Bombay High Court
Vaidya Balram S/O Rambhau Kakpure vs The Maharashtra University Of Health ... on 11 March, 2010
Bench: S.A. Bobde, Vasanti A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH: NAGPUR
WRIT PETITION NO. 4844 OF 2008
PETITIONER:
Vaidya Balram s/o Rambhau Kakpure, aged about 54 years,
occupation : service as Lecturer in Shree Ayurved Mahavidyalaya,
Hanuman Nagar, Nagpur, R/o R-197, Reshimbag, Nagpur.
VERSUS
RESPONDENTS:
1] The Maharashtra University of Health Science through its
Registrar, Wani Road Mhasrul, Dindori Road, Nasik.
2] The Director of Ayurved Maharashtra State, Government Dental
College & Hospital Building, 4th Floor Saint George Hospital, P.
Dimelo Road, Mumbai -1
3] The State of Maharashtra, through its Secretary, Department of
Medical Education & Drugs, Mantralaya, Mumbai
4] Bharitya Vaidyak Samanvaya Samiti, through its Secretary,
Dhanwantari Marg, Hanuman Nagar, Nagpur.
5] The Principal Shree Ayurved Maha Vidyalaya run by Bhartiya
Vaidyak Samanvaya Samiti, Hanuman Nagar, Nagpur.
6] The Central Council of Indian Medicine Institutional Area,
Janakpuri New Delhi, through its Secretary
7] Vaidya Govindprasad s/o Madhavprasad Upadhyaya aged 58
years, occupation : service, r/o 620, New Subhedar Layout,
Nagpur.
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Shri S.S. Sharma, Advocate for petitioner
Shri J.B. Jaiswal, Advocate for respondent no.1
Shri N.W. Sambre, Government Pleader for respondent no.2 & 3
Shri V.R. Thakur, Advocate for respondent no.4 & 5
Mrs. Usha Tanna Advocate for respondent no.6
Shri K.H. Deshpande, Senior Advocate &
Shri M.D. Lakhe, advocate for respondent no.7
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CORAM: S.A. BOBDE & SMT. VASANTI A. NAIK, JJ.
CLOSED FOR JUDGMENT : 25.2.2010 JUDGMENT PRONOUNCED ON: 11.3.2010.
PER: SMT.VASANTI A. NAIK, J.
The main prayer of the petitioner is for a declaration that the selection and appointment of respondent no.7 on the post of Reader w.e.f. 1.7.1990 in the subject of Arogya Vidnyan and Vikruti Vidnyan [Rog Nidan] is illegal and consequently his selection to the post of Professor in the Department of Rog Nidan in respondent no.5 college is also illegal.
Some undisputed facts of the case are stated as follows:
::: Downloaded on - 09/06/2013 15:42:15 ::: 32] The petitioner and the respondent no.7 had applied for appointment on the post of Professor in pursuance of an advertisement published in the news papers on 7.3.2007. The respondent no.7 was selected and appointed on the post of Professor. Since the petitioner was not selected, he filed this petition basically challenging the initial appointment of the respondent no.7 on the post of Reader in the year 1990.
3] It is not in dispute that the respondent no.7 was appointed on the post of Reader in the Department of Rog Nidan in 1990. Though the respondent no.7 had specialization in the subject of Kaya Chikitsa, according to a certificate issued by the then Principal of the college, the respondent no.7 had 3 years teaching experience in the subject of RogNidan.
4] The appointment of the respondent no.7 as a Reader was challenged by one Ganesh Khandelwal by filing writ petition bearing Writ Petition No. 2824/1990. It was the case of Ganesh Khandelwal in Writ Petition No. 2824/1990 that respondent no.7 did not have the ::: Downloaded on - 09/06/2013 15:42:15 ::: 4 requisite teaching experience of 3 years in the concerned subject of Rog Nidan for being appointed as a Reader and the Certificate produced by respondent no.7 before the Selection Committee, in regard to the 3 years experience in the subject of Rog Nidan was false. The respondent no.5 Ayurveda College had filed a reply to Writ Petition No. 2824/1990 and had denied the case of Ganesh Khandelwal. It was asserted by respondent no.5 college that respondent no.7 had the requisite teaching experience of 3 years in the subject of Rog Nidan and the then Principal had issued the necessary certificate in favour of respondent no.7. The Principal of the college had also filed an affidavit denying the case of Ganesh Khandelwal and had stated that the certificate dated 5.11.1990 was issued by him, in view of the teaching experience possessed by respondent no.7 in the subject of Rog Nidan. When Writ Petition No. 2824 of 1990 was ripe for hearing in the year 2005, the respondent no.5 college filed yet another affidavit purportedly clarifying the factual position and it was stated in the said affidavit that for the reasons stated in the affidavit it appeared that the certificate dated 5.11.1990 was not officially issued by the Principal, so also the respondent no.7 did not have the teaching experience of 3 years in the subject of Rog ::: Downloaded on - 09/06/2013 15:42:15 ::: 5 Nidan. During the pendency of the Writ Petition No.2824/1990, the petitioner Ganesh Khandelwal stood superannuated and hence this court dismissed the petition on 7.7.2005 without entering into the merits of the same as according to this court no useful purpose would have been served by hearing the petition on merits after the retirement of Ganesh Khandelwal. Once again in the year 2008 the petitioner herein has re-
agitated the same issue which was not decided by this court in the earlier Writ Petition No.2824/1990. It is the case of the petitioner that respondent no.7, did not possess the teaching experience of 3 years in the subject of Rog Nidan and hence his selection as a Reader in the year 1990 in the subject of Rog Nidan was illegal. According to the petitioner, the certificate produced by the respondent no.7 before the selection committee was a false certificate as the inward and outward register of the college did not show that the certificate was ever issued to the respondent no.7. The petitioner has challenged the appointment of the respondent no.7 as a Reader in the year 1990 and as a Professor in the year 2008.
5] The petitioner has not disputed that the respondent no.7 was ::: Downloaded on - 09/06/2013 15:42:15 ::: 6 otherwise qualified and eligible for appointment on the post of Reader in the year 1990 but for the lack of teaching experience of 3 years in the subject of Rog Nidan. According to the petitioner the necessary experience for appointment on the post of Professor is of 10 years in the department, out of which the candidate should have 5 years teaching experience as a Reader / Assistant Professor and in case the post of Reader / Assistant Professor does not exist in the department, a teaching experience of 10 years as a lecturer in the concerned subject is enough. It is the case of the petitioner that in case the appointment of the respondent no.7 on the post of Reader in the year 1990 is declared as void and illegal, it would be assumed that the post of Reader / Assistant Professor did not exist in the department and in such a case, the petitioner who had 10 years experience as a Lecturer in the subject of Rog Nidan could be eligible for appointment on the post of Professor.
6] It is necessary to note that on receiving certain complaints from the petitioner, the Director of Ayurveda had constituted a Three Member Committee to make enquiry into the credentials of the respondent no.7, specially in regard to his teaching experience and the validity of the ::: Downloaded on - 09/06/2013 15:42:15 ::: 7 certificate of teaching experience, dated 5.11.1990. The Committee had submitted a report to the Director. It was held by a Two Member Committee, as one of the members of the committee was absent throughout, that the certificate of experience issued to the respondent no.7 by the then Principal of the respondent no.5 College, was void and the respondent no.7 could not have been appointed as a Reader and then as a Professor. The Director, after considering the report of the committee and the relevant record, by a reasoned order dated 3.2.2009 held that the respondent no.7 had teaching experience in the subject of Rog Nidan and it could not be said that the certificate of teaching experience was not valid. The Director held that the committee had no jurisdiction to hold that the selection and appointment of the respondent no.7 on the post of Reader, made 18 years earlier, was not proper. The Director was of the clear view that the petitioner had made a false complaint to serve his interest.
7] Shri Sharma, the learned counsel for the petitioner submitted that it was apparent from the affidavit filed by the management in the year 2005 in the writ petition filed by Ganesh Khandelwal that the certificate ::: Downloaded on - 09/06/2013 15:42:15 ::: 8 issued by the then Principal of the respondent no.5 college on 5.11.1990 was not valid and the respondent no.7 did not have teaching experience of 3 years, in the subject of Rog Nidan. The learned counsel for the petitioner submitted on the basis of the amended pleadings that the Two Member Enquiry Committee had rightly found that the certificate issued by the then Principal was false as the respondent no.7 did not have the teaching experience of three years in the subject of Rog Nidan.
According to the learned counsel for the petitioner in case the appointment of the respondent no.7 on the post of Reader in the year 1990 is held to be invalid, the petitioner would be eligible for appointment on the post of Professor, though he does not possess the teaching experience of 5 years in the concerned subject as a Reader as the post of Reader will be held to be non-existent and the petitioner's teaching experience of 10 years as a lecturer would be sufficient for considering his case for appointment as a Professor in the year 2007.
The petitioner relied on the copies of certain time-tables and the souvenir of the college for the relevant period from 1987 to 1990 to canvass that the respondent no.7 was not teaching the subject of Rog Nidan in the college during the year 1987 to 1990 and the certificate ::: Downloaded on - 09/06/2013 15:42:15 ::: 9 issued by the then Principal was false.
8] Shri K.H. Deshpande, the learned Senior Counsel appearing on behalf of the respondent no.7 submitted that this court should dismiss the writ petition as it suffers from delay and latches. The learned Senior Counsel submitted that by this petition, the petitioner mainly challenges the validity of the certificate issued by the then Principal of the institution in favour of the respondent no.7 on 5.11.1990. The learned Senior Counsel submitted that the petitioner was all along working as a Lecturer in the said department since 1990 and could have as well challenged the appointment of the respondent no.7 as a Reader within a reasonable time. The learned Senior Counsel submitted that the relevant record and the documents are also not available with the college, as nearly two decades have lapsed since the appointment of the respondent no.7 as a Reader and in such circumstances, this court should be loath in entertaining the petition at this belated stage. It is also submitted on behalf of the respondent no.7 that in view of the equivalence clause in the relevant rules, in the absence of a qualified teacher for the subject of Rog Nidan, a teacher from Kaya Chikitsa was eligible to teach the ::: Downloaded on - 09/06/2013 15:42:15 ::: 10 subject of Rog Nidan. The learned counsel for the respondent no.7 submitted that rights have accrued in favour of the respondent no.7 by reason of the delay in filing the petition and in such circumstances, the petition should not be entertained. The learned Senior Counsel submitted that the respondent no.7 was all along teaching the subject of Rog Nidan as a Reader since the year 1990 and grave and serious prejudice would be caused to the respondent no.7 in case this court entertains the petition at this belated stage and quashes the appointment of the respondent no.7 as a Reader thereby relegating him to the post of lecturer after 20 years.
9] It is then submitted on behalf of the respondent no.7 that by this petition the petitioner seeks an adjudication of an issue of fact i.e. whether the Certificate issued by the then Principal on 5.11.1990 is false. It is submitted that the management had earlier filed reply in Writ Petition No.2824/21990 admitting that the certificate was valid and the respondent no.3 had three years teaching experience in the subject of Rog Nidan though he was also working as a Lecturer in the subject of Kaya Chikitsa and in a subsequent affidavit filed by the management in ::: Downloaded on - 09/06/2013 15:42:15 ::: 11 the year 2005, a contradictory stand was taken and it was stated that the respondent no.7 did not have any teaching experience in the subject of Rog Nidan and it did not appear that the certificate dated 5.11.1990 was officially issued by the Principal. The learned counsel for the respondent no.7 stated that the facts stated in the affidavit filed subsequently are after thought and untrue. The learned Senior Counsel submitted that the Director of Ayurved has by his report / order dated 3.2.2009 held that the Two Member Committee constituted by him did not have jurisdiction to hold that the appointment of the respondent no.7 on the post of Reader and that of Professor was not valid as the certificate dated 5.11.1990 was void. It is canvassed on behalf of respondent no.7 that several disputed questions of facts are involved in this case and even if the writ petition is entertained inspite of the delay, this court may not exercise jurisdiction under article 226 of the Constitution of India. It is submitted on behalf of the respondent no.7 that the findings of the Director of Ayurved in the order dated 3.2.2009 are findings of facts and this court may not interfere with the same. The learned Senior Counsel relied on the judgments reported in (2006) 11 SCC Page 464 [U.P. Jal Nigam and another ..vs.. Jaswant Singh and ::: Downloaded on - 09/06/2013 15:42:15 ::: 12 another], (2006) 4 SCC page 322 [Karnataka Power Corporation Ltd through its Chairman and Managing Director and another ..vs..
K.Thangapan and another], (1993) 3 SCC 591, (2008) 4 SCC 171[Dhananjay Malik and others ..vs.. State of Uttaranchal and others] and 1999 SCC (L & S) page 777 [Prafulla Kumar Pillai ..vs.. State of Orrisa & others] to substantiate his submissions.
10] In reply Shri Sharma, learned counsel for the petitioner submitted that this court may not hold that the petition suffers from latches as the petitioner has immediately approached this court after he was not selected on the post of Professor in the year 2007-08 and the respondent no.7 was appointed on the same. The learned counsel for the petitioner submitted that the very appointment of the respondent no.7 on the post of Reader was bad in view of the lack of teaching experience in the subject of Rog Nidan and a void and illegal appointment can be challenged at any subsequent point of time. The learned counsel for the petitioner relied on the judgments reported in (2009) 7 SCC Page 1 [N. Kannadasan ..vs.. Ajoy Khose & others], (2009) 14 SCALE Page 139[Gaya Prasad ..vs.. State of M.P. & others], AIR 2007 SC Page 2053 ::: Downloaded on - 09/06/2013 15:42:15 ::: 13 [V.B. Prasad ..vs.. Manager, P.M.D.U.P. School & others] and (2008) 7 SCC page 153[Pramod Kumar ..vs.. U.P. Secondary Education Services Commission and others] to substantiate his submission that the petition did not suffer from delay and latches and the respondent no.7's appointment as a Reader in the year 1990 could be set aside.
11] Shri H.V. Thakur, the learned counsel for the management submitted that a part of the relevant record for the period from the year 1987 to 1990 is not available with the management. The learned counsel for the management had nothing much to say on the merits of the matter.
12] On hearing the learned counsel for the parties and on considering the facts of this case, it is apparent that this writ petition suffers from delay and latches and the same cannot be entertained by this court. The delay in this case is almost of 2 decades as the petitioner has challenged the appointment of respondent no. 7 to the post of Reader made in the year 1990. No doubt, the question of latches needs to be decided upon the facts of each case. In the instant case, the facts are glaring. The time lag of ::: Downloaded on - 09/06/2013 15:42:15 ::: 14 more than 18 years is not explained by the petitioner in the least. It is of utmost importance that a person seeking intervention of the High court under article 226 of the Constitution of India should give a satisfactory explanation of his failure to assert his claim at an earlier date. The petitioner was also working as Lecturer in the same college since the year 1990. The respondent no.7 was appointed as a Reader in the year 1990 and there is no explanation why the petitioner waited for 18 years to challenge the appointment of respondent no.7 on the post of Reader.
As a Reader, the respondent no.7 has imparted education to a number of students in the Ayurved College for 17 years. It is a settled principle of law that the rights accrued in favour of a respondent by reason of delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation for the delay. The respondent no.7 was working on the post of reader for more than 17 years and a court would not unsettle him on a petition filed 18 years after his appointment.
13] It was held by the Hon. Supreme Court in the judgment reported in 1999 SC (L & S) Page 777 [Prafulla Kumar Pillai ..vs.. State of Orissa & others] that it was not possible to interfere with the ::: Downloaded on - 09/06/2013 15:42:15 ::: 15 appointment of the Headmaster as he was promoted in the year 1982 and the petitioner had challenged the promotion in the year 1988 and the Headmaster had been functioning for a period of about 6 years, when the petition was filed. Similarly the Hon. Supreme Court held in the case of Dr. M.S. Mudhoj ..vs.. S.D. Halegkar, reported in (1993)3 SCC Page 591 that the appointment of the respondent therein, on the post of Principal could not be disturbed in a writ petition which was filed after the respondent continued in the said post for a period of 9 years. Also, tests have been laid down by the Hon. Supreme Court for determining whether there has been such delay as to amount to latches.
According to the Hon. Supreme Court, in the case of U.P. Jal Nigam and another ..vs.. Jaswant Singh and another, reported in (2006) 11 SCC 464 the chief points to be considered are i) acquiescence on the petitioner's part and ii) any change of position that has occurred on the respondent's part. Indeed the applicability of both these tests makes it clear that there has been such delay in this case as to amount to latches, since the petitioner was also working in the same college where the respondent no.7 was appointed as a Reader in the year 1990 and the respondent no.7 had held the post of the Reader for a period of more ::: Downloaded on - 09/06/2013 15:42:15 ::: 16 than 17 years before the petitioner challenged his appointment as a Reader. It is well settled that exercise of writ jurisdiction after inordinate delay, may not only inflict hardship and inconvenience on a third party, but also cause injustice.
14] In the case reported in (2006) 4 SCC Page 322 [Karnataka Power Corporation Ltd. Through its Chairman and Managing Director & another ..vs.. K.Thangappan and another], the Supreme Court held that the High Court was not justified in granting relief to the petitioner when there was an inordinate delay of 20 years in invoking the writ jurisdiction and the delay was not satisfactorily explained. The above referred judgments, clearly fortify the submissions made on behalf of the respondent no.7, that this court should dismiss the petition on the ground of delay and latches.
15] Per contra, the judgment reported in 2009 (14) SCALE Page 139 [Gaya Prasad ..vs.. State of M.P. & others], may not come to the rescue of the petitioner for seeking an interference in exercise of writ jurisdiction inspite of the delay as, the facts reveal that the petitioners in ::: Downloaded on - 09/06/2013 15:42:15 ::: 17 that case had challenged the promotions immediately without any delay.
Similarly the judgment reported in (2009) 7 SCC page 734 [Food Corporation of India and others ..vs.. Ashish Kumar Ganguly & others] also cannot be of any assistance to the case of the petitioner as, the facts reveal that the earlier writ petition was disposed of in the year 1996 and the petitioner had approached the court in the year 1997. The case is distinguishable on facts. Also, the length of delay and the question whether it constitutes latches should be decided on the facts of each case and no straight jacket formula can be applied in such cases.
16] Thus, it cannot be said that the writ petition does not suffer from delay and latches as the appointment of respondent no.7 on the post of Professor was made in the year 2007 and the writ petition is filed in the year 2008 as the petitioner challenges the eligibility of the respondent no.7 to be appointed on the post of Professor in the year 2007 only on the ground that he was not eligible to be appointed as a Reader in the year 1990. The case of the petitioner is also ingenious in the sense that the petitioner is not otherwise eligible to be appointed to the post of Professor as he does not possess five years teaching experience as ::: Downloaded on - 09/06/2013 15:42:15 ::: 18 Reader in the subject of Rog Nidan, but claims that in case the appointment of respondent no.7 on the post of Reader is declared illegal, it would mean that the post of Reader was vacant and even non-
existent and the 10 years teaching experience of the petitioner in the subject of Rog Nidan as a Lecturer would qualify him for being considered for appointment on the post of Professor which would not be otherwise so, in terms of rule of experience which reads as follows:.
"EXPERIENCE:
(a) FOR THE POST OF PROFESSOR - Total teaching experience of ten years in the Department is necessary out of which there should be five years teaching experience as Reader / Assistant Professor or ten years experience as a Lecturer in the concerned subject wherever the posts of Reader/ Assistant Professor does not exist.::: Downloaded on - 09/06/2013 15:42:15 ::: 19
In the facts of this case, we are of the clear view that the writ petition suffers from gross delay and latches and cannot be entertained.
17] Apart from the fact that the writ petition is liable to be dismissed solely on the ground of delay, it is noticed that the assertions and counter assertions made on the merits of the matter raise disputed questions of fact. The management is not in possession of relevant pre-
1990 documents which can throw light on the controversy. The evidence in regard to the claims made by the parties is lost. The Principal who had certified on 5.11.1990 that the respondent no.7 had taught the subject of Rog Nidan for a period of 3 years had reasserted the fact on affidavit in Writ Petition No. 2824/1990. The management had also by its first affidavit admitted issuance of the certificate and the teaching experience of respondent no.7 in the subject of Rog Nidan, but had changed its stand in a subsequent affidavit filed in the year 2005 to assert that the respondent no.7 did not have the requisite teaching experience. Certain documents are reproduced by the petitioner in this court along with the amendment application. Various documents produced by the parties on record raise disputed questions of facts on ::: Downloaded on - 09/06/2013 15:42:15 ::: 20 the issuance of certificate of experience and the actual experience of the respondent no.7 as a Lecturer in the subject of Rog Nidan. These questions cannot be gone into, in a writ petition under Article 226 of the Constitution of India especially after a lapse of nearly 20 years.
18] We are not aware under which provision of law or under what authority the Director of Ayurved had directed the enquiry on a complaint made by the petitioner after a lapse of 18 years, nor are the learned counsel for the parties able to point out to this court, the source from which this power or authority is derived by the Director of Ayurved. Be that as it may, the Director of Ayurved has in his order dated 3.2.2009 after considering the material on record and the report of the committee constituted by him held that the respondent no.7 was rightly appointed on the post of Reader in the subject of Rog Nidan. The Director has found that the respondent no.7 has received awards for his books in the subject of Rog Nidan and has rightly observed in the report dated 3.2.1999 that the Two Member Committee had no jurisdiction to hold that the selection and appointment of the respondent no.7 on the post of Reader 18 years earlier, was not proper. According to the ::: Downloaded on - 09/06/2013 15:42:15 ::: 21 Director the complaint made by the petitioner was false. In any case, no case for interference with the findings of facts recorded by the Director of Ayurved in his order dated 3.2.2009, is made out.
19] We also observe that the relevant Rules prescribe equivalence to the subjects of Kaya Chikitsa and Rog Nidan and it cannot be said that the respondent no.7 did not possess the basic qualifications for appointment on the post of Reader. The respondent no.7 has been working on the post of Reader for a period of 17 years and this court would not unsettle him on a petition filed by the petitioner after 18 years from the date of his appointment as a Reader. According to us, the petitioner has abused the process of this court by challenging the appointment of the respondent no.7 as a Reader after nearly two decades.
For the reasons aforesaid the petition is dismissed. Rule stands discharged.
JUDGE JUDGE
smp.
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