Bombay High Court
Rajeshkumar Prakashchandra ... vs State Of Maharashtra And Ors on 6 June, 2017
Bench: R.D. Dhanuka
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WP347.03
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 347 OF 2003
ALONGWITH
CIVIL APPLICATION NO. 3354 OF 2005
IN
WRIT PETITION NO. 347 OF 2003
Dr.Rajeshkumar Prakashchandra Gupta )
aged 44 years, residing at )
2 Baig Blocks, Salaiwada Sawant Wadi, )
Dist. Sindhudurg 416 510, Maharashtra ) ..... Petitioner
Versus
1. State of Maharashtra, )
through its Government Pleader, )
Appellate Side, High Court, Mumbai )
2. Bhai Sawant Ayurved Mahavidhyalaya,)
College managed by the trust known as )
the Rani Janakibai Saheb Vaidyakiya )
Sanstha through its Secretary, having )
office at Khaskilwada, Sawantwadi, )
Dist.Sindhudurg 416 510 )
3. University of Mumbai, )
having office at Fort, Mumbai 400 001 )
4. The Secretary, )
Medical Education & Drugs Department,)
Mantralaya, Mumbai 400 021 )
5. Dr.Shankar S.Sawant, )
residing at 284, Rajguru Manzil, )
Salaiwada, Sawantwadi, Maharashtra ) ..... Respondents
Mr.S.C.Naidu, a/w. Mr.Shardul Singh, i/b. Mr.Satendra Kumar for the Petitioner.
Mr.A.S.Khandeparkar, a/w. Mr.Rakesh Pathak, Mr.Rajdeep Gade, i/b.
M/s.Khandeparkar & Associates for the Respondent no.2.
Mr.Mihir Desai, Senior Advocate, i/b. Mr.Sarnath S.P. for the Respondent no.5.
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CORAM : R.D. DHANUKA, J.
RESERVED ON : 5th MAY, 2017
PRONOUNCED ON : 6th JUNE, 2017
JUDGMENT :
By this petition filed under Articles 226 and 227 of the Constitution of
India, the petitioner has impugned the judgment dated 16th October,2002 delivered
by the learned Presiding Officer, Mumbai University and College Tribunal
dismissing the appeal (62 of 2002) filed by the petitioner herein under section 59
of the Maharashtra Universities Act, 1994. Some of the relevant facts for the
purpose of deciding this petition are as under :-
2. Sometime in the year 1980, the petitioner passed B.A.M.S. from
Mumbai University. It is the case of the petitioner that in the year 1982, the
petitioner completed his internship from M.A.Podar Hospital, Worli and worked in
the said hospital as a House Physician, House Surgeon and as a Registrar cum
Tutor in Surgery for three years. The petitioner passed Ayurvidya Parangat from
Tilak Maharashtra Vidyapeeth, Pune a deemed University recognized by Central
Council of Indian Medicine and University Grants Commission in the year 1986.
It is the case of the petitioner that the said degree in Ayurvidya Parangat is a post
graduate qualification in Shalya-Shalakya and Surgery. Sometime in the month of
September 1986, the petitioner joined the respondent no.2 hospital as a Resident
Medical Officer. The petitioner was selected as a lecturer and Head of the
Department in Shalya-Shalakya at Bhaisaheb Sawant Ayurved Mahavidyalaya of
the respondent no.2 sometime in the year 1988 and is examiner for M.D. and Ph.D.
students for Pune and Banaras Hindu University.
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3. On or about 30th March,2000 the respondent no.2 college advertised
various posts including for the purpose of reader in Shalayantra in Loksatta. In
response to the said advertisement, the petitioner applied for the said post along
with several other candidates. The respondent no.2 called six candidates for the
interview including the petitioner and the respondent no.5 on 17th June, 2000.
4. It is the case of the petitioner that the respondent no.4 i.e. the
Secretary, Medical Education & Drugs Department, Mantralaya, Mumbai 400 021
had addressed a letter to the Director, Directorate of Ayurved, Worli on 23 rd
November, 2000 stating that if they had any objection regarding the selection
committee, then they could approach the court. The Directorate of Ayurved was
informed to go ahead with the recommendation of the selection committee. It is
the case of the petitioner that none of the candidates including the respondent no.5
had made any complaint about the appointment of the selection committee.
5. By a letter dated 1st December,2000 issued by the respondent no.2, the
petitioner was selected and offered the post of reader. Condition No.8 of the said
letter of appointment provided that the petitioner should secure degree in M.D.
within five years from the date of appointment. It is the case of the petitioner that
the said condition was imposed in the letter of appointment in view of the fact that
the Ayurvidya Parangat degree, Pune was not notified till that date in the Gazette
as a post graduate degree and was awaiting publication.
6. On 30th November,2000, the appointment of the petitioner to the post
of the reader was approved by the Directorate of Ayurved. The said appointment
was also approved by the University of Mumbai by its letter dated 4 th September,
2001 and 11th October,2001. In the letter of approval issued by the University of
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Mumbai, it was recorded that the appointment of the petitioner to the post of
reader as full time in Shalayantra was approved on probation basis on 1st
December, 2000 subject to the condition that he will obtain M.D. degree within
five years as per letter of Director, Directorate of Ayurved dated 30 th November,
2000. The Registrar of the University of Mumbai directed the respondent no.2 to
communicate the said decision to the petitioner and three other lecturers whose
appointments were approved by the said letter. Maharashtra University of Health
Sciences, Nashik noted the said approval granted by the University of Mumbai in
their records by letter dated 8th October,2001.
7. Sometime in the year 2001, the respondent no.5 filed a writ petition
(1025 of 2001) in this court inter alia challenging the appointment of the petitioner
basically on the ground that the selection committee who had recommended the
name of the petitioner to the said post of reader was not properly constituted. It is
the case of the respondent no.5 that the said writ petition is dismissed by this court
for want of prosecution.
8. It is the case of the petitioner that the petitioner had addressed a letter
to the Central Council of Indian Medicine, New Delhi to confirm the status of
"Ayurvidya Parangat" degree. The Secretary of the Central Council of Indian
Medicine vide its letter dated 19th April, 2001 clarified that the Ayurvidya Parangat
examination of Tilak Maharashtra Vidyapeeth was approved as a post graduate
qualification and the same had been already sent by the Government of India for
publication in the Government Gazette.
9. On 11th October, 2001, Central Government published a notification in
exercise of the power conferred on section 14(2) of the Indian Medicine Central
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Council Act, 1970 and amended the second schedule to the said Act. The degree
of 'Ayurvidya Parangat' obtained during the period 1942-1988 from Tilak
Maharashtra Vidyapeeth, Pune was recognized as a post graduate degree. The said
entry was already entered at serial no.61 of the 2 nd schedule. However, by the said
notification the words and the figures "from 1942 to 1980" were substituted by the
words and the figures "1942 to 1988". It is the case of the petitioner that the
petitioner had already obtained a degree of Ayurvidya Parangat in June 1986 and
was thus within the period approved by the Central Council of Indian Medicine.
10. The Registrar, Maharashtra Council of Indian Medicine furnished a
detail information of A.V.P.(Poona) qualification separately setting out the exact
nature A.V.P.(Poona) qualification. It is stated in the said statement that the said
degree Ayurvidya Parangat A.V.P.(Poona) was a post graduate qualification. A.V.P.
of Tilak Maharashtra Vidyapeeth Puna or its equivalent with A.M.M.S., L.I.M.,
L.A.M.S., G.F.A.M., D.S.A.C. etc. were the qualification for admission. In
column 16 of the said statement, it was provided that the said qualification was
recognized for registration by State Ayurvedic/Unani Board. In Column 17,
various subjects taught for Ayurvidya Parangat were mentioned.
11. The Joint Director of Ayurved addressed a letter dated 10 th
December,2001 to the respondent no.2 and referred to a letter dated 26 th
November,2001 of the Government stating that the selection of the petitioner was
cancelled by the State Government and thus the salary difference paid to the
petitioner from June 2000 should be recovered from the salary of the petitioner.
The Directorate, Ayurved addressed a letter dated 14 th December, 2001 and
referred to the letter of the State Government dated 26 th November,2001 and
directed the respondent no.2 to take suitable steps in the matter. The respondent
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no.2 accordingly issued a letter dated 23 rd March,2002 to the petitioner thereby
reverting the petitioner from the post of the reader to the post of the lecturer.
12. Being aggrieved by the said letter dated 23rd March 2002, the
petitioner herein filed an appeal under section 59 of the Maharashtra Universities
Act, 1994. The University of Mumbai, the Secretary, Medical Education &
Research, Mantralaya, Mumbai, respondent no.2 herein and the respondent no.5
were impleaded as respondents to the said appeal. The respondents to the said
appeal filed written statement before the University Tribunal. By an order and
judgment dated 16th October,2002, the University Tribunal dismissed the said
Appeal (62 of 2002) filed by the petitioner herein on various grounds.
13. Being aggrieved by the said order and judgment dated 16th
October,2002 delivered by the said University Tribunal, the petitioner has filed this
writ petition inter alia praying for a writ of certiorari and has prayed that the said
order dated 16th October,2002 passed by the said tribunal be quashed and set aside
and to allow the petitioner to work on the post of the reader in terms of the
appointment letter dated 1st December, 2000. The petitioner has also applied for a
writ of certiorari and seeks a direction against the respondents to refund the salary
to the petitioner, deducted for the period from 1st December 2000 to 23rd March
2002 during the period the petitioner had worked as a reader.
14. This court while admitting this petition, on 26th July, 2006 did not
grant any interim relief in favour of the petitioner on the ground that such a relief
if granted would result in granting substantive relief sought in the petition.
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15. Insofar as respondent no.5 is concerned, it is his case that he acquired
the qualification of B.A.M.S. from Shivaji University in the year 1983 and further
acquired the post graduate degree qualification of Vachaspati/M.S.(Ayu)
(Shalayatantra) from the University of Mumbai in the year 2000. The respondent
no.5 was appointed to the post of demonstrator in the respondent no.2 college in
September 1988 and was re-designated as lecturer w.e.f. 10 th December 1990. The
respondent no.5 was appointed to the post of Reader in the respondent no.2 college
in December 2005. The respondent no.5 has been now promoted to the post of
reader Associate Professor and would reach the age of superannuation in the year
2019. The respondent no.2 however has made it clear in the letter of appointment
issued to the respondent no.5 that the said appointment was subject to the result of
this writ petition since the same was pending final disposal when he was appointed
to the post of reader.
16. It is the case of the petitioner that by a letter dated 13 th July, 2006,
Tilak Maharashtra Vidyapeeth confirmed to the petitioner that Ayurvidya Parangat
is a post graduate degree and is recognized by the Central Council of Indian
Medicine. A copy of the Government Gazette dated 11th October,2001 issued by
the Central Government was annexed to the said letter.
17. The petitioner filed an affidavit in this petition placing certain
documents on record in support of his submission that Ayurvidya Parangat degree
is the post graduate degree issued by Tilak Maharashtra Vidyapeeth Pune and is
recognized by Central Council of Indian Medicine. By an order dated 2 nd August,
2016 passed by this court, this court granted liberty to the respondent no.2 to
confirm whether the degree of Ayurvidya Parangat issued by the Tilak
Maharashtra Vidyapeeth, Pune had been recognized by the Central Council of
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Indian Medicine as claimed by the petitioner in the affidavit dated 15th July, 2006
and to file an affidavit in that regard. Pursuant to the said order dated 2 nd August,
2016, the respondent no.2 filed an affidavit before this court on 8 th August, 2016
placing certain facts on record.
18. Mr.Naidu, learned counsel for the petitioner invited my attention to
various documents annexed to the writ petition and also to various affidavits filed
by the parties. He submits that one of the condition mentioned in the
advertisement dated 30th March, 2000 by the respondent no.2 while inviting the
applications for the post of reader in the subject of Shalayantra was that the
educational qualification shall be as setout in Part (a) or Part (c) to the schedule to
the Maharashtra Medical Practitioners Act, 1961 or the qualification prescribed by
the Indian Medicine Central Council in exercise of the powers conferred vide
Medicine Central Council Act, 1970 and post graduate degree in the concerned
Ayurvidya Parangat subject to the recognized university or recognized institution.
It is submitted by the learned counsel that the petitioner had already held a
graduate degree i.e. B.A.M.S. i.e. Bachelor of Ayurvedic Medicine and Surgery
(Mumbai University) and also passed a post graduate degree i.e.Ayurvidya
Parangat - AVP - Poona from Tilak Maharashtra Vidyapeeth Pune before the date
of the advertisement issued by the respondent no.2 inviting applications for the
post of reader in the subject of Shalayantra.
19. It is submitted by the learned counsel that the degree obtained by the
petitioner i.e. Ayurvidya Parangat - AVP - Poona is a post graduate degree
approved by the Central Council of Indian Medicine. He submits that in the pre-
condition no.8 of the letter of appointment issued by the respondent no.2 it was
stipulated that the petitioner should secure the degree in M.D. Within five years
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from the date of the appointment. He submits that the said condition was imposed
by the respondent no.2 in view of the fact that the said post graduate degree
Ayurvidya Parangat - AVP - Poona from Tilak Maharashtra Vidyapeeth Pune was
not notified till that day in the Government Gazette as a post graduate degree
beyond 1980 and was awaiting publication. He submits that before expiry of five
years from the date of appointment, the Central Government had issued a
notification dated 11th October, 2001 in the Gazette of India - Extraordinary Part II
recognizing the said degree Ayurvidya Parangat - AVP - Poona obtained from
Tilak Maharashtra Vidyapeeth Pune during the period 1942- 1988 as a post
graduate degree.
20. It is submitted that the petitioner had already obtained the said degree
of AVP from Tilak Maharashtra Vidyapeeth, Pune in 1986 and therefore was
within the norms and period approved by the Central Council of Indian Medicine.
He submits that in any event since the said degree obtained by the petitioner in
AVP was recognized as a post graduate degree within a period of five years, the
petitioner had complied with the said condition no.8 of the letter of appointment
issued by the respondent no.2. He further submits that the Mumbai University also
had approved the appointment of the petitioner on the same condition including
the condition no.8. It is submitted that the respondent no.5 who had also applied
for the said post of reader pursuant to the said advertisement dated 30 th March,
2000 issued by the respondent no.2 was not selected by the selection committee.
He however never raised any objection at any point of time earlier that the said
degree i.e. Ayurvidya Parangat - AVP - Poona from Tilak Maharashtra Vidyapeeth
was not a recognized post graduate degree or that no relaxation of obtaining the
said post graduate degree within five years from the date of appointment could be
granted to the petitioner by the respondent no.2 or by the University of Mumbai.
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21. It is submitted by the learned counsel for the petitioner that the said
degree of Ayurvidya Parangat - AVP - Poona issued by Tilak Maharashtra
Vidyapeeth, Pune was a post graduate degree and this fact was confirmed by the
Central Council of Indian Medicine vide its letter dated 19th April, 2001 annexed at
Ex.B to the affidavit dated 15th July, 2006 filed by the petitioner. He also invited
my attention to the said degree in Ayurvidya Parangat issued to the petitioner by
Tilak Maharashtra Vidyapeeth, Pune in view of the petitioner having passed
Ayurvidya Parangat examination held in June 1986.
22. Learned counsel for the petitioner invited my attention to the Gazette
of India dated 11th October, 2001 publishing the notification dated 8 th October,
2001 issued by the Central Government notifying various degrees entered in the
second schedule to the Indian Medicine Central Council Act, 1970. It is
submitted that the degree in Ayurvidya Parangat from Tilak Maharashtra
Vidyapeeth, Pune was already inserted in the second schedule at serial no.61
obtained during the period between 1942-1980. He submits that by the said
notification dated 8th October,2001 the Central Government had substituted the
words and figures in entry no.61 'from 1942 to 1980' by the words and figures
'from 1942 to 1988'. He submits that in view of the said notification issued by the
Central Government in exercise of the powers conferred by section 14(2) of the
Indian Medicine Central Council Act, 1970, the said Ayurvidya Parangat degree
was already recognized as a post graduate degree and was accordingly inserted in
the second schedule and was made applicable to the said degree obtained by the
petitioner in the year 1986. He submits that the said notification issued by the
Indian Medicine Central Council was binding on the respondent no.2, the State of
Maharashtra and also the respondent no.5.
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23. It is submitted by the learned counsel for the petitioner that once the
said qualification of Ayurvidya Parangat was entered in the Schedule B of the said
Indian Medicine Central Council Act, 1970 and validity thereof has been
admittedly not challenged by any party, the same is binding not only on the
management, the Government but also on the other parties. He submits that in
view of the said notification, the Central Government could not have cancelled the
appointment of the petitioner and could not have directed the respondent no.2 to
revert the petitioner from the post of the reader to the post of the lecturer and to
recover the difference in pay.
24. Learned counsel appearing for the petitioner invited my attention to
the reasons recorded by the said Tribunal in the impugned order and judgment and
would submit that the said Tribunal has rejected the appeal filed by the petitioner
on an erroneous premise that the petitioner did not have the post graduate degree
but had possessed only the degree in B.A.M.S. which was not a post graduate
degree. It is held by the said tribunal that the said Ayurvidya Parangat is not a
degree at all and thus the petitioner not having acquired the post graduate degree,
would not be eligible for the post of reader. It is submitted by the learned counsel
that the finding of the said tribunal that the Mumbai University also could not
have given such approval to an appointment of a person not having the requisite
qualification for the said post is also totally erroneous.
25. It is submitted that the said approval granted by the University was
not challenged by any party including respondent no.5. It is submitted that though
the Central Government had already issued a notification as far back as on 11 th
October, 2001 thereby substituting the words and figures from '1942 to 1980' in
respect of the degree Ayurvidya Parangat issued by Tilak Maharashtra Vidyapeeth,
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Pune by 'from 1942 to 1988', the said tribunal totally overlooked the said
notification recognizing the said degree Ayurvidya Parangat obtained from Tilak
Maharashtra Vidyapeeth, Pune upto the year 1988 by entering the same in the
second schedule of Indian Medicine Central Council Act, 1970 and passed a
perverse order.
26. In his alternate submission, it is submitted by the learned counsel for
the petitioner that the said degree Ayurvidya Parangat was already entered into Part
A of the Maharashtra Medical Practitioners Act, 1961 as a post graduate degree
and thus it was no longer open to the said tribunal to hold that the said Ayurvidya
Parangat was not a degree at all. He submits that the finding of the said tribunal is
contrary to and ultra vires the said statute. It is submitted that once an approval
was granted to the said degree and the same was recognized as a post graduate
degree by the Central Government, it would relate back to the date of obtaining
such degree by the petitioner. In support of this submission, learned counsel
placed reliance on the judgment of Supreme Court in case of Gujarat Steel Tubes
Ltd. and others vs. Gujarat Steel Tubes Mazdoor Sabha and others, (1980) 2
SCC 593 and in particular paragraph 152. Learned counsel for the petitioner
submits that the said post graduate degree Ayurvidya Parangat was already
acquired by the petitioner much prior to the date of the advertisement issued by the
respondent no.1 and only the procedural recognition thereof in part A was post
appointment of the petitioner.
27. Insofar as the finding of the said tribunal that no provisions in the Act
or applicable rules was shown to the tribunal is under which such relaxation of
obtaining the post graduate degree of five years could be granted by the selection
committee or by appointing authority is concerned, the said finding is dehors the
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issue raised by the party before the said tribunal. He submits that the said
condition was imposed by the respondent no.2 as well as by the University of
Mumbai based on the rules and thus the reversion of the petitioner on that ground
was ex-facie perverse and illegal. He submits that even in the writ petition filed by
the respondent no.5 in this court challenging the appointment of the petitioner to
the said post of reader was not on the ground that no such relaxation of five years
could be granted by the respondent no.2 or by the University of Mumbai.
28. Learned counsel for the petitioner invited my attention to the affidavit
in reply dated 8th August, 2016 filed by the respondent no.2 pursuant to an order
passed by this court. My attention is also invited to paragraph (3) of the said
affidavit placing on record that at the time of selection of the petitioner, the
petitioner had passed bachelor degree in B.A.M.S. In or about the year 1986, i.e.
prior to his appointment as a lecturer in the 2 nd respondent's college, the petitioner
had obtained Ayurvidya Parangat from Tilak Maharashtra Vidyapeeth, Pune. It is
stated that earlier the said degree of Ayurvidya Parangat of Tilak Maharashtra
Vidyapeeth was not recognized as a post graduate degree. It was for that reason,
that the petitioner was selected by the selection committee on the condition that the
petitioner would obtain a post graduate degree within a period of five years. The
said concession was made due to the fact that the exigency of the duty of the
petitioner in the college did not permit the college to grant to the petitioner leave
for completing the post graduate course after his appointment. The Mumbai
University had granted a conditional approval to the temporary appointment of the
petitioner subject to his obtaining M.D. degree within five years.
29. It is submitted by the learned counsel that in the said affidavit filed by
the respondent no.2, it is admitted that on 8 th October,2001 i.e. before the judgment
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was delivered by the tribunal, the Central Government had by its Gazette dated 8 th
October,2001 had recognized Ayurvidya Parangat of Tilak Maharashtra
Vidyapeeth, Pune as a post graduate course for those students who had passed the
said examination between the years 1942 to 1988. It is stated in the said affidavit
that the degree of Ayurvidya Parangat obtained by the petitioner was in the year
1986 and was thus recognized as a post graduate degree.
30. It is submitted by the learned counsel for the petitioner that it is thus
clear that even according to the respondent no.2, the petitioner had already
obtained the said post graduate degree prior to the date of his appointment but the
period when the petitioner had obtained the said post graduate degree was
recognized by the said notification dated 8 th October,2001 by the Central
Government.
31. It is submitted by the learned counsel for the petitioner that the
respondent no.2 has admitted in the affidavit dated 8 th August, 2016 that the
Central Government had threatened the respondent no.2 that the grant of the 2 nd
respondent would be stopped if the amount was not deducted from the salary of
the petitioner already paid and if the petitioner was not reverted. It is the case of
the respondent no.2 that there was no other option left but to revert the petitioner.
The respondent no.2 had already deposited an amount deducted from the salary of
the petitioner with the State Government from whom the respondent no.2 was
receiving the grant for payment of salaries to the teaching staff.
32. Learned counsel for the petitioner invited my attention to some of the
provisions and the schedule to the Maharashtra Medical Practitioners Act, 1961
and would submit that the qualification prescribed under the said provisions are
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synonymous with the degree. He also invited my attention to the provisions of the
Indian Medicine Central Council Act, 1970 and more particularly section 13A, 14,
2nd schedule to the said Act and also to the entry 55 which are granted by various
Universities in the State of Maharashtra. Ayurvidya Parangat obtained from Tilak
Maharashtra Vidyapeeth, Pune is obtained the period 1942-1988 is mentioned at
serial no.61 of the said 2nd schedule. He submits that even the Indian Medicine
Central Council has recognized the said degree Ayurvidya Parangat under section
14 of the said Act.
33. Mr.Naidu also placed reliance on the judgment of Division Bench of
this court in case of Vitthal s/o.Dewaji Chavan vs. Medical Council of India and
others, 2003(4) Mh.L.J.974 and in particular paragraphs 18 to 21 and 24 to 26 and
would submit that the post graduate medical degree granted by the University duly
established by the statute in this country which have also been recognized by the
Indian Medical Council by its inclusion in the first schedule in the Indian Medical
Council Act, 1956 must ipso facto to be regarded, accepted and treated as valid
throughout the country. He submits that the said degree Ayurvidya Parangat
obtained by the petitioner from the Tilak Maharashtra Vidyapeeth, Pune in the year
1986 which is recognized as a post graduate degree by issuing a notification on 8 th
October,2001 which degree was inserted in the Schedule B of the Maharashtra
Medical Practitioners Act, 1961was thus binding on all the parties including the
said tribunal. He submits that the said tribunal has totally overlooked these crucial
facts and have passed the impugned order by adopting a casual approach.
34. Mr.Desai, learned senior counsel for the respondent no.5 submits that
it was one of the condition provided in the advertisement issued by the respondent
no.2 for the post of the reader in the subject Shalyatantra that the candidates shall
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not only have educational qualification setout in Part A or Part C to the Schedule to
the Maharashtra Medical Practitioners Act, 1961 for the qualification prescribed by
the Central Council of Indian Medicine in exercise of powers conferred vide
Indian Medicine Central Council Act, 1970 but also a post graduate degree in the
concerned ayurved subject from the recognized university or recognized
institution. He submits that the said degree relied upon by the petitioner was not a
post graduate degree at all as contemplated in the said advertisement issued by the
respondent no.2. He submits that the only the Central or the State Medical
Council can decide whether a particular degree is a post graduate degree or not.
The petitioner does not have post graduate degree recognized by Central or State
Council even today.
35. It is submitted that the post graduate degree/diploma are awarded by
the universities. He tendered a copy of the list of such diploma awarded by the
university after graduation. He placed reliance on the provisions of Indian
Medicine Central Council Act, 1970 and more particularly entries at serial nos.55
and 61. He also placed reliance on sections 14 and 17 of the said Act and would
submit that the said provisions have setout the qualification for entitlement of the
candidates for practice. He submits that the degree granted to the respondent no.5
by the University of Mumbai i.e. Master of Surgery is a post graduation degree
whereas Ayurvidya Parangat obtained by the petitioner is not.
36. Learned senior counsel placed reliance on the provisions of
Maharashtra Medical Practitioners Act, 1961 and submits that merely because the
qualification is listed in the schedule to the said Act, it would not make the degree
as a post graduate degree for registration to practice medicine. He submits that
under section 14 of the said Act, the powers are conferred on the University to
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grant diploma or degree etc. He submits that the said Ayurvidya Parangat was
inserted much after the appointment of the petitioner in the schedule to the said
Maharashtra Medical Practitioners Act, 1961. It is submitted that a degree granted
by a University has to be recognized by a Medical Council.
37. Learned senior counsel invited my attention to the paragraph (5) of
Schedule Part A of the Maharashtra Medical Practitioners Act, 1961 and in
particular entry no.5 which provides a qualification for admission i.e. Ayurvidya
Parangat issued by Tilak Maharashtra Vidyapeeth, Pune and submits that the said
schedule does not state that the said qualification Ayurvidya Parangat was a post
graduate degree.
38. Learned senior counsel placed reliance on the letter dated 8 th
September, 2006 addressed by the Directorate of Ayurved, Maharashtra State,
Mumbai in response to the application made by his client under the provisions of
Right to Information Act. He submits that the said authority has categorically
informed that the AVP issued by the Tilak Maharashtra Vidyapeeth, Pune was a
degree. He submits that even the said authority has not confirmed whether the said
Ayurvidya Parangat was a post graduate degree. He submits that the said authority
has also categorically informed that the said Ayurvidya Parangat is not approved
by the Government as a post graduate qualification for a lecturer/reader. He
placed reliance on the answer of the said authority to querry nos. 6 and 7 and
would submit that the said authority has categorically denied that the Ayurvidya
Parangat was a post graduate degree.
39. Learned senior counsel for the respondent no.5 placed reliance on the
letter dated 19th December,2006 addressed by the Central Council of India
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Medicine to the respondent no.5 informing that the Tilak Maharashtra Vidyapeeth,
Pune was not conducting UG Course as prescribed by the Central Council of
Indian Medicine. In the said letter, it is further stated that the Ayurvidya Parangat
awarded by the Tilak Maharashtra Vidyapeeth was already included in the second
schedule to Indian Medicine Central Council Act, 1970 and the same has been
extended till 1988 for remaining passed students. The respondent no.5 was further
informed that as per the information available with the authority, the Ayurvidya
Parangat was conducted upto 1984 only. In the said letter, it was further informed
that as per the Indian Medicine Central Council Act, 1970 which is Central Act
and extends to all the States of India and as per the Indian Medicine Central
Council Act, 1970, the qualification included in the second schedule to the Indian
Medicine Central Council Act, 1970 are only recognized qualification after 1 st
October,1976 for registration on State Registrar/Central Registrar, therefore, it is
obligatory on the part of the State Board to follow the Central Act.
40. It is submitted by the learned senior counsel that there was no
provision for relaxation of the conditions under any of the Act applicable or in the
advertisement dated 30th March, 2000 issued by the respondent no.2. He submits
that since the initial appointment made by the respondent no.2 of the petitioner
itself was illegal, this court cannot set aside the order of reversion of the petitioner
and condone such illegal act committed at the time of appointment of the petitioner
by the respondent no.2 or approved by the University of Mumbai. In support of
this submission, learned senior counsel placed reliance on the judgment of
Supreme Court in case of Bhartiya Seva Samaj Trust Through President and
another vs. Yogeshbhai Ambalal Patel and another, (2012) 9 SCC 310 and in
particular paragraphs 6, 7, 11 and 14 to 16. He submits that the relaxation of a
condition must be part of the statute and in absence thereof, cannot be granted by
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an appointing authority. He also placed reliance on the judgment of Supreme
Court in case of Mohd.Sohram Khan vs. Aligarh Muslim University and others,
(2009) 4 SCC 555 and in particular paragraphs 23, 25 and 28 to 30 in support of
the aforesaid submissions and also the judgment of Supreme Court in case of
Rajasthan Public Service Commission vs. Kaila Kumar Paliwal and another,
(2007) 10 SCC 260 and in particular paragraphs 8 and 20.
41. Learned senior counsel invited my attention to the parawise comments
made by the Directorate of Ayurved, Maharashtra State before the said Tribunal.
He submits that though the said authority has referred to the recruitment rules in
support of the submission that the Government is empowered to relax the
conditions, no such rules were placed before the said Tribunal. He also invited my
attention to the affidavit in reply filed by the said authority before this court on 21 st
July, 2005 and submits that in paragraph (6), the said authority has made
averments which is inconsistent with the parawise comments made before the said
tribunal. He submits that in said paragraph it is clearly mentioned by the authority
that the qualifications A.V.V. and A.V.P. awarded by Tilak Maharashtra
Vidyapeeth, Pune were recommended only as degree qualification upto 1980 in the
second schedule of the Indian Medicine Central Council Act, 1970 and never had
been considered as a post graduate qualification.
42. Learned senior counsel submits that the appointment of the selection
committee by the respondent no.2 itself was totally illegal and thus the
appointment of the petitioner made to the said post itself was illegal. He submits
that the writ petition filed by the respondent no.2 was not dismissed on merits but
was dismissed for want of prosecution. He submits that his client had obtained
post graduate degree from Mumbai University and was appointed to the said post
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of reader in the year 2005. He submits that since 2011 his client is promoted as a
professor and is holding the said post. He submits that there is no document or
notification issued by the Central or State Government produced by the petitioner
or other respondents to show that the degree of Ayurvidya Parangat is a post
graduate degree.
43. Mr. Khandeparkar, learned counsel for the respondent no.2 submits
that the appointment of the petitioner was made by his client after following the
proper procedure. It is submitted that the constitution of the selection committee
by the respondent no.2 was also proper. He submits that the writ petition filed by
the respondent no.5 challenging the appointment of the petitioner on the ground
that the selection committee was not properly appointed is dismissed by this court.
He submits that the respondent no.2 was directed to deduct the amount paid to the
petitioner from his salary and to remit the said amount to the State Government
otherwise the grant-in-aid of the respondent no.2 would have been cancelled by the
State Government. The respondent no.2 accordingly deducted certain amount
from the salary of the petitioner and deposited the same with the State
Government. The respondent no.2 accordingly reverted the petitioner to the post
of lecturer pursuant to the said letter issued by the State Government. He submits
that since no other suitable candidate was available and due to the exigency of the
duty of the petitioner in the respondent no.2 college, it did not permit the college to
grant leave to the petitioner to complete his post graduate course. The respondent
no.2 had permitted the petitioner to obtain the post graduate degree within five
years from the date of his appointment which appointment was also approved by
the University of the Mumbai on the same condition. He submits that the said
relaxation was never challenged by the respondent no.5 or the other candidates and
cannot be challenged now before this court.
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44. Learned counsel for the respondent no.2 invited my attention to the
averments made by the respondent no.5 in the written statement filed before the
said tribunal and more particularly paragraph (4) thereof and submits that even
according to the respondent no.5, the qualification of AVP had been recognized by
the Central Government of Indian Medicine and the same was furnished to the
Central Government for notification. It is contended by the respondent no.5 in the
said written statement that the Central Government did not recognize the said
qualification and did not notify. It is contended that the said contention raised in
the written statement by the respondent no.5 is factually incorrect.
45. Learned counsel also invited my attention to the documents annexed
by the petitioner in the affidavit dated 15th July, 2006 and would submit that those
documents clearly demonstrates that the Ayurvidya Parangat examination of Tilak
Maharashtra Vidyapeeth, Pune was approved by the Central Council of Indian
Medicine as a post graduate qualification and had sent to the Government of India
for Gazette notification. He submits that the Gazette issued by the Central
Government notification dated 8th October,2001 clearly indicates that the said
degree Ayurvidya Parangat issued by the Tilak Maharashtra Vidyapeeth, Pune
which was inserted into the second schedule to the said Act for the period 1942 to
1980 was substituted by the words and figures ' 1942 to 1988'. He submits that the
respondent no.5 has not challenged the said notification issued by the Central
Government and cannot make any submission contrary thereto. He submits that
the information obtained by the respondent no.5 under the provisions of Right to
Information Act is also misleading and does not assist the case of the respondent
no.5. The said reply to the queries raised by the respondent no.5 does not refer to
the period for which the said querry was answered.
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46. It is lastly submitted by the learned counsel that his client has no
objection if the petitioner is restored back to the post of reader however with no
financial burden on the respondent no.2. He submits that the petitioner was
reverted in view of the standing instructions received from the Government and if
the said instructions would not have been followed by the respondent no.2, the
grant-in-aid of the respondent no.2 would have been cancelled.
47. Mr.Naidu, learned counsel for the petitioner in rejoinder submits that
insofar as issue now raised across the bar by the respondent no.5 that the
constitution of the selection committee itself was illegal is concerned, the
respondent no.5 did not press this issue before the said Tribunal. The said Tribunal
therefore did not render any finding on the said issue and thus the said issue cannot
be allowed to be raised now across the bar. He submits that the respondent no.5
admittedly did not challenged the said part of the impugned order passed by the
Tribunal by filing a cross petition. It is submitted that the writ petition filed by the
respondent no.5 in which the issue of alleged illegalities in constituting the
selection committee was admitted by this court and thereafter came to be
dismissed for want of prosecution. The said challenge made by the respondent
no.5 has come to an end and on that ground also the said issue cannot be raised by
the respondent no.5 in this petition raised in the collateral proceedings i.e. this writ
petition filed by the petitioner.
48. It is submitted that the issue of relaxation now raised across the bar by
the respondent no.5 was not an issue in this petition or even an issue before the
said Tribunal or an issue even in the writ petition filed by the respondent no.5
challenging the appointment of the petitioner to the post of the reader. He submits
that such relaxation is permitted by the Mumbai University which is a statutory
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and competent authority to grant such relaxation. He submits that the State
Government has not passed an order of reversion of the petitioner on that ground.
The Government had instructed the respondent no.2 to revert the petitioner on the
ground that the degree AVP was not a recognized qualification for appointment of
the petitioner as a reader. He submits that none of the judgments relied upon by
the learned senior counsel for the respondent no.5 would thus assist the case of the
respondent no.5.
49. It is submitted by the learned counsel for the petitioner that the
Central Council under the provisions of the Indian Medicine Central Council Act,
1970 recognizes such course. The degrees are not conferred by such Council but
by the University. He placed reliance upon section 2(1) (e a), 2(1) (f) of the said
Act and would submit that the qualification prescribed under the said Act is genus
whereas the degree is a species. He also placed reliance on section 2(1) (h) and
sections 13A, 13C, 14 of the said Act and would submit that the qualification
prescribed therein are granted by the University and has to be recognized by the
Council. He submits that the respondent no.5 is making an attempt to supplant the
pleadings filed before the Tribunal across the bar at this stage which is not
permissible. He submits that the said degree AVP is a post graduate degree
certified by University and also by the Council and thus could not have been
overlooked by the said Tribunal.
50. It is submitted by the learned counsel that if this court comes to the
conclusion that the petitioner should be restored to the position of the reader, this
court shall direct the State Government to provide grant-in-aid to the respondent
no.2 to enable the respondent no.2 to pay the differential amount as prayed by the
petitioner in prayer clause (b) of the petition.
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REASONS & CONCLUSIONS :
51. There is no dispute that the petitioner had passed B.A.M.S. from
Mumbai University in the year 1980. He worked as House Physician and for three
years as Registrar-cum-Tutor in surgery during the period 1982 to 1986. It is also
not disputed by the management that the petitioner had passed Ayurvidya Parangat
from Tilak Maharashtra Vidyapeeth, Pune in the month of June, 1986. In the
month of September, 1986, the petitioner joined the respondent no.1 as a Resident
Medical Officer.
52. A perusal of the advertisement issued by the respondent no.2 on 30 th
March, 2000, inviting applications for the post of Reader in the subject of
Shalayantra indicates that the educational qualification prescribed in the said
advertisement for the said post Reader was (i) educational qualification set out in
part (a) or (c) of the Schedule to Maharashtra Medical Practitioners Act, 1961 or
the qualification prescribed by the Indian Medicine Central Council in exercise of
power conferred vide Indian Medicine Central Council Act, 1970 and a post
graduate degree in the concerned Ayurved subject from a recognized University or
recognized Institute.
53. It is the case of the petitioner that the said degree Ayurvidya Parangat
obtained by the petitioner from Tilak Maharashtra Vidyapeeth, Pune is a post
graduate degree, whereas it is the case of the respondent no.5 that the said
Ayurvidya Parangat was not a post graduate degree which was one of the
mandatory qualification prescribed for the post of Reader in the subject of
Shalayantra by the respondent no.2.
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54. It is not in dispute that when the respondent no.5 also applied for the
said post pursuant to the advertisement dated 30 th March, 2000, he did not have
post graduate degree in the concerned Ayurved subject from a recognized
University or recognized Institution. The respondent no.5 had obtained the post
graduate degree in the year 2000 i.e. M.S. (Ayurved) (Shalayantra) from the
University of Mumbai.
55. A perusal of the averments made in the affidavit dated 8 th August,
2016 filed by the respondent no.2 indicates that the management had appointed a
Selection Committee for the purpose of taking interviews and for appointments
pursuant to the said advertisement dated 30 th March, 2000. A perusal of the said
affidavit indicates that it is an admitted position by the management that in or
about 1986, prior to the appointment of the petitioner as Lecturer in the respondent
no.2 college, the petitioner had obtained Ayurvidya Parangat from Tilak
Maharashtra Vidyapeeth, Pune. The said degree of Tilak Maharashtra Vidyapeeth,
Pune was not recognized as a post graduate degree when the said advertisement
was issued by the respondent no.2. It is stated in the affidavit that due to exigency
of the duty of the petitioner in the said respondent no.2 college, the respondent
no.2 could not permit the petitioner to take leave for completing the post graduate
course after his appointment. He was already working as a Lecturer in the
respondent no.2 college. The Selection Committee found the petitioner as a
suitable candidate and accordingly appointed the petitioner to the said post of
Reader temporarily subject to the condition that the petitioner shall obtain his post
graduate degree within five years. Mumbai University also granted a conditional
approval to the appointment of the petitioner i.e. on the condition that the
petitioner obtains post graduate degree within five years.
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56. A perusal of the notification dated 8th October, 2001 issued by the
Central Government which was published in the Gazette of India dated 11 th
October, 2001 and entry no.61 inserted in the Second Schedule to the Indian
Medicine Central Council Act, 1970 indicates that prior to the said notification
dated 8th October, 2001, the degree of Ayurvidya Parangat was recognized as
medical qualification in the Indian Medicine granted by Tilak Maharashtra
Vidyapeeth, Pune if obtained during the period 1942 to 1980. However, by the said
notification dated 8th October, 2001, the said entry at serial no.61 relating to Tilak
Maharashtra Vidyapeeth, Pune against Ayurvidya Parangat, the words and figures
"1942 - 1980" were substituted by the words and figures "from 1948 to 1988".
57. Section 14 of the Indian Medicine Central Council, 1970 prescribes
that the medical qualifications granted by any University, Board or other Medical
Institution in India, which are included in the Schedule scheme shall be recognized
medical qualifications for the purpose of the said Act. Any University, Board or
other Medical Institution in India which grants a medical qualification not
included in the Second Schedule may apply to the Central Government to have
any such qualification recognized and the Central Government after consulting the
Central Council may by a notification in the Gazette, amend the Second Schedule
so as to include such qualification therein and any such qualification may also
direct that an entry shall be made in the last column of the Second Schedule
against such medical qualification declaring that it shall be recognized medical
qualification only when granted after a specific date. Section 17 provides that
subject to the provisions contained in the said Indian Medicine Central Council
Act, 1970, any medical qualification included in the Second, Third or Fourth
Schedule shall be sufficient qualification for the enrollment of any State Register
Indian Medicine.
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58. A perusal of the said notification dated 8th October, 2001 issued by the
Central Government and the unamended Second Schedule and more particularly
entry no.61 clearly indicates that the said degree Ayurvidya Parangat was already
recognized medical qualification during the period between 1942 to 1980. The
petitioner had already obtained the said degree in the year 1986. It is thus clear
that though on the date of the advertisement issued by the respondent no.2 on 30 th
March, 2000, the degree of Ayurvidya Parangat obtained by the petitioner in the
year 1986 was not a recognized medical qualification, the same came to be
recognized on 8th October, 2001, which was admittedly within a period of five
years from the date of appointment of the petitioner to the said post of Reader.
59. In my view, the petitioner had thus fulfilled the said condition
imposed by the respondent no.2 and also imposed by the University of Mumbai
while approving the appointment of the petitioner to the said post of Reader. I am
however not inclined to accept the submission of the learned counsel for the
petitioner that the said graduate degree in Ayurvidya Parangat obtained in 1986
from Tilak Maharashtra Vidyapeeth, Pune would relate back to the date of
appointment of the petitioner in the year 2000 in view of the notification dated 8 th
October, 2001. The petitioner will get the benefit of the said notification dated 8 th
October, 2001 recognizing the said post graduate degree Ayurvidya Parangat only
from the date of notification thereof extending the period of recognition of the said
notification upto 1988. Admittedly the earlier entry no.61 in the Second Schedule
to the Indian Medicine Council Act, 1970 was only for the said post graduate
degree obtained from Tilak Maharashtra Vidyapeeth, Pune during the period
between 1942 to 1980, whereas the said post graduate degree in Ayurvidya
Parangat from Tilak Maharashtra Vidyapeeth, Pune was obtained by the petitioner
only in the year 1986.
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60. I am thus not inclined to accept the submission made by the learned
senior counsel for the respondent no.5 that the said Ayurvidya Parangat obtained
by the petitioner from Tilak Maharashtra Vidyapeeth, Pune was not a post graduate
degree but was atmost a qualification and on that ground the petitioner was not
eligible to be appointed to the said post of Reader in the respondent no.2 college.
61. Insofar as the submission of the learned senior counsel for the
respondent no.5 that the Selection Committee had no power to relax the condition
of a candidate not having post graduate degree of any recognized University is
concerned, Mr.Desai, learned senior counsel for the respondent no.5 does not
dispute that no such issue was raised by the respondent no.5 before the Tribunal in
the affidavit in reply in those proceedings. The respondent no.5 has also not raised
this issue in the affidavit in reply filed before this Court. It is also not in dispute
that the respondent no.5 who had filed a separate writ petition impugning the
appointment of the petitioner to the said post of Reader did not raise the issue of
the alleged relaxation of the condition of a post graduate degree in that writ
petition which came to be dismissed by this Court for want of prosecution.
62. A perusal of the affidavit in reply filed by the respondent no.2 clearly
indicates that in view of the exigency of the services of the petitioner and in view
of the fact that the management could not have relieved the petitioner for obtaining
such degree for making appointment to the said post of Reader indicates that there
was no relaxation in respect of the said condition of the candidate possessing the
post graduate degree. The petitioner was issued an appointment letter subject to
the petitioner obtaining the said post graduate degree within a period of five years.
Similar condition was also imposed by the University of Mumbai while granting
approval to the appointment of the petitioner to the said post. No such approval
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admittedly came to be challenged by the respondent no.5 or no such approval
came to be challenged by the respondent no.4 or by any other candidate on the
condition that such alleged relaxation could not have been granted by the
respondent no.2 or by the University of Mumbai in favour of the petitioner. The
respondent no.2 was not even under the zone of consideration for the said post at
that point of time.
63. Insofar as the judgment of the Supreme Court in case of Rajasthan
Public Service Commission (supra) relied upon by the learned senior counsel for
the respondent no.5 is concerned, it has been held that a person in order to be
considered for promotion to a higher post must possess the essential qualification.
If he does not do so, he cannot be considered therefor. Even a Selection
Committee in absence of any express power conferred upon it cannot relax such
essential qualification. The Supreme Court has adverted to the judgment in case of
M.C. Gupta (Dr.) vs. Dr.Arun Kumar Gupta (1979) 2 SCC 239 holding that even
appointing body if were to contravene rules and regulations binding upon it in
making the selection and recommending the selectees for appointment, the Court
in exercise of extraordinary jurisdiction to enforce rule of law, may interfere in a
writ petition under Article 226. There is no dispute about the proposition of law
laid down by the Supreme Court in the said judgment.
64. Learned senior counsel for the respondent no.5 however, could not
point out any objection in this regard raised by his client at any stage before the
Tribunal or in the separate writ petition filed by his client or even in the affidavit
in reply filed in these proceedings. He also could not point out any bar against the
employer or against the University of Mumbai from granting time to the petitioner
to obtain such degree within a reasonable period of time though the petitioner was
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the only suitable candidate found for the said post. The judgment of the Supreme
Court in case of Rajasthan Public Service Commission (supra) thus would not
forward the case of the respondent no.5. Insofar as the judgment of the Supreme
Court in case of Mohd. Sohrab Khan (supra) relied upon by the learned senior
counsel for the respondent no.5 is concerned, the Supreme Court was considering
a situation where the Selection Committee had changed the criteria / qualification
in the selection process during its mid-stream. The said judgment is clearly
distinguishable in the facts of this case. The Selection Committee has not changed
the qualification in the mid-stream. The said judgment thus would be of no
assistance to the respondent no.5.
65. Insofar as the judgment of the Supreme Court in case of Bhartiya
Seva Samaj Trust (supra) relied upon by the learned senior counsel for the
respondent no.5 is concerned, learned counsel for the management in that matter
had conceded before the Supreme Court that the statutory provisions of the
Bombay Primary Education (Gujarat Amendment) Act,1986 were violated by the
management. However, in the facts and circumstances of this case, the
management has supported the appointment of the petitioner made by the
management and has brought on record the exigency and reasons for appointing
the petitioner to the said post. The University of Mumbai had approved the said
appointment also on the similar condition and had made that appointment
temporarily. The judgment of the Supreme Court in case of Bhartiya Seva Samaj
Trust (supra) thus would be of no assistance to the respondent no.5.
66. The Division Bench of this Court in case of Vitthal Dewaji Chavan
(supra) has dealt with the provisions of the Indian Medical Council (Amendment)
Act, 1993 and more particularly section 10-A, 10-C and 11 and has held that
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section 11 in no uncertain terms, contemplates that the medical qualification
granted by the Universities or Medical Institutions in India which are included in
the First Schedule shall be a recognized medical qualification for the purpose of
the said Act. It is further held that the requirement for recognized medical
qualification for the purpose of said Act will be judged solely on the ground as to
whether such University or Medical Institution granting such medical qualification
is included in the First Schedule and if it is included in the First Schedule, then the
medical qualification granted to any student of such medical college shall be a
recognized medical qualification for the purpose of said Act.
67. It is held by this Court that the post graduate medical degree granted
by a University duly established by the statute in India by its inclusion in the First
Schedule in the Indian Medical Council Act, 1956 must ipso facto to be regarded,
accepted and treated as valid throughout the country. Such degree awarded by the
said University will have to be construed as a degree or a recognized medical
qualification for the purpose of the said Act. In my view, the judgment of the
Division Bench of this Court in case of Vitthal Dewji Chavan (supra) squarely
applies to the facts of this case. The provisions of the Medical Council Act, 1993
are pari materia with the provisions of the Indian Medicine Central Council Act,
1970. I am respectfully bound by the said judgment in case of Vitthal Dewji
Chavan (supra) delivered by the Division Bench of this Court.
68. A perusal of the written statement filed by the respondent no.5 herein
before the Tribunal indicates that it was contended by the respondent no.5 that the
degree acquired by the petitioner was not equivalent to M.D. Degree in
Shalayantra and it had not been recognized nor was it gazetted by the Central
Government or the State government or the Director of Ayurved, who were correct
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and proper authorities. It was contended that the Central Government, State
Government or the Director of Ayurved were the authorities to grant recognition.
In paragraph 4 of the written statement, it is averred that though the qualification
of Ayurvidya Parangat (AVP) had been recognized by the Central Council of
Indian Medicine, they had forwarded the same to the Central Government for
further notification. The Central Government had not notified it but had further
stated that the qualification of AVP was not equivalent to M.D. It is further
contended that the Central Council of Indian Medicine was a body selected and
constituted by the teacher. The same body had powers to make recognition with
regard to the qualification whose recognition was done only by way of Gazette
notification by the Central Government.
69. It is thus clear that it was the case of the respondent no.5 himself that
the Central Government, State Government or the Director of Ayurved were
authorized to grant recognition. The qualification of AVP has been recognized by
the Central Council of Indian Council and the same was forwarded to the Central
Government for further notification, which was not issued. The said written
statement was filed by the respondent no.5 in the month of August, 2002 i.e. much
after publication of the notification dated 8th October, 2001 in the Gazette of India
dated 11th October,2001 thereby substituting the words and figures "from 1942 to
1980" by the words and figures " from 1942 to 1988" in respect of the said post
graduate degree Ayurvidya Parangat issued by Tilak Maharashtra Vidyapeeth,
Pune. In view of the admitted position that the notification was already issued as
on 8th October, 2001, the arguments advanced by the learned senior counsel for the
respondent no.5 before this Court that the degree Ayurvidya Parangat was not a
post graduate degree or was not prescribed qualification for the purpose of
appointing the petitioner to the post of Reader is totally untenable and is contrary
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to the written statement filed by him before the Tribunal.
70. Pursuant to the directions issued by this Court, the respondent no.2
college has filed an affidavit before this Court on 8th August,2016. In the said
affidavit, the college has contended that the degree of Ayurvidya Parangat (AVP)
was acquired by the petitioner in the year 1986 which was recognized as post
graduate degree by the Government i.e. Central Government vide notification
dated 8th October, 2001. It is stated that before the impugned order came to be
passed by the said Tribunal, the said post graduate degree was already recognized
by the Central Government by issuing a notification dated 8th October, 2001.
71. It is the case of the respondent no.2 college that the appointment of
the respondent no.5 was made subject to the result of this petition. It is the case of
the respondent no.2 that since the State Government directed the respondent no.2
to revert the petitioner to the post of Lecturer from the post of Reader and if the
respondent no.2 would have refused to revert the petitioner and it would not have
deducted amounts from the salary of the petitioner, the State Government would
have refused to give grant to the college. The respondent no.2 had to thus revert
the petitioner and to deduct the differential amount from the salary of the
petitioner and to deposit the same with the State Government. Mr.Khandeparkar,
learned counsel appearing for the respondent no.2 submits that the respondent
no.2 has no complaint about the work being carried out by the petitioner and if this
Court comes to conclusion that the order of reversion effected by the respondent
no.2 on the directions of the State Government deserves to be set aside, this Court
shall direct the State Government to release grant-in-aid to the extent of the
amount deducted by the respondent no.2 from the salary of the petitioner to enable
the respondent no.2 to pay the said amount to the petitioner.
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72. A perusal of the degree annexed at Exhibit "A" to the additional
affidavit dated 15th July, 2006, indicates that the petitioner was issued a degree of
Ayurvidya Parangat who had passed the said examination held in the month of
June, 1986 by Tilak Maharashtra Vidyapeeth, Pune. The Central Council of Indian
Medicine also vide its letter dated 19 th April, 2001 addressed to the respondent
no.2 has confirmed that Ayurvidya Parangat examination of Tilak Maharashtra
Vidyapeeth, Pune has been approved by the Council as a post graduate
qualification and has already sent to the Government of India for Gazette
notification. The Government of India had forwarded the copies of Gazette
notification in the month of November, 2001 to the Central Council of Indian
Medicine showing that the said degree Ayurvidya Parangat issued by Tilak
Maharashtra Vidyapeeth, Pune during the period from 1942 to 1988 has been
recognized and was inserted in Second Schedule to Indian Medicine Central
Council Act, 1970.
73. Insofar as parawise comments filed by the Directorate of Ayurved,
Maharashtra State is concerned, a perusal of the said pleadings indicates that even
according to the authority, as per recruitment rule in respect of the post of Reader,
if there is no qualified candidate available for the post of Reader, then Government
can appoint teacher on the said post subject to the condition that he must pass
M.D. within five years in the concerned subject and accordingly the petitioner
was appointed to the said post. In the affidavit in reply filed before this Court on
21st July, 2005, the State Government and the Secretary, Medical Education and
Drugs Department have contended that Indian Medicine Central Council Act, 1970
amended from time to time had recommended that the qualification of A.V.V. and
A.V.P. awarded by Tilak Maharashtra Vidyapeeth, Pune as degree qualification
only upto 1980 and it never been considered as post graduate qualification. In my
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view, the said contention raised by the respondent nos.1 and 4 in the affidavit in
reply filed before this Court is contrary to the written statement in the form of
parawise comment filed before the said Tribunal and is also contrary to the
notification of the Central Government dated 8th October, 2001.
74. Insofar as reliance placed by the learned senior counsel for the
respondent no.5 on certain informations alleged to have been provided by the
authority under the provisions of the Right to Information Act is concerned, those
informations do not advance the case of the respondent no.5. In the first column,
the query raised by the respondent no.5 was whether A.V.P. (Pune) qualification
was a certificate, diploma or degree. The response given by the Director of
Ayurved was that the said A.V.P. was a degree. There was no query raised by the
respondent no.5 whether the said A.V.P. was a post graduate degree or not.
Similarly the information asked by the respondent no.5 at serial no.6 indicates that
the query of the respondent no.5 was whether A.V.P. was considered as post
graduate degree in 1998 for the post of Lecturer in Ayurved colleges, the reply
thereto was in negative.
75. It is not the case of the petitioner that in the year 1998, A.V.P. was
considered as post graduate qualification. Admittedly the notification came to be
issued by the Central Government on 8th October, 2001 extending the period from
1980 to 1988. The said reply of the authority thus would not advance the case of
the respondent no.5. The answer to query no.7 clearly indicates that even
according to the authority, the Central Council of Indian Medicine had approved
Ayurvidya Parangat (A.V.P.) obtained during the period 1942 to 1988. The said
reply of the authority supports the case of the petitioner and not the respondent
no.5 and confirmed the true and correct position.
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76. Insofar as the submission made by the learned senior counsel for the
respondent no.5 that the Selection Committee itself was not appointed properly by
the management and thus the appointment of the petitioner itself was illegal on
that ground is concerned, a perusal of the impugned order passed by the Tribunal
indicates that the said Tribunal did not render any finding on the issue whether the
constitution of the Selection Committee was proper or not on the ground that none
of the parties had invited the attention of any applicable rules to the said Tribunal.
The writ petition filed by the respondent no.5 challenging the appointment of the
petitioner was admittedly dismissed for want of prosecution.
77. The respondent no.5 thus cannot be allowed to raise that issue before
this Court for the first time in this writ petition. The respondent no.5 admittedly
did not file any separate writ petition challenging the finding of the said Tribunal
on the issue of the appointment of the Selection Committee. This Court thus
cannot go into this issue at this stage on the basis of the submissions made by the
learned senior counsel for the respondent no.5 across the bar.
78. A perusal of the impugned order passed by the Tribunal indicates that
the Tribunal has rejected the appeal filed by the petitioner on the ground that the
appellant did not have post graduate degree. The Tribunal proceeded on the
premise that the petitioner had only one degree i.e. degree in B.A.M.S. and though
that was degree, the same was not a post graduate degree. It is held by the Tribunal
that as regards Ayurvidya Parangat (A.V.P.) is concerned, it is not a degree at all
and thus the petitioner not having acquired post graduate degree would not be
eligible for the said post of Reader. Though the notification was already issued by
the Central Government extending the date of recognition of the said degree
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Ayurvidya Parangat (A.V.P.) obtained from Tilak Maharashtra Vidyapeeth, Pune
till 1988 and though the petitioner had already obtained the said degree in the year
1986, the Tribunal totally over looked this crucial aspect in the matter and has
passed a perverse order thereby rejecting the appeal filed by the petitioner.
79. The impugned order is also contrary to the admitted fact recorded in
the written statement filed by the respondent no.5 himself before the Tribunal
admitting that the petitioner had acquired the qualification of A.V.P. and had
contended that though the qualification of A.V.P. had been recognized by the
Central Council of Indian Medicine, no Gazette notification was issued by the
Central Government. The respondent no.5 has also admitted that the Central
Council of Indian Medicine is a body selected and constituted by the teachers
which body had power to make recognition with regard to the qualification which
recognition is done only by way of Gazette notification of the Central
Government. In my view, the Tribunal has committed an error by totally over
looking the factum of issuance of notification by the Central Government much
prior to the date of disposal of the appeal filed by the petitioner before the
Tribunal.
80. It is not in dispute that the appointment of the respondent no.5 is
made by the management subject to the out come of this petition. The petitioner
has not applied for consequential benefits in the writ petition nor the same is
pressed by the learned counsel for the petitioner. In my view, the impugned order
passed by the University and College Tribunal dismissing the appeal filed by the
petitioner is perverse, contrary to law and facts and thus deserves to be set aside.
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81. I therefore, pass the following order :-
a). The impugned order dated 16th October, 2002 passed by
the learned Presiding Officer, Mumbai University and College
Tribunal dismissing Appeal No.62 of 2002 filed by the
petitioner is quashed and set aside. Appeal No.62 of 2002 is
made absolute in terms of prayer clauses (A) and (B).
b). The respondent no.1 is directed to provide grant-in-aid
to the respondent no.2 for the differential amount required to
be paid to the petitioner in view of the order of reversion of
the petitioner having been set aside by this Court and in view
of the fact that this Court having directed the respondent no.2
to refund the salary deducted for the period during 1 st
December, 2000 to 23rd March, 2002 and for payment of the
differential amount of salary and other emoluments from the
date of reversion till reinstatement of the petitioner to the said
post of Reader. Such grant-in-aid shall be released in favour of
the respondent no.2 within four weeks from today. The
respondent no.2 shall release the said amount to the petitioner
within two weeks from the date of grant-in-aid released, if any,
by the respondent no.1, as directed aforesaid.
c). Rule is made absolute in aforesaid terms.
d). There shall be no order as to costs.
e). In view of disposal of the writ petition, Civil
Application No.3354 of 2005 does not survive and is
accordingly disposed of.
(R.D.DHANUKA, J.)
