Page No.# 1/12 vs The State Of Assam And 3 Ors
2025 Latest Caselaw 353 Gua

Gauhati High Court

Page No.# 1/12 vs The State Of Assam And 3 Ors on 8 May, 2025

                                                                Page No.# 1/12

GAHC010242162024




                                                          2025:GAU-AS:5718

                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/6110/2024

         BAIKUNTHA BARMAN
         S/O- LATE DHARANI BARMAN,
         PERMANENT R/O- RANGA TILA, BATAHGHULI,P.O- PANJABARI, DIST-
         KAMRUP (M), ASSAM, PIN-781037

         VERSUS

         THE STATE OF ASSAM AND 3 ORS.
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF
         ASSAM, MEDICAL EDUCATION AND RESEARCH DEPT.
         DISPUR, GUWAHATI- 6.

         2:THE DIRECTOR OF AYUSH
          GOVT. OF ASSAM
          ELYSIAN PALACE
          H.NO-09
          DISPUR LAW COLLEGE ROAD
          DISPUR
          GUWAHATI-06

         3:THE PRINCIPAL
          SWAHID JADAV NATH HOMEOPATHIC MEDICAL COLLEGE AND
         HOSPITAL
          GUWAHATI

         P.O- PANJABARI
          DIST- KAMRUP (M)
         ASSAM
          PIN-781037

         4:DR. MONOJ KUMAR DEKA
          READER AND HEAD OF THE DEPARTMENT
         DEPTT OF MATERIA MEDICA
                                                                  Page No.# 2/12

     SWAHID JADAV NATH HOMEOPATHIC MEDICAL COLLEGE AND HOSPITAL
      GUWAHATI
     P.O- PANJABARI
      DIST- KAMRUP (M)
     ASSAM
      PIN-78103

Advocate for the Petitioner   :   MR. K M HALOI, MRS. BHANITA CHOUDHURY

Advocate for the Respondent :     MR. D. UPAMANYU, SC, HEALTH,
                                  MR. K N CHOUDHURY(R-4)
                                  MR. J PATOWARY(R-4),
                                  MR. N GAUTAM(R-4),
                                  MISS. R R KAKATI (R-4),
                                  MR. K N CHOUDHURY(R-4)




                             BEFORE
                 HONOURABLE MR. JUSTICE KARDAK ETE

                                  JUDGMENT

Date : 08-05-2025

Heard Mr. K. M. Haloi, learned counsel for the petitioner. And also heard Mr. D. Upamanyu, learned Standing Counsel, Health Department, for respondent Nos. 1, 2 & 3, and Mr. K. N. Choudhury, learned Senior Counsel assisted by Ms. R. Kakati, learned counsel, for respondent No. 4.

2. Challenge made in this writ petition is to the notification dated 11.11.2024 issued by the Commissioner and Secretary to the Government of Assam, Medical Education and Research Department, by which, Dr. Manoj Kumar Deka, Reader and HOD, S.J.N Homoeopathic Medical College & Hospital, Guwahati (respondent No.4 herein) has been allowed to work as Vice-Principal of the said College in addition to the works already assigned to him.

3. Briefly put, the petitioner is serving as Professor and HOD, Page No.# 3/12

Department of Organon of Medicine in S.J.N. Homeopathic Medical College and Hospital, Guwahati. Erstwhile Dr. J. K. Saikia Homeopathic Medical College and Hospital, on being amalgamated with the Swahid Jadav Nath College, the college is now known as S.J.N. Homeopathic Medical College and Hospital, Guwahati. The petitioner claims to be the senior most Professor of the said college. The petitioner was initially appointed as a Demonstrator in S.J.N. Homeopathic Medical College and Hospital, Guwahati by order dated 12.05.1995. On the recommendation of the Assam Public Service Commission, the service of the petitioner as a Demonstrator was regularised vide order dated 26.09.2000. Thereafter, the petitioner was promoted to the post of Lecturer and regularised by order dated 08.07.2009 and then to the post of Reader on 06.05.2010. Vide notification bearing No. MER.237232/562 dated 25.01.2023, the petitioner along with four others were promoted to the post of Professor in their respective departments and since then, the petitioner has been servng as Professor in the Department of Organon of Medicine.

4. A Final Gradation List of the faculties of the Homeopathic Medical Colleges of Assam was published on 29.08.2019, wherein, the name of the petitioner appeared at Sl. No. 11 and the name of the respondent No. 4 appeared at Sl. No. 26.

5. It is the contention of the petitioner that the persons from Sl. No. 1 to Sl. No. 7 of the Gradation List have retired from their services and the persons at Sl. Nos. 9 & 10 have expired while they were in service. As such, the position of the petitioner in the Gradation List is now at Sl. No. 2 and the person at Sl. No. 8 of the Gradation List is holding the charge of Principal of the College. Therefore, the petitioner is the senior most Page No.# 4/12

Professor among the faculty members of the said College.

6. The respondent No. 4 is serving as a Reader in the College and in the Gradation List of Readers, the respondent No. 4 is at Sl. No. 4 and no Gradation List for Professors and Lecturers have been published after the year 2019.

7. It is contended that there is a sanction post of Vice-Principal in the S.J.N. Homeopathic Medical College and Hospital, Guwahati. The post of Vice-Principal is a promotional post, which is to be filled up from amongst the post of Professors, particularly, the senior most Professor. In the earlier point of time, the senior most Professor was appointed as the Vice- Principal of the College and one Dr. S. K. Sahoo, the senior most Professor was appointed as the Vice-Principal of the College by order dated 13.04.2010, who has already retired from service. It is further contended that all along, the senior most Professors were allowed to hold the charge of Vice-Principal of the College and last being the order dated 13.06.2013, appointing one Dr. Narayan Debnath as Vice-Principal (i/c) of S.J.N. Homeopathic Medical College and Hospital, Guwahati and on his untimely demise, the post fell vacant.

8. The petitioner contends that he being the senior most Professor, has applied through proper channel vide dated 07.09.2024 for appointment as Vice-Principal in the said College, which was duly forwarded to the competent authority vide letter dated 10.09.2024. However, the respondent authorities vide the impugned notification dated 11.11.2024 has illegally allowed the respondent No. 4 to hold the In-charge Vice- Principal of S.J.N. Homeopathic Medical College and Hospital, Guwahati.

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9. Mr. K. M. Haloi, learned counsel appearing for the petitioner submits that the post of Vice-Principal is a promotional post and has to be filled up by the senior most Professor. Prior to the issuance of the impugned notification dated 11.11.2024, all along the senior most Professor was promoted as the Vice-Principal as per the recommendation of the Departmental Promotion Committee. However, the respondent authorities by the impugned notification dated 11.11.2024 have illegally allowed the respondent No. 4 as Vice-Principal incharge of S.J.N. Homeopathic Medical College and Hospital, who is not eligible to hold the post as he is not serving as a Professor but as a Reader of the college by depriving the petitioner from being promoted to the post of Vice-Principal.

10. Mr. Haloi, learned counsel, submits that no Recruitment Rules have been framed for appointment/promotion to the post of Vice-Principal as on date. However, the Homeopathy Central Council (Minimum Essential Standards for Homeopathic Colleges and Attached Hospitals) Regulations, 2013, provides the essential qualification of teaching faculty including the post of Principal/Director. Although, the post of Vice-Principal is not clearly mentioned, the essential qualification for Principal/Director provides that one must have the post-graduate qualification in Homeopathy and holding a post of not less than the teaching cadre of Professor in a Degree level Homeopathic College for at least two years.

11. He has further referred to the National Commission for Homeopathy (Minimum Essential Standards for Homeopathic Colleges and Attached Hospitals) Regulations, 2024, wherein the qualification for teaching, non- teaching and hospital staff of medical institutions and attached hospitals are provided. It provides the essential qualification for the post of Page No.# 6/12

Principal/Director that one must have recognized post-graduate degree in homeopathy, must hold post of not less than the teaching cadre of Professor in a degree level recognised homeopathic medical institution for a period of not less than two years; or an Associate Professor with recognised post-graduate degree and teaching experience for a period of not less than seven years in the cadre of Associate Professor, must possess experience in administration for a period of not less than three years as Head of Department or medical superintendent or deputy medical superintendent or any other administrative experience and must have published at least three original publications as principal or co-author in an indexed or peer reviewed journals.

12. He submits that although there is no separate recruitment rules for the post of Vice-Principal, in view of the stand taken by the respondent No. 4 in their Affidavit-in-Opposition, to the effect that in respect of appointment of Incharge Vice-Principal of S.J.N Homoeopathic Medical College & Hospital, Guwahati a penal list for appointing a Vice-Principal was prepared and by following the Central Council of Homeopathy Regulation (now National Commission for Homeopathy) for recruitment/commission of faculties in Homeopathic Medical Colleges of Assam, although silent on the matter of qualification or eligibility criteria for the post of Vice-Principal of medical colleges as the Assam Homeopathy Education Services Rules, 2023 is yet to come into effect, the eligibility criteria laid down above, for the post of Vice-Principal shall apply in the absence of clear cut guidelines for appointment to the post of Vice- Principal of Homeopathic Medical Colleges of Assam. The clear stand of the State respondents fortify that for the post of Vice-Principal, a person Page No.# 7/12

must have essential qualification, inter-alia, to be a Professor; whereas, the respondent No. 4 is admittedly serving as a Reader. Therefore, he submits that the appointment of the respondent No. 4 is illegal and as such, the same may be set aside and quashed.

13. Mr. D. Upamanyu, learned Standing Counsel, Health Department submits that in respect of appointment of Incharge Vice-Principal of SJN Homeopathic Medical College and Hospital, Guwahati, a panel list for appointing a Vice-Principal, as sought for by the Medical Education and Research Department and as 'The Assam Homeopathic Education Service Rules, 2023' is yet to come into effect and in absence of the same, the department follows the Central Council of Homeopathy (CCH) Regulations (now National Commission for Homeopathy) for recruitment/promotion of faculties in the Homeopathic Medical Colleges of Assam, which again is silent on the matter of qualification or eligibility criteria for the post of Vice-Principal of Homeopathic Medical Colleges. As such, the penal list was prepared on the basis of the eligibility criteria laid down for the post of Principal in the Central Council of Homeopathy (CCH) Regulations (as amended up to September, 2022), in the absence of clear cut guidelines for appointment to the post of Vice-Principal of Homeopathic Medical Colleges of Assam. Accordingly, the respondent No.4 was allowed to hold the charge of Vice-Principal.

14. Mr. K. N. Choudhury, learned Senior Counsel for the respondent No. 4, while referring to the National Commission for Homeopathy (Minimum Essential Standards for Homeopathic Colleges and Attached Hospitals) Regulations, 2024, submits that the promotion or transfer of the existing teacher from one institution to another shall be as per the regulation Page No.# 8/12

effective at the time of his/her appointment. He further refers to the Homeopathy (Minimum Standards of Education) Regulations, 1983 (As Amended up to September, 2002) and submits that the qualification for teaching staff of Homeopathic colleges, more particularly for the post of Principal, prescribes that a person must have a post graduate qualification in Homeopathy and holding a post as Professor/Reader in a degree level homeopathic college for 2 years or a degree in homeopathy with six years teaching experience as Professor/Reader in a homeopathic college. Therefore, he submits that although the petitioner is serving as Reader and a HOD, he is equally eligible to be appointed as a Vice-Principal of the Homeopathic College in terms of the above regulations, as the respondent was appointed at the time when the said regulation was in effect. As such, there is no illegality in allowing the respondent No. 4 to hold the post of Incharge Vice-Principal at the S.J.N Homoeopathic Medical College & Hospital, Guwahati. More so, the appointment is a temporary one and not a regular appointment.

15. I have considered the submissions advanced by the learned counsel for the parties and also perused the available records, including the Homeopathy Central Council (Minimum Essential Standards for Homeopathic Colleges and Attached Hospitals) Regulations, 2013; National Commission for Homeopathy (Minimum Essential Standards for Homeopathic Colleges and Attached Hospitals) Regulations, 2024 and Homeopathy (Minimum Standards of Education) Regulations, 1983 (As Amended up to September, 2002).

16. Admittedly, the petitioner is serving as a Professor in the S.J.N Homoeopathic Medical College & Hospital, Guwahati and the respondent Page No.# 9/12

No. 4 is serving as a Reader in the said College. There is no recruitment rule which regulates the appointment/promotion to the post of Vice- Principal of the Homeopathic Colleges in the State of Assam. The Regulations (Supra) of 1983, 2013 or 2024 provides for the essential qualification for the post of Principal or Director.

17. The essential qualification for the post of Principal, reflects, inter- alia, that one must hold the post of not less than a teaching cadre of Professor in Degree Level recognized by Homeopathic Medical Institution for a period of not less than 2 years or an Associate Professor with recognised post-graduate degree and teaching experience for a period of not less than seven years in the cadre of Associate Professor as per the National Commission for Homeopathy (Minimum Essential Standards for Homeopathic Colleges and Attached Hospitals) Regulations, 2024. The Homeopathy Central Council (Minimum Standards Requirement of Homeopathic Colleges and Attached Hospitals) Regulations, 2013, provides that one must have post-graduate qualification in Homeopathy and holding a post of not less than the teaching cadre of Professor in a Degree level Homeopathic College for at least two years. The Homeopathy (Minimum Standards of Education) Regulations, 1983 (As Amended up to September, 2002) provides that one must have post graduate qualification in Homeopathy and holding a post as Professor/Reader in a degree level homeopathic college for 2 years or a degree in homeopathy with six years teaching experience as Professor/ Reader in a homeopathic college.

18. It is noted that the Homeopathy Central Council (Minimum Standards Requirement of Homeopathic Colleges and Attached Hospitals) Regulations, 2013 has been framed under Clause (j) of Section 33 of the Page No.# 10/12

Homeopathy Central Council Act, 1973 in supersession of the Homeopathy (Minimum Standards of Education) Regulations, 1983 and the National Commission for Homeopathy (Minimum Essential Standards for Homeopathic Colleges and Attached Hospitals) Regulations, 2024 has been framed in supersession of the Homeopathy Central Council (Minimum Standards Requirement of Homeopathic Colleges and Attached Hospitals) Regulations, 2013. Therefore, the relevant provisions for regulating the various post of faculties in the Homeopathic Colleges would be The National Commission for Homeopathy (Minimum Essential Standards for Homeopathic Colleges and Attached Hospitals) Regulations, 2024, wherein the essential qualification for appointment/promotion to different posts including the post of Principal which would be a person serving as a Professor holding a post of not less than the teaching cadre of Professor in a degree level recognised homeopathic medical institution for a period of not less than two years; or an Associate Professor with recognised post- graduate degree and teaching experience for a period of not less than seven years in the cadre of Associate Professor.

19. The petitioner was promoted as Professor by notification dated 25.01.2023 in the Department of Organon of Medicine in S.J.N Homoeopathic Medical College & Hospital, and the respondent No. 4 admittedly is serving as a Reader. Thus, it appears that the petitioner is eligible to be appointed/promoted to the post of Vice-Principal, as per the provisions of the National Commission for Homeopathy (Minimum Essential Standards for Homeopathic Colleges and Attached Hospitals) Regulations, 2024 for the post of Vice-Principal if it is applied for filling up Page No.# 11/12

the post of Vice-Principal by now; even though, at the relevant point of time, when the impugned notification was issued on 11.11.2024, he too was not eligible. On the other hand, the respondent No. 4 would not eligible to be appointed as Vice-Principal as he is serving as a Reader, if the provisions of the National Commission for Homeopathy (Minimum Essential Standards for Homeopathic Colleges and Attached Hospitals) Regulations, 2024 is applied for the post of Vice-Principal.

20. The State respondents have categorically stated that a penal list was prepared on the basis of the eligibility criteria laid down for the post of Principal in Central Council of Homeopathy (CCH) Regulations (as amended up to September, 2022), in view of the fact that the Assam Homeopathy Education Services Rules, 2023 has not come into effect. It is further stated that in the absence of clearcut guidelines for appointment to the post of Vice-Principal of Homeopathic Medical Colleges of Assam, a penal list was prepared on the basis of the eligibility criteria laid down in the above regulations.

21. Having considered the stand of the State respondents, I am of the considered view that if the regulation does not provide for a provision regulating the appointment/promotion of the post of Vice-Principal in the Homeopathic Medical Colleges; in view of the existence of Draft Rules, i.e. the Assam Homeopathic Education Service Rules, 2023, the provisions therein can be resorted to for appointment of Vice-Principal of Homeopathic Medical Colleges.

22. Having considered that the respondent No. 4 is not eligible to be promoted to the post of Vice-Principal in the Homeopathic Medical College and considering that there is a Draft Rule, i.e. the Assam Homeopathic Page No.# 12/12

Education Service Rules, 2023 and the respondent No. 4 is currently serving as a Reader, I am of the considered view that the appointment of the respondent No. 4 as Vice-Principal, even though as an Incharge for a temporary period, would not be sustainable, as even for temporary appointment, one must be eligible and the petitioner, by now, has become eligible for the post. Thus, the appointment of the respondent No. 4 to the post of Incharge Vice-Principal' is not sustainable and accordingly, the impugned notification dated 11.11.2024, issued by the Commissioner and Secretary to the Government of Assam, Medical Education and Research Department, is hereby set aside and quashed.

23. Consequently, it is directed that the respondent authorities shall fill up the post of Vice-Principal of the S.J.N. Homeopathic Medical College and Hospital, Guwahati on regular basis by following the rules i.e. either the Draft Rules, 2023 or the aforementioned Regulation, 2024 whichever is applicable, within a period of 4 (four) months from today. However, it is provided that the respondent No. 4 shall be allowed to continue to hold the post of Incharge Vice-Principal of the S.J.N. Homeopathic Medical College and Hospital, Guwahati, till the post is filled up on regular basis.

24. Writ petition stands disposed of accordingly. No order as to costs.

JUDGE

Comparing Assistant