To The Govt. of Orissa Vs. Laxmikanta Nanda  INSC 488 (16 November 1993)
DAYAL (J) YOGESHWAR DAYAL (J) KULDIP SINGH (J) CITATION: 1994 AIR 569 1994 SCC
(1) 587 JT 1993 (6) 531 1993 SCALE (4)484
Judgment of the Court was delivered by YOGESHWAR DAYAL, J.- Heard. Special
leave granted. Since the matter was heard at length, the appeal arising out of
the special leave petition is being disposed of as well.
appeal is directed against the judgment dated May 7,.1990 passed by the Orissa
Administrative Tribunal, Bhubaneswar in Original Application No. 282 of
application itself was filed before the State Administrative Tribunal on behalf
of the serving senior teachers in the Government Homoeopathic College as well as All Orissa Government Homoeopathic Medical
College Teachers' Association against the Secretary to Government, Health and
Family Welfare Department, Bhubaneswar
and Dr Godavarish Mishra, Deputy Director, Homoeopathy, Bhubaneswar. In the original application the
petitioners therein had prayed for quashing the Resolution of the Government of
Orissa, Health and Family Welfare Department, No. 40481/H dated 15th December 1986 and the Notification No. VI Med.
XXIA.2/86 40621/H dated 16th December 1986 whereby Dr Godavarish Mishra,
(Respondent 2 before the Tribunal), Chief Medical Officer, Homoeopathy, was
appointed as Deputy Director of Homoeopathy on ad hoc basis till February 28,
1987 or until further orders, whichever is earlier.
aforesaid resolution dated December 15, 1986
provided as follows:
of the criteria for selection of Deputy Director of Homoeopathy in Class-I
(Senior) in the Directorate of Indian System of Medicines and Homoeopathy.
present the criteria for promotion to the post of Deputy Director of
Homoeopathy has been fixed as follows:
(1) A recognised
qualification as prescribed under the Homoeopathy Central Council Act, 1973,
Schedules 2 and 3.
Two years' experience as CMO or Inspector of Homoeopathy or 10 years'
experience as Lecturer in Govt. Homoeopathy Medical College, Bhubaneswar.
with administrative experience would be preferred.' The question of fixation of
a revised criteria for promotion to the rank of Deputy Director was under consideration
of Government for some time past.
after careful consideration have been pleased to decide that henceforth CMO
Homoeopathy and Inspectors of Homoeopathy who have got a minimum period of 5
years of service shall be considered eligible for the post.
that the Resolution shall be published in the Orissa Gazette and copies
forwarded to A.G. Orissa/All Deptts. of Govt./All Heads of Deptts./All Distt. Magistrates/Registrar,
Orissa High Court/Secy. Orissa P.S.C. for information and necessary action.
order of the Governor C. Narayanswamy, Secretary to Government." It is
clear from the above resolution that the earlier criteria for selection of
Deputy Director of Homoeopathy was changed. The material change was that
Lecturers in the Government Homoeopathy Medical College, Bhubaneswar did not figure in the present
eligibility criteria for consideration for promotion to the post of Deputy
the impugned notification dated December 16, 1986, Respondent 2, before the Tribunal, namely Dr Godavarish Mishra,
Chief Medical Officer, Homoeopathy, was appointed as Deputy Director of
Homoeopathy, as stated earlier.
may mention that while the matter was pending before the State Tribunal the
aforesaid resolution dated December 15, 1986
came to be superseded by another Resolution No. 40360/H dated November 25, 1987 which reads as follows:
Refixation of the criteria for selection of Deputy Director of Homoeopathy in
Class-I (Senior) in the Directorate of Indian Medicines and Homoeopathy.
of this Department Letter No. 21410 H dated July 19, 1984 and Resolution No.
40481 dated December 15, 1986 590 Government after careful consideration have
been pleased to decide that henceforth only Chief Medical Officer Homoeopathy
and Inspectors of Homoeopathy who have got a minimum period of 5 years of
service shall be considered eligible for the above post.
that the Resolution shall be published in the Orissa Gazette and copies
forwarded to the A.G. Orissa/All Deptts. of Govt./All Heads of Deptts./All Distt.
Magistrates/ Registrar, Orissa High Court/Secy., Orissa P.S.C. for information
and necessary action.
order of the Governor C. Narayanswamy, Secretary to Government." 7.The
State Administrative Tribunal, on reading of the revised criteria fixed in the
resolution dated December 15, 1986 took the view that this resolution does away
with the recognized qualifications as prescribed under the Homoeopathy Central
Council Act, 1973 (hereinafter called 'the Central Act') and was thus violative
of Sections 15(2) and 15(3) of the Central Act read with Section 29(b) of the Orissa
Homoeopathic Act, 1956 (hereinafter referred to as 'the 1956 Act'). The
Tribunal also took the view that "it was absolutely unfair on the part of
the Government to completely exclude Lecturers in Medical College from
considering them for promotion to the post of Deputy Director under the revised
criteria, when they continued to belong to the same cadre and no bifurcation of
teaching cadre and peripheral cadre had taken place" and held that the
Tribunal is unable to accept the plea of the State Government that resolution
is not arbitrary and discriminatory. The Tribunal accordingly declared the
resolution dated December 15, 1986 as illegal and also quashed the appointment
of Dr Godavarish Mishra as it was not sustainable in law and directed the
Government to consider the petitioners before it for promotion to the post of
Deputy Director if they fulfil the criteria which was in force prior to coming
into force of the revised criteria, which had been set aside by the Tribunal,
and the post of Deputy Director will be filled up accordingly.
case of the State Government was stated on their behalf in their
counter-affidavit filed before the Tribunal.
stated inter alia that the post of Deputy Director was originally a promotional
post for peripheral Medical Officers as well as the Lecturers of the Homoeopathy College. But it was found that although promotional avenues were
available for Lecturers of the Homoeopathic Medical College, no such avenues were available for Medical Officers
working in the field. It was pleaded that in the Homoeopathic College, Demonstrator can be promoted to
the post of Lecturer and Lecturer in turn to the post of Associate Professor
and the Associate Professor was eligible for promotion as Professor. It was
stated that the post of Associate Professor is a Junior Class-I post whereas
the post of Professor is the Senior Class-I post. The Medical Officers in the
peripheral cadre had no promotional avenues beyond the post of 591 Homoeopathy
Inspector and Chief Medical Officer, Homoeopathy, both in Class-II rank. It was
thus noticed by the Government that there was considerable discontentment in the
matter of promotional avenues for the officers working in the college wing and
those working in the field. With a view to set at rest the disparity, it was
decided that the post of Deputy Director should be reserved as a promotional
post for officers working in the field. At the same time the Government decided
to prescribe the minimum qualification and eligibility for promotion to the
higher post. Thus there was a reasonable basis for excluding the college
teachers from being considered for promotion to the post of Deputy Director.
There was thus no discrimination or arbitrariness in making the impugned
resolution dated December
15, 1986. It was also
pleaded that the resolution in no way contradicts the provisions contained in
Section 15 of the Central Act. On the other hand the resolution conforms
strictly to the provisions laid down in Sections 15(2) and 15(3) of the Central
Act read with Section 29(b) of the 1956 Act.
was further pleaded that the post of Deputy Director Homoeopathy is an administrative
post and it was thus decided by the Government that the post should be filled
up from among the Chief Medical Officer and Inspectors of Homoeopathy having
minimum period of five years experience.
Government after consideration laid down the revised criteria for filling up of
the post of Deputy Director of Homoeopathy. It was also pleaded that during the
pendency of the application before the Tribunal vide resolution dated November
25, 1987 the Government of Orissa had decided that "henceforth only Chief
Medical Officer of Homoeopathy and Inspectors of Homoeopathy who have got a
minimum period of 5 years of service shall be considered eligible for the post
of Deputy Director of Homoeopathy in the Directorate of Indian Medicines and
was specifically pleaded that the appointment and promotion to teaching posts
in Homoeopathic Medical Colleges in the State are governed by special rules
framed under Article 309 of the Constitution of India which are called Orissa
Homoeopathic Medical Teaching Service (Method of Recruitment and Conditions of
Service) Rules, 1980 (hereinafter referred to as 'the 1980 Rules') and the
teachers of the Homoeopathic Medical Colleges belong to a separate cadre.
had been submitted before us that it was unnecessary to incorporate the
specific provision in the Government's resolution laying down the qualification
when the post of Deputy Director Homoeopathy itself was required to be filled
up from among the Inspectors and Chief Medical Officers of Homoeopathy. In
other words it was submitted that the Medical Officers, in any case, have to be
those possessing the basic qualifications as required under Schedules Second
and Third of the Central Act, are eligible for promotion to the post of Chief
Medical Officer/Inspectors of Homoeopathy.
that view of the matter when the promotion was only to be available to the
Inspectors and Chief Medical Officer of Homoeopathy, 592 specific provision of
qualification, in the opinion of the State Government, was not necessary at
was submitted that the administrative experience is necessary to man the post
of Deputy Director. Hence it has been provided in the resolution that the
Inspector/Chief Medical Officer (Homoeopathy) with five years of experience
will only be considered for promotion to the post of Deputy Director
regards the justifiability of excluding the Lecturers of Government Homoeopathy
College the plea, as mentioned in the counteraffidavit before the Tribunal, of
promotional avenues being available to the college teachers as opposed to the
field staff was again re-submitted before us. It was also submitted that the
assumption of the Tribunal that the teachers of the Homoeopathy College and Medical Officers in the peripheral institutions belong
to one cadre is entirely misconceived. It was pleaded that the 1980 Rules
merely regulate the Medical College teachers only. It has no applicability to peripheral
doctors and, therefore, it was not correct to say that Inspectors and CMO belong
to the cadre of Lecturers or Senior Lecturers who were recruited under the
provisions of 1980 Rules.
Court had occasion to examine the provisions of the Central Act as well as the
1956 Act in the case of State of Orissa v. Radheshyam Nandal. After considering the provisions of Sections
15(2) and 15(3) of the Central Act as well as Section 29(b) of the 1956 Act
this Court held that in view of the provisions of Section 15(3) of the Central
Act the right conferred on the Registered Homoeopathic Practitioner under the
1956 Act is not affected by the conditions under Section 15(2) of the Central
Act and indeed such a right or privilege has been specifically preserved by
Section 15(3)(b) of the Central Act.
is clear from the provisions of Section 15(1) of the Central Act itself that
any medical qualification included in the Second or the Third Schedule shall be
sufficient qualification for enrolment of any person on any State Register of
Homoeopathy. Sub-section (2) of Section 15 makes it specifically clear that no
person, other than a practitioner of Homoeopathy who possesses a recognised
medical qualification and is enrolled on a State Register or the Central
Register of Homoeopathy shall hold office as Homoeopathic physician or any
other office (by whatever designation called) in Government or in any
institution maintained by a local or other authority. Thus nobody could be either
Inspector or Chief Medical Officer, Homoeopathy without having requisite
qualification contemplated by Section 15(2) of the Act. It was not the case of
teachers before the Tribunal that Inspectors and Chief Medical Officer,
Homoeopathy were disqualified under the Central Act for holding any office in
Government. Once the holding of the requisite qualification is sine qua non for
employees working as Inspectors and Chief Medical Officer, Homoeopathy, there
was no 1 1991 Supp (2) SCC 404: 1992 SCC (L&S) 141: (1992) 19 ATC 289 593
necessity for providing the same qualification once again while making them
eligible for promotion to the post of Deputy Director.
are thus constrained to hold that the Tribunal had erred in holding that the
resolution of December
15, 1986 was in any
way violative of Section 15(2) or 15(3) of the Central Act or Section 29(b) of
the 1956 Act. Again the finding that the exclusion of Lecturers in Medical
College from being eligible for promotion to the post of Deputy Director,
Homoeopathy being unfair or discriminatory is not correct. Once the cadre of
teachers is separate from the cadre of peripheral officers there is no question
of discrimination. There is already a division among their personnel and the
two belong to different categories and, therefore, the decision of the
Government at a later stage to exclude teachers from eligibility to the post of
Deputy Director, Homoeopathy cannot be called discriminatory. It cannot be also
called unfair as pointed out in the counter- affidavit filed on behalf of the
State of Orissa that whereas teachers could go to the level of Class-I post,
the persons belonging to peripheral field had to compete with teachers for
aspiring to go to the post of Deputy Director.
cannot be said that the exclusion, on the facts and circumstances, suffer from
any unfairness. We thus find that the revised criterion as envisaged in the
resolution dated December 15, 1986 and as specifically made clear in the
resolution dated November 25, 1987 read with the averments made in the
counter-affidavit is not in any way illegal or discriminatory and not in any
way violative of the provisions of the 1956 Act or the Central Act and,
therefore, the appointment of Dr Godavarish Mishra could not have been quashed
by the Tribunal.
accordingly accept this appeal with costs and set aside the impugned order of
the Tribunal dated May