Banwari Lal Gaur vs National Institute of Ayurveda and Another

J.C. Verma, J.—The petitioner, in the present writ petition, is claiming promotion to the post of professor (Basic Principles) with effect from 3.4.1992 with all consequential benefits in the Department of National Institute of Ayurveda, Madhav Vilas Palace, Amer Road, Jaipur.

The petitioner submits that he was initially appointed as Vaidya Grade C in the Ayurveda Department of the Government of Rajasthan vide order dated 30.6.1966, and later on he was made Demonstrator on urgent temporary basis by the Ayurveda Department and was posted in Government Ayurveda College, Udaipur vide order dated 4.9.1974, vide yet another order dated 11.11.1974 (Annex. 2) the petitioner was given extension to hold the post of Demonstrator till regularly selected persons through the Rajasthan Public Service Commission are appointed and was made substantive on the post of Demonstrator later on. The petitioner claims that he was thereafter appointed as Lecturer on urgent temporary basis vide order dated 9.12.1976 and posted as Lecturer at Government Ayurveda College, Jaipur vide order dated 15.12.1976 (Annex. 3). He was asked to work in the Department of Basic Principles and he continued to work there as such in the Department of Basic Principles upto 31.12.1978. Support is sought from Annexs. 3 and 4 to the above said fact of being appointed as Lecturer in the Department of Basic Principles, which is not denied. It is stated that the respondent No. 1 National Institute of Ayurveda (hereinafter called ''the Institute'') was established on 7.2.1976 and the administrative control of Ayurvedic College, Jaipur was transferred to the respondent from 1.6.1976 vide order dated 2.6.1976. Number of employees were screened and after such transfer the Screening Committee had recommended the name of the petitioner for absorption on the post of Demonstrator and accordingly the petitioner was posted as Demonstrator with the respondent from 1.1.1979, and he was again promoted though on ad hoc basis as a Lecturer in the Department of Basic Principles with effect from 1.1.1981. But the order of promotion as Lecturer was later on withdrawn, and the petitioner was permanently absorbed as Demonstrator vide order dated 24.11.1983. His seniority was determined vide order dated 2.6.1984. The order of being permanently absorbed as Demonstrator is attached as Annex. 5 and that of the seniority as framed on 2.6.1984 is attached as Annex. 6 to the writ petition. The petitioner has been shown to be working as Demonstrator in the Basic Principles Department. Vide Annex. 7 dated 1.5.1985. On the recommendations of the Departmental Promotion Committee the Governing Body of the Institute had promoted the petitioner on regular basis as a Lecturer. His name appeared at S. No. 15 in Annex. 7. He got his next promotion as Assistant Professor vide Annex. 8 dated 21.7.1987 in the Department of Basic Principles itself. The petitioner was then promote as Associate Professor vide order dated 25.51988, (Annex. 9) in the same Department. Vide Annex. 10 he has also been given the charge of Head of the Department of Basic Principles. A seniority list Annex. 11 relating to Associate Professors was also circulated and he was shown to be the senior most person in the seniority list in his department.

A Departmental Promotion Committee for promotion to the post of Professor had been constituted. The name of the petitioner was also considered but his name was not found in the order of promotion dated 3.4.1992 attached as Annex. 12 to the writ petition. Two persons Vaidya Radha Kant Sharma and Vaidya Ved Prakash Sharma were promoted to the post of Professor in their respective departments i.e. Vikriti Vigyan and Kaumara Bhritya. No one was promoted in the department where the petitioner was working. Therefore, being aggrieved he made a representation.

The petitioner submits that according to his information he was not promoted as Professor because his experience on the post of Demonstrator was not counted as teaching experience. According to him, as pointed out by him in his representation Annex. 13, he had a total experience of 17 years and 7 months to the graduates and 16 years and 4 months to the post graduates. In addition to that he had also published 7 books the details of which have been attached with the representation Annex. 13. Two of his books were also under publication and he had also relied that he had submitted thesis of two subjects. He had also attached his experience about supervision of M.D. (AYU) Research Work mentioning about 18 instances and had also mentioned that he had participated in 13 seminars. He had given as may as 114 press publications for the period from March 1965 to March 1992. He had been continuously giving representations from time to time but without any result. His grievance is that He has been discriminated by not counting the period spent on the post of Demonstrator while such a benefit has been given as a teaching experience to Smt. Vijay Laxmi and others, he has also stated that he was teaching the under graduates and post graduates classes when he was working as Demonstrator and for that purpose he relies on a letter Annex. 19 attached to the petition. He has also given the details of having taught under graduates and post graduates from 1979 to 1985 in para 18 of his petition which assertion of the petitioner has not been denied. He submits that under the N.I.A. Service Rules, 1982 (hereinafter called ''the Rules'') the teaching experience for post graduates as qualification for promotion to the post of Professor is 10 years and according to him the petitioner has 17 years and 5 months teaching experience on the date when similarly situated persons were promoted. Thus, the rejection of the candidature of the petitioner only on the ground that he has not got the requisite teaching experience by excluding the experience of teaching as Demonstrator is not legally maintainable.

Respondent No. 1 has filed the written-statement. The factual dates in regard to various appointments and promotions have not been denied. But it is stated that the petitioner cannot take the benefit because of the reason that the teaching experience as gained by the petitioner is for the period when he was employed with the State Government and not with the answering respondent Institute. It is stated that despite the fact that he had experience of only 1 year and 8 months post graduate teaching as Associate Professor still he was allowed to appear in the interview as on the last date fixed for receipt of the applications against the requirement of 3 years of post graduate teaching experience as Lecturer, Assistant Professor etc. Impliedly it is admitted that the petitioner has been ignored for the reason that his experience as Demonstrator had not been taken into consideration. It is submitted that the 1982 Rules for promotion, to the post of Professor, provide for 10 years teaching experience for post graduates but do not specify the necessary experience required at feeder cadre as Associate Professor to be considered for selection to the highest teaching post of professor. According to the respondent the petitioner had experience of 3 years 9 months as Associate Professor and 10 months as Assistant Professor, and, therefore, because of the reason that the total teaching experience of the petitioner was not 10 years, the Departmental Promotion Committee did not thought it proper to promote him to the post of Professor in the Department of Basic Principles. In para 14 of the reply the respondent has stated that the petitioner had 6 years and 9 months post graduate teaching experience as Lecturer and above in the Institute and erstwhile Rajasthan service and about 10 years 8 months experience as Demonstrator or its equivalent in the Institute and erstwhile Rajasthan Service. However, in para 8 of the writ petition showing the experience of the petitioner for about 5 years from 1979-80 to 1985 for post graduate teaching has not been denied when he was working as a Demonstrator.

The point for determination now narrows down to the effect whether for the purpose of selection to the post of Professor from eligible candidates, even the experience of a Demonstrator even though, teaching post graduates, can be ignored or whether the service rendered as Demonstrator can be termed as teaching experience or not. At the time when the selection was made in the year 1982 admittedly the Rules of 1982 were applicable. For the recruitment to the post of Professor the qualifications have been mentioned in Schedule 1 of the National Institute of Ayurveda Service Rules, 1982 to be Degree or Diploma in Ayurveda with 12 years teaching experience for a graduate a post-graduate or 10 years teaching experience for a post-graduate for the purpose of promotion from the post of Associate Professor, to the post of Professor. The post is required to be filled up 50% by promotion and 50% by direct recruitment. The relevant portion in regard to the post of Professor is read as under:

"2. Professor 50 1. Degree or Diploma in 50% by Associate 1. Degree or Ayurveda of a recognised Promotion Professor Diploma in University/Statutory Faculty/ and 50% Ayurveda of a recognised Board/Council, etc. equivalent. by direct University/ recruitment Statutory Faculty/ Board/Council, etc. or equivalent. 2. Post-Graduate Degree or 2. 12 years Diploma/Certificate of at least teaching experience two years duration in Ayurveda for a graduate of a recognised University/ or 10 years Statutory Faculty/Board/ teaching experience Council etc. or equivalent. for a Post-Graduate. 3. 10 Years teaching/research 3. Knowledge of experience out of which 5 years Sanskrit, Hindi in Post-Graduate education/ and English. research in the cadre of Reader or its equivalent or as Professor in the subject concerned in an Ayurvedic College recognised by the Government of India, State Governments or Statutory University. 4. Knowledge of Sanskrit, Hindi and English.

Desirable: Research publication/original contribution in the subject concerned.

Schedule 1 Itself provides the posts of teaching and research division which consists of posts of Director, Professor, Associate Professor, Assistant Professor, Lecturer, Demonstrator, Physician, Yoga Instructor and Physical Instructor. Rule 8 of the Rules provides the composition, nature and strength of service, under which the service consists of the divisions, namely, Teaching and Research Division, Administrative Division, Technical Division and Misc. Division, Admittedly, the post of Demonstrator has been shown in the Teaching Division, of the Schedule 1 and as such if the petitioner has taught the post-graduates as Demonstrator as mentioned by him in the writ petition and not denied by the respondent the petitioner was entitled to the benefit of experience qua that period as well. In the Rules or in Schedule 1 it has no where been mentioned that for promotion to the post of Professor the teaching experience is to be counted only on the post of Lecturer, Assistant Professor or Associate Professor as has been stated in the written statement. The Rules only prescribed the teaching experience of 12 years and 10 years as the case may be and the post of Demonstrator has been shown in the teaching and research division and in case the experience as enumerated by the petitioner is accepted, as it has not been denied by the respondent, his experience as a Demonstrator as alleged by him, shall have to be counted as a teaching experience and in that situation admittedly his experience is more than 12 years.

In the Department of the petitioner i.e. Basic Principles and as per list of Selection Annex. 12 no one seems to have been selected for the post of Professor in the Department of Basic Principles in which Department the petitioner was working primarily for the reason that the petitioner had not got the required experience by excluding the experience gathered by him while working as Demonstrator. The basis for which the petitioner''s name had been totally ignored by the respondent is not sustainable. In view of the admission in the written statement that the petitioner had more than 17 years of teaching experience if his teaching as a Demonstrator is also included, there is no escape that the basis of consideration by the department in regard to promotion to the post of Professor vis-a-vis the petitioner was not correct, for the reason that the teaching experience as a Demonstrator was not counted even though the post of Demonstrator has been shown in the teaching and research division under the Rules of 1982 itself.

In view of the reasons mentioned above and after hearing the respective arguments of the counsel for the parties, the writ petition is allowed. The respondents are directed to constitute a Departmental Promotion Committee for consideration of the name of the petitioner after having taken into account the period of teaching experience as a Demonstrator as well when he had been teaching as a Demonstrator as a teaching experience as has been mentioned in the Rules itself to the effect that the Demonstrator do fall under the teaching division.

The period of experience as a Lecturer, Assistant Professor and Associate Professor is also to be counted. As per the written-statement the petitioner had 6 years and 9 months post-graduate teaching experience as Lecturer, 10 months as Assistant Professor and 3 years and 9 months as Associate Professor. The total period of teaching to post-graduates from Lecturer to Associate Professor shall come to 11 years and 4 months as per the admitted position as per written-statement as mentioned in paras 12 and 14 of the written-statement. Apart from the above the petitioner has also about 10 years and 8 months experience as Demonstrator or equivalent in the Institute or erstwhile Rajasthan service which is also an admitted fact. In view of the above situation the total experience of the petitioner comes to about 22 years. And after consideration, in case the petitioner is found fit, he would be entitled to the post of professor in the Department of Basic Principles where he had been working through out and for which post he had applied from the date when the selection initially was made. If the petitioner is ultimately selected, the petitioner would be entitled to the post from back date with continuity of service but without any monetary benefit so far as arrears of salary is concerned. The writ petition is allowed.

The orders shall be implemented within three months from the date of receipt of a certified copy of this order. No orders as to costs.