Rajasthan High Court - Jodhpur

Kanta Kumari vs State And Ors on 30 January, 2023

Bench: Pushpendra Singh Bhati

[2023/RJJD/002443]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 6704/2015

Anju Shrivastava

----Petitioner Versus State And Ors

----Respondents Connected With S.B. Civil Writ Petition No. 13863/2015 Kanta Kumari

----Petitioner Versus State And Ors..

                                                                  ----Respondents



For Petitioners            :     Mr. Y.P. Khilree
For Respondents            :     Mr. Himanshu Shrimali

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 25/01/2023 Pronounced on 30/01/2023

1. These Civil Writ Petitions have been preferred claiming the

following reliefs:-

In S.B. Civil Writ Petition No. 6704/2015:-

"It is, therefore, respectfully prayed that this writ petition may kindly be allowed and this Hon'ble Court may kindly be allowed and this Hon'ble Court may be pleased to issue appropriate writ, order or direction:

a. the respondents may kindly be directed to given the appointment to the petitioner with all consequences benefits on the post of Ayurved Chikitsak in pursuance of the advertisement dated 01.06.2013 (Annexurre-11).

b. the respondents may kindly be directed to issue or prepare fresh merit list with add the name of the petitioner.

[2023/RJJD/002443] (2 of 7) [CW-6704/2015]

c. any other appropriate writ, order or direction which this Hon'ble Court deems just and proper on the facts and in the circumstances of the case may also be passed in favour of the petitioner with cost of the petition."

In S.B. Civil Writ Petition No. 13863/2015:-

"It is, therefore, respectfully prayed that this writ petition may kindly be allowed and this Hon'ble Court may be pleased to issue appropriate writ, order or direction: a. the respondents may kindly be directed to given the appointment to the petitioner with all consequences benefits on the post of Ayurved Chikitsak in pursuance of the advertisement dated 01.07.2013 (Ann.8) b. the respondents may kindly be also directed to issue or prepare fresh merit list with add the name of the petitioner. c. any other appropriate writ, order or direction which this Hon'ble Court deems just and proper on the facts and in the circumstances of the case may also be passed in favour of the petitioner with cost of the petition."

2. The controversy in both the connected petitions is similar,

and for the purpose of adjudication, S.B. Civil Writ Petition No.

6704/2015 is taken as the lead case and the factual matrix of

the same is being taken.

3. The short controversy that comes up for consideration before

this Court is whether the Rajasthan Ayurvedic, Unani, Homeopathy

and Naturopathy Service Rules, 1973 (hereinafter "Rules of 1973")

is inconsistent with the provisions of law contained in Indian

Medicine Central Council Act, 1970 (hereinafter "Act of 1970") and

if so, which would prevail.

4. It is the contention of the learned counsel for the petitioners

that the petitioners are eligible for the post of 'Rural Ayurvedic

Chikitsak (Women) as per the Act of 1970 but has been incorrectly

held to be ineligible by the respondent no. 2-Department under

the Rules of 1973, and that in such event of inconsistency

[2023/RJJD/002443] (3 of 7) [CW-6704/2015]

between a Central legislation and a State legislation, then the

Central legislation must prevail.

4.1 In this regard, reliance was placed upon the judgment

rendered by the Hon'ble Division Bench of this Court in the case of

Rajasthan Pradesh Vaidya Samiti v. State of Rajasthan And

Anr. 1988 (2) WLN 553.

Relevant portion of the said judgment as relied upon by learned

counsel for the petitioner is reproduced as hereunder:-

"9. ... We have already said that the provisions made under the State Act in respect of registration are clearly repugnant to the provisions of the Central Act and they must give way to the provisions of the Central Act. ..."

5. On the other hand, it is the contention of the learned counsel

for the respondents that there is no inconsistency between the

Central and State legislation, and that it is the prerogative of the

State to prescribe additional eligibility criteria, especially when the

Central legislation does not contain any repealing clause to this

effect.

6. Brief facts of the case as placed before this Court by learned

counsel for the petitioners are that in the year 2003, an

advertisement dated 06.10.2003, was issued by the respondent-

department for appointing 'Ayurved Chikitsak' on temporary as

well as contract basis. And that the petitioner applied for the same

and was selected for the said post on contract basis on

25.05.2004 and issued an appointment letter on 26.05.2004.

6.1 Subsequently, in the year 2008, an advertisement was

issued by the respondent-department on 21.07.2008 inviting

applications for the post of 'Rural Ayurvedic Chikitsak'. That the

[2023/RJJD/002443] (4 of 7) [CW-6704/2015]

petitioner applied for the same, and was duly selected and joined

the duty on 06.06.2009.

6.2 That the said selection came to be challenged before this

Hon'ble Court, at Jaipur Bench, and this Court vide order dated

29.04.2011, set aside the entire select list and directed the

concerned respondents to conduct the entire process afresh, and

in the meanwhile, they were also directed not to disturb the

existing select list, for the said process.

6.3 That in the year 2012, the respondent-department issued an

advertisement dated 01.06.2013 for the post of 'Rural Ayurvedic

Chikitsak' whereby the respondent-department issued the

provisional merit list, wherein the present petitioner's name was

not present.

7. Learned counsel for the petitioners submitted that the

petitioner has been working on the post of 'Rural Ayurvedic

Chikitsak' since 05.06.2009, in pursuance of the selection made

vide advertisement issued 21.07.2008.

7.1 Learned counsel for the petitioners further submitted that

although the respondent-department issued an advertisement on

30.04.2012, in pursuance of the judgment passed by the Hon'ble

Court, at Jaipur Bench on 29.04.2011, and that an interview letter

was issued to that effect on on 07.06.2012, however the

respondent-department has not, till date, issued a fresh selection

list in pursuance of the same, and therefore the prior selection list

dated 02.06.2009 whereby the petitioner was selected is still in

force.

7.2 It is further submitted that, without declaring the result of

the advertisement dated 30.04.2012, the respondent-department

[2023/RJJD/002443] (5 of 7) [CW-6704/2015]

issued a fresh advertisement dated 01.06.2013 and issued a

provisional merit list to that extent, wherein the petitioner's name

was not present.

7.3 It is also submitted that the cut-off percentage for female

candidates was 69.73 and that, despite the petitioner scoring

72.65, her name was not mentioned in the provisional merit list.

7.4 It is further submitted that in S.B. Civil Writ Petition No.

13863/2015, vide order dated 01.07.2015, this Court directed for

one post of 'Ayurvedic Chikitask' to be kept vacant in the selection

process in question. And in S.B. Civil Writ Petition No. 6704/2015,

vide order dated 07.02.2015, this Court directed for one post of

'Ayurvedic Chikitask' to be kept vacant in the selection process in

question.

8. On the other hand, learned counsel for the respondent

submitted that while the petitioner had duly applied for the post of

'Ayurvedic Chikitsak' under the category of 'General

(Women)';upon the verification of the documents submitted by

the present petitioner it was found that she was registered with

Central Council of Indian Medicine on 07.12.2012; whereas as per

terms and conditions mentioned in the advertisement dated

06.01.2013, it was categorically mentioned that the candidate is

required to be registered with the Indian Medicine Board/Council

authorized by the Central Council of Indian Medicine.

8.1 It is further submitted that the petitioners were not eligible

to be selected to the post of 'Ayurvedic Chikitsak' as they were not

registered with the Indian Medical Board of Rajasthan; a pre-

requisite as mentioned in the advertisement issued by the

[2023/RJJD/002443] (6 of 7) [CW-6704/2015]

respondent-department, and under the Rajasthan Indian Medicine

Act, 1953.

8.2 It was also submitted that in order to be eligible, the

petitioners were required to be graduates with a degree in

Ayurveda from a University established by law in India and

recognized under the Indian Medicine Central Council Act, 1970;

as mentioned in the Schedule appended to the Rajasthan

Ayurvedic, Unani, Homeopathy and Naturopathy Service Rules,

1973, and were required to be qualified from an institution

recognized by the Board of Indian Medicine, Rajasthan under the

Rajasthan Indian Medicine Act, 1953.

8.3 it was further submitted that the aforementioned

advertisement was issued in accordance with the provisions of law

contained in the Rajasthan Indian Medicine Act, 1953; the

relevant provision of law being Section 52 of the Act.

For the sake of brevity, the said Section is reproduced hereunder:-

52. Reservation of certain appointments to Vaidyas, etc. who have qualified themselves from educational institutions recognised by the Board. - Except with the special sanction of the State Government, no person, other than a registered Vaidya, Hakim Naturopathy and Yoga Chikitsak or Midwife who has qualified himself or herself from an institution recognised by the Board for the purpose, and is a domiciled resident of Rajasthan, shall be competent to hold an appointment as medical officer of health or as Vaidya, Naturopathy and Yoga Chikitsak Hakim, midwife or other medical officer in an Ayurvedic or Unani Tibbi Naturopathy and Yoga Chikitsak Hospital, infirmary, dispensary, lying in hospital, surgical institution or maternity house maintained by or under the control of the State Government or a local authority: Provided that Vaidyas, Hakims Naturopathy and Yoga Chikitsak and midwives in the employ of the State Government or a local authority on the date on which this Act comes into force shall continue to hold their appointments.

[2023/RJJD/002443] (7 of 7) [CW-6704/2015]

9. In his rejoinder arguments, learned counsel for the

petitioners submitted that the petitioners are duly registered with

the Central Council of Indian Medicine (CCIM), New Delhi and have

been allotted registration numbers accordingly, and are therefore

entitled to practice anywhere in India. And that, the present

petitioners are both eligible, under the Act of 1970.

10. Heard learned counsel for the parties and, perused the

record of the case as well as the judgment cited at the Bar.

11. This Court observes that the advertisement, dated

01.06.2013, (at Annex-11) issued by the State categorically

requires that the candidates must be registered with the Indian

Medicine Board, Rajasthan.

12. This Court further observes that it is not contended that the

petitioners are recognized by and registered with the Central

Council of Indian Medicine, but that the additional criteria as laid

down by the State vide the aforementioned advertisement was not

duly complied with by the petitioners within the stipulated time

frame. Thus, there is no inconsistency between the Central and

the State legislation.

13. This Court thus finds that the case law cited on behalf of the

petitioners does not apply in present factual matrix and thus

renders no assistance to their case.