Bombay High Court
Dr. Ramdas Laxmanrao Khesar And ... vs The State Of Mah. And Ors on 29 October, 2015
Bench: S.V. Gangapurwala
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7847 OF 2011
1. Dr. Ramdas Laxmanrao Khesar,
Age : 63 Yrs., Occu. Retired,
R/o. Panvadod, Tq. Sillod,
Dist. Aurangabad.
2. Dr. Dattatraya Govindrao Sawai,
Age : 68 Yrs., Ocu. Nil-Pensioner,
R/o Kamdhenu Griha Nirman Sanstha,
Pisadevi Road, New Mondha,
Jadhavwadi, Aurangabad.
3. Dr. Kashinath Laxman Salgar,
Age : 72 Yrs., Occu. Nil-Retired,
R/o Near Mitra Nagar,
Post Office, Latur.
4. Dr. Syed Abdul Kayyum Mohd. Hancel,
Age : 67 Yrs. Occu. Nil-Retired,
R/o Khori Galli, Near Shri Pradeep
Patil Khandapurkar, Latur.
5. Dr. Digambar Vasudeorao Saljoshi,
Age : 73 Yrs., Occu. Nil-Retired,
R/o N-9/M-2-131/2 Dnyaneshwar
Nagar, HUDCO, Aurangabad.
(Deleted as per leave granted by the
Hon'ble Court)
6. Dr. Laxman Nagorao Dixit,
Age : 64 Yrs., Occu. Nil-Retired,
R/o Samrath Nagar,
New Chinchgavhan Majalgaon,
Dist. Beed.
7. Dr. Prabhakar Rangachayra Warkhedkar,
Age : 73 Yrs., Occu. Nil-Retired,
R/o N-9/H-95, Shrikrishna Nagar,
Hudco, Aurangabad.
8. Dr. Murlidhar Vishwanath Suvarnakar,
Age : 69 Yrs., Occu. Nil-Retired,
R/o 1, Kamdhenu Society,
Pisadevi Road, Jadhavawadi, Aurangabad.
::: Uploaded on - 30/10/2015 ::: Downloaded on - 31/10/2015 00:01:00 :::
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9. Dr. Sharad Gangadharrao Thorat,
Age : 69 Yrs., Occu. Nil-Retired,
R/o N-7/A-19 G-1/31/12,
Triveni Nagar,Cidco,
Aurangabad. ... Petitioners
Versus
1. The State of Maharashtra,
Through the Secretary,
Agriculture, Animal Husbandry,
Dairy Development & Fisheries
Department, Mantralaya,
Mumbai - 32.
2.
The Commissioner of Animal
Husbandry, M.S. Pune.
3. The Secretary,
Finance Department,
Mantralaya, Mumbai - 32. ... Respondents
.....
Mr. Ajay S. Deshpande, Advocate for petitioners
Mr. D. R. Korde, A.G.P. for respondent Nos. 1 to 3
.....
CORAM : S. V. GANGAPURWALA AND
V. K. JADHAV, JJ.
Date of Reserving
the Judgment : 11.08.2015
Date of pronouncing
the Judgment : 29.10.2015
JUDGMENT (PER V. K. JADHAV, J.) :-
1. The petitioners are retired Livestock Development Officers,
(hereinafter, for the sake of brevity, referred to as the "LDO") holding
in service diploma and all of them have registered themselves in Part
I Register maintained by Veterinary Council of Maharashtra. All the
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petitioners stood retired from the post of LDO during the period from
1997 to 2006. They were appointed as Assistant LDO. They were
promoted subsequently to the post of LDO. Since the formation of
the cadre of LDO in the year 1991, both the graduates and diploma
holder LDOs were being treated alike and were given same pay
scale. In the year 1986, and also in the year 1996, the diploma
holders were given same treatment in 4 th and 5th pay Commissions,
respectively. However, the Government of Maharashtra, by
promulgating a notification issued in its Finance department, dated
20.3.1999, granted higher pay scale to the graduate counter parts in
the cadre of LDO. Although the cadre of LDO was given pay scale of
Rs.6500-10500 without making any distinction amongst the members
of the cadre under the aforesaid notification dated 20.3.1999, the
graduate members were given higher pay scale of Rs.8000-13500
and their counter parts in the cadre, who were holding diploma, were
continued on the pay scale of Rs.6500-10500. Though the
petitioners represented their cause with pay anomaly and pay
disparity committees, their grievance was not redressed by the
Government while issuing the Government Resolution on the
recommendation of two committees.
2. Being aggrieved by the same, the petitioners approached the
Maharashtra Administrative Tribunal by filing Original Application No.
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132 of 2008, interalia, claiming parity in the pay scale with their
graduate counter parts. The Tribunal, by judgment and order dated
17.8.2011, dismissed original application No. 132 of 2008.
3. There was yet another litigation at the instance of the
association, by way of writ petition No. 4619 of 1997, seeking
protection to those Veterinary practitioners in the Government
employment who have registered themselves with the Maharashtra
Veterinary Council, as was provided then and by virtue of
implementation of the Central Veterinary Council Act, 1984 in the
State of Maharashtra w.e.f. 1.8.1997. The said writ petition bearing
No. 4619 of 1997 came to be partly allowed by this Court by
judgment and order dated 26.4.2006. This Court afforded protection
for those Veterinary practitioners in the State who were in the
Government employment and who had registered themselves in Part
I of the Register maintained by the State Veterinary Council, in view
of the provisions of Section 23(1) of the Central Veterinary Council
Act, 1984. However, the decision rendered by this Court did not
afford protection to those who had not registered themselves in Part-I
Register of the State Veterinary Council and thus, the non-registered
and certificate holders/Dairy Diploma holders continued to have an
apprehension in respect of their service conditions. Consequently,
some of Veterinary practitioners in the Government service
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approached the Apex Court, challenging the dismissal of writ petition
to their extent. The Apex Court dismissed the said challenge, being
reported judgment viz. Udai Singh Dagar and others vs. Union of
India and others, 2007 AIR SCW 4638. Previously, the Veterinary
Practitioners' Association had filed original application No. 418 of
1999 at the principal Bench of Maharashtra Administrative Tribunal at
Mumbai for the same relief, which was dismissed by the Tribunal on
6.10.2000.
4. The learned Tribunal dismissed Original Application No. 132 of
2008 mainly on two grounds. It is observed by the learned Tribunal
that Original Application No. 418 of 1999 was filed by the Veterinary
practitioners' Association, Maharashtra. Although the judgment in writ
petition No. 4619 of 1997 decided on 26.4.2006 was not in the field
on 6.10.2000 when the Original Application No. 418 of 1999 was
decided by the Tribunal, by virtue of notification dated 1.8.1997, the
Central Act was made applicable to the State of Maharashtra w.e.f.
1.8.1997. Thus, Section 23(1) of the Central Act was available to the
applicant Association to rely upon. However, such an argument does
not seem to have been pressed into service. The learned Tribunal
further observed that consequently, the original application No. 132
of 2008 would be hit by the principle of constructive res-judicata, as
the ground then available was not raised and thus, the decision in
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Original Application No. 418 of 1999 obstructs the applicants in
Original Application No. 132 of 2008 from pursuing the application.
Secondly, the learned Tribunal has observed that the Apex Court in
the case of Udai Singh Dagar and others vs. Union of India and
others, (Supra), which was preferred against the decision of this
Court in writ petition No. 4619 of 1997, dismissed the writ petition
and the Civil Appeal subject to observations and directions contained
in the said judgment of the Apex Court. The learned Tribunal has
further observed that on going through the contents of judgment of
the Apex Court, it appears that the protection granted to the
diploma/certificate holders by the judgment of this Court in writ
petition No. 4619 of 1997, stood diluted by virtue of observations and
directions in the judgment of the Apex Court.
5. Learned counsel for the petitioners submits that the
Recruitment Rules framed on 22.12.1988 for the post of LDO in
Animal Husbandry Service, Class-II, provides two fold criteria for
being considered to the appointment as LDO. Thus, the holder of
degree in Veterinary Science and Animal Husbandry is eligible to be
appointed by nomination whereas, in service Assistant LDO who has
put in minimum service of ten years and has successfully completed
in service diploma course in Veterinary Science and Animal
Husbandry, are held eligible to be appointed as LDO Class-II, by
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promotion. The said Recruitment Rules were given retrospective
effect from 1st April, 1981. Learned counsel further submits that both
the degree holders and diploma holders were treated on par for all
legal and practical purposes once they entered into cadre of LDO
Class-II in Animal Husbandry service, Class-II. All in service diploma
holders in Veterinary Science were required to register themselves in
Part I Register maintained by the Maharashtra Veterinary Council,
like their graduate counter parts, then and then only they were
considered to be eligible to discharge all duties attached to the post
of LDO Class-II. Learned counsel submits that irrespective of the
educational qualification, degree and diploma holders are brought on
par and the incumbent who enters in the cadre, the birthmarks no
longer continue to exists. The member of a particular cadre
continued to be a member of the cadre, irrespective of educational
qualification. Learned counsel submits that deficiencies in
educational qualification has been cope up by requiring the diploma
holders to put in particular number of years of service and
registration of their names with Maharashtra Veterinary Council in
Part I of the Register.
6. Learned counsel for the petitioners submits that under the
decision of this court in writ petition No. 4619 of 1997 dated
26.4.2006, those, who have registered themselves in Part I Register
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maintained by the Maharashtra Veterinary Council, have been
absolutely protected. Even they do not come under the limitation
imposed under Section 30 of the Indian Veterinary Council Act 1984,
which has been brought into force in the State of Maharashtra w.e.f.
1.8.1997.
7. The learned counsel further submits that the Government did
not challenge the said decision of this Court in writ petition No. 4619
of 1997 before the Apex Court. Therefore, the rights accrued under
the said decision of this Court in favour of those who are covered by
the provisions of Section 23(1) of the Central Veterinary Council Act,
1984, which become applicable in the State of Maharashtra from
1.8.1997, and who have registered themselves with the Maharashtra
Veterinary Council in Part I Register, stands protected. Learned
counsel further submits that the Association had challenged the
decision of this Court for the benefit of those certificate and diploma
holders who have not registered themselves with the Maharashtra
Veterinary Council. Therefore, effect of decision in writ petition No.
4619 of 1997 has not been diluted at all. Learned counsel thus
submits that an additional protection has been granted by the Apex
Court. Learned counsel further submits that in the light of decision
as aforesaid, up-gradation of pay scale of the graduate LDOs vide
notification dated 20.3.1999 at Exhibit "C" and failure to redress the
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grievance of diploma holder LDOs while removing the anomalies of
various cadres by promulgating Government Resolution dated
27.2.2006, is absolutely unjust and unsustainable in the eyes of law.
Learned counsel thus submits that injustice meted out to the
petitioners deserves to be suitably and appropriately redressed by
directing the respondents to bring the pay scale of all LDOs, whether
degree holder or diploma holder, on par in the pay scale of Rs.8000-
13500 w.e.f. 1.1.1996.
8. Learned counsel for the petitioners, in support of his
contentions, also placed reliance on the following judgments:-
I) V. Markendeya and others vs. State of Andhra Pradesh and
others, (1989) 3 SCC 191,
II) Union of India and antoher vs. TVLN Malikarjuna Rao,
(2015) 3 SCC 653,
III) Kamlakar and others vs. Union of India and others, AIR
1999 SC 2300,
IV) State of Kerala vs. B. Renjith Kumar and others, 2008 AIR
SCW 4279,
V) Union of India and others vs. Atul Shukla and others, (2014)
10 SCC 432.
9. The learned A.G.P. for the respondents submits that
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subsequent to the adoption of Indian Veterinary Council Act, 1984, in
the State of Maharashtra w.e.f. 1.8.1997, 5th Pay Commission
recommended distinction in the pay scale to graduates and non
graduates. Learned A.G.P. further submits that only veterinary
graduate LDOs, whose names have been duly entered in the
Register of veterinary practitioners maintained by the State
Veterinary Council and Central Register maintained by the Indian
Veterinary Council, can practice private veterinary medicines in the
State and render veterinary services i.e. surgery etc. to the livestock
and all the diploma holders, whose names are not entered in the
aforesaid registers have to render minor veterinary services under
the supervision and directions of registered veterinary practitioners.
The learned A.G.P. thus further submits that this is explicitly clarified
by the Apex Court in Civil Appeal No. 2537 of 2007 arising out of the
petition for Special leave to appeal (Civil) No. 11880 of 2006. The
learned A.G.P. further submits that the Maharashtra Veterinary
Practitioners Act, 1971 has been repealed with adoption of Indian
Veterinary Council Act, 1984 in the State of Maharashtra w.e.f.
1.8.1997 and therefore, the nature of work and duties to be
performed by the graduate LDOs and non graduates LDOs obviously
needs to be looked upon as per the relevant provisions of Indian
Veterinary Council Act, 1984. The learned A.G.P. further submits
that the decision rendered by the Apex Court in the aforesaid Special
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leave to Appeal has direct connection with the order dated 26.4.2006
passed by this Court in writ petition No. 4619 of 1997. The learned
A.G.P. has brought our attention to the paragraph Nos. 69, 70 and
71 of the judgment of the Apex Court in the aforesaid Special Leave
to Appeal and submits that the State of Maharashtra has issued
notification in terms of clause (b) of Section 30 of the Central Act
which has laid down what would be the minor veterinary services.
Therefore, having been specified in terms of the said notification,
certificate holders, who are in service of the State or other semi
Government organizations, are entitled to continue in service subject
to carrying out their duties strictly in terms of the said notification
issued by the State of Maharashtra. In view of this, learned AGP
further submits that, distinction made by the State Government in
allotting different pay scale to the graduate LDOs and non graduate
LDOs stand justified on account of specific and higher duties and
responsibilities to be performed by the graduate LDOs and minor
veterinary services required to be rendered by the non
graduate/diploma holders under the supervision and directions of
registered Veterinary practitioners working in Animal Husbandry
department of the State. The learned A.G.P. thus submits that the
learned Tribunal has rightly dismissed the original application No.
132 of 2008. The writ petition is devoid of any merits and the same is
liable to be dismissed.
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10. The learned A.G.P., in support of his contentions, places
reliance on the following judgments:-
I. V. MarKendeya and others vs. State of Andhra Pradesh
and others, reported in (1989) 3 SCC 191,
II. Udai Singh Dagar and others vs. Union of India and
others, 2007 AIR (SCW) 4638
III.
The Maharashtra State Veterinary Council vs. State of
Maharashtra and others, 2011 (2) Mh.L.J. 196
11. The judgment in writ petition No. 4619 of 1997 decided on
26.4.2006 was not in the field on 6.10.2000 when Original application
No. 418 of 1999 was decided. However, by virtue of notification
dated 1.8.1997, Central Act was made applicable to the State of
Maharashtra w.e.f. 1.8.1997. The learned Tribunal has observed that
the provisions of Section 23(1) of the Central Act, though available to
the Association to rely upon and to raise a plea that such employees
are protected against the adverse effects of Section 30 of the Central
Act, such ground was not raised and therefore, the applicants could
not be allowed to raise the plea in the Original Application No. 132 of
2008, as it would be hit by the principles of constructive res-judicata.
It is well settled that so far as the principle of constructive res-
judicata is concerned, the same cannot be made applicable against
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the legal proposition available to the parties. Furthermore, this court
can examine the issue in view of subsequent pronouncements while
exercising inherent jurisdiction under Article 226 of the Constitution of
India.
12. We may refer some of the provisions of Indian Veterinary
Council Act 1984. Sections 23 and 30 of the said Act read as under:-
"23.
Indian veterinary practitioners register.-
(1) The Council shall, as soon as may be after the
commencement of this Act, cause to be maintained in such
form and in such manner as may be provided by regulations
a register of veterinary practitioners to be known as the Indian
veterinary practitioners register which shall contain the names
of all persons who possess the recognised veterinary
qualifications and who are for the time being enrolled on a
State veterinary register of the State to which this Act
extends.
(2) It shall be the duty of the Secretary of the Council to
keep the Indian veterinary practitioners register in accordance
with the provisions of this Act and of any orders made by the
Council, and from time to time to revise the register and
publish it in the Gazette of India or in such other manner as
may be provided by regulations.
(3) Such register shall be deemed to be a public document
within the meaning of the Indian Evidence Act, 1872, and
may be proved by a copy published in the Gazette of India.
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(4) Each State Veterinary Council shall furnish to the
Council six printed copies of the State veterinary register as
soon as may be after the 1st day of April of each year and
each State Veterinary Council shall inform the Council without
delay of all additions, and other amendments in the State
veterinary register made from time to time."
"30. Right of persons who are enrolled on the Indian Veterinary
practitioners register.- No person, other than a registered
veterinary practitioner, shall
(a) hold office as veterinary physician or surgeon or any
other like office (by whatever name called) in Government or
in any institution maintained by a local or other authority;
(b) practice veterinary medicine in any State:
Provided that the State Government may, by order, permit a
person holding a diploma or certificate of veterinary
supervisor, stock-man or stock assistant (by whatever name
called) issued by the Directorate of Animal Husbandry (by
whatever name called) of any State or any veterinary
institution in India, to render under the supervision and
direction of a registered veterinary practitioner, minor
veterinary services.
Explanation- "Minor veterinary services" means the rendering
of preliminary veterinary aid, like, vaccination, castration, and
dressing of wounds, and such other types of preliminary aid or
the treatment of such ailments as the State Government may,
by notification in the Official Gazette, specify in this behalf;
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(c) be entitled to sign or authenticate a veterinary health
certificate or any other certificate required by any law to be
signed or authenticated by a duly qualified veterinary
practitioner.
(d) be entitled to give evidence at any inquest or in any
court of law as an expert under section 45 of the Indian
Evidence Act, 1872, on any matter relating to veterinary
medicine."
13.
This Court, in the judgment delivered in writ petition No. 4619
of 1997 and more particularly in para 5 of the judgment, has made
the following observations:-
"5. Section 23 of the Central Veterinary Act deals with the Indian
Veterinary practitioners register and sub-section (1) reads as
under:-
(1) The council shall, as soon as may be after the
commencement of this Act, cause to be maintained in such
form and in such manner as may be provided by regulations
a register of veterinary practitioners to be known as the
Indian veterinary practitioners register which shall contain the
names of all persons who possess the recognized veterinary
qualifications and who are for the time being enrolled on a
State veterinary register of the State to which this Act
extends." (Emphasis supplied).
In our opinion, section 23(1) has protected the existing
practitioners whose names appear on the enrollment of the State
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Veterinary register as veterinary practitioners and this issue granting
registration under the State Veterinary Act was covered under
Section 18 therein. Section 18 of the State Veterinary Act, to the
extent relevant, reads as under:
"18. Persons entitled to be registered:
(1) Subject to the provisions of this Act, every person shall,
if he holds any of the qualification included in the Schedule,
be entitled on application to be registered, on payment of
such fee as may be provided by regulations and on giving
evidence to the satisfaction of the Registration Officer or the
Registrar, as the case may be, of his possession of a
qualification entitling him for registration.
(2) The State Government may, after consulting the
Registration Officer or the Council, as the case may be,
permit the registration of any person who has been actually
conducting veterinary practice in the State of Maharashtra on
such conditions as may be provided for by regulations made
for this purpose notwithstanding the fact that he may not be
possessing qualifications entitling him to have his name
entered in the register.
(3) Every person for the time being registered with the
Veterinary Council of any other State in India under any law
for the registration of veterinary practitioners in force in such
State shall, if reciprocity of registration has been arranged
with such Council, be entitled to be registered under this Act,
on making an application in that behalf, on payment of such
fee as may be provided by regulations and on his informing
the Registration Officer or the Registrar, as the case may be,
of the date of registration under the said law and on giving a
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correct description of his qualifications with the dates on
which they were granted."
14. In the light of above observations, this Court in writ petition No.
4619 of 1997, has opined that whether degree holders or diploma
holders, who were enrolled in the State Veterinary Council register,
Part I prior to March 1997, will stand protected under Section 23(1) of
the Central Veterinary Act and thus the petitioners, whose names
have been enrolled and listed in Part II register under section 18(2) of
the State Veterinary Act and the Regulation framed by the State
Government do not have benefit of such protection and their
enrollments, even if granted, would be subject to the applicability of
Section 30 of the Central Veterinary Act. This Court in the above writ
petition No. 4619 of 1997 has made it clear that w.e.f. 1.8.1997
onwards, enrollments of veterinary practitioners shall be strictly
governed under the provisions of Section 23 read with Section 30 of
the Central Veterinary Act and the Rules and Regulations framed
thereunder by the Government of India. This Court, in the aforesaid
writ petition, has not entertained the second prayer made by the
petitioners for declaration that the diploma holders or non-graduate
holders should be allowed to be enrolled as veterinary practitioners
and further held that the existing registered veterinary practitioners
whose names appear in the register Part I maintained by the State
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Veterinary Council are duly protected by the provisions of Section 23
of the Central Veterinary Act even on the enforcement of the Central
Veterinary Act in the State of Maharashtra from 1.8.1997. This
Court, thus, partly allowed the writ petition in terms of the above
clarifications and dismissed the writ petition for the relief prayed in
terms of clause (B) as stated above.
15. In the case of Udai Singh Dagar and others vs. Union of
India and others (supra), the Apex Court, by referring the prayers
made in writ petition No. 4619 of 1997 in para 69, 70 and 71 of the
judgment, has made the following observations:-
"69. We are not beset with such a situation in the instant
case. The right of the petitioners to practise in the field of
veterinary practice has expressly been taken away. When
such a right has been taken away upon laying down as
essential qualification therefor which the petitioners
admittedly do not possess, the right of the petitioners to
continue to practice despite the fact that they do not fulfill the
criteria laid down under the Parliamentary Act or the Central
Act would not survive.
70. The expression "unless a different intention appears"
contained in Section 6 of the General Clauses Act, thus, in
this case, would be clearly attracted. A right whether
inchoate or accrued or acquired right can be held to be
protected provided the right survives. If the right itself does
not survive and either expressly or by necessary implication
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it stands abrogated, the question of applicability of Section 6
of the General Clauses Act would not arise at all. [See
Bansidhar and Others v. State of Rajashtan, (1989) 2 SCC
557 and Thyssen Stahlunion Gmbh v. Steel Authority of India
Ltd., (1999) 9 SCC 334]
71. For the reasons aforementioned, we respectfully
agree with the view taken by the High Court."
16. The Apex Court, while appreciating the submissions of the
counsel in terms of Section 6(1)(c), which not only protects the
vested or accrued right but also inchoate rights, in para 67 of the
judgment in the case of Udai Singh Dagar & Ors (supra), has made
following observations:-
"67. Whether such a right is protected or not must be considered
having regard to the statute in question. If a right has crystallized
before the repealing Act comes into force, by reason of repeal of the
earlier statute indisputably the right crystallized cannot be taken
away."
17. The Apex Court has also referred to Section 17(1) of the
Interpretation Act, 1978 which provides that where an Act repeals a
previous enactment and substitutes new provisions for the enactment
repealed, the repealed enactment remains in force until the
substituted provisions come into force.
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18. In the light of these observations and the reasons mentioned
above, the Apex Court, in para 71 of the judgment, confirmed the
view taken by this Court in writ petition No. 4619 of 1997.
19. We thus, do not agree with the conclusion drawn by the
learned Tribunal that the protection granted to diploma/certificate
holders by the judgment of this Court stood diluted by virtue of the
directions in the judgment of the Apex Court in the case of Udai
Singh Dagar (supra). The Association had challenged the decision
rendered by this Court in writ petition No. 4619 of 1997 for the benefit
of those certificate and diploma holders who had not registered
themselves with the Maharashtra Veterinary Council and
Government of Maharashtra did not challenge the decision of this
Court before the Apex Court. The Apex Court, on the other hand,
afforded protection to them who are in service of the State or Semi
Government or local self Government Organizations and held that
those certificate holders in the organizations are entitled to continue
in service subject to, of course, carrying out their duties strictly in
terms of notification issued by the State under clause (b) of Section
30 of the Central Act.
20. It appears that, prior to 1999, diploma holders and degree
holders in Veterinary Science were treated on par and were being
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given same pay scale. "The Live Stock Development Officers in the
Maharashtra Animal Husbandry Service, Class-II, in the Animal
Husbandry Department (Recruitment) Rules, 1998", which came into
force w.e.f. 1.4.1981, did not make any distinction amongst the
degree holders and diploma holders when they are brought in the
cadre of LDO. It appears from the said Rules that the qualification
has been brought at common level by requiring the diploma holders
to have particular number of years of continuous service. This Court,
in writ petition No. 4619 of 1997 has brought diploma holders on par
with the degree holders who have registered themselves with part I
register maintained by the Maharashtra Veterinary Council,
especially keeping in view that Indian Veterinary Council Act, 1984
has been brought into force from 1.8.1997. The degree holders and
diploma holders, whose names have been recorded in Part I register
prior to 1.8.1997 were treated on par so far as profession in
Veterinary practice is concerned.
21. The Registrar, Maharashtra State Veterinary Council, Nagpur
by letter dated 4.2.2002 has given clarification regrading letter issued
by the said office dated 4.1.2002 that the rights and privileges of the
persons already enrolled under the council as per the Maharashtra
Veterinary Practitioners Act 1971 prior to 1.8.1997 are not at all
disturbed and are fully protected. Similarly, a communication
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forwarded by the Secretary of Veterinary Council of India, New Delhi,
dated 2.5.2000 (Exh. K, page 104) of the compilation of writ petition,
clarified in the note given below the said communication that the right
and privileges specifically provided through [Maharashtra Veterinary
Practitioners Act 1971] to the persons registered under clause (b) &
(c) of that Act before 1.8.1971 may not be disturbed while
implementing Indian Veterinary Council Act 1984 in the State of
Maharashtra. Needless to repeat here that all petitioners are
amongst those, who have registered themselves in Part I Register
maintained by the Maharashtra Veterinary Council under the
provisions of Maharashtra Veterinary Practitioners Act 1971 and thus
stood protected under the decision of this Court in writ petition No.
4619 of 1997, which is upheld by the Supreme Court in the case of
Udai Singh Dagar and others vs. Union of India and others,
(supra) by equating themselves with the Veterinary practitioners as
contemplated under Section 23(1) of the Central Veterinary Council
Act, 1984.
22. In the case of Maharashtra State Veterinary Council vs. The
State of Maharashtra (supra), the petitioner- Maharashtra State
Veterinary Council, Nagpur has challenged the appointment of Live
Stock Supervisors made by the respondent Zilla Parishad in
pursuance to the advertisement issued by the Zilla Parishad. In this
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view of the matter, this Court (Nagpur Bench) has held that the
respondents are entitled to recruit the non graduate practitioners at
Veterinary Science for rendering minor veterinary services only as
contemplated by Notification issued under Section 30(b) of the Act on
the post such as Live Stock Supervisor and that non graduate
practitioners of Veterinary Science will not be entitled to hold any
post of Veterinary Physician or Surgeon in the Government or any
institution maintained by local authority or practice veterinary
medicine in the State of Maharashtra. It is further directed that the
respondent State of Maharashtra and Chief Executive Officer, Zilla
Parishad shall ensure that no non graduate veterinary practitioner
employed by them shall be allowed to hold any post of Veterinary
Physician or Surgeon or be allowed to function, except under the
supervision and direction of a registered veterinary practitioner. In
the light of notification issued under Section 30(B) of the Central
Veterinary Act, the Division Bench of this Court (Nagpur Bench) held
that non graduate practitioners at Veterinary Science will not be
entitled to hold any post of Veterinary Physician or Surgeon in the
Government department or any institution. It appears that the
Division Bench of this Court was not required to deal with the
question whether the diploma holders, who were enrolled/registered
in the State Veterinary Council Register, Part I prior to March, 1997,
stood protected under Section 23(1) of the Central Veterinary Act.
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This Court in writ petition No. 4619 of 1997 has held that Section
23(1) has protected the existing practitioners whose names appear
on the enrollment of State Veterinary Register as Veterinary
Practitioners and the same is upheld by the Apex Court in the case of
Udai Singh Dagar and others vs. Union of India and others,
(supra). This Court has already held in writ petition No. 4619 of
1997 that the Veterinary practitioners, whose names have been
enrolled/listed in Part II Register under Section 18(2) of the
Veterinary Act and the regulations framed by the State Government
do not have such benefit of protection and their enrollments, even if
granted, shall be subject to applicability of Section 30 of the Central
Veterinary Act. However, those diploma veterinary practitioners
whose names have been enrolled/registered in Part I Register are
entitled to practice on par with those possessing degree.
23. In view of aforesaid circumstances and discussion, we pass
the following order:-
ORDER
I. Writ petition is hereby allowed.
II. The judgment and order dated 17.8.2011 passed by the
learned Maharashtra Administrative Tribunal Bench at
Aurangabad in Original Application No. 132 of 2008 is
hereby quashed and set aside.
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III. The respondents are hereby directed to extend the benefit
of pay scale of Rs.8000-13500, as applicable to the post of
Livestock Development Officer as against the scale of
Rs.6500-10500, to the petitioners/diploma holder Livestock
Development Officers, who have been registered in Part I
register maintained by the Maharashtra Veterinary Council,
IV. Rule is made absolute in the above terms and writ petition
is disposed of.
V.
In the circumstances, there shall be no order as to costs.
( V. K. JADHAV, J.) ( S. V. GANGAPURWALA, J. )
rlj/
