Dr. Alok Kumar Srivastava vs Uttarakhand Ayurved University & ...
2022 Latest Caselaw 1875 UK

        IN THE HIGH COURT OF UTTARAKHAND
                   AT NAINITAL

               Writ Petition No. 272 of 2021 (S/B)

Dr. Alok Kumar Srivastava                             .....Petitioner
                         Versus
Uttarakhand Ayurved University & Ors.                  .....Respondents


Present:
      Mr. Pradeep Kumar Chauhan, the learned counsel for the
      petitioner.
      Mr. Suyash Pant, the learned counsel for respondent no. 1.
      Mr. Anil Bisht, Addl. C.S.C. for the State-respondent no. 3.

                   Date of order and hearing: 28.06.2022
Coram:        Sri Sanjaya Kumar, ACJ.
              Sri Alok Kumar Verma, J.

Upon hearing the learned counsel for the parties, this Court made the following judgment: (Per: Sri S.K.Mishra, ACJ.)

This is an application (MCC No. 2 of 2021) for clarification of the order passed by the Division Bench of this Court headed by the then Chief Justice on 05.08.2021, whereby the writ application was disposed of after recording the statement of Mr. Suyash Pant, the learned counsel for respondent no. 1 to the effect that there are four sanctioned posts for Professor in the Department of Panchkarma and out of the said four posts, two posts are for promotion, and two for direct recruitment. He has further submitted that one promotional post is already occupied. However, the second post for promotion is lying vacant. It was also submitted by Mr. Suyash Pant that against this very post, the name of the petitioner is being considered for granting promotion. Two posts which were for direct recruitment, have been advertised by the impugned advertisement. Therefore, according to the learned counsel, the University is justified in advertising the two

posts for direct recruitment. By the impugned advertisement, the civil and fundamental rights of the petitioner are not adversely affected. Mr. P.K. Chauhan, the learned counsel for the petitioner requested that the concession made by the learned counsel for the University, namely, Mr. Suyash Pant should be recorded. The Co-ordinate Bench recorded the submissions made and disposed of the writ petition holding that petitioner's case is under consideration against the one vacant promotional post, no further direction needs to be issued by this Court.

2. However, this application has been filed by the University on the ground that though there are four posts, one post is reserved to be filled up by promotion and three posts are for direct recruitment. Hence, they prayed in the application to modify para 4 of the judgment and order dated 05.04.2021; and pass such further orders or directions which the Court may deem fit and proper. The basis of such prayer is appearing in the letter dated 18.08.2021 issued by the Registrar, Uttarakhand Ayurveda University, which is annexure 2 to the modification application. The modification application does not contain any specific averment about any Rule or any Scheme of appointment of the Professor through direct recruitment and by promotion in the ratio of 3:1. In the petition they have not mentioned any specific practice also.

3. Mr. P.K. Chauhan, the learned counsel for the petitioner, on the other hand would draw attention of the Court to the provisions of the Uttarakhand Ayush (Ayurvedic Collages Teachers) Services Rules, 2011, especially Rule 5 appearing in Part III which lays down principles regarding source of recruitment. It provides for the service for recruitment of Professor. Clause (b) reads as follows:-

"5. Recruitment to the various categories of posts in the service shall be made from following sources-

(a) xxxxxxx

(b) Professor-

(i) 50% by direct recruitment through the Commission.

(ii) 50% by promotion through the Commission from amongst such substantively appointed Readers as have completed at least six years continuous satisfactory service.

(c) xxxxxxx."

4. Thus, it is apparent that for the posts of Professor, to be advertised in Government Ayurveda Collages in the State of Uttarakhand, the source of recruitment is direct or through promotion in the ratio of 50% from each.

5. Thus, we are of the opinion that even though, the learned counsel for respondent no. 1 who has filed this application for modification is instructed that he has made factually wrong submission before this Court on

the basis of which the order sought to be modified was passed, in fact, is not in error as per the prevailing law.

6. In that view of the matter, we are not inclined to modify the order passed by the Co-ordinate Bench. The order passed by the Co-ordinate Bench, though it may not be acceptable to respondent no.1, it is in accordance with law, and, therefore, we direct that case of the petitioner be considered for promotion by the respondent no. 1 within a reasonable time period.

7. The modification application stands dismissed.

Certified copy of the order be provided as per Rules.

(Sanjaya Kumar Mishra, ACJ.)

(Alok Kumar Verma, J.)

PV