Madhya Pradesh High Court
The State Of M.P. And Ors. vs Dr. Purushottam Dwivedi And Ors. on 1 July, 1999
Equivalent citations: 2000(1)MPHT173
Author: A.K. Mathur
Bench: A.K. Mathur
ORDER S.K. Kulshrestha, J.
1. The above Writ Petitions challenge the common order dated 7-05-1997 passed by the Madhya Pradesh Administrative Tribunal in the Transferred Application No. 519/88 (Chhoteylal Sharma v. Director, Bharatiya Chikilsa Paddhati Avam Homeopathy, Bhopal and Ors.) and the connected petitions, by which the Tribunal has directed the review of the absorption of the applicants before the Tribunal in accordance with the directions/guidelines laid down by the Tribunal.
2. The facts aptly narrated by the Tribunal and not disputed before us read thus:--
(i) The applicants before the Tribunal were all Vaidyas who were in charge of the Ayurved dispensaries run by the Janpad Panchayat in the rural areas. All these applicants were appointed by the erstwhile Janpad Sabhas which were local bodies at the Tahsil level constituted under the provisions of C.P. & Berar local Government Act, 1948. These Janpad Sabhas were abolished sometimes in the year 1972 and in their place Janpad Panchayats were constituted at the Block Level. The Ayurved dispensaries along with the staff including the Vaidyas run by the Janpad Sabhas were transferred to the Janpad Panchayats. The staff so transferred were absorbed in the Janpad Panchayats. The Janpad Panchayats having limited financial resources were not able to disburse the salaries to their staff and there were quite apparently great deal of difficulties in the functioning of the Ayurved dispensaries under their control. The question of taking over of these dispensaries by the Government and the absorption of the staff working in these dispensaries, namely, Vaidyas, Compounders, Vaccinators, Aushadhalaya Sewaks, etc. was considered in a meeting held by the Chief Secretary, Government of Madhya Pradesh on 7th May, 1980. In this meeting it was pointed out by the representatives of the Panchayat Department under which the Janpad Panchayats functioned, that the question of absorption of 489 Vaidyas apart from other staff in the Public Health & Family Welfare Department, 'Health Department' for short, was to be considered. It was pointed out in the meeting that the Janpad Panchayats had no resources to run the health services and that the running of such services was also not a part of their functions. After considering the objections/problems posed in the meeting it was observed that the problem had to be tackled on a humanitarian basis that the employees of the Janpad Panchayats did not get their salary/wages for months, which was a matter of adverse criticism for the Government and further that it would not be proper to discharge such employees as they have put in long years of serviced It was, therefore, inter-alia decided that the said employees including the Vaidyas may be absorbed in the Health Department after relaxation of the age limit and educational qualifications. It was also decided that in case the Vaidyas etc. did not possess the appropriate qualifications required for the post under Health Department then such employees may be absorbed on lower posts and it was also decided that all the Ayurved dispensaries being run by the Janpad Panchayats shall be transferred to the control of the Health Department.
(ii) The above decision of the Govt. was communicated by the Panchayat Department to the Secretary, Health Department vide letter No. 2308/2319/22/Pan./80, dated 3rd June, 1980. Accordingly action to transfer the Ayurved dispensaries to the Health Department and the absorption of the staff posted in those dispensaries in the Government service was initiated. In the first instalment 100 dispensaries were taken over in the year 1981 vide order dated 23-3-1981 w.e.f. 1-4-1981. Thereafter 104 Ayurved dispensaries were taken over by the Government vide its order dated 27th January, 1987; thereafter another 154 dispensaries were taken over vide its order dated 30th March, 1988 and lastly another 126 dispensaries were taken over vide order dated 31-3-1989. The terms and conditions and the procedure to be adopted for absorbing the employees were laid down when the first 100 dispensaries were taken over. These included the setting up of a Screening Committee to screen the persons for absorbing them on appropriate/equivalent posts in the Government. The same procedure was also adopted in the case of the absorption of the staff of the dispensaries subsequently taken over by the Government. The Screening Committee met and recommended the absorption of the different Vaidyas on the posts of Ayurved Chikitsa Adhikaris or Ayurved Sahayak Chikitsa Adhikari depending upon the qualifications possessed by the person concerned. Two categories of Vaidyas i.e., Grade I & II existed both under the erstwhile Janpad Sabhas/Janpad Panchayats and the Government and two scales of pay existed in which these two categories of Vaidyas were placed/paid. In the erstwhile State of Madhya Pradesh prior to the integration of States certain qualifications were laid down for Vaidyas to be eligible for appointment as Grade I Vaidya. These are contained in the enclosure to the letter of the Government of Madhya Pradesh dated 1-6-1967 addressed to all Collectors. It seems that there was no stipulation at this time that a Degree in Ayurved medicines was necessary for appointment as a Vaidya Grade I. In 1971, however, vide letter dated 8th January, 1971 the Government appears to have made a stipulation for its Vaidyas that Vaidyas who are Graduates would be given the higher scale of pay. In other words, Vaidyas who were not Graduates were to be given a lower scale of pay. Thus Vaidyas who were Graduates were to be designated as Grade I and they were to get the higher pay scale and Vaidyas of Grade II who were not Graduates were placed in a lower scale of pay. Till this date Vaidyas of both the grades were treated as Class III employees. In 1972, however, vide order No. 283/4713/17/Med. 4; dated 17-1-1972 Vaidyas of Grade I were declared Class II Gazetted Officers. The designations however still remained as Vaidya Grade I and Vaidya Grade II. In the year 1975 vide orders dated 15th March/April 1975, Government prescribed/listed out the Degrees recognised for appointment of Grade I Vaidya and the qualifications for Grade II Vaidyas. By this order apparently the earlier qualifications which were prescribed for Vaidya Grade I were superseded. In other words, the qualifications which were enclosed with the letter dated 1-6-1967 referred to above no longer held good for appointment as Grade I Vaidya. The qualifications prescribed in 1975 appear to have held the field thereafter: The designations of Vaidya Grade I and Grade II were changed in the year 1978 by Government vide its order dated 6th February, 1978. The designation of Vaidya Grade I was changed to that of Ayurved Chikitsa Adhikari, which as already noted above, had been declared to be a Class II Gazetted post and the designation of Vaidya Grade II was changed to Ayurved Sahayak Chikitsa Adhikari which remained as Class III post.
(iii) There appear to have existed no recruitment rules under Article 309 of the Constitution for appointment of Ayurved Sahayak Chikitsa Adhikari or Ayurved Chikitsa Adhikari till the years 1987 and 1988. Therefore, prior to the framing of the rules the field was held by executive instructions and in particular the qualifications prescribed vide order of the Government dated 15th March/April, 1975 remained in force. According to the respondents the qualifications prescribed by this order of the Government were incorporated in the rules framed in the years 1987 and 1988.
(iv) The Public Health (Indian Systems of Medicines & Homeopathy) (Gazetted Service) Recruitment Rules, 1987 were notified on 11th May, 1988. The post of the Ayurved Chikitsa Adhikari being a Class II Gazetted post was covered by these rules. These rules still hold the field. The qualifications prescribed for appointment to this post are a 5 year Degree in Ayurved from a recognised University or Board and registration with Ayurved Board established by the Government. Sixty percent of the posts are required to be filled in by direct recruitment and the remaining 40 percent by promotion of Ayurved Sahayak Chikitsa Adhikaris. The conditions of eligibility for promotion are laid down in Rule 14 of those rules. The condition of eligibility for promotion to the post of Ayurved Chikitsa Adhikari from the post of Ayurved Sahayak Chikitsa Adhikari is that an Ayurved Sahayak Chikitsa Adhikari should have put in a minimum of five years of service on the first day of January in which his case is considered for promotion. There is no condition incorporated in Rule 14 that Ayurved Sahayak Chikitsa Adhikaris should possess the same educational qualifications as are required for appointment of Ayurved Chikitsa Adhikaris by way of direct recruitment.
(v) The recruitment to the post of Ayurved Sahayak Chikitsa Adhikari is governed by the Madhya Pradesh Public Health (Indian Systems of Medicines & Homeopathy) Class III Ministerial and Non-Ministerial Service Recruitment Rules, 1987 notified on 18th of May, 1987. According to these Rules, the post of Ayurved Sahayak Chikitsa Adhikari is required to be filled up by direct recruitment to the extent of 60 percent and by promotion to the extent of 40 percent. The promotion to this post is from amongst Compounders. The minimum qualifications prescribed for the direct recruitment to the post of Ayurved Sahayak Chikitsa Adhikari is L.A.P. Bhisgacharya and Ayurvedacharya with B.A. Part I. There appears to have been no classification as such of the Vaidyas working under the Janpad Sabhas/Janpad Panchayats into Grade I or Grade II. There was no point to point parity in terms of time between the pay scale allowed to the Janpad Sabhas/Janpad Panchayat Vaidyas and the pay scales allowed to Vaidyas working under the Government who were sanctioned pay scales in accordance with the recommendations of the different Pay Commissions from time to time. The scales to Janpad Sabha/Janpad Panchayat Vaidyas were released by the respective Janpad Sabhas/Panchayats looking to their financial position from different dates. Vaidyas holding the qualifications enclosed with the Government letter dated 1-6-1967 already referred to above and Senior Vaidyas appear to have been given the scale of pay applicable to Grade I Government Vaidyas. The designations of the Vaidyas were also not changed when the designations of Government Vaidyas were changed in the year 1978. There was obviously no question of classifying the Vaidyas into Class II and Class III posts as was done by the Government in the year 1972 and no such classification was made for Janpad Sabha/Janpad Panchayat employees. Some of these Vaidyas possessed the Degree qualification whereas others did not. In other words, some of the Vaidyas possessed the qualifications required for appointment as Grade I Vaidya which post was re-designated as Ayurved Sahayak Chikitsa Adhikari, in terms of the Government order dated 15th March/April, 1975 and the others possessed only the Non-Degree qualification prescribed for the post of Grade II Government Vaidya which was re-designated as Ayurved Sahayak Chikitsa Adhikari, in terms of the said order of 1975. This was the position obtaining on the eve of the taking over of the first 100 Ayurved dispensaries and the absorption of staff working therein on 1-4-1981."
3. The applicants before the Tribunal challenged the action of the Respondents in not absorbing them on the post of Ayurved Chikitsa Adhikari on the ground that they were drawing pay in the higher scale of pay of the Ayurved Chikitsa Adhikari prior to the absorption and their absorption on the lower post had led to the reduction in their pay. The Government contested the claim on the ground that the principle on which the Screening Committee had considered the absorption of the Vaidyas was the qualification possessed by the concerned Vaidya and such of them as were holding the Degree in terms of the Government Order of 1975 and were eligible for appointment were absorbed on the post of Ayurved Chikitsa Adhikari and the remaining as Ayurved Sahayak Chikitsa Adhikari.
4. The Tribunal observed that the non-consideration of the experience/length of service of the Vaidyas while considering their absorption in the Government, was unjust and unfair as they possessed the minimum qualifications prescribed under the order of 1975 for the post of Vaidya Grade-II although they did not possess the Degree qualification required for the post of Vaidya Grade I. It was observed by the Tribunal that there was no stipulation in the Madhya Pradesh Public Health (Indian Systems of Medicines and Homeopathy) (Gazetted Service) Recruitment Rules, 1987, for possessing a Degree for promotion to the post of Ayurved Chikitsa Adhikari from that of Ayurved Sahayak Chikitsa Adhikari and the rules merely provided five years experience on the lower post for eligibility for promotion on the higher post and, therefore, it was necessary that weightage for this experience was given for absorption of the applicants on the post of Ayurved Chikitsa Adhikari, as according to the Tribunal, long experience gained on a post was itself a qualification. It was also observed that these employees like other Janpad Vaidyas who were absorbed as Ayurved Chikitsa Adhikaris, had been performing the same functions and duties in the dispensaries with the only difference that they did not possess the Degree qualification in terms of 1975 order of the Government. It was further observed that while taking over the dispensaries in phases, the Government had sanctioned only the post of Ayurved Chikitsa Adhikari and not that of Ayurved Sahayak Chikitsa Adhikari although the post had been created in two scales. In this view of the matter, the Tribunal directed that the entire matter of absorption be reviewed and gone into afresh taking into account the qualification and the length of service of the persons to be absorbed. The direction contained in paragraph-17 of the Impugned Order of the Tribunal reads as follows :--
"17. It view of the foregoing discussion we are of the opinion that the entire matter of absorption needs to be reviewed and gone into afresh taking into account the following factors--
(1) Qualification held by the person to be absorbed, (2) Length of service, after deciding the weight to be attached to each year of service for considering the question of :--
(a) absorption of the persons holding lower qualification on the higher post of Ayurved Chikitsa Adhikari in the light of our observations made above; while doing so the length of service of the last promoted Ayurved Sahayak Chikitsa Adhikari to the post of Ayurved Chikitsa Adhikari on the date of promotion shall be also taken into consideration,
(b) determination of the inter-se seniority in the post of absorption. While determining the weight to be attached to each year of service the conditions of service and appointment/promotion rules obtaining in the Janpad Panchayats may also be considered.
(3) The record of performance as manifest from the Annual Confidential Reports of the persons to be absorbed, if available, (4) Scale of pay in which pay was actually drawn on the eve of absorption and length of service in that pay scale. The scale of pay should have been sanctioned by the competent authority of the Janpad Panchayat as per the rules. Sanctions granted by unauthorised functionaries should be rejected. This is being stipulated so that undue/inadmissible benefit is not passed on to those persons who had got their salary/pay fixed in higher scales with sanction/approval of officers who were not competent to grant such sanction/approval when their dispensaries were taken over and they were absorbed in Government service. Retrospective sanctions of higher pay scales after the date of the decision of the Government taking over the dispensary in question which implied absorption of staff working in the dispensary should for the some reason be also rejected as such raises can only be termed to be unconscionable and not binding upon Government."
5. The State of Madhya Pradesh has, therefore, challenged the said order of the Tribunal in these petitions.
6. We have heard the learned counsel for the parties and perused the record.
7. The learned Government Advocate appearing for the State has invited attention to Annexure-P/3 dated 16-1-1981 containing the decision of the Committee laying down the criteria for the absorption of the Vaidyas and other employees of the dispensaries under the Janpad Panchayat taken over by the Government and has pointed out that although decision to relax the age limit and the qualification had been taken for the purpose of absorption of these employees, it was only to the extent that the Vaidyas, Compounders, and Vaccinators who did not possess the qualification for the posts under the Department, shall be absorbed on the lower posts. Learned counsel, therefore, contends that the scheme under which the absorption was to be effected contained a reasonable criteria for absorption as the persons not possessing the Degree qualification necessary for the post of Ayurved Chikitsa Adhikari, could not have been absorbed on this post but only on the lower post of Assistant Ayurved Chikitsa Adhikari. Learned counsel has further pointed out that the experience, howsoever long it may have been on the post of Vaidya, was not a substitute for the qualifications and the Tribunal erred in directing the Government to give weightage for the experience of these employees for their absorption on the post of Ayurved Chikitsa Adhikari. Learned counsel for the Respondents (applicants before the Tribunal) have supported the Judgment of the Tribunal on the ground that even while these employees were in the dispensaries under the Janpad Panchayat, the Government had laid down the qualifications as per memo dated 4-7-1970 (Annexure-R/3) for Vaidyas Grade I which did not require a Degree as laid down subsequently in the year 1975. According to the learned counsel for the Respondents, since these persons were already working on the post of Vaidya Grade I, they were "required to be absorbed only on the equivalent post of Ayurved Chikitsa Adhikari.
8. In the matter relating to absorption, once the scheme under which the absorption is to be made is upheld to be valid, persons to be considered for such absorption can be considered only in accordance with the scheme. We may here refer to the decision of the Supreme Court in Andhra University v. M. Sivaram and Ors. (AIR 1994 SC 1668) in which where a scheme was framed by the University for absorption of the wound up Department of the Institute of Coastal and Offshore Research (INCOR), the claim that a person who had worked as Director in INCOR was required to be absorbed only on the equivalent post of Director or Professor in the University was turned down and it was observed that he could only be considered in accordance with the Scheme and if he did not possess the qualification for the post of Director or Professor, he could be considered for any lower post for which he was qualified and eligible. We may also refer to the decision of the Supreme Court in State of M.P. and Anr. v. Dharam Bir (1998 (2) JLJ 159) where their Lordships repelled the contention that long experience of an employee on the post to which he was not later promoted as he did not possess the qualification for the same, by itself entitled him for promotion. It was observed :
"No more experiential knowledge is not equivalent to a Degree in Engineering" is our positive answer to the negative argument that respondent, though not possessing the requisite qualification, be held to be validly holding the post of Principal, ITI, on the basis of his experience."
In the above, case, the finding of the Tribunal that the requirement of possessing the qualification of a Degree or Diploma in Engineering for the post of Principal was applicable only to direct recruitment and not to promotions and the employee, though not possessing Degree or Diploma, was still entitled to be promoted as Principal, was set aside and it was observed that the Courts as also the Tribunal have no power to over-ride the mandatory provisions of the rules on sympathetic consideration that a person, though not possessing the essential educational qualifications, should be allowed to continue on the post merely on the basis of his experience. If the Government, in exercise of its executive power, has created certain posts, it is for the Government to prescribe the mode of appointment or the qualifications. The observations in paragraph 34 of the said decision read as under :--
"34. The respondent having worked in an ad hoc capacity on the post of Principal might have gained some administrative experience but the same cannot be treated as equivalent to his knowledge in the field of Engineering. A Compounder, sitting for a considerably long time with a Doctor practising in modern medicine, may have gained some experience by observing the medicine prescribed by the Doctor for various diseases or ailments but that does not mean that he, by that process, acquires knowledge of the Human Anatomy or Physiology or the principles of pharmacology or the field of action of any particular medicine or its side effects. The Compounder cannot, merely, on the basis of experience, claim a post meant exclusively for persons having MBBS or other higher degrees in medicine or surgery. The place of experience, therefore, must fail.
Moreover, this would amount to a relaxation of Rule relating to educational qualification. Power to relax the Rule vests exclusively in the Governor as provided by Rule 12. This power cannot be usurped by the Court or the Tribunal."
9. The Tribunal appears to have been impressed by the fact that the Government had created the post of Ayurved Chikitsa Adhikari only and by bifurcating it into two separate pay scales, it had created a post of Ayurved Chikitsa Adhikari in the lower pay scale which did not exist. We may here observe that creation of post by itself cannot imply any automatic absorption; since making available the posts to meet a contingency is one thing, to absorb a person on the post is another. The absorption of a person has to be on the basis of the relevant criteria adopted in this behalf keeping in mind the qualifications necessary for the post. While it is true that under the said Service Recruitment Rules, a person having five years experience on the post of Assistant Chikitsa Adhikari is eligible for being considered for promotion, it is not correct to say that no academic qualifications have been prescribed. The Recruitment Rules for direct appointment on the post of Assistant Chikitsa Adhikari also prescribe academic qualification for the said post. We are of the opinion that even if the Tribunal had found the criteria laid down for absorption to be harsh, the Tribunal could not have substituted the function of the Government by laying down its own criteria and directing reconsideration of cases on the criteria so laid down. If the Tribunal was of the view that the cases of absorption should also be considered in the light of the provisions for promotion of persons on the post of Ayurved Chikitsa Adhikari in accordance with the Public Health (Indian Systems of Medicines & Homeopathy) (Gazetted Service) Recruitment Rules, 1987, keeping in view the qualification laid down for appointment on the post of Assistant Ayurved Chikitsa Adhikari under M.P. (Indian Systems of Medicines & Homeopathy) Class III Ministerial Service Recruitment Rules, 1987, it could have directed the Government to consider evolving of a fresh criteria for such absorption. It is not disputed before us that the Government has by communication dated 7-1-1984, laid down conditions of absorption to, inter alia, provide for protection of pay of the employees so absorbed. We are, therefore, of the opinion that the direction of the Tribunal deserves to be modified and we, accordingly, direct that the Government shall also take into consideration the qualifications laid down vide enclosure to memo dated 1-6-1967 (Annexure-R/2 to the Return in W.P. No. 5271/1997) and frame a scheme for absorption of the Vaidyas bearing in mind the qualifications laid down for the post of Ayurved Chikitsa Adhikari for direct recruitment and by promotion, both, and to consider the cases afresh in accordance with the scheme so framed. These petitions are, thus, partly allowed with no order as to costs.