved list having been expired. However, while continuing on the post of Ayurved Chikitsak, the petitioner was posted to discharge the duties of Lecturer (Prasuti Kaumar Bhritya) in Madan Mohan Malviya Government Ayurved College, Udaipur vide order dated 21.8.07 issued by the Deputy Secretary, Department of Medical & Health (Gr. 4) Ayurved for a period of six months or till the regularly selected candidate is made available by RPSC. In compliance of the said order, the petitioner joined duties on the post of Lecturer (Prasuti Kaumar Bhritya) on 29.8.07. The RPSC issued an advertisement dated 21.5.11 for selection on the post of Associate Professor (Prasuti & Stri Rog). The petitioner applied for selection to the post but his candidature was rejected on account of his being age barred and lacking in qualification of requisite experience of ten years as a Lecturer in the subject concerned. However, vide order dated 15.2.12 issued by the Deputy Secretary, Department of Ayurved, Government of Rajasthan, the petitioner was posted to discharge the duties as Associate Professor (Prasuti & Stri Rog). Thereafter, the petitioner is working on the said post till this date.

Dr. Rekh Raj Meena

On being selected by RPSC vide order dated 13.1.03, the petitioner was appointed on the post of Medical Officer (Ayurved Chikitsak) on probation for a period of two years. The petitioner joined duties on the said post on 21.1.03. However, while continuing on the post of Ayurved Chikitsak, the petitioner was posted to discharge the duties of Demonstrator in Madan Mohan Malviya Government Ayurved College, Udaipur. Later, vide order dated 8.9.04 issued by the Department of Medical (Gr. 4) Ayurved, Government of Rajasthan, the posts of Demonstrator in Government Madan Mohan Malviya Ayurved College, Udaipur were abolished and the same were re-designated as ''Lecturer''. Vide order dated 7.1.05, the petitioner was directed to continue to work against the post of Lecturer till further orders. Vide order dated 15.2.12, the petitioner was posted for discharging duties of the post of Professor (Sharir Kriya) for a period of one year or till further orders, whichever is earlier. Thereafter, the petitioner is continuously working against the post of Professor (Sharir Kriya) till this date.

Vide advertisement dated 26.2.14 issued by the RPSC, the on-line applications were invited for recruitment to the posts of Professor and Associate Professor in different specialties under the provisions of Rajasthan Ayurvedic, Unani, Homepathic & Naturopathy Service Rules, 1973 (for short "the Rules of 1973"). The eligibility qualification prescribed for the recruitment to the post of Professor reads as under:

"Professor:- (A) A degree in Ayurved from a University established by law in India or a statutory Board/Faculty/Examining body or Indian medicine or its equivalent as recognized under Indian Medicine Central Council Act, 1970; and (b) A Postgraduate Qualification in the subject/specialty concerned included in the Schedule to Indian Medicine Central Council Act, 1970; and (c) Total teaching experience of 10 years'' in concerned subject is necessary out of which there should be 5 years teaching experience as Reader/Associate Professor in concerned subject Desirable-An eminent scholar with published work of high quality actively engaged in research."

The petitioner No. 1 to 3 applied for recruitment to the posts of Professor (Swastha Vritta), Professor (Prasuti & Stree Rog) and Professor (Sharir Kriya) respectively. The candidature of the petitioners for recruitment to the posts applied for, stands rejected by the RPSC on the ground of their lacking in eligibility qualification regarding requisite experience of teaching.

Learned counsel for the petitioners contended that each of the petitioners possesses the teaching experience of ten years, however, their candidature has been rejected solely on the ground that they do not possess requisite teaching experience of five years as Associate Professor. Learned counsel submitted that under the Rules of 1973, earlier there was no post of Associate Professor and therefore, the Lecturer with the requisite experience were eligible for recruitment to the post of Professor. Learned counsel submitted that prior to amendment of the Rules of 1973, there was no post of Associate Professor available and the Lecturers holding the requisite experience of teaching were eligible for promotion to the post of Professor. Learned counsel submitted that as per the notification dated 25.4.12 issued by the Indian Central Council of Medicine amending the Indian Central Council of Medicine (Minimum Standards of Education in Indian Medicine) (Amendment) Regulations, 1989, laying down the eligibility qualification regarding experience for the recruitment to the post of Professor, the teachers who had been considered eligible in the past on the basis of previous regulations, shall not be considered ineligible on the basis of the amendment and therefore, on account of the amendment introduced in the Rules of 1973, pursuant to the qualification prescribed by the Indian Central Council of Medicine, the petitioners who were eligible for consideration for recruitment to the post of Professor earlier on account of their having experience of ten years as Lecturer, cannot be held ineligible for recruitment on the post on account of subsequent amendment. Learned counsel submitted that even as per the ordinances of Rajasthan Ayurved University, Jodhpur, a Lecturer having ten years experience of teaching in the subject wherever the posts of Associate/Assistant Professor do not exist, is eligible to be considered for recruitment to the post of Professor. Learned counsel submitted that similarly as per the Rules of 1973 as amended vide notification dated 19.6.13, the teachers who were considered eligible and appointed on the basis of the rules, prevailing at the time of their appointment, shall not be considered ineligible on the basis of the amendment introduced in the rules. Accordingly, learned counsel submitted that viewed from any angle, the petitioners have to be treated eligible for recruitment to the post of Professor taking into account the teaching experience of more than ten years acquired by them while working on the post of Lecturer/Associate Professor/Professor. Learned counsel submitted that the petitioner-Pramod Kumar was posted for discharging duties on the post of Professor vide order dated 15.2.12 inasmuch as, he was holding the requisite qualification for recruitment to the post and therefore, the action of the respondent-RPSC in rejecting the candidature of the petitioner on the ground that the petitioner does not possess the requisite experience of teaching is ex facie illegal and arbitrary.

On the other hand, the counsel appearing for the RPSC submitted that the recruitment to the posts advertised is being made by the RPSC in conformity with the Rules of 1973 and the candidature of the petitioners who do not possess the requisite qualification of teaching experience as provided for under the Rules of 1973, has rightly been rejected.

I have considered the rival submissions and perused the material on record.

Indisputably, the post of Professor falling in the cadre of Collegiate Wing under the Rules of 1973, is the post to be filled in 100% by promotion from the eligible candidates holding the post of Associate Professor. As per the amendment introduced vide Rajasthan Ayurvedic, Unani, Homeopathy & Naturopathy Service (Amendment) Rules, 2010 (''the Amendment Rules, 2010''), which are deemed to have come into force on and from 1.1.2009, by amending the schedule, the provision is incorporated in terms that if the suitable candidates for promotion are not available, post shall be filled in by direct recruitment through RPSC.

It is to be noticed that as per the Amendment Rules, 2010, published in the Rajasthan Gazette on 23.3.10, the eligibility qualification for direct recruitment to the post of Professor in case of non availability of suitable candidates was prescribed as under:

"(1) A post Graduate Qualification in the subject/speciality concerned included in the schedule of Indian Medicine Central Council Act, 1970; and (2) 16 years'' teaching experience of degree standard out of which 5 years'' as a Associate professor in the subject concerned."

The qualification prescribed as aforesaid, was further amended by way of Rajasthan Ayurvedic, Unani, Homeopathy & Naturopathy Service (Amendment) Rules, 2013 (''the Amendment Rules, 2013''), published in Rajasthan Gazette dated 19.6.13, which have come into force with immediate effect. The amended qualification for recruitment to the post of Professor by direct recruitment reads as under:

"Total teaching experience of 10 years in concerned subject is necessary out of which there should be 5 years teaching experience as Reader/Associate Professor in concerned subject. Desirable-An eminent scholar with published work of high quality actively engaged in research."

The petitioners claim to have acquired experience of 10 years in the concerned subject while working as Lecturer on ad hoc basis but admittedly, none of them possesses 5 years teaching experience as Reader/Associate Professor and therefore, apparently none of the petitioners possesses the minimum experience required for promotion to the post of Professor as prescribed either under the Amendment Rules, 2010 or under the Amendment Rules, 2013. Note (ii) inserted in the Schedule in terms that the teachers who had considered eligible and appointed on the basis of Rules prevailing at the time of their appointment shall not be considered to be ineligible on the basis of the Amendment Rules in no manner makes the petitioner eligible for recruitment to the post of the Professor, who are not otherwise eligible for appointment to the post of Professor. As noticed herein above, as on the date, the petitioners are not even born in the cadre of collegiate wing of the service under the Rules, 1973 and therefore, the question of their being eligible and entitle for consideration for promotion to the post of Professor does not arise. Suffice is to say that the petitioners were not eligible for appointment to the post of Professor either by way of promotion or direct recruitment at any point of time. In this view of the matter, keeping in view the position of the Rules regarding eligibility qualification for recruitment to the post of Professor as discussed above, the decision of the RPSC in rejecting the candidature of the petitioners on the ground that they lack in eligibility qualification regarding experience of teaching does not suffer from any infirmity or illegality, warranting interference by this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India.

In the result, the petitions fail, the same are hereby dismissed. No order as to costs.