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Judgment
D.K. Seth, J.—In these bunch of writ petitions, a common question has been raised by all the Petitioners. in all these cases, an advertisement was published for the post of ''Chikitsa Adhikari'' in the department of Ayurvedic Evam Unani Chikitsa Sewa, Lucknow. Thereby applications were invited for appointment on certain posts in the said department, prescribing qualifications that the candidates must have five years degree of Bachelor of Ayurvedic and Unani Medicines from any recognised University in Uttar Pradesh established by law or five years degree or diploma of Ayurvedic and Unani medicines recognised by the Indian Medical Council, U.P.
The main thrust was on the question that such a condition as imposed amounts to unreasonable restriction in violation of principles of equal opportunity of employment as enshrined under Article 16 of the Constitution of India. The Petitioners have obtained degree of Bachelor of Ayurvedic Medicines and Surgery (hereinafter referred to as B.A.M.S.) from the University in Bihar, established by law. Therefore, the Petitioners contended that it was an unreasonable restriction, by reasons whereof the Petitioners have been precluded from being considered for the said posts and have thereby been denied ''equality of opportunity for all citizens in the matters relating to employment or appointment to any office under the State''. It was further contended that the said restriction does not come within the exceptions made in Sub-articles (3), (4) and (5) of Article 16.
Though in all the cases, counter-affidavits have not been filed but in few of these cases, the State Government have filed counter-affidavits. It appears that in all the counter-affidavits, identical statements have been made. The stand taken by the Respondents are one and the same in all the cases where counter-affidavits have been filed. Therefore, the counter-affidavit filed in Writ Petition No. 19556 of 1987 may be taken as the stand taken by the Respondents in all these cases.
In the counter-affidavit, the Respondents have relied upon Section 40 of the United Province Indian Medicine Act, 1939, which provides that only those Vaidyas or Hakeems, who have qualified himself or herself from an institution affiliated to the Board/who holds a degree in the Ayurvedic and Unani system of medicines from the University established by law in Uttar Pradesh shall be competent to hold the appointment of Medical Officer or other Medical Officers in Ayurvedic and Unani Hospitals. It was further contended that discrimination is based on the basis of residence within the State, the object of this classification underlining under this section and the rules were clearly to help those students who get education from the institution established by State of U.P. and such classification is based on rational basis and is legitimate. It is open to the State Government to frame certain conditions regarding appointment or employment. Such conditions have been prescribed on the basis of Section 40 of United Province Indian Medicines Act, 1939 as amended in 1975. Rules framed under the said Act, being U.P. Subordinate Gazetted Services (Ayurvedic and Unani) Rules, 1964, also prescribed similar qualifications in Rule 10 thereof.
The same question arose in the case of Ashok Kumar Verma and Ors. v. State of U.P. and Ors. 1990 (2) UPLBEC 1024 decided by Hon''ble M.P. Singh and Hon''ble R. A. Sharma, JJ., with the bunch of other cases. In that case, an advertisement was Issued on 1.12.1984 containing following conditions:
(i) a candidate must possess degree of Ayurvedic or Unani from University duly established in Uttar Pradesh.
(ii) A candidate is registered as Vaidya and Hakeem by the Bhartiya Chikitsa Parishad, U.P. Lucknow.
(iii) A candidate has done his house Job for six months from any Ayurvedic or Unani hospital.
Whereas here in the advertisement, the essential qualifications required are:
(i) 5 Years Degree of Bachelor of Ayurvedic or Unani Medicine from any University in Uttar Pradesh established by law.
OR
Any 5 years degree or diploma of Ayurvedic/Unani recognised by Bhartiya Chikitsa Parishad, Uttar Pradesh.
(ii) Registered as Vaidya/Hakeem by the Bhartiya Chikitsa Parishad, Uttar Pradesh.
(iii) House job or internships for 6 months as Chikitsak in a recognised Ayurvedic or Unani College, Hospital.
Thus it appears that the conditions imposed are similar except for a slight difference in the form of an alternative in condition No. (i). It is clear that restriction has been imposed'' to the extent that (i) only those candidates who possesses a degree only from a University established by law in U, P. or degree or diploma of Ayurvedic/Unani recognised by Bhartiya Chikitsa Parishad, U.P. (the latter alternative condition was absent in the earlier case), (ii) and registered as Vaidya/Hakeem by the Bhartiya Chikitsa Parishad, U.P.
In the said case, it was held that admittedly the course of B.A.M.S. in Bihar is similar to that of U.P., viz.
There is no dispute that syllabus and courses of study for B.A.M.S. in Bihar are exactly similar to that in Uttar Pradesh. Both the degrees are recognised by the Central Council of Indian Medicine, New Delhi. This similarity has been practically admitted in paragraph 12 of the counter-affidavit filed on behalf of the State. On account of this admitted position, the Petitioners claimed similar treatment for appointment as Medical Officers in Uttar Pradesh.
In the case of Ashok Kumar Verma (supra) Hon''ble M. P. Singh, J. delivering the judgment, had referred to Section 40 of the U.P. Indian Medicines Act, 1939, which runs as under:
Except with the special sanction of the State Government, no person other than a Vaidya or Hakeem or Surgeon or midwife who has qualified herself or himself from an Institution affiliated to the Board, or other institution of the State recognised by the Board for the purposes, and is a domiciled resident of this State, shall be competent to hold an appointment as Medical Officer of health, or as physician, or surgeon or midwife or other medical officer in an Ayurvedic or Unani hospital, in pharmacy, dispensary, or lying in hospital maintained by or under the control of the State Government or a local authority:
Provided that Vaidyas and Hakeems in the employ of the State Government or a local authority specified above on the date on which this Act comes Into force shall continue to hold the said appointments.
U.P. Subordinate (Gazetted) Medical Service (Ayurvedic and Unani) Rules, 1964 framed under U.P. Indian Medicines Act, 1939 provided qualifications in Rule 10 in the following manner:
Qualification.--No person shall be appointed to the service by direct recruitment unless he:
(i) possess one of the following qualifications,
(a) a degree in Ayurvedic or Unani Tib of a University established by law in Uttar Pradesh, or
(b) five years'' degree or diploma in Ayurved or Unani Tib (BIMS or DIMS) of the Board of Indian Medicine, Uttar Pradesh.
(ii) is registered as a Vaidya or a Hakeem with the Board of Indian Medicine, Uttar Pradesh, and
(iii) possesses at least six months professional experience at an Ayurvedic or Unani Hospital or dispensary.
Both the Section 40 and Rule 10 were challenged in the said case of Ashok Kumar Vienna (supra) wherein their Lordships were of the view:
After giving our careful consideration to the matter, we are of the opinion that Rule 10 of the Subordinate (Gazetted) Medical Service (Ayurvedic and Unani) Rule, 1964 and Section 10 of the U.P. Indian Medicine Act, 1939 excluding graduates from other State from being considered for the appointment of medical officers in Uttar Pradesh suffer from the vice of discrimination, arbitrariness and unreasonableness. They are hit by Article 16 of the Constitution.
Accordingly, we allow the writ petition and quash the advertisement dated 1.12.1984 and declare only that part of Rule 10 of the Subordinate (Gazetted) Medical Service (Ayurvedic and Unani) Rules, 1964 and part of Section 40 of the U.P. Indian Medicine Act, 1939 which impose restriction on the graduates from other Universities having same courses of study of B.A.M.S. degrees to be invalid. The Respondent No. 2 is directed to consider the case of the Petitioners for appointment to the post of Medical Officers irrespective of the condition so imposed in the advertisement. If on the date of application, the Petitioners did not suffer from any disqualification on account of age, that would not be a bar now.
In the case of Union of India and others Vs. Sanjay Pant and others etc. etc., , it was held that requirement of residence in a particular territory of Andaman and Nicobar Islands, is opposed to Article 16(2). Under Article 16(3) of the Constitution, only a law made by the Parliament can impose such a restriction or requirement, as the case may be.
In the present case, admittedly, the Parliament has not made any such law.
The above judgment of Supreme Court supports the view taken in the case of Ashok Kumar Verma (supra) to the extent whereby it strikes down that part of Section 40 and Rule 10 which imposes restriction on the ground of domiciled resident of the State of Uttar Pradesh. Their Lordships in the case of Ashok Kumar Verma (supra) had derived support on the test of equality from cases of C.A. Rajendra v. Union of India and Ors. AIR 1962 SC 507 ; The General Manager, Southern Railway Vs. Rangachari, ; Sham Sunder Vs. Union of India (UOI) and Others, ; All India Station Masters'' and Assistant Station Masters'' Association, Delhi and Others Vs. General Manager, Central Railway and Others, General Manager Central Railways v. A.V.R. Sidhhanti AIR 1974SC 1055 ; G.P. Doval and Others Vs. Chief Secretary, Government of U.P. and Others, ; Miss Arti Sapru and Others Vs. State of Jammu & Kashmir and Others, and N. Vasundara Vs. State of Mysore and Another, .
In the present case, the eligibility enumerated in the advertisement were described as mandatory. The only difference from the advertisement dated 1.12.1984 involved in the case of Ashok Kumar Verma (supra) is that another qualification in clause (i) was inserted, that too degree, diploma of Ayurved/ Unani recognised by Bhartiya Chikitsa Parishad, U. P. No material has been produced before the court as to whether Bhartiya Chikitsa Parishad, U. P. has recognised the degree or diploma of any other University outside the State. On the contrary, the counter-affidavit proceeds that restriction was imposed with the object to benefit the candidates of the State and to restrict the opportunity only to such candidates.
However, from the English translation of the said advertisement supplied by the learned counsel for the petitioner, it does not appear that any restriction was imposed on the ground of domicile/residents but the restriction as imposed clearly indicates that the candidate having requisite qualification from the Universities established by law outside the State of U. P. were precluded, particularly in absence of any material that Bhartiya Chikitsa Parishad has recognised any such degree or diploma of any other University established by law, outside the State of Uttar Pradesh.
Section 40 of the U. P. Indian Medicines Act, 1939 and Rule 10 framed under the said Act, referred to above, having been declared hit by Articles 14 and 16 of the Constitution only to that part which imposes restriction on the graduate from other University, having the same courses of studies of B.A.M.S. degree to be invalid, the conditions of such restriction as pleaded in the counter-affidavit is no more in existence in the said Section 40 and Rule 10 of the Rules. Therefore, in the advertisement issued is contrary to Section 40 and Rule 10 of the Rules. Though it appears that the conditions regarding domicile resident can also not be sustained but the same is not required to be gone into, in the facts and circumstances of the case, particularly, when the same has not been challenged in these writ petitions.
In view of the above, the writ petitions succeed and are allowed. The impugned advertisement is quashed to the extent which Imposed restriction on the graduates from other University having the same course of studies of B.A.M.S. degree. The respondents are directed to consider the cases of the petitioners if already applied for appointment to the posts, so advertised irrespective of the conditions so imposed in the advertisement. If on the date of application the petitioners did not suffer from any disqualification on account of age, that would not be a bar now.
There will be, however, no order as to costs.