High Court of H.P.REPORTABLE

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

ON THE 15

th

DAY OF SEPTEMBER, 2022

BEFORE

HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN

&

HON'BLE MR. JUSTICE VIRENDER SINGH

CIVIL WRIT PETITION No. 7724 of 2021

Between:

1.DEV RAJ,

S/O SH. CHET RAM,

R/O VILLAGE TROHALA,

P.O. DHAWALI,

TEHSIL DHARAMPUR,

DISTRICT MANDI, H.P.,

AGED 42 YEARS,

2.SATISH KUMAR,

S/O SH. CHAND LAL,

R/O VILLAGE TROHALA,

P.O. DHAWALI,

TEHSIL DHARAMPUR,

DISTRICT MANDI, H.P.

3.SURJEET SINGH,

S/O SH. SHAMBHU DUTT,

R/O VILLAGE DELAG,

P.O. GOHAR,

TEHSIL GOHAR,

DISTRICT MANDI, H.P.

4.KULDEEP KUMAR,

S/O SH. BIHARI LAL,

R/O VILLAGE KALSWAI,

P.O. & TEHSIL DHARAMPUR,

DISTRICT MANDI, H.P.

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5.SUSHMA SHARMA,

W/O SH. MAHESH KUMAR,

R/O UPPER LASRANA,

P.O. & TEHSIL SANDHOLE,

DISTRICT MANDI, H.P.

6.NEELAM SHARMA,

W/O SH. SUDESH KUMAR,

R/O VILLAGE DEEPUR,

P.O. HATWAD,

TEHSIL GHUMARWIN,

DISRICT BILASPUR, H.P.

7.KISHORI LAL,

S/O SH. HET RAM,

R/O VILLAGE NALSAR,

P.O. RAJGARH,

TEHSIL BALH,

DISTRICT MANDI, H.P.

8. SUNIL KUMAR,

S/O SH. HET RAM,

R/O VILLAGE NALSAR,

P.O. RAJGARH,

TEHSIL BALH,

DISTRICT MANDI, H.P.

9. BHUWNESHWAR DUTT,

S/O SH. PARMA NAND,

R/O VILLAGE KHURI,

P.O. RAJGARH,

TEHSIL BALH,

DISTRICT MANDI, H.P.

10. JITENDER CHAUHAN,

S/O SH. DEVI RAM,

R/O VILLAGE MOSLAN,

P.O. DEVIYA,

TEHSIL NERWA,

DISTRICT SHIMLA, H.P.

11.KEWAL RAM,

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S/O SH. DEVI RAM,

R/O VILLAGE BHOULALA,

P.O. DEVIYA,

TEHSIL NERWA,

DISTRICT SHIMLA, H.P.

...PETITIONERS

(BY MR. SANJEEV BHUSHAN,

SENIOR ADVOCATE, WITH

MR. RAJESH KUMAR, ADVOCATE)

AND

1.STATE OF HIMACHAL PRADESH

THROUGH SECRETARY

(AYURVEDA) TO THE

GOVERNMENT OF HIMACHAL

PRADESH.

2.DIRECTOR OF AYURVEDA,

HIMACHAL PRADESH,

SHIMLA.

...RESPONDENTS

(BY MR. ASHOK SHARMA,

ADVOCATE GENERAL, WITH

MR. VINOD THAKUR &

MR. SHIV PAL MANHANS,

ADDITIONAL ADVOCATES GENERAL

AND MR. YUDHBIR SINGH

THAKUR, DEPUTY ADVOCATE

GENERAL)

RESERVED ON : 17.08.2022

_______________________________________________________________

This Civil Writ Petition coming on for orders this day,

Hon'ble Mr. Justice Virender Singh, passed the following:

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O R D E R

The above named petitioners have invoked the extra

ordinary writ jurisdiction of this Court, under Article 226 of the

Constitution of India, seeking the following substantive relief:

“i. That appropriate writ, order or direction may very

kindly be issued directing the respondents to consider

and offer appointment to the petitioners on batch-wise

basis for the post of Ayurvedic Pharmacist from the

same date, when the persons junior on batch-wise

basis will be offered appointments, in the interest of

law and justice with all consequential benefits of pay,

arrear, seniority etc.”

2. Factual position, as per the pleadings, is as under:

The petitioners have obtained two years Diploma of

Ayurvedic Pharmacy from different Colleges of Bihar, during the

years 1995 to 2000, which are stated to have been affiliated with

Bihar State Faculty of Ayurvedic and Unani System of Medicine,

Patna, under Section 17 of the Bihar Development of Ayurvedic

and Unani System of Medicine Act, 1961.

3. After obtaining two years Diploma from Bihar State

Faculty of Ayurvedic and Unani System of Medicine, the

petitioners got themselves registered with the Board of Ayurvedic

and Unani System of Medicine, Himachal Pradesh. The copy of

the certificate of one of the petitioners issued by the Registrar,

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Board of Ayurvedic and Unani Systems of Medicines, Himachal

Pradesh has been placed on record as Annexure P-2.

4. Respondent No. 2, who is stated to be the Appointing

Authority of the Ayurvedic Pharmacists, has issued an

advertisement to fill-up the posts of Ayurvedic Pharmacists, on

batch-wise basis. Consequently, call letters were issued to all the

petitioners on 7

th

August, 2021, requiring them to appear before

the Interview Board on 23

rd

August, 2021.

5. Thereafter, the documents submitted by the petitioners

were sent for verification.

6. The petitioners have claimed that they all are in the top

of the list, being the senior most, for the batch-wise recruitment.

It has been contended on behalf of the petitioners that the

verification of their documents had earlier been done, at the time

of their registration, by the Board of Ayurvedic and Unani System

of Medicine, Himachal Pradesh. Now, the respondents have again

wrongly submitted their documents for verification and on the

basis of some verification, have deleted their names from the list

of eligible candidates and as such, not offering them the letters of

appointment, despite being the senior most persons in their

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relevant batch(es) and having the requisite qualification for the

post.

7. Petitioners have also filed representation, dated 30

th

October, 2021 (Annexure P-5), before the respondents for

redressal of their grievances, but, no decision is stated to have

been taken so far, over the said representation.

8. In order to substantiate their case, the petitioners have

relied upon the judgment rendered by their Lordships of Hon’ble

Supreme Court in Bihar State Council of Ayurvedic and

Unani Medicine versus State of Bihar and others, 2007 (12)

Supreme Court Cases 728.

9. Apprehending that the appointment letters will be

issued to some other persons, excluding the petitioners, they have

filed the instant writ petition, seeking the afore-quoted relief.

10. When put on notice, respondent No. 2 has contested the

writ petition, mainly, on the ground that the Diplomas of the

petitioners were not recognized by H.P. Takniki Shiksha

Board/University recognized by the H.P. Government, and the

same were sent to the Bihar State Ayurvedic and Unani Medical

Council for verification, which, in return, vide letter, dated 21

st

October, 2021, has intimated that the recognition of the

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Institutes, from where the petitioners have obtained the

Degree/Certificates, stands cancelled.

11. As such, it is the stand of respondent No. 2 that those

institutes were not recognized, either by the Bihar Government or

by the Government of India.

12. Heavily relying upon the said communication, received

from the Bihar State Ayurvedic and Unani Medical Council, it has

been pleaded that the registration of the petitioners, with the

Board of Ayurvedic and Unani System of Medicine, has been

cancelled.

13. With all these submissions, respondent No. 2 has prayed

for dismissal of the writ petition with the plea that the petitioners

are not eligible for appointment to the post of Ayurvedic

Pharmacists.

14. We have heard learned counsel for the parties and

perused the record.

15. Respondent No. 2 has issued an advertisement by

writing a letter to the Director, Public Relation Department,

Himachal Pradesh, on 3

rd

October, 2020 (Annexure R-IV), for

filling up 97 posts of Ayurvedic Pharmacists. The last date for

submission of applications has been fixed as 18

th

November, 2020

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for the Tribal areas and 3

rd

November, 2020 for the candidates

belonging to the other parts of Himachal Pradesh. The minimum

qualification, which has been prescribed, in the advertisement, is

reproduced as under:

“Essential Qualification(s):

i) Plus two from a recognized Board of School

Education.

ii) Successful training of at least two years duration in

Ayurvedic Pharmacist/Diploma in Pharmacy

(Ayurveda)/Bachelor Degree in Pharmacy (Ayurveda)

from an Institution duly recognized by the Himachal

Pradesh Takniki Shiksha Board/University recognized

by the Himachal Pradesh Government.”

16. In response to the said advertisement, a communication

was sent by the Director (Ayush), Himachal Pradesh, to the

candidates, falling in the zone of consideration, directing them to

submit one set of the photocopies of the relevant documents, as

mentioned in the said letter. Apart from the other documents, the

candidates were required to submit the Certificate of successful

training of at least two years duration in Ayurvedic

Pharmacist/Diploma in Pharmacy (Ayurveda)/Bachelor Degree in

Pharmacy (Ayurveda) from an Institution duly recognized by the

H.P. Takniki Shiksha Board/University recognized by the H.P.

Government, as well as, Registration Certificate from Himachal

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Pradesh Ayurvedic and Unani Board/Council. Admittedly, the

petitioners had submitted these documents.

17. It would be apt to record herein that it has been

admitted in the reply that all the petitioners have been registered

with the Board of Ayurvedic and Unani System of Medicine,

Himachal Pradesh, after verification of their Degrees from the

concerned Institutes.

18. Vide letter, dated 1

st

October, 2021, a request has been

made by the Director Ayush, Himachal Pradesh to the Additional

Chief Secretary-cum-Chairman, Bihar Ayush Society, Patna with

regard to the verification of the documents of the recognized

Institutions. In response to the said letter, it has been informed

by the Registrar, Bihar State Ayurvedic and Unani Medical

Council, Patna, that in view of the decision taken by the Bihar

State Ayurvedic and Unani Medical Council on 4

th

August, 2003,

the Institutions were not recognized by the State Government of

Bihar or Government of India, i.e. at any Government level, and

recognition given by the Bihar State Ayurvedic and Unani

Medicine Authority has also been abolished.

19. As per the List of Medical Qualifications included in the

Schedules to the Indian Medicine Central Council Act, 1970

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(Second Schedule), the State Faculty of Ayurvedic and Unani

Medicine, Patna was holding validity from 1953 to 2003.

20. Section 2 (c) of the Bihar Development of Ayurvedic &

Unani Systems of Medicine Act, 1951 defines the word ‘Faculty’,

which reads as under:

“2. Definitions.

(a) … … …

(b) … … …

(c) “Faculty” means the State Faculty of Ayurvedic

and Unani Medicines established under Section

17.”

21. Similarly, Section 17 (2) of the Bihar Development of

Ayurvedic & Unani Systems of Medicine Act, 1951, defines the

duties of the faculty. The relevant portion of the said provision is

reproduced as under:

“17. Establishment of Faculty.

(1). … … …

(2) Subject to the provisions of this Act and the Rules

and Regulations made thereunder, it shall be the duty

of the Faculty-

(a) … … …

(b) to hold examinations and grant certificates to, and

confer degrees or diplomas on, persons who shall have

pursued a course of study in the institutions affiliated to

the Faculty.”

22. Thus, it can be clearly discerned that prior to the year

2003, the State Faculty of Ayurvedic and Unani Medicine, Patna

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was recognized by Central Council of Indian Medicine, New Delhi

for medical qualifications in Indian medicine granted by

Universities, Boards or other medical institutions in India and

was authorized to hold examinations and grant certificates to, and

confer degrees or diplomas on, persons who shall have pursued a

course of study in the Institutions affiliated to the Faculty.

23. In Bihar State Council of Ayurvedic and Unani

Medicine’s case (supra), their Lordships of Hon’ble Supreme

Court have had an occasion to discuss the effect of the Amending

Act, 2003. It would be profitable to reproduce the relevant portion

of the judgment, as under:

“13. The Bihar Development of Ayurvedic and Unani

Systems of Medicine Act, 1951 received the assent of the

President on 12.9.1951 and the assent was first

published in the Bihar Gazette, Extraordinary, dated

17.10.1951. This Act was enacted to provide for the

development of the ayurvedic and Unani systems of

medicine, to regulate their teaching and practice, and to

control the sale of indigenous medicinal herbs and

drugs in the State of Bihar. In exercise of powers under

Section 3, the State Government shall, by notification,

constitute a Council to be called the Bihar State Council

of Ayurvedic and Unani Medicines, which shall consist

of a President and the Members mentioned in clauses

(a) to (n) of Section 3(1).

14. Under Section 17 of this Act, the Council shall

establish a State Faculty of Ayurvedic and Unani

Medicines for the purposes of the Act which shall consist

of a Chairman and the Members enumerated in clauses

(a) to (d) of Section 17(1). Under clause (d) of sub-

section (2) of Section 17, it shall be the duty of the

Faculty to recognize educational or instructional

institutions of the Ayurvedic and Unani systems of

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medicine for purposes of affiliation. Under clause (b) of

Section 17(2), the Faculty is authorized to hold

examination and grant certificates to, and confer

degrees or diplomas on, persons who shall have pursued

a course of study in the institutions affiliated to the

Faculty.

15. Section 37 of this Act authorizes the Council to

establish educational institutions, prescribe courses of

study, etc. subject to the rules as may be prescribed by

the State Government in this behalf. Section 37 clothes

the Council with power to establish its own educational

or instructional institutions for the purpose of

conducting courses of Ayurvedic and Unani systems of

medicine. Under Section 54, the Council is authorized to

make regulations subject to the provisions of the Act and

the rules made by the State Government.

16. Looking into the aforesaid provisions, it is clear to

us that the Council constituted by the State Government

under the 1951 Act shall establish a State Faculty

under Section 17 which shall have the authority to

recognize educational or instructional institutions of

Ayurvedic and Unani systems of medicine, to conduct

examinations of the persons studying in such affiliated

institutions, and to grant certificates and confer degrees

or diplomas.

xxx xxx xxx

56. The amendment brought about in the Indian

Medicine Central Council Act, 1970, in 2003 by

introduction of Sections 13-A, 13-B and 13-C are the

provisions for continuance of the institution which has

not obtained prior permission of the Central

Government and, therefore, time limit of three years has

been provided under Section 13-C to regularize the

institutions affairs as required under the Act by seeking

permission of the Central Government. Insertion of

Section 13-A in the 1970 Central Act in the year 2003

has regulated the opening of an indigenous medical

college. The non-obstante clause clearly indicates that a

medical institution cannot be established except with

the prior permission of the Central Government.

57. Under Section 13-B, any medical qualification

granted by the colleges established without the prior

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permission of the Central Government is not a

recognized medical qualification. The reasonable

reading of Section 13-C(1) puts the existing colleges at

par with the new colleges as both of them are required to

seek permission within three years from the

commencement of the Amending Act. The phrase on or

before has made it clear that the existing colleges are

also required to seek permission and there is no

exemption.

58. Section 13-C(2) further provides that the medical

qualification granted by existing colleges whose

establishment has not been recognized by the Central

Government, the medical qualification would not be a

recognized qualification. Similar requirement is to be

fulfilled by the new medical colleges opened, i.e., to seek

permission of the Central Government for the medical

qualification to be recognized qualification. Thus, new

colleges or existing colleges cannot any more grant a

recognized qualification without the sanction of the

Central Government. Section 13-C(2) does not say that

the effect of non-permission by the Central Government

to the existing colleges after the Amending Act came into

force would render the medical qualifications already

granted by the existing colleges before the insertion of

Sections 13-A, 13-B and 13-C in 2003, un-recognised.

59. The whole spectrum of the amendment brought

about by introducing Sections 13A, 13B and 13C

indicates that it has an application from the date they

have been introduced by an amendment in the 1970

Central Act. The effect of the amendment brought about

is clear to us that all the medical colleges which are in

existence or the medical colleges which have to be

established should compulsorily seek permission of the

Central Government within the period provided and on

failure to get the permission of the Central Government

the medical qualification granted to any student of such

medical college shall not be a recognized medical

qualification for the purposes of the 1970 Act. The

established colleges are also required to seek permission

of the Central Government for the medical qualification

to be recognized medical qualification but it would not

mean that the already conferred medical qualification of

the students studied in such previously established

medical colleges would not be a recognised medical

qualification under the 1970 Act.

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60. On a reasonable construction of these Sections, we

hold that the provisions of Section 13B whereby the

qualification granted to any student of a medical college

would not be deemed to be a recognized medical

qualification would not apply. When a degree has been

legally conferred on the students prior to the

commencement of the Amending Act of 2003, it shall be

treated as a recognized degree although the medical

college has not sought permission of the Central

Government within a period of three years from the

commencement of the Amending Act of 2003.

61. For the reasons aforesaid, the appeals are allowed.

The judgment of the High Court is set aside and we hold

that the GAMS degree conferred on the appellant-

students shall be treated as a recognized degree for the

purposes of taking admission to the higher courses of

study and also for the purpose of employment.”

24. The document, on which respondent No. 2 is heavily

relying upon, is letter, dated 1

st

October, 2021. This letter does

not demonstrate that the Diplomas, which were issued by the

Bihar State Faculty of Ayurvedic and Unani System of Medicine

prior to 2003, were not recognized by Central Council of Indian

Medicines, which is the apex body for recognizing the medical

qualifications in Indian medicine.

25. Moreover, it has rightly been pointed out by the learned

counsel appearing for the petitioners that the fact, that before

registration of the petitioners with the Board of Ayurvedic and

Unani System of Medicines, Himachal Pradesh, their Diplomas

were duly verified, has been admitted by respondent No. 2 in the

reply. Thus, respondent No. 2 cannot now raise question/doubt

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over the Diplomas obtained by the petitioners from Bihar State

Faculty of Ayurvedic and Unani System prior to 2003, as, it was

respondent No. 2, who had registered the petitioners with the

Board of Ayurvedic and Unani System of Medicine, Himachal

Pradesh, after verifying the documents submitted by the

petitioners. As per Section 35 of the Evidence Act, there is a

presumption that the official acts are done with accuracy and

fidelity.

26. At the cost of repetition, it would be apt to record herein

that the response of the Registrar, Bihar State Ayurvedic and

Unani Medical Council, Patna to letter, dated 1

st

October, 2021, is

too short to raise any question over the Diplomas obtained by the

petitioners from Bihar State Faculty of Ayurvedic and Unani

System prior to 2003.

27. Considering all these facts, the writ petition is allowed

and the Diplomas obtained by the petitioners from Bihar State

Faculty of Ayurvedic and Unani System prior to 2003 are held to

be valid, as, the said Institutes were duly recognized by the

Central Council of Indian Medicines, which is the apex body for

recognizing the medical qualifications in Indian medicine.

Respondent No. 2 is, accordingly, directed to consider the

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candidature of the petitioners for the post of Ayurvedic

Pharmacists, if otherwise found eligible.

28. Pending miscellaneous applications, if any, also stand

disposed of accordingly.

( Tarlok Singh Chauhan )

Judge

( Virender Singh )

Judge

September 15, 2022

( rajni )

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