Bombay High Court
Asmita Anant Kuber vs State Of Maharashtra Thr. Dept. Of ... on 7 August, 2024
Author: Nitin Jamdar
Bench: Nitin Jamdar, M.M. Sathaye
2024:BHC-AS:31859-DB
LSP 1 @28 wp 12467-11161-11159-11160.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12467 OF 2019
Pushpalata Damodar Ingale
Flat No.8, Shree Ganesh Park, Bhabha
Nagar, Kautghat, Nashik 422011. ... Petitioner
V/s.
1. State of Maharashtra
through its Department of
Ayurveda, Mantralaya, Bombay.
2. Director of AYUSH
St. Georges' Hospital Compound,
Mumbai.
3. Maharashtra University of Health
Sciences, Nashik
Through its Registrar, having
office at St. Georges' Hospital Campus,
Mumbai-400 001.
4. Ayurved Seva Sangh's
Ayurved Mahavidyalaya
Ganeshwadi, Panchavati,
Nashik - 422003. ... Respondents
WITH
WRIT PETITION NO. 11159 OF 2023
Asmita Anant Kuber
B-1, Pooja Heights, Aazad Nagar,
D.P.Road, Kothrud, Pune-38. ... Petitioner
Digitally V/s.
signed by
LATA 1. State of Maharashtra
LATA SUNIL
SUNIL PANJWANI through its Department of
PANJWANI Date:
2024.08.09 Ayurveda, Mantralaya, Bombay.
18:06:44
+0530
::: Uploaded on - 09/08/2024 ::: Downloaded on - 17/08/2024 00:14:53 :::
LSP 2 @28 wp 12467-11161-11159-11160.doc
2. Director of AYUSH
St. Georges' Hospital Compound,
Mumbai.
3. Maharashtra University of Health
Sciences, Nashik
Through its Registrar, having
office at St. Georges' Hospital Campus,
Mumbai-400 001.
4. Ashtang Ayurvedic College, Pune
Sadashiv Peth, Vijaynagar Colony,
Pune-411004. ... Respondents
WITH
WRIT PETITION NO. 11160 OF 2023
Prakash Bajirao Thombare
27/A, Plot No.150, Nagdi Pradhikaran,
Pune-411004. ... Petitioner
V/s.
1. State of Maharashtra
through its Department of
Ayurveda, Mantralaya, Bombay.
2. Director of AYUSH
St. Georges' Hospital Compound,
Mumbai.
3. Maharashtra University of Health
Sciences, Nashik
Through its Registrar, having
office at St. Georges' Hospital Campus,
Mumbai-400 001.
4. Ashtang Ayurvedic College, Pune
Sadashiv Peth, Vijaynagar Colony,
Pune-411004. ... Respondents
::: Uploaded on - 09/08/2024 ::: Downloaded on - 17/08/2024 00:14:53 :::
LSP 3 @28 wp 12467-11161-11159-11160.doc
WITH
WRIT PETITION NO. 11161 OF 2023
Dr. Smita Bhupendra Mohole
35, Akshay Paradise, Damodar Nagar,
Hingne Khurd, Sinhagad Road,
Pune-51. ... Petitioner
V/s.
1. State of Maharashtra
through its Department of
Ayurveda, Mantralaya, Bombay.
2. Director of AYUSH
St. Georges' Hospital Compound,
Mumbai.
3. Maharashtra University of Health
Sciences, Nashik
Through its Registrar, having
office at St. Georges' Hospital Campus,
Mumbai-400 001.
4. Ashtang Ayurvedic College, Pune
Sadashiv Peth, Vijaynagar Colony,
Pune-411004. ... Respondents
Mr.M.V.Thorat for the Petitioners in all petitions.
Mr. R. V. Govilkar, Senior Advocate a/w. Ms. Shaba N. Khan i/b.
Mr. Mihir Govilkar for Respondent No.3 (MUHS) in all petitions.
Mr. Hitesh P. Vyas a/w. Mr. Rasik Raut for Respondent No.4 in
WP/11159/2023, WP/11160/2023 & WP/11161/2023.
Mr. Neel G. Helekar for Respondent No.4 in WP No.12467/2019.
Ms. Nisha Mehra, AGP for the State in WP No.12467/2019.
Mr. S.B. Kalel, AGP for the State in WP No.11159/2023.
::: Uploaded on - 09/08/2024 ::: Downloaded on - 17/08/2024 00:14:53 :::
LSP 4 @28 wp 12467-11161-11159-11160.doc
Mr. S.H. Kankal, AGP for the State in WP No.11160/2023.
Mr. V.M. Mali, AGP for the State in WP No.11161/2023.
CORAM : NITIN JAMDAR, AND
M.M. SATHAYE, JJ.
DATE : 07 August 2024.
Oral Judgment (Per Nitin Jamdar, J)
Rule. Rule made returnable forthwith. Respondents waive
service. Taken up for disposal.
2. Petitioners are working in Ayurvedic Colleges which are
affiliated to the Respondent-Maharashtra University of Health
Sciences. The Petitioner in Writ Petition No. 12467 of 2019 is
seeking promotion from the post of Assistant Professor directly to
the post of Professor. The others are seeking promotions from the
post of Assistant Professor to Associate Professor. The primary
grievance of the Petitioners is that the posts of Associate Professor
and Professor, which are to be filled up by way of promotion, are not
being filled up. The prayers made in the Petitions are to direct the
Respondents to fill-up the posts by promoting the Petitioners.
3. In Writ Petition 12467/2019, Petitioner-Pushpalata Ingale is
teaching the subject Shalakya Tantra as Assistant Professor since 1
July 2000 in the Ayurved Seva Sangh College, Nashik and is seeking
LSP 5 @28 wp 12467-11161-11159-11160.doc
promotion to the post of Professor. In Writ Petition 11161/2023,
Petitioner-Smita Mohole is teaching the subject Shalya Tantra as
Assistant Professor since 2 January 2007 in the Ashtang Ayurved
College, Pune and is seeking promotion to the post of Associate
Professor. In Writ Petition 11159/2023, Petitioner-Asmita Kuber is
teaching the subject Rognidan as Assistant Professor since 1 March
2008 in the Ashtang Ayurved College, Pune and is seeking
promotion to the post of Associate Professor. In Writ Petition
11160/2023, Petitioner-Prakash Thombare is teaching the subject
Swastha Vritta as Assistant Professor since 16 April 2005 in the
Ashtang Ayurved College, Pune and is seeking promotion to the
post of Associate Professor.
4. These petitions have been pending since the year 2019. When
the petitions came up for the hearing earlier , we found that there
was no specific order stating that the Petitioners should not be
promoted. Most of the educational institutions where the Petitioners
work, had initiated the process of submitting the proposals. The
consensus with the Educational Institutes before us was that they are
not averse for the Petitioner's promotions; however, the final
decision will have to be taken by the Director of AYUSH. They
sought to place before us that the issue may arise as to whether the
posts of the professors are to be filled in by way of promotion or by
way of nomination. The Petitioners had submitted that the
instructions issued by the Respondent-Director on 25 January
LSP 6 @28 wp 12467-11161-11159-11160.doc
2024 and 12 March 2024 indicate that there is no specific bar or
impediment in promoting the Petitioners. However, so that there is
clarity on the issue, on 19 March 2024 we had directed the
Respondent No. 2-Director of AYUSH to make the position clear as
regards the promotions to the posts of professor in the Ayurvedic
Colleges, both direct promotions from the post of Assistant Professor
to Professor and Assistant Professor to Associate Professor. We had
directed that the Respondent-Institution, which had not yet
forwarded the proposal/s, initiate the proposal/s so that further time
can be saved.
5. During the hearing on 7 May 2024, we were informed that a
Special Leave Petition (C) No. 10985 of 2022 filed by Kisan Vidhya
Prasark Sanstha is pending before the Hon'ble Supreme Court
regarding the recruitment to the post of Professor and Associate
Professor through nomination. We had noted that these Petitions
have been adjourned from time to time as we had sought the stand
of the State as to how the posts of Professors and Associate
Professors are to be filled in, whether it is by nomination or by
promotion or if it is in 50:50 ratio, what are the parameters thereof.
Pursuant to the said query, the Director of Ayush had filed a reply
affidavit. The learned AGP had drawn our attention to the
communication dated 12 March 2024 issued by the State
Government addressed to the Director of Medical Education and
Research, the Commissioner and all the Principal/Dean of aided
LSP 7 @28 wp 12467-11161-11159-11160.doc
Ayurvedic Colleges. This communication stated that where there is
no opportunity for promotion from Assistant Professor to Associate
Professor, the circular has given certain directions. The learned AGP
pointed out that the individual applications of the Petitioners
pursuant to the circular/communication dated 12 March 2024 will
proceed when they are received from the respective Institutes.
Learned Counsel for the Respondents-Institutes had informed that
the proposals in favour of the Petitioners have already been sent and
are with the State Government. It was recorded that there is no
impediment now for the State Government to process the proposals
of the Petitioners, which was accepted by the learned AGP on
instructions. Therefore, we deferred the hearing of these Petitions to
3 July 2024, directing the State Government to process the
proposals submitted by the Respondent-Institutes regarding each of
these Petitioners. The learned AGP, on instructions, had stated that
the proposals, which have been received from the
Colleges/Institutions so far, will be processed as per the prevailing
Rules and necessary orders would be issued in respect of the
Petitioners, who are found to be so suitable for promotion, by the
next date. This statement was accepted. The State Government was
directed to ensure that the course of action it proposes to adopt does
not breach the order passed by the Hon'ble Supreme Court in the
pending SLP.
6. On 31 July 2024, the learned AGP informed that the
LSP 8 @28 wp 12467-11161-11159-11160.doc
Director of AYUSH has taken a decision with respect to six
Petitions, and the decision will be placed on record by way of an
affidavit. Accordingly, affidavits have been filed in these petitions by
the Directorate of AYUSH. The relevant averments in the affidavits
are only two paragraphs. The affidavit states about the Director's
representative for Departmental Promotion Committee has been
nominated. The affidavit has also placed on record the
communication dated 15 July 2024 issued by the Desk Officer of
the State Government that Director of AYUSH will consider
whether the process of promotion should be taken forward or not as
there could be complications. Except for this letter, no other aspect
is placed on record by the Directorate of AYUSH.
7. The communication of 15 July 2024 issued by the Desk
Officer of the State Government to the Directorate of AYUSH to
consider whether the promotion process should be taken forward or
not as it may create complication was issued in July 2024 when
these petitions have been pending for almost five years, and several
orders were passed with the State as a party. It is because of not
taking steps to fill up the posts by promotion that the Petitioners had
approached this Court. Earlier there was no clarity as to which
authority should consider and grant promotion, tyherefore, order
was passed. Throughout these proceedings, we were not informed of
this stand, which is now sought to be taken in July 2024, that there
are certain complaints, and to avoid complications, no promotions
LSP 9 @28 wp 12467-11161-11159-11160.doc
should be undertaken. On the contrary, we had recorded the stand
of the State in the order dated 7 May 2024 as under;
"......
5. On 19 March 2024, we directed that those
Respondent-Institution who have not yet forwarded the
proposal/s shall initiate the proposal/s so that further time
can be saved. Learned Counsel for the Respondents-
Institutes informed that the proposals in favour of the
Petitioners have already been sent and are with the State
Government. In light of this, we find no impediment now
for the State Government to process the proposals of the
Petitioners, which fact is being accepted by learned AGP
on instructions.
6. Therefore, while we defer the hearing of these
Petitions to 3 July 2024 for the Petitioners to consider the
additional affidavit, we direct the State Government to
process the proposals submitted by the Respondent-
Institutes in respect of each of these Petitioners.
7. Learned AGP on instructions states that the
proposals, which have been received from the college /
institution so far, will be processed as per the prevailing
Rules and necessary orders would be issued in respect of
the Petitioners, who are found to be so suitable for
promotion, by the next date. We accept the statement.
The State Government will ensure that this course of
action that it proposes to adopt, does not breach the order
passed by the Hon'ble Supreme Court in pending SLP.
....."
(emphasis supplied)
After several orders in these petitions where the State is appearing
and making statements as above that communication is issued by the
Desk Officer on 15 July 2024. We place our disapproval on record.
Even otherwise, the ground given in the communication dated 15
LSP 10 @28 wp 12467-11161-11159-11160.doc
July 2024 is entirely vague. Which are the complaints; whether there
is any merit in the complaint or not, is not stated. If a particular
employee is not entitled to be promoted either on merits or in view
of certain legal or statutory bar or is contrary to any Government
Resolution, then the individual case can always be examined. Such a
vague and general stand that no promotions should be effected
because of some undisclosed complaints of which no details are
given, cannot be taken. Therefore, we find this communication
issued by the Desk Officer of the State government to advise
AYUSH to withhold all promotions is entirely inappropriate. It is
not based on any concrete material or any statutory rule. Such a
position would be against the interest of the education imparted in
these colleges. We, therefore, make it clear that this communication
dated 15 July 2024 will come in the way of the Directorate of
AYUSH and other Respondents to proceed with the process of
promotions. Ultimately, the case of each of the candidates will have
to be examined, and if any complaints are received against a
particular employee, that can always be examined.
8. Since the Directorate of AYUSH has stated that its
representative on the Departmental Promotion Committee has been
nominated, the other authorities i.e. University and the College, will
have to nominate their representative. The learned counsel for the
University and the Colleges submitted that once the communication
regarding the nominee is received from the Directorate of AYUSH,
LSP 11 @28 wp 12467-11161-11159-11160.doc
they will submit their nominees for the composition of the
Departmental Promotion Committee. According to the learned
AGP, the details of the nominee of the Directorate have already been
informed to the University and the College. We find no impediment
now for the University and the respective colleges to nominate their
representative for the Departmental Promotion Committee in
respect of each of these petitioners.
9. In Writ Petition No.12467/2019, the learned AGP states that
the Departmental Promotion Committee has already submitted the
proposal, which is pending consideration by the State Government.
The decision regarding this Petitioner is taken within a period of
four weeks.
10. Regarding the other Petitioners, we direct that the Respondent
Colleges and the Respondent-University will nominate their
representatives on the Departmental Promotion Committee within
four weeks. The Colleges and Universities will accordingly co-
ordinate amongst each other so that time stipulated in this order is
adhered to.
11. After the Departmental Promotion Committee is so
constituted, the proceedings be concluded as per law on merits, and
the appropriate orders be passed within a period of two months. We
make it clear that the Departmental Promotion Committee would
LSP 12 @28 wp 12467-11161-11159-11160.doc
examine the case of each of these Petitioners on its own merits as per
the prevalent rules, regulations, qualifications and all other
governing parameters.
12. Rule is made absolute in terms of these observations and
directions. All the writ petitions stand disposed of as above.
(M.M. SATHAYE, J.) (NITIN JAMDAR, J.)
