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PETITIONER: A.N. SHASHTRI

       Vs.

RESPONDENT: STATE OF PUNJAB & ORS.

DATE OF JUDGMENT11/12/1987

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH DUTT, M.M. (J)

CITATION:  1988 AIR  404            1988 SCR  (2) 363  1988 SCC  Supl.  127     1987 SCALE  (2)1411

ACT:      Punjab Ayurvedic  Department (Class  I and  Class  II), Rules,  1963:  Rule  6-Promotion  as  Director  of  Ayurved- Requisite qualification  for promotion post same as that for the feeder  post-Appointment to  feeder post not challenged- Held promotion unassailable.      Constitution of  India, Article  226: Malicious writ of quo  warranto-Court  to  take  notice  of-Having  regard  to background and history of the case.      Civil Services-Reversion on wrong ground and subsequent superannuation-Employee to be treated as regularly appointed to and retired in the promotion post.

HEADNOTE: %      Rule 6  of the Punjab Ayurvedic Department (Class I and Class II)  Rules, 1963 interdicts appointment to the service except duly  qualified persons.  The requisite qualification laid down  by Appendix  ’A’ to the Rules for Class I post of Director of Ayurved includes (1) a five years’ degree course in Ayurvedic  system of  medicine, and (2) Doctor of Science in Ayurvedic Medicine. For the posts of Professor, Assistant Director  and  deputy  Director  of  Ayurved  the  requisite qualification is  a five  years regular  course in Ayurvedic system of medicine.      The appellant  had read  as a regular student for three years in the first instance, and for the remaining two years he was  directly under  a qualified,  Professor. He had then obtained a  degree from  a recognised  University. Later  he acquired the  Doctor of  Science Degree  in Ayurved.  He was appointed as  a Professor  of Ayurvedic  Medicine under  the Punjab Government  and later  as  Deputy  Director.  He  was further promoted as Director.      His appointment  as Director was challenged for lack of requisite  qualification  in  a  writ  of  quo  warranto  by respondents, 2,  3 and  4. In  the return  made to  rule  he averred  that  the  petitioners-respondents,  his  one  time students, had  filed  the  application  on  account  of  ill motive. He  was reverted  to the  post of Deputy Director on October 21, 1981 during 364 the pendency  of the  writ petition which he challenged in a

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connected writ  petition. he  superannuated from the post of Deputy Director on October 31, 1987.      The  High   Court  held  that  the  appellant  was  not qualified to  hold the  post of  Director since  he had  not studied in  a regular  course for  five years  to obtain the degree,  though  it  found  that  he  possessed  the  second qualification, namely,  Doctor  of  Science  Degree,  and  a degree in  Ayurvedic system  of medicine  duly recognised by the Government  of Punjab.  Consequently, in  the  connected writ petition  the High  Court took the view that he was not entitled to  challenge  reversion  to  the  post  of  Deputy Director.      Allowing the appeals with costs, ^      HELD:  1.1.   The  writ   petitioners  have  failed  to establish that  the appellant  did not possess the requisite qualification. In  fact he had read as a regular student for three years  in the first instance and for the remaining two years he  was directly  under a  qualified Professor.  After reading for  five years he had obtained the degree which has been from a recognised University. [368E]      1.2 The  appellant had  been serving  as Professor  for several years.  As far as the qualification goes there is no difference in  the  case  of  a  Professor  and  that  of  a Director.  In   giving  appointment   to  the  appellant  as Professor, the  Government must  have been satisfied that he had the requisite qualification. [368B]      1.3 There  was no  challenge to  the appointment of the appellant to  the post of Deputy Director. The first item of the qualification  is the  same for the Director as also the Assistant Director  and the  Deputy Director.  The appellant held a  post between  the two.  The High  Court should  have looked into  this aspect  to find  out what  exactly was the requirement. [368D; A]      1.4 The  High Court should have given due consideration to the background and the history of the matter. Ayurveda is the traditional  method of  medical attention.  In the post- medieval India the system had suffered a set back but in the post-independence period  it has  been accepted as a regular course of  study and  recognised as  a  system  of  therapy. [369B; 368H]      1.5 The  appellant has  alleged that  the writ petition was the out- 365 come of  malice  and  ill  will.  The  High  Court  did  not appropriately  advert   to  this  aspect.  The  petitioners- respondents  were   the  once-upon-a-time  students  of  the appellant. Ordinarily  one would  except obligations,  piety and  reverence  in  their  conduct  towards  the  appellant, especially in  the traditional  system of  Ayurved  culture. Surprisingly that seems to have been totally wanting. [369C]      2. Since  the reversion  of the  appellant was grounded upon non possession of the requisite qualification the order of the  High Court  in the connected writ petition cannot be sustained. [369F-G]      3.  The   appellant  shall  be  treated  to  have  been regularly appointed  as Director of Ayurved and to have been retired   in    that   post,    the   order   of   reversion notwithstanding. He  shall be  entitled to  all the benefits prescribed for the post of Director from the date he came to the post till he retired. [369G-H]      Statesman (Private)  Ltd. v.  H.R. Deb & Ors., [1968] 3 SCR 614, referred to.

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JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8623-24 of 1983.      From the  Judgment and order dated 3.6.1983 of the High Court of  Pun jab  and Haryana  in Writ Petition No. 1794 of 1980.      P.P. Rao and P.D. Sharma for the Appellant.      S.K. Bagga,  C.M. Nayar,  Mrs.  Manik  Karanjawala,  R. Karanjawala and Mrs. Meenakshi Arora for the Respondents.      The Judgment of the Court was delivered by      RANGANATH MISRA,  J. These appeals are by special leave and are  directed against  two  separate  judgments  of  the Punjab and  Haryana High Court. The first one is against the decision of  the High  Court in  a writ  application for quo warranto filed by respondents 2 to 4 while the second one is against the  dismissal of  a  writ  petition  filed  by  the appellant before the High Court challenging his reversion.      The short facts are that the appellant was appointed as a  Professor   of  Ayurvedic   Medicines  under  the  Punjab Government. Later,  he was appointed as Deputy Director from which post he was further 366 promoted as  Director. By  order dated  21.1().1981  he  was reverted to  the post  of Deputy Director. On 3 1st October, 1987, the  appellant has  superannuated. The respondent Nos. 2, 3  and 4, once upon a time students of the appellant came before the  High Court  asking for  a writ  of quo  warranto challenging  the  appellant’s  appointment  as  Director  on promotion  on   the  plea   that  he  did  not  possess  the qualification prescribed  by the Punjab Ayurvedic Department (Class I  and Class  Il) Rules,  1963. Rule 6 of these Rules prescribes:           "No person  shall be  appointed  to  the  service,           unless he  possesses such  qualifications, if any,           as are shown in col umn 4 of Appendix ’A’." In Appendix  ’A’ there  is only  one post under Class I-that being  the  post  of  Director  of  Ayurved.  The  requisite qualifications for that post as provided in Appendix ’A’ are the following:           "(1) A  degree (5 years or more of regular course)                in Ayurvedic  system of medicine of a Medical                Board   or   Faculty   of   Indian   Medicine                recognised by the Government.            (2) Doctor of Science in Ayurvedic Medicine (Post                Graduate) of any recognised University.            (3)  Must have  worked as  an organisor  in  some                Ayurvedic  Institution   of  repute  such  as                Government Ayurvedic  Department in any State                for a period of at least ten years.            (4)  Has conducted original research in Ayurvedic                Therapy.            (5) Must be an Ayurvedic Physician of at least 15                years standing." Challenge in  the High  Court was  on the  ground  that  the appellant did  not  possess  the  prescribed  qualifications under Items  l and 2. The writ petition was filed soon after the appellant  was promoted  to the  post of  Director,  and during the  pendency of  the  writ  petition  the  order  of reversion as referred to above had been passed. The appellant  opposed the  writ application  by  contending that he 367 possesses the  requisite  qualifications  and,  inter  alia,

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averred in  the return  made to  rule that  the  petitioners before the  High Court  were his  students and on account of ill motive,  they had  filed the application challenging the appointment  of   the  appellant   as  Director.  The  State Government initially  supported the appellant but later took a different  stand.  The  High  Court  has  found  that  the appellant possessed  the second  qualification, namely, that he had obtained the Doctor of Science Degree in Ayurvedic as prescribed. In  regard to  the first qualification, the High Court found  that the  appellant had  a Degree  in Ayurvedic system of  Medicine from  a recognised  Institution and  the degree that the appellant possesses has been duly recognised by the Government of Punjab, hut it found that the appellant had not  studied in  regular course for five years to obtain the degree  and, therefore,  came to the conclusion that the requisite qualification  was not possessed by the appellant. Accordingly, it  allowed the  writ petition and came to hold that the  appellant was  not qualified  to hold  the post of Director. When  the question  of challenge  to the reversion came for  consideration in  the connected writ petition, the High Court  took the  view that  since the appellant did not possess the  first qualification, he was not entitled to the post of  Director and  was not  entitled  to  challenge  the reversion to the post of Deputy Director.      We shall  first deal with the appeal arising out of the quo warranto  proceedings. The  first qualification which we have referred  to above appears to be a common qualification for almost  all the  ranks covered  by Appendix ’A’, namely, that a  degree should  have been obtained after five or more years of regular course having been gone through. No dispute has been  raised to  the appellant’s  appointment as  Deputy Director. Learned  counsel appearing for the respondents who had petitioned  the High Court pointed out with reference to the correspondence  with the State Public Service Commission that in  regard to  the qualification for the post of Deputy Director, a degree or diploma was considered sufficient. The State Public  Service Commission had raised objection to the Government’s proposal  of fixing the degree qualification by pointing out  that since a degree after studying for five or more years  of regular  course was  the requirement  for the higher post  of Director,  a lesser  qualification should be prescribed for  the post  of Deputy Director and accordingly the alternates  had been adopted. When we pointed out to her that  for  the  post  of  Assistant  Director-it  cannot  be disputed that  Deputy  Director’s  is  a  superior  post-the requirement was  five years  or more  of regular  course  in Ayurvedic with  a diploma,  there was  really no  answer. We would accordingly  hold that  the  High  Court  should  have looked into this 368 aspect to find out what exactly was the requirement. In view of the  fact that  there was no challenge to the appointment of the  appellant to  the post  of Deputy  Director and  the first item of the qualification is the same for the Director as also  the Assistant  Director and as Deputy Director, the appellant held  a post between the two, we are not impressed by the  stand of  the respondents that the appellant was not possessed  of  the  requisite  qualification.  There  is  no dispute that  the appellanthad been serving as Professor for several years.  The requisite qualification for that post as per Appendix ’A’, as far as relevant is:           "A Degree (five years regular course) in Ayurvedic           system of  Medicine of a recognised university, or           of  a   board  of   Indian  System   of   Medicine           established by  law or  from any Ayurvedic College

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         recognised by Government." As far  as this  qualification  goes,  there  is  indeed  no difference in  the case of a Professor and that of Director. In giving appointment to the appellant as Professor, it must follow that Government were satisfied that appellant had the requisite qualification.      There is  material on  record to show that in regard to the degree obtainable on completion of the five year course, the appellant  had read as a regular student for three years in the first instance and for the remaining two years he was directly under a qualified Professor though it was not study in a  regular institution.  After reading  for five years he has obtained  the degree  which has  been from  a recognised University. In the circumstances, it has become difficult to agree with  the reasons  given by  the High  Court  for  its conclusion that  the appellant  was not having the requisite qualification prescribed under the Rules.      Mr. Rao,  counsel  for  the  appellant  relied  upon  a decision of  this Court  in Satesman  (Private) Ltd. v. H.R. Deb &  Ors., [1968]  3 SCR  614 at  page 621 of the Reports, Hidaytullah,  CJ.   speaking  for   the  Constitution  Bench indicated:           "The High  Court  in  a  quo  warranto  proceeding           should be slow to pronounce upon the matter unless           there is a clear infringement of the law" It the  circumstances which  we have  narrated, it is indeed difficult to  hold that  the  appellant  did  not  have  the requisite qualification.      Ayurveda is the traditional method of medical attention preva- 369 lent in  this country.  Modern science and people associated with the  medical faculties of the modern age have gradually accepted  the   position  that  Ayurveda  provided  a  fully developed medical  process. In  the post  medieval India the system had  suffered a  set back  but in  recent years,  the Ayurved system  has been  revived. In  the post-independence period, the  system has been accepted as a regular course of study and  recognised as a system of therapy. The High Court should have  given due  consideration to  the background and the history of the matter.      There is clear material that the petitioners before the High  Court   were  the  once-upon-a-time  students  of  the appellant. Ordinarily  one would  expect obligations,  piety and reverence in the conduct of the writ petitioners towards the appellant.  This expectation  would be more justified in the traditional system of Ayurved culture. Surprisingly that seems to  have been  totally wanting.  The appellant has, on the other  hand, alleged  that the  writ  petition  was  the outcome of  malice and  ill will.  The High  Court  did  not appropriately advert to this aspect.      We are  of the view that in the facts of this case, the reasonable conclusion  to reach  should have  been that  the writ petitioners  had failed to establish that the appellant did not possess the requisite qualification. The appeal has, therefore, to be a11owed, the judgment of the High Court has to be  set aside  and the  writ petition has to be dismissed with costs.      Now we  come to  the appeal  challenging the reversion. The writ petition has been dismissed on the sole ground that the  appellant   was  not   possessed   of   the   requisite qualification and,  therefore, was  not entitled to continue as Director.  Now that  we have  reversed the finding of the High Court  on that  score, the  judgment of  the High Court cannot be  sustained. Reversion  as admitted  by  the  State

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Government in  its counter  in the  High Court  was grounded upon non-possession  of the requisite qualification With our finding in the connected appeal. the order of the High Court cannot be  sustained. Nor can the order of reversion be. The other appeal  too is allowed with costs. The appellant shall be treated  to have been regularly appointed as Director and shall be treated to have retired in the post of Director-the order of  reversion notwithstanding. He shall be entitled to all the  benefits prescribed  for the  post of Director from the date  he came  to the post till he retired. All his dues shall be  paid  to  him  within  three  months  from  today. Consolidated hearing  fee of  Rs.5,000  is  allowed  to  the appellant and  this shall  be paid  by the  respondent-State alone. P.S.S.                                      Appeals allowed. 370