Bombay High Court
Satyajit Pandurang Kulkarni And ... vs The State Of Maharashtra And Ors on 16 January, 2018
Bench: B.R. Gavai
judgment in WP-11279-16.doc.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11279 OF 2016
1] Satyajit Pandurang Kulkarni, ]
Aged 35 years, Occu : Professor, ]
C/o. Mr. G. A. Patil ]
Gangatara Colony, Shete Mala, ]
Kodoli, Tal. Panhala City, Kodoli, ]
Dist. Kolhapur 416 114. ]
2] Dr. Mrs. Manjusha Sunil More ]
Aged 41 years, Occu : Professor, ]
Residing at More Niwas, Jai Ambe Nagar, ]
Behind K. K. Wagh Engineering College, ]
Panchavati, Nashik-3. ]..Petitioners
Versus
1] The State of Maharashtra, ]
Through The Secretary Ministry ]
of Medical Education and Drugs ]
Department, Mantralaya, Mumbai. ]
2] The Vice Chancellor, ]
Maharashtra University of Health ]
Science, Nashik. ]
3] The Director of Ayurved, ]
State of Maharashtra. ]
4] The Principal, ]
Ayurveda Mahavidyalala, Nashik ]
Ganeshwadi, Panchvati, Nashik. ]
5] Savita Ambadas Kulkarni ]
Aged 50 years, Occu : Professor, ]
Residing at Rajendra Apartment, ]
Rajendra Colony, Shastri Path, ]
Opp. Police Station, Nashik Road, ]
Nashik 422 101. ]
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6] The President, ]
Central Council of Indian Medicine, ]
(C.C.I.M.) Jawaharlal Nehru, ]
Bharatiy Chikitsa Avum Homeopathy ]
Anusandhan Bhavan, 61-65, ]
Institutional Area, Janakpuri, ]
New Delhi 110 058. ]
7] Directorate of Ayush, ]
Maharashtra State, Mumbai. ]
Having office at Govt. Dental College, ]
And Hospital Building, 4th floor, ]
St. George Hospital, Fort. ]..Respondents
Ms. Preeti Walimbe i/b Mr. Bhushan Walimbe, for the Petitioners.
Mrs. R. M. Shinde, AGP, for Respondent Nos. 1 and 3.
Mr. R. V. Govilkar a/w Ms. Shaba N. Khan, for Respondent No.2.
Mr. A. K. Jalisatgi i/b Mr. T. R. Yadav, for Respondent No.4.
Mr. R. S. Apte, Senior Advocate a/w Mr. Vinod Joshi, for Respondent
No.5.
CORAM : B. R. GAVAI &
B. P. COLABAWALLA, JJ.
DATE : 16 th JANUARY, 2018
JUDGMENT (Per B. R. Gavai, J)
1] The Petitioners had initially approached this Court seeking
writ of mandamus for directing the Respondents to disclose the result of
the selection process conducted on 19th November 2015 for the post of
Associate Professor in Panchkarma in Respondent No.4 College. However,
since during the pendency of the Petition, the Petitioners came to know
that the Respondent No.5 has been appointed as the Associate Professor
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in the department of Panchkarma in Respondent No.4 College, the
Petitioners have amended the Petition seeking a prayer for quashing the
said appointment.
2] The facts in brief giving rise to the present Petition are as
under :-
The Respondent No.4 had published an advertisement on
19th October 2015 inviting applications for the various posts in various
subjects including the post of Associate Professor in the subject of
Panchkarma (hereinafter referred to as the "said post"). The Petitioners
being eligible had applied for the said post. The Petitioners in response to
their applications were invited for the interviews. However, after the
interviews were held, since no result was declared for a considerable
period of time, the Petitioners have approached this Court. However,
during the pendency of the Petition, since the Petitioners noticed that the
Respondent No.5 was appointed, the Petitioners have amended the
present Petition. The main contention of the Petitioners is that the
advertisement stipulated that, the posts would be filled in accordance
with the rules notified by the Government of Maharashtra. It is the
contention of the Petitioners that according to the rules framed by the
Government of Maharashtra, it is necessary to have a Post Graduate
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Degree in the subject/speciality concerned. It is the submission of the
Petitioners that, only in the event a candidate possessing a Post Graduate
Degree in the subject/speciality concerned being not available, a
candidate possessing a Post Graduate Degree in the allied subject can be
selected. It is therefore submitted that the Respondent No.5 who has a
Post Graduate Degree in Kayachikitsa and not the Panchkarma could not
have been appointed, when various candidates including the Petitioners
who were having Post Graduate Degree in Panchkarma were available.
3] As against this, Mr. R. S. Apte, learned Senior Counsel
appearing on behalf of Respondent No.5 submits that, since the
Respondent No.5 had been considered eligible in 2011 for the post of
lecturer in the subject of Panchkarma, she can be considered to be
eligible to be appointed as Associate Professor in the subject of
Panchkarma, though she does not possess a Post Graduate Degree in
Panchkarma. It is further submitted that, as per the rules framed by the
Central Council of Medical Education also, the Respondent No.5 is
eligible to be appointed. It is further submitted that, the Petitioners are
much below in the merit list of selection and as such even if the
appointment of Respondent No.5 is set aside, the Petitioners could not be
appointed against the said post.
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4] The Respondent - State Government and the Respondent -
University of Health Science are supporting the case of the Petitioners.
The Respondents have relied on the communication of Central Council of
Indian Medicine (for short "CCIM") dated 2nd September 2004, wherein it
is stated that if a candidate has a Post Graduate Degree in allied subject,
then it is not necessary to have a Post Graduate Degree in concerned
subject for selection of teacher.
5] Undisputedly, in the advertisement issued by the Respondent
No.4, it is categorically stated that the selection process would be in
accordance with the rules framed by the State Government. The relevant
rules are framed by the Government of Maharashtra vide notification
dated 26th July 2013. It would be relevant to refer to Rule 4 of the said
Rules.
"4. Appointment to the post of Associate Professor in the
Maharashtra Ayurvedic Service Group 'A', in the
Government Ayurvedic College in the Directorate shall be
made either, -
(a) by promotion of a suitable person on the basis of strict
selection with due regards to seniority from amongst the
person holding the post of Assistant Professor having not
less than five years regular service in that post:
Provided that, Associate Professor in Sanskrit or Sanskrit
Samhita Siddhanta who do not possess qualification
prescribed for appointment by nomination under clause (b)
(ii) of this rule, will not be eligible for promotion on the
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post of Professor in Ayurveda Subject, or
(b) by nomination from amongst the candidates, who, -
(i) are not more than fifty years of age :
Provided that, the age limit may be relaxed by five years in
case of candidates who are already in the serve of
Government ; and
(ii) Possess qualification mentioned in Parts A, A-1, B or C
in the Schedule appended to the Maharashtra Medical
Practitioner's Act, 1961 (Mah.XXVIII of 1961) or an
equivalent qualification specified by the Central Council of
Indian Medicine, New Delhi, from time to time, under the
Central Council of Indian Medicine Act, 1970 (48 of 1970)
and possess post-graduate degree in concerned subject of
Ayurved, obtained from Recognised Institution ;
(iii) possess total teaching experience of 5 years in the
concerned Ayurvedic subject out of which there should be 3
years teaching experience as Assistant Professor in the
concerned Ayurved subject from Recognised Institution ;
(iv) possess adequate knowledge of English, Marathi,
Sanskrit and Hindi language:
Provided that, preference may be given to those candidates
whose original research paper has been published in
indexed journals on National level or books in Ayurvedic
recognised by Central Council of Indian Medicine."
It could thus be seen that, the said Rules provide two modes of
appointment of Associate Professor : (a) by promotion (b) by
nomination. In so far as appointment by promotion is concerned, it can
be done by promotion of a suitable person on the basis of strict selection
with due regards to seniority from amongst the person holding the post
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of Assistant Professor, having not less than five years regular service in
that post. It could thus be seen that for appointing a candidate on the
post of Associate Professor by promotion, the criteria is selection with
due regards to seniority from the cadre of Assistant Professor, having not
less than five years regular service in that post. In so far as by nomination
is concerned, there are four requirements. The first being, he should not
be more than 50 years of age. However, the age limit would be relaxed
by 5 years in case the candidates who are already in the service of State
Government. Secondly, they should possess the qualification mentioned
in Part-A, Part-A-1, Part-B or Part-C in the schedule appended to the
Maharashtra Medical Practitioner's Act, 1961 or an equivalent
qualification specified by CCIM under the Central Council of Indian
Medicine Act, 1970. It also requires that, a candidate should possess a
Post Graduate Degree in concerned subject of Ayurveda, obtained from
the Recognized Institution. Thirdly, regarding experience it is provided
that a candidate shall have teaching experience of 5 years in the
concerned Ayurveda subject out of which, there should be 3 years
teaching experience as Assistant Professor in the concerned Ayurveda
subject from Recognized Institution and fourthly, the candidate should
possess adequate knowledge of English, Marathi, Sanskrit and Hindi
language. It could thus clearly be seen that the requirement of having a
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Post Graduate Degree in the concerned subject and 5 years experience in
the concerned subject out of which 3 years teaching experience should be
as Assistant Professor, are the essential requirement for the post of
Associate Professor in the concerned subject, in case the post is filled by
selection.
6] Since, it is the case of the Respondents that the Respondent
No.5 is qualified in accordance with the rules framed by the CCIM, it
would also be relevant to refer to the said Rules :-
"12.
Qualifications & Experience for teaching staff for
UG teachers:
(Applicable for direct recruitment but age will be relaxed in
case of promotion)
i) ESSENTIAL:
a) A degree in Ayurved from a University established by
law or a statutory Board/Faculty/Examining Body of Indian
Medicine or its equivalent as recognized under Indian
Medicine Central Council Act, 1970.
b) A Post-graduate qualification in the subject/speciality
concerned included in the schedule to Indian Medicine
Central Council Act, 1970.
ii) EXPERIENCE:
a) For the Post of Professor:
Total teaching experience of ten years in concerned
subject is necessary out of which there should be five
years teaching experience as Reader/Associate
Professor in concerned subject.
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b) For the Post of Associate Professor (Reader):
Teaching experience of five years in concerned subject.
(Reader will be treated as Associate Professor).
c) For the Post of Asst. Professor (Lecturer): (age not
exceeding 40 years).
No teaching experience is required. Lecturer will be
treated as Asst. Professor.
d) Qualification for the Post of Head of the Institution
(Principal/Dean/Director):
The qualification and experience prescribed for the
Post of Professor shall be essential for these Posts.
Note:- In absence of the candidate of Post-graduate
qualification in concern subject the candidate of the
following subjects as mentioned against them shall be
eligible for the post of Lecturer/Asstt. Professor :-
Speciality required Name of the allied subject.
1. Swastha Vritta 1. Kayachikitsa
2. Agadtantra 2. Dravyaguna/Rasashastra
3. Rog Vigyan 3. Kayachikitsa
4. Rachna Sharir 4. Shalya
5. Kriya Sharir 5. Samhita Siddhant
6. Shalakya 6. Shalya
7. Panchkarma 7. Kayachikitsa
8. Balroga 8. Prasuti & Striroga/Kayachikitsa
9. Kayachikitsa 9. Manasroga
10. Shalya 10. Nischetana evam Ksha-kirana
a. The above provision of allied subject will be allowed
for five years.
b. The teacher(s) who had been considered eligible in
the past on the basis of previous Regulations shall not
be considered ineligible on the basis of amendment."
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7] It could thus be seen that, even as per the Rules framed by
the CCIM, for all the posts including the post of Professor, Associate
Professor (Reader), Assistant Professor (Lecturer), a Post Graduate
qualification in the subject/speciality concerned included in the schedule
to Indian Medicine Central Council 1970, is necessary for the post of
Associate Professor and teaching experience of 5 years in the concerned
subject is also required. No doubt, that note provides that in the absence
of the candidate having Post Graduate qualification in the concerned
subject, the candidate having the Post Graduate Degree in allied subject
shall be eligible for the post of Lecturer/Assistant Professor. Clause (b) of
the note provides that, the teacher(s) who had been considered eligible
in the past on the basis of previous Regulations shall not be considered
ineligible on the basis of amendment.
8] It could thus be clearly seen that, there is not much of
difference in the rules framed by the State Government and the rules
framed by the CCIM. In so far as the selection by nomination is
concerned, both the rules require that, there has to be Post Graduate
Degree in the subject/speciality concerned and that a candidate must
possess total teaching experience of 5 years in the concerned Ayurveda
subject. The only difference is that the note in the rules framed by the
CCIM provides that, in the absence of the candidate of Post Graduate
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qualification in concern subject, the candidate of allied subject would be
eligible for the post of Lecturer/Assistant Professor. Clause (b) of the note
which provides that the teacher(s) who had been considered eligible in
the past on the basis of previous Regulations, shall not be considered
ineligible on the basis of amendment. In this respect the only contention
is that since the Petitioners were appointed in the year 2011 as a lecturer
in Panchkarma, they should be considered as eligible for the post of
Associate professor.
9] No doubt that in accordance with rules framed by the State
Government, if the post was to be filled in by promotion, the Petitioners
could have been considered. It is to be noted that in the year 2011, the
Respondent No.5 had competed with other candidates who were having
Post Graduate in Panchkarma. However, since the candidate who was
having Post Graduate Degree in Panchkarma did not join, the Respondent
No.5, who was next in the merit list not having a Post Graduate Degree
in Panchkarma, but having a Post Graduate Degree in the allied subject
i.e. Kayachikitsa, came to be appointed. As such, the Respondent No.5 is
having a requisite experience in the subject of Panchkarma. In the event,
the post was to be filled in by promotion, then the Respondent No.5
could have been considered for the said post, in as much as the
promotional post of Associate Professor is required to be filled in on the
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basis of suitability and seniority in the subject concerned.
10] However, it is not disputed that the post is being filled in by
a process of selection. In that view of the matter, a candidate not having
the Post Graduate Degree in Panchkarma could have been considered,
only if a candidate having a Post Graduate Degree in Panchkarma was
not available. In so far as the clause (b) is concerned, the Respondents
have not pointed out any previous regulations on the basis of which the
Respondent No.5 could be considered to be eligible for the post of
Associate Professor.
11] A Division Bench of this Court had an occasion to consider
an issue with respect to the appointments made by the State Government
for the post of Professor in Panchkarma in Government Ayurveda
College. The very same rules of the State Government, which govern the
present appointment of the Associate Professor fell for consideration
before the Division Bench. It would be relevant to refer paragraph 11 of
the said judgment.
"11. It can thus be seen that the advertisement as well as
the rules prescribed the Post Graduate Degree and
experience of not less than four years in the concerned
subject. In our considered view, the matter ill have to be
looked from the angle as to what would be the meaning of
the term "concerned". In our view, no principle of
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interpretation of law is required to be applied to come to a
conclusion that the term "concerned" would mean the
"concerned subject". The advertisement clearly specifies the
subject for which the applications are invited i.e. "Professor
- Panchakarma". Thus, the word "Concerned" in the Sub
Clauses (two), (three) and (four) of Clause 4.7, therefore,
will have to be meant to be experience and Post Graduate
Degree in the subject of "Panchakarma". As a natural
corollary, we are of the view that a person to be eligible to
apply, must have possessed a Post Graduate Degree in
Panchakarma and must have possessed the experience of
not less than 4 years in the subject of Panchakarma."
In the present case also, the advertisement specifically provides that the
post would be filled in accordance with the rules framed by the Sate
Government. In the rules framed by the State Government, there is no
provision with regard to a candidate having a Post Graduate Degree in
allied subject being eligible, in the event of non-availability of a
candidate having a Post Graduate Degree in the concerned subject.
However, even if we accept the contention of the Respondents that, the
rules framed by the CCIM would be applicable and it will be permissible
to select a candidate not possessing a Post Graduate Degree in the
concerned subject, but possessing a Post Graduate Degree in allied
subject, still in our view, the rules framed by the CCIM could also not
come to the rescue of the Respondents. The perusal of the rules would
clearly reveal that only in the event a candidate possessing a Post
Graduate Degree in allied subject can be considered, if there is no
candidate available who is having Post Graduate Degree in concerned
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subject.
12] In that view of the matter, we find that the Petition deserves
to be allowed.
13] Rule is made absolute by quashing and setting aside the
appointment of Respondent No.5 as Associate Professor in the subject of
Panchkarma.
14] At this stage, Mr. Apte, the learned Senior Counsel appearing for
Respondent No.5 seeks a stay of the judgment and order delivered by us
for a period of six weeks.
15] Taking into consideration the fact that Respondent No.5 is
still in employment, and that the effect of our order would be
discontinuation of her services as Associate Professor, we grant stay to
our order for a period of six weeks from today.
[B. P. COLABAWALLA, J.] [B. R. GAVAI, J.]
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