2009(1) ALL MR 75
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

D.D. SINHA AND P.B. VARALE, JJ.

Vaidya Lalchandra S/O. Hajarilal Jaiswal Vs. The Maharashtra University Of Health Sciences, Nasik

Writ Petition No.1459 of 2008

27th August, 2008

Petitioner Counsel: Shri. R. K. DESHPANDE
Respondent Counsel: Smt. T. D. KHADE,Shri. D. B. YENGAL,Shri. H. V. THAKUR,Shri. R. S. SUNDARAM

Constitution of India, Art.226 - Writ Petition - Proposal of petitioner for grant of approval to post of professor in subject of Panchkarma - Communication of Respondent No.1 University rejecting the proposal of petitioner on ground of want of necessary experience in the concerned subject - Selection committee, justified in selecting the petitioner for the post of professor in certain facts and circumstances - Impugned communication of University quashed and set aside - Matter remanded back to R-1 for consideration of the proposal of petitioner afresh on its own merit, according to law as well as in the light of the observations made by court in this order. (Paras 10, 11, 12)

JUDGMENT

D. D. SINHA, J.:- Rule. Rule is made returnable forthwith. Heard finally by consent of the parties. Smt. T. D. Khade, the learned Counsel waives notice on behalf of the respondent No.1, Shri. D. B. Yengal, learned Assistant Government Pleader waives notice on behalf of the respondent Nos.2 and 3, Shri. H. V. Thakur, the learned Counsel waives notice on behalf of the respondent Nos.4 and 5 and Shri. R. S. Sundaram, the learned Counsel waives notice on behalf of the respondent No.6.

2. The writ petition is directed against the impugned communication dated 12-12-2007 issued by the Respondent No.1/University whereby the petitioner was informed that the proposal of the petitioner for grant of approval to the post of Professor - Panchkarma for want of necessary experience in the concerned subject cannot be granted.

3. Shri. R. K. Deshpande, the learned Counsel appearing on behalf of the petitioner has submitted that the petitioner was working as Lecturer in the Department of Kaya Chikitsa and was teaching the subject Panchkarma to the Post Graduate Students. It is submitted that the petitioner has applied for the post of Professor in Panchkarma and was selected by the competent Selection Committee on the said post. The proposal was forwarded to the University for necessary approval. However, by the impugned communication, the said proposal was rejected for the reasons mentioned therein by the University.

4. It is further contended by the learned Counsel for the petitioner that the reasons mentioned by the respondent No.1 in the impugned communication for not granting approval are unsustainable-in-law in view of the Regulations of 1986 of Central Council of Indian Medicine which are annexed to the petition as "Annexure-PI". The learned Counsel for the petitioner has submitted that Clause 14 of the said Regulations deals with the qualification and experience in respect of teaching staff and for the issue in question sub-clause (b) of Clause 14 is relevant, which reads thus :-

"A Post-graduate qualification in the subject/speciality concerned included in the Schedule to Indian Medicine Central Council Act, 1970."

It is further contended that so far as the criteria of experience is concerned i.e stipulated in sub-clause (ii)(a) of the Clause 14, reads thus :-

"(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 do not exist."

5. It is contended that so far as the Kaya Chikitsa Department in which the petitioner was serving as Lecturer is concerned, the post of Reader and Assistant Professor do not exist. Similarly, it is also brought to the notice of this Court the communication dated 5-9-2007 issued by the respondent No.1/University whereby recognition as Post Graduate Teachers was granted to some of the teachers of Shree Ayurved Maha Vidyalaya and names of those Post Graduate Teachers are mentioned in the said communication. It is submitted that the name of the petitioner as Post Graduate Teacher is shown at serial No.5 in the subject of Panchkarma. It is contended that the University vide communication dated 5-9-2007 granted recognition to the petitioner as Post Graduate Teacher in the subject Panchkarma and, therefore, there was no reason for the University not to take into consideration the experience of the petitioner as Post Graduate Teacher in the subject Panchakarma for the purpose of considering the eligibility criteria mentioned in the sub-Clause (ii) of Clause 14 of the Regulations, 1986. It is further contended that the competent Selection Committee, after taking into consideration all these aspects found the petitioner eligible for the post and, therefore, the petitioner was selected by the Selection Committee for the post of Professor. It is submitted that the representative of the University was one of the members of the Selection Committee.

6. Shri. R. K. Deshpande, the learned Counsel for the petitioner has placed on record the communication dated 6-12-2006 issued by the Secretary, Central Council of Indian Medicine, Institutional Area, Janakpuri, New Delhi, whereby the clarification regarding appointment of teachers in Panchakarma Department was given to the respondent No.1/University. The said communication reads thus:-

"With reference to letter No.MUHS/E-3/53/5103 dated 3rd November, 2006 on the subject mentioned above, I am to say that as per decision of Central Council of Indian Medicine Panchakarma is an allied subject of Kayachikitsa therefore, in absence of holder of Post-graduate degree in Panchakarma holder of Kayachikitsa may be appointed."

7. It is contended by the learned Counsel for the petitioner that even if it is presumed that the petitioner was in the Department of Kaya Chikitsa and was teaching the subject of Kaya Chikitsa to the Post-Graduate students even then the experience of the petitioner as a Lecturer in the said subject ought to have been considered in view of sub-Clause (ii) of Clause 14 of Regulations, 1986, in view of the above referred clarification issued by the Apex Body i.e. Central Council of Indian Medicine, since there was not other candidate holding the experience of teaching to the Post Graduate students in Panchkarma, the experience of the petitioner as a Lecturer in Kaya Chikitsa could have been considered. It is, therefore, contended that the impugned communication, in the circumstances, cannot be sustained-in-law.

8. Smt. T. D. Khade, the learned Counsel appearing on behalf of the respondent No.1 has contended that since the petitioner did not have a requisite experience in the concerned subject as required by sub-clause (ii) of Clause 14 of Regulations, 1986, the University was justified in not granting approval to the proposal of the petitioner for the post of Professor in Panchakarma. Smt. Khade, the learned Counsel has tried to canvass that there are other reasons apart from this for not granting approval which are reflected in the affidavit filed by the respondent No.1.

10. Perusal of Clause 14 of the Regulations, 1986 as well as communication dated 5-9-2007 issued by the respondent No.1 and clarification given by Central Council of Indian Medicine dated 6-10-2006 (a document which is taken on record today). It is no doubt true that as per sub-Clause (ii)(a) of Clause 14, ten years' experience as Lecturer in concerned subject is necessary. In the instant case, it appears that vide communication dated 5-9-2007 issued by the University, the petitioner was given recognition as Post Graduate Teacher in Panchakarma. If that is so, then the University should have considered this aspect while considering the eligibility vis-a-vis the experience stipulated in sub-Clause (ii) of Clause 14. Similarly, the clarification issued by the Central Council of Indian Medicine dated 6-12-2006 contemplates that the Panchakarma was/is an allied subject of Kaya Chikitsa and, therefore, in absence of holder of Post-graduate degree in Panchakarma, holder of Kayachikitsa may be appointed. In the instant case, the learned Counsel for the petitioner has contented that there was no other candidate holding Post Graduate degree in Panchkarma, hence even if it is presumed that the petitioner was teaching subject of Kaya Chikitsa to the Post Graduate students as per the provisions of sub-Clause (ii) of Regulations, 1986, the petitioner was eligible for the post and, therefore, the Selection Committee was justified in selecting the petitioner for the post of Professor.

11. Taking into consideration the facts and circumstances as well as relevant procedure applicable, we are of the view that the University/respondent No.1 should reconsider the issue in the light of the facts mentioned by us in this order as well as other relevant factors and the procedure applicable in this regard afresh.

12. For the reasons stated herein above, the impugned communication dated 12-12-2007 is quashed and set aside. The matter is remanded back to the respondent No.1 for reconsideration of the proposal of the petitioner for grant of approval to the post of Professor in the subject of Panchakarma afresh on its own merit, according to law as well as in the light of the observations made by us in this order, as early as possible and in any case not beyond the period of eight weeks from the date of receipt of this order.

13. The Writ Petition stands disposed of as such. Rule is accordingly made absolute in aforesaid terms.

Petition allowed.