Central Administrative Tribunal - Delhi
Dr. Rajni Sushma vs Govt. Of Nct Of Delhi on 19 February, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.1643/2013 Order reserved on: 07.10.2013 Pronounced on:19.02.2014. Honble Shri V. Ajay Kumar, Member (J) Honble Shri V.N. Gaur, Member (A) Dr. Rajni Sushma, W/o Dr. Y.K. Saini, R/o A-27, Tibbia College Campus, Azmal Khan Road, Karol Bagh, New Delhi-5. -Applicant (By Advocate Shri Ajesh Luthra) -Versus- 1. Govt. of NCT of Delhi, Through the Chief Secretary, 5th Floor, Delhi Sachivalya, New Delhi. 2. The Principal Secretary Health & Family Welfare, GNCT of Delhi, 9th Level, A Wing, Delhi Secretariat, New Delhi. 3. The Director, Directorate of Indian System of Homeopathy and Medicines, GNCT of Delhi, A&U Tibbia College, Karol Bagh, New Delhi. 4. The Lt. Governor, GNCT of Delhi, Raj Niwas Marg, Rajpur Road, Delhi. 5. Union Public Service Commission, Through its Chairman, Dholpur House, Shahjahan Road, New Delhi-110001. -Respondents. (By Advocate: Shri Amit Anand) O R D E R Mr. V.N. Gaur, Member (A):
The applicant has made the following prayers in this OA:
(i) quash and set aside the notification dated 3.5.2013 published in the gazette.
(ii) direct the respondents to consider and incorporate the CCIM prescribed norms regarding non-applicability of requirement of possessing postgraduate qualification in the matter of appointment/promotion of teaching staff appointed prior to 1.7.1989 in the Delhi Health Service Teaching Cadre of Indian System of Medicine (Ayurved and Unani) Rules, 2013, especially to the duty post of Principal in A&U Tibbia College mentioned in schedule III of the said rules and then issue a fresh notification.
(iii) consequently consider and designate/appoint the applicant as Principal, Tibbia College with all consequential benefits.
2. The applicant joined the Ayurvedic and Unani (A&U) Tibbia College as Demonstrator on 19.06.1978, promoted as Lecturer in the year 1992, Reader in the year 1996 and then re-designated as Professor in the year 2011. According to the Central Council of Indian Medicine (CCIM), a body constituted under Section 03 of the Indian Medicine Central Council Act, 1970 post graduation qualification is required in the specified discipline for appointment to the posts of Lecturer, Reader, Professor and Principal. This stipulation of having post graduation degree was introduced by the CCIM through Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) Amendment Regulation, 1986 dated 13.07.1989. Prior to the year 1989, possession of a postgraduate qualification was not compulsory. The A&U Tibbia college was taken over by the Govt. of CNT of Delhi in the year 1998 and since then the same conditions of the staff of the college are regulated by the Rules notified by the Govt. of NCT of Delhi. The State Government had formulated Delhi Health Services Teaching Cadre of Indian System of Medicine (Ayurved & Unani) Rules, 2013, which does not contain any stipulation of granting exemption from postgraduate qualification for the pre-1989 appointees in the teaching cadre for the purpose of promotion to the higher posts. The applicant has filed this OA on 03.05.2013 with a prayer to stop the publication of aforementioned rules and direct the respondents to make these rules conforming to the CCIM Regulations of 2012, which according to the applicant, contains a relaxation clause in respect of pre-1989 appointees. Later at some stage it was revealed that the Govt. of NCT of Delhi had already published the aforementioned rules in the gazette notification. Accordingly, the applicant has filed the amended OA with the prayers mentioned in para-1 above.
3. The learned counsel for the applicant submits that the applicant was appointed at a time when there was no provision for postgraduate qualification in the rules for appointment to the post of Lecturer etc. Though the applicant was appointed as a Demonstrator, she was promoted to the post of Lecturer in the year 1992 and to the post of Reader in the year 1996 and to the post of Professor in the year 2011 despite the fact that the essential qualification for these posts according to the 1989 Regulations of CCIM, requires a candidate to possess postgraduate degree. This clearly showed that the department had not been insisting on post graduation qualification for the staff appointed prior to 1989. The applicant is now the senior-most in the seniority list and eligible for consideration for appointment to the post of Principal which is at present vacant. The respondents have, however, promulgated the 2013 Rules where they have not provided for relaxation for the teaching staff appointed prior to 1989. On the other hand, CCIM, which is a statutory body constituted under the act of Parliament for the purpose of providing guidance and control of Ayurvedic Education in the whole country and the Rules and Regulations framed by it are binding on all the States, has provided for such relaxation in the Regulations notified in 2012, the learned counsel submitted. Therefore, the respondents cannot make Rules that are not in-conformity with the provisions contained in the CCIM Rules and Regulations. He also pointed out that CCIM in its letter dated 04.09.2008 addressed to all State Governments had clarified that postgraduate qualification shall not be an essential qualification for appointment/ promotion for the Teachers appointed before 01.07.1989.
4. The learned counsel for the respondents on the other hand questioned the submissions made by the applicant in the OA as well as through the learned counsel that she was the senior-most for consideration for appointment to the post of Principal. He pointed out that according to the seniority list enclosed by the applicant her name figures at serial no.4. He also referred to the order dated 08.09.2011 annexed to the OA pointing out that the applicant had not been promoted to the post of Professor as yet. According to the office order dated 08.09.2011 the applicant along with 11 others were re-designated as Professor in their existing pay scales without any extra remuneration for a period of one year or till filling up of the posts by the Government or till further orders whichever is earlier. This re-designation will confer no claim on the concerned faculty members for seeking promotion (whether ACP or otherwise) or for regular appointments. The learned counsel, therefore, questioned the very claim of the applicant for the post of Principal. With regard to the Rules notified by the respondents the learned counsel submitted that the CCIM notification dated 25.04.2012 in Rule 12 contained the following provision regarding qualification and experience for teaching staff for UG Teachers:
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/specialty 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.
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:-
Specialty required Name of the allied subject
1. Swastha Vritta 1. Kayachikitsa
2. Agadtanta 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. Bairoga 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 post on the basis of previous Regulations shall not be considered ineligible on the basis of amendment.
5. According to the learned counsel the provisions contained in the Note shown above referred only to the specialty mentioned in the table and did not refer to appointments made in general and, therefore, it cannot be said that appointees of pre-1989 are exempted from having postgraduate degree for the purpose of promotion. Therefore, there was no conflict between the provision of the CCIM Regulations of 2012 and the Rules made by the respondents.
6. The learned counsel referred to the judgment of the Honble High Court of Madhya Pradesh dated 09.11.2009, Writ Petition (Civil) No.4529/2005 in the matter of All India Ayurvedic Specialists (P.G.) Association v. The State of Madhya Pradesh and others stating that the Honble High Court had already settled the principle that prescribing higher qualification at a later stage for promotion did not violate the rights of a candidate appointed prior to notification of such provision. He further submitted that according to that judgment while the appointments or promotions given prior to 1989 cannot be taken away for future adherence to the notification laid down in 1989 Regulations shall be mandatory. According to the learned counsel the respondents were empowered to make the Recruitment Rules (RRs) under Article 309 of the Constitution of India and the RRs cannot be questioned. The learned counsel relied on the following judgments:
i) State of Jammu & Kashmir vs Triloki Nath Khosa & Ors., AIR 1974 SC 1, where it was held:
Though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could for purposes of promotion to the cadre of Executive Engineers be classified on the basis of educational qualifications. The rule providing that graduates shall be eligible for such promotion to the exclusion of diploma holders does not violate articles 14 and 16 of the Constitution.
ii) R.S.E.B. Accountants v. Rajasthan State Electricity, 1995 (3) WLC 1, where new set of criteria for promotion to the post of Assistant Accounts Officer etc. was introduced through Regulations in 1974 while the criteria for promotion was different prior to making these Regulations. Accordingly the question arose whether promulgation of 1974 Regulations was violative of the provisions of Articles 14 and 16 of the Constitution. In this context the Honble Supreme Court held as follows:
As per the decisions of this Court the position is well settled that educational qualifications can be made the basis for classification of employees in State service in the matter of pay scale to employees possessing higher qualifications have been upheld as valid by this Court. [See; State of Mysore & Anr. vs. P. Narasing Rao, 1968 (1) SCR 407 , and V.Markendeya & Ors. vs State of Andhra Pradesh & Ors. 1989 (3) SCC 191). Similarly in the matter of promotion classification on the basis of educational qualifications so as to deny eligibility for promotion to a higher post to an employee possessing lesser qualification or require longer experience for those possessing lesser qualifications has been upheld as valid by this Court. In Triloki Nath Khosa [supra], this Court has upheld the provisions of the Jammu & Kashmir Engineering (Gazetted) Service Recruitment Rules, 1970 Whereby eligibility for promotion to the post of Executive Engineers was confined to Assistant Engineers who possessed a degree in Engineering and Assistant Engineers, who were diploma holders, were ineligible for such promotion. The said provision was upheld on the ground that it was made with a view to achieving administrative efficiency in the engineering service. On behalf of the diplomaholder Assistant Engineers it was urged that degreeholders (direct recruits) and diplomaholders (promotees), having been appointed as Assistant Engineers on equal terms they constitute an integrated class and for purposes of promotion they cannot be classified on the basis of educational qualifications. Rejecting the said contention it was held that though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could, for purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications.
iii) Viney Kumar Gupta and Ors. v. Pankaj Kumar and Ors., LPASW no.32 of 2009, decided on 14.12.2012, where the Honble High Court of Jammu and Kashmir has upheld the allocation of marks for higher qualification for selection for the post of Junior Engineer in Military Engineering Service.
iv) Budhan Choudhry and others v. The State of Bihar, AIR 1955 SC 191, where the Honble Supreme Court has held that it is well-settled that while Article 14 of the Constitution forbids class legislation, it does not forbid reasonable classification for the purpose of legislation and has set out the following tests of permissible classification:
(i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and,
(ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely geographical, or according to objects or occupations or the like. What is necessary is that there must be nexus between the basis of classification and the object of the Act under consideration. Further Article 14 condemn,,; discrimination not only by a substantive law but also by a law of procedure.
v) Dharam Dutt and others v. Union of India and others, (2004) 1 SCC 712, wherein the Honble Supreme Court held that if legislature was competent to enact, its motive, whether bona fide or mala fide, not relevant.
7. In rejoinder, the learned counsel for the applicant clarified that the applicant was indeed practically senior-most in the seniority list as the first person in the combined seniority list published on 04.06.2013 had already retired on 30.06.2013, the next one Dr. Kamal Kishore Sijoria had completed 62 years of age and, therefore, would not be eligible to work as Principal. Dr. Syed Mohd. Akbar Rizvi at serial no.3 belonged to Unani Medicine stream and was appointed as Reader on the same date as the applicant. He also pointed out that at Ayurveda side the DPCs have not been held regularly causing delay in granting promotion to the staff and consequently affecting their inter-se-seniority. Counting from the time both the applicant and Dr. Rizvi joined as Demonstrator, the applicant would be senior because she joined as Demonstrator on 19.06.1978 while Dr. Rizvi on 22.06.1978.
8. We have considered the submissions made by both the sides in the written pleadings and during oral arguments. The first issue that needs to be addressed is whether there exists a provision for relaxing the postgraduate qualification in respect of 1989 appointees. The CCIM Regulations of 2012 provide a Note below Regulation-12 regarding qualification and experience for teaching staff for UG teachers as follows:
(b) The teacher(s) who had been considered eligible in the post on the basis of previous Regulations shall not be considered ineligible on the basis of amendment. According to the applicant it refers to the provision of 12 (i)(b) that stipulates that a Post-graduate qualification for the post of teaching staff. The respondents, on the other hand, have argued that this refers only to the table in the Note below which this has been mentioned. A plain reading of the aforementioned note would indicate that the words teacher(s) who had been considered eligible in the past on the basis of previous Regulations is related to the words the candidates of the following subjects as mentioned against them shall be eligible for the post of Lecturer/Assistant Professor mentioned above the Table. The clause (a) below the table limits the applicability of this relaxation only for 05 years and clause (b) exempts earlier decision with regard to eligibility in respect of Specialty required. The clauses (a) and (b) below the Table are, therefore, linked to the provisions contained in the Note and the Table in it. We do not agree with the submission of the learned counsel for the applicant that the CCIM Regulations of 2012 contains a provision that would exempt the pre-1989 appointees from possessing postgraduate qualification for promotion to higher posts. As a corollary, we also do not find the Rules framed by the respondents and notified in 2013 to be inconsistent with the provisions of CCIM Regulations of 2012. The learned counsel of applicant has also drawn our attention to the notification issued by the CCIM on 24.05.2013 in respect of Unani stream where there is a specific provision that Teachers appointed and working in recognized Unani colleges prior to this notification shall be eligible for appointment or promotion for the post of Professor, Associate Professor (Reader) and Assistant Professor (Lecturer) in the respective discipline without post-graduate qualification. This provision does put a question mark on the CCIM Regulations, 2012 in respect of Ayurveda stream. The CCIM should examine whether the logic and reasons behind the exemption clause in the Regulations for the Unani stream would be applicable to Ayurveda stream as well.
9. With regard to the judgment of Honble High Court of Madhya Pradesh (supra) we are of the view that the principle laid down in that judgment is that the Regulations made by CCIM have the force of law and if there is any conflict between the Rules framed by the State Government and the CCIM Regulations, the latter will prevail. In this case since we do not find any conflict between the two, no further discussion on this issue is required.
10. It may also been added that the postgraduate qualification is not the only hurdle that the applicant faces in the way of consideration of her candidature for the post of Principal. It is noted, as pointed out by the learned counsel for the respondents, that the applicant has been only re-designated as Professor and has not been promoted to that post following the due procedure. According to the Schedule-III of the Rules, 2013 notified by the respondents, the selection and the minimum qualifying service for promotion is as follows:
Senior most Professor of Ayurveda/Unani Tibbia college having postgraduate qualification as included in the schedule to Indian Medicine Central Council Act, 1970 will be designated as Principal.
11. Thus for the post of Principal the applicant has to fulfill the conditions of (i) senior-most, (ii) Professor and (iii) postgraduate qualification. Even if the applicant crosses the hurdles of postgraduate qualification and seniority, the applicant will still not be eligible for the post of Principal as she is yet to be promoted as Professor. Redesignation cannot be equivalent to promotion.
12. Taking into account the aforementioned facts and circumstances, we do not find any merit in this OA and the same is accordingly dismissed. No costs.
(V.N. Gaur ) (V. Ajay Kumar ) Member (A) Member (J) San.