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Judgment
Heard learned counsel for the appellant, Shri Ajay Kumar, Shri J.P. Singh, learned senior counsel for the Central Council of Indian Medicine and
learned AAG for the State.
The dispute raised herein is with regard to the claim of promotion to the post of Reader and consequential promotional benefits which is being claimed
by the petitioner with effect from the date he completes five years of experience after appointment as a Lecturer.
The writ petition filed came to be partly allowed and the learned Single Judge has extended the benefit of promotion to the petitioner considering his
date of eligibility as 21.09.2010. It is this relief which has been limited with effect from 21.09.2010 that has been assailed before this Court by the
appellant-petitioner contending that once the learned Single Judge was apprised of the status of qualification that was to be possessed for
consideration of promotion, and which did not include Post-Graduation at that time, the said direction to limit the consideration of promotion treating his
date of eligibility as 21.09.2010 is an error which deserves to be corrected.
We may put on record that this issue of qualification was being considered by the learned Single Judge before whom the Central Council of Indian
Medicine was not a party- respondent in the writ petition. Realizing the impact of non- impleadment of a relevant party and the issue raised the
Division Bench on 22.11.2018 passed the following order :
Heard Shri Ajay Kumar, learned Counsel for the appellant and learned Counsel for the State.
The appellant had earlier filed L.P.A. No. 345 of 2017 which was disposed of on 25thApril, 2018 with liberty to the appellant to file a
review petition before the learned Single Judge. Accordingly, Review Application No. 185 of 2018 was preferred by the appellant,which
was rejected on 12thSeptember, 2018, whereafter the present appeal has been instituted.
The main thrust of the argument of the learned Counsel for the appellant is that the prescription relating to possession of the Post- graduate
degree which came later on, would not in anyway affect the experience of five years possessed by the appellant as a Lecturer, so as to
extend him the benefit that has been prayed for but the same has been declined by the learned Single Judge on the ground that the vacancy
arose on 2nd March, 2011 and even otherwise the counting of the period of five years as claimed by the appellant would not be available
as he has acquired Post-graduate qualification on21st September, 2010.
Learned Counsel for the appellant contends that the said observation of the learned Single Judge does not take notice of the circular issued
by the Central Council of Indian Medicine, particularly the circular dated 4th September, 2008 filed along with the supplementary affidavit
dated 23rd April, 2014 before the learned Single Judge and even otherwise the learned Single Judge did not advert to the interim
application which has been filed for impleading the Central Council of Indian Medicine. This has resulted in non-consideration of relevant
material and consequently the appeal deserves to be allowed.
What we find is that the Central Council of Indian Medicine would be a necessary party in order to appreciate the aforesaid argument and
since the appellant had already filed the application to that effect before the learned Single Judge on which no order had been passed, it
would be appropriate to allow the appellant to implead the Central Council of Indian Medicine through its appropriate authority as a party-
respondent no. 8 within three days. Let necessary corrections be carried out.
It is also stated at the Bar by the learned Counsel for the appellant that the said Council is represented by a retainer Advocate before this
Court. Let a copy of the appeal be served on the said Counsel within a week.
The matter shall be listed showing the name of the learned Counsel for the newly impleaded respondent no. 8 which shall be supplied by the
learned Counsel for the appellant in the office. The learned Counsel for the respondent State and the newly impleaded respondent may take
their respective stand on the issue of limitation as well by filing an appropriate affidavit.
Issue notices to the respondents no 5 to 7 through ordinary process as well as registered cover with A/D, for which requisites etc. must be
filed within a week. List after three weeks.
Shri Singh, learned senior counsel then put in appearance on behalf of the Council and prayed for time to file a response whereafter after recording
the submissions the following order was passed on 22.07.2019:
Today, when the matter has been heard, Shri Singh, learned senior counsel for the Central Council of Indian Medicine has not disputed the
position with regard to the status of qualification required for appointment prior to 1.7.1989 as well as the Circular of 1991.
In this situation, it is the State Government which is contesting the claim of the appellant.
Learned A.A.G. submits that Central Council of Indian Medicine has disclosed its stand. He may be permitted to obtain instructions and then
assist this Court accordingly.
List after two weeks on 6th of August, 2019.
On the exchange of pleadings and the documents which were brought on record, we find that the Central Council of Indian Medicine has taken a
clear stand that a Post- Graduate qualification was not the essential requirement for those who had been appointed prior to 01.07.1989. The affidavit
filed on record and the documents to that effect are now referred to in order to appreciate the aforesaid status of eligibility and qualification to be
possessed by those who were appointed prior to 01.07.1989.
There is no dispute that the petitioner was appointed in the year 1985 as a Lecturer and these facts stand recorded in the judgment of the learned
Single Judge. The notification dated 05.08.1989 has been brought on record which requires teaching experience of five years in the subject concerned
for being promoted as a Reader. However, the requirement of Post-Graduate qualification was introduced. In order to clarify the status of possession
of qualification in respect of those who were appointed prior to 01.07.1989, the Central Council of Indian Medicine on a clarification sought by the
Health Education Department of the Government of Bihar intimated that for those who have been appointed prior to 01.07.1989, it is not necessary for
them to possess a Post-Graduation qualification for the purposes of promotion to the post of Reader. The said letter dated 11.10.1991 issued by the
Central Council of Indian Medicine is extracted hereinbelow:
@Ref. No. 3-13/90- .
◌
/ 11.10.91
( )
: - ।
,
867 (. .) 28.9.91
3.6. 91
। , 1.7.89
, 1.7.89 ,
। 1. 7.89
।
1.7.89 / ।
( )
This was further clarified and the decision of the Council was reiterated in the letter dated 29.03.1996 and again in the 56th meeting of the Education
Committee held on 23.02.2006 resolving and endorsing the earlier decision that a Post-Graduate qualification shall not be essential for teaching and
promoting staff appointed before 01.07.1989. The said documents are also on record.
Learned Counsel for the State had therefore been called upon by this Court to seek instructions on the said affidavit and the stand taken by the
Council. The instructions were produced but being unclear, we had called upon the learned Additional Advocate General to get an affidavit filed and
pursuant to our orders an affidavit sworn by the Director Ayurved of the Health Department, Government of Bihar has been filed today. We may
gainfully extract the affidavit from paragraph 4 to paragraph 8:
“4. That at the outset, it is humbly submitted that after 01.07.1989, the qualifications and experience for teaching staff was made
essential by the Central Government as follows:
(A) For the post of professor â€" Total teaching experience of ten years in the department is necessary out of which there should be five
years teaching experience as Reader or ten years experience as a Lecturer.
(B) For the post of Reader â€" Total teaching experience of five years as lecturer.
That with regards to above- mentioned direction of this Hon’ble court, it is humbly submitted that admittedly, the Circular of the year
1991 issued by the CCIM, New Delhi, whereby it was clarified that for granting promotion to the post of Reader, the PG qualification is not
essential for those lecturers who were appointed prior to 01.07.1989.
That it is humbly submitted that admittedly, the petitioner was appointed as lecturer on 10.01.1985 and the required teaching experience
of five years for granting promotion to the post of Reader completed on 10.01.1990 (i.e. after the date, when, newly conditions of
promotions were made effective w.e.f. 01.07.1989).
That however, after possessing the PG qualification vide Health Department’s Notification No. 753 (De. Chi) dated 14.07.2016 the
petitioner had already been granted promotion to the post of Reader.
That in view of the aforesaid facts and circumstances, appropriate order may kindly be passed.â€
From a perusal of the said affidavit and the stand taken by the Central Council of Indian Medicine there is absolutely no doubt that those who had
been appointed prior to 01.07.1989 were not required to be possessed of Post- Graduate qualification for the purposes of promotion upon completion
of five years of service as Lecturer. The appellant therefore completed his five years of service on 10.01.1990 and there is nothing on record to
indicate that any further condition was introduced by the State Government or by any authority putting an embargo on the promotion of such persons.
To the contrary the clarifications which has been issued after the notification of 1989 in 1991, 1996 and reasserted in 2006 by the Central Council of
Indian Medicine, the appellant cannot be denied the said benefit on the ground of not possessing the Post-Graduate qualification then.
For all the aforesaid reasons, we therefore, do not find any justification for limiting the benefit of promotion to the appellant with effect from 2010. The
appellant having completed five years of experience way back in the year 1990 would be entitled to the benefit of promotion on the date he completed
five years of service as a Lecturer.
We therefore allow this appeal to the aforesaid extent and modify the impugned judgment of the learned Single Judge with a direction to the
respondent-State Government to accordingly extend such benefits to which the petitioner may be entitled together with consequential benefits as
directed by the learned Single Judge vide his judgment dated 08.09.2016 subject to the modification hereinabove. The respondent shall pass an
appropriate order in this regard within six weeks from today.
The appeal is accordingly allowed.