SECRETARY TO THE GOVERNMENT OF ORISSAversusLAXMIKANTE NANDA AND ORS.

  , A           SECRETARY TO THE GOVERNMENT OF ORISSA
                                  v.
                      LAXMIKANTE NANDA AND ORS.

                                  NOVEMBER 16, 1993

   B             [KULDIP SINGH AND YOGESHWER DAYAL, JJ.]

               Service Law-Appointment-Whether doing away with the recognised
        qualification as prescribed under the Homeopathy Central Council Act, 1973
        by resolution was violative of Ss. 15(2) & 15(3) thereof read with S.29(b) of
   C    Tiie Orissa Homeopathy Act, 1956-Held-No.

             Service. Law-Selection-Whether total exclusion of the lecturers in
        Homeopathy, whereas earlier they were considered, for appointment as
        Deputy Director of Homeopathy is discriminatory or unfair-Held-No.

• . D         The Govt. of Orissa, Health and Family Welfare Department passed
        a Resolution on 15th Dec. 1986, whereby the criteria for selection of Deputy
        Director of Homeopathy in Class-I (senior) in the Directorate of India
        system of medicines and Homeopathy was refaxed Prior to the refaxation,
        persons who, apart from having recognised qualifications as prescribed
   E    under. the Homeopathy Central Council Act 1973, had 2 years experience
        as C.M.O. or Inspector of Homeopathy or 10 years experience as lecturer
        in Govt. Homeopathy Medical College, were eligible for consideration for
        appointment to the aforesaid post. After refixation of Criteria only C.M.O.
        or Inspector of Homeopathy with 5 years experience could be considered
        Lecturers were totally excluded from consideration for the post of Deputy
   F    Director. By a further Notification dt. 16th Dec. 1986, the resp. no. 2 before
        the Tribunal (earlier Chief Medical Officer, Homeopathy) was appointed
        as Deputy Director of Homeopathy on adhoc basis.

              1 .1e respondents-surviving senior teachers in the Govt. Homeopathy
        College-as well as All Orissa Govt. Homeopathy Medical College Teachers
   G    Association filed· an Original Application before the State Administrative
        Tribunal challenging the aforesaid Resolution dt. 15th Dec. 1986 and
        Notification dt. 16th Dec 1986. While the matter was pending before the
        Tribunal the resolution dt.' 15th Dec. 1986 was superseded by another
        Resolution dt. 25th Nov. 1987; by the last Resolution, the State Govt.
   H    reaffirmed the Criteria reflxed in the Resolution dt. 15th Dec. 1986. As per
                                             700
              SECfETARYv. LAXMIKANTENANDA                              701

the resolutions dt. ; ~th Dec. 86 and 25th Nov. 87 the requirement of A
recognised qualifications was given up.

      The Tribunal held the impugned Resolution was violative of Sections .
15(2) and 15(3) of the Homeopathy Central Council, Act, 1973 read with
Section 29(b) of the Orissa Homeopathy Act, 1956 as the Resolution does
away with the recognised qualifications as prescribed under the Central B
Act. The Tribunal also took the view that it was absolutely unfair on the
part of the Govt. 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.         C
      Aggrieved By the impugned Judgment or order the Appellants came
in appeal by way of Special Leave.

      Allowing the Appeal, this Court
                                                                               D
      HELD: l.The revised criteria as envisaged in the Resolution dated
15th December, 1986 and as specifically made clear in the Resolution dated
25th November, 1987 is not any way illegal or discriminatory and not in
any way violative of the provisions of 1956 Act or the Central Act.
                                                         [708-G-H, 709-A]
       2. It is clear form the provisions of Section 15(1) of the Homeopathy
                                                                               E
Central Council Act itself that any medical qualification included in the
Second or the Third Schedule shall be sufficient qualification for enrol-
ment of any person on any State Register of homeopathy. Sub-section (2)
of Section 15 makes it specifically clear that no person, other than a
practitioner of Homeopathy who possesses a recognised medical qualifica- F
tion and is enrolled on a State Register or the Central Register of
Homeopathy - shall hold office as Homeopathic physician or any other
office (by whatever designation called) in Government or in any institution
maintained by a local or other authority. Thus no body·could be either
Inspector or Chief Medical Officer, Homeopathy without having requisite · G
qualification contemplated by section 15(2) of the Act. [708-A-C]

      3. Once the holding of the requisite qualification is sine qua non for
employees working as Inspectors and Chief Medical Officer, Homeopathy,
there was no necessity for providing the same qualification once again while
making them eligible for promotion to the post of Deputy Director. [708-D]     H
     702                   SUPREME COURT REPORTS (1993] SUPP. 3 S.C.R.

A           4. Once the cadre. of teachers is separate from the cadr~ 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 exdude
     teachers from eligibility to the post of Deputy Director, Homeopathy
     cannot be called discriminatory. It cannot be also called unfair on the
B
     ground that teachers could go to th'e level of Class I post, the persons
     belonging to peripheral field had to complete with teachers for aspiring to
     go to the post of Deputy Director. [708-F-G]

           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7022 of
c 1993.
           From the Judgment and Order dated 7.5.90 of the Orissa Ad-
     ministrative Tribunal, Bhubaneswar in O.A. No. 282 of 1986.

           S.C. Roy, Attorney General and AK. Panda for the Appellant.
D-
           P.N. Misra for the Respondents.

          B.A. Mohanty, A.Mariarputham and Ms. Aruna Mathur for M/s.
     Arputham Aruna & Co. for the Intervenor.

E          The 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 ueing disposed of as well.

F         The appeal is directed against the judgment dated 7th May, 1990
     passed by the Orissa Administrative Tribunal, Bhubaneswar in Original
     Application No. 282 of 1986.

           The application itself was filed before the State Administrative
     Tribunal on behalf of the serving senior teachers in the Government
G    Homeopathic College as well as All Orissa Government Homeopathic
     Medical College Teachers' Association against the Secretary to Govern-
     ment, Health and family Welfare Department, Bhubaneswar and Dr.
     Godavarish Mishra, Deputy Director, Homeopathy, Bhubaneswar. In the
     original application the petitioners therein had prayed for quashing the
H    Resolution of the Gcwernment of Orissa, Health and Family Welfare
        SECTETARYv. LAXMIKANTENANDA[DAYAL,J.]                           703

Department, No. 40481/H dated 15th December, 1986 and the Notification         A
No. VI Med. XXIA.2/86 40621/H. dated 16th December, 1986 whereby Dr.
Godavarish Mishra, (respondent No. 2 before the Tribunal), Chief Medical
Officer, Homeopathy, was appointed as Deputy Director of Homeopathy
on ad hoc basis till 28th February, 1987 or until further orders, whichever
is earlier.
                                                                               B
     The aforesaid Resolution dated 15th December, 1986 provided as
follows:-

                              RESOLUTION

        Sub : Refixation of the criteria for selection of Deputy Director of   C
        Homeopathy in Class-I (Senior ) in the Directorate of Indian
        System of Medicines and Homeopathy.

           At present the criteria for promotion to the post of Deputy
        Director of Homeopathy has been fixed as follows :             D
        1.    A recognised qualification as prescribed under the
              Homeopathy Central Council Act, 1973 Schedule 2 and 3.

        2.    Two years experience as C.M.O. or Inspector of Homeopathy
              or 10 Years experience as Lecturer in Govt. Homeopathy           E
              Medical College, Bhubaneswar.

             "Lecturers 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 Govern-         F
        ment for some time past.

           Government after careful consideration have been pleased to
        decide that henceforth C.M.O. Homeopathy and Inspectors of
        Homeopathy who have got a minimum period of 5 years of service         G
        shall be considered eligible for the post.

        ORDER : Ordered that the Resolution shall be published in the
                Orissa Gazette and copies forwarded to A.G. Oris-
                sa/All Depts. of Govt./All Heads of Deptts./All Distt.
                Magistrates/Registrar, Orissa High Court/Sec. Orissa           H
    704                   SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A                       P.S.C. for information and necessary action.

                                                By order of the Governor.

                                                C. Narayanswamy,
                                                Secretary to Government."
B
    It is clear from the above Resolution that the earlier criteria for selection
    of Deputy J?irector of Homeopathy was changed. The material change was
    that Lecturers in the Government Homeopathy Medical College,
    Bhubaneswar did not figure in the present eligibility criteria for considera-
C   tion for promotion to the post of Deputy Director, Homeopathy.

          By the impugned Notification dated 16th December, 1986, respon-
    dent No. 2, before the Tribunal, namely - Dr. Godavarish Mishra, Chief
    Medical Officer, Homeopathy, was appointed as Deputy Director of
    Homeopathy, as stated earlier.
D
          We may mention that while the matter was pending before the State
    Tribunal the aforesaid Resolution dated 15th December, 1986 came to be
    superseded by another Resolution No. 40360/H. dated 25th November,
    1987 which reads as follows :
E           Sub:        Refixation of the criteria for selection of Deputy Direc-
                        tQr of Homeopathy in Class-I (Senior) in the Direc-
                        torate of India Medicines and Homeopathy.

                In supersession of his Department letter No. 21410 H. dated
F           19.7.1984 and Resolution No. 40481 dated 15.12.1986 Government
            after careful consideration have been pleased to decide that hence-
            forth only Chief Medical Officer Homeopathy and Inspectors of
            Homeopathy who have got a mj.nimum period of 5 years of service
            shall be considered eligible o~ the above post.
G            ORDER: Order that the Resolution shall b~ published in the
                    Orissa Gazette and copies forwarded to the A.G .. Oris-
                    sa/All Departments of Government/All Heads of
                    Dept./All Dist. Magistrates/Registrar ·Orissa High
                    Court/Secretary, Orissa PublicService Commission for
H                   information and necessary action.
        SECTETARYv. LAXMIKANTENANDA(DAYAL,J.)                           705

                                           By order of the Governor.           A

                                           C. Narayanswamy,
                                           Secretary lo Government."

       The Stale Administrative Tribunal, on reading of the revised criteria
fixed in the Resolution dated 15th December, 1986 took the view that this      B
Resolution does away with the recognized qualifications as prescribed
under the Homeopathy 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 Homeopathic Act 1956
(hereinafter referred to as 'the 1956 Act'). The Tribunal also took the view   C
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       D
arbitrary and discriminatory. The Tribunal accordingly declared the
Resolution dated 15th December, 1986 as illegal and also quashed the
appointment of Dr. Godavarish Mishra as was not sustainable in law and
directed the Government to consider the petitioners before it for promo-
tion of the post of Deputy Director if they fulfil the criteria which was in   E
force of the revised criteria, which had been set aside by the Tribunal, and
the post of Deputy Director will be filled up accordingly.

     The case of the State Government was stated on their behalf in their
counter-affidavit filed before the Tribunal. It was stated inter a/ia :
                                                                               F
      That the post of Deputy Director was originally a promotional post
for peripheral Medical Officers as well as the Lecturers of the Homeopathy
College. But it was found that although promotional avenues were available
for Lecturers of the Homeopathic Medical College, no such avenues were
available for Medical Officer working in the field. It was pleaded that in
the Homeopathic College, Demonstrator can be promoted to the post of           G
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                 H
    706'                  SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A Homeopathy Inspector and Chief Medical Officer, Homeopathy, both in
  Class-I rank. It was thus noticed by the Government that there was con-
  siderable dis-contentment 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
B 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 for
  being considered for promotion to the post of Deputy Director. There was
  thus no discrimination or arbitrariness in making the impugned Resolution
C dated 15th December, 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.                                 ·
D          It was further pleaded that the post of Deputy Director Homeopathy
    is an Administrative post ~~d it was thus decided by the Government that
    the post should be filled up among the Chief Medical Officer and Inspec-
    tors of Homeopathy having minimum period of five years experience. The
    Government after consideration laid down the revised criteria for filling up
E   <?f the post of Deputy Director of Homeopathy. It was also pleaded that
    during the pendency of the application before the Tribunal vide Resolution
    dated 15th November, 1987 the Government of Orissa had decided that
    "henceforth only Chief Medic&l Officer of Homeopathy and Inspectors of
    Homeopathy who have got a minimum period of 5 years of service shall be
    considered eligible for the post of Deputy Director of Homeopathy in the
F
    Directorate of Indian Medicines and Homeopathy''.

          It was specifically pleaded that the appointment and promotion to
   te.aching posts in Homeopathy Medical Colleges in the State are governed
   by special rules framed under Article 309' of the Constitution of India
G which are called Orissa Homeopathic Medical Teaching Service (Method
   of Recruitment and Conditions of Service) · Rules, 1980 (hereinafter
   referred to as 'the 1980 Rules') and the teachers of the Homeopathic
 . Medical Colleges belong to a·sep(li'at~ cadfe.

H          It had been submitted before us that it was unnecessary to incor-
        SECTETARYv. LAXMIKANTENANDA[DAYAL,J.]                           707

porate the specific provision in the Government's Resolution laying down       A
the qualification when the post of Deputy Director Homeopathy itself was
required to be filled up from among the Inspectors and Chief Medical
Officers of Homeopathy. In other words it was submitted that the Medical
Ol'ficers, in any case, have to be those possessing the basic qualifications
    required under Schedule Second and Third of the Central Act, are           B
eligible. for promotion to the post of Chief. Medical Officer/Inspectors of
Homeopathy. In that view of the matter when the promotion was only to
be available to the Inspectors and Chief Medical Officer of Homeopathy,
specific provision of qualification, in the opinion of the State Government,
was not necessary at all.
                                                                               c
      It 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 (Homeopathy) with
five years of experience will only be considered for promotion to the po.st
of Deputy Director (Homoeopathy).
                                                                               D
      As regards· the justifiability of excluding the Lecturers of Govern-
ment Homoeopathy College the plea, as mentioned in the counter-affidavit
before the Tribunal, of promotional avenues being available to the College
teachers as opposed to field staff was again re-submitted before us. It was
also submitted that the assumption of the Tribunal that the teachers of the E
Homeopathy 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 ap-
plicability to peripheral doctors and, therefore, it was not correct to say
that Inspectors and C.M.O. belong to the cadre of Lecturers or Senior F
Lecturers who were recruited under the provisions of 1980 Rules.

       This court had occasion to examine the provisions of the Central Act
as well as the 1956 Act in the case State of Orissa and another v. Rad-
heshyam Nanda, (1991) Supp. 2 S.C.C. 404. After considering the
provisions of Section 15(2) and 15(3) of the Central Act as well as Section G
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
Homeopathy Practitioner under the 1956 Act is not affected by the condi-
tions 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 H
    708                   SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A Act.

           It 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 Homeopathy. Sub- section (2) of Section 15 makes it
B   specifically clear that no person, other then a practitioner of Homeopathy
    who possesses a recognised medical qualification and is enrolled on a State
    Register on the Central Register of Homeopathy - shall hold office as
    Homeopathic physician or any other office (by whatever designation
    called) in government or in any institution maintained by a local or other
C   authority. Thus no body could be either Inspector or Chief Medical Of-
    ficer, Homeopathy without having requisite qualification contemplated by
    Section 15(2) of the Act. It was not the case of teachers before the Tribunal
    that Inspeptors and Chief Medical Officer, Homeopathy were disqualified
    under the Central Act for holding any office in Government. Once the
D   holding of the requisite qualification is sine qua non for employees working
    as inspectors and Chief Medical Officer, Homeopathy, there was no neces-
    sity for providing the same qualification once again while making them
    eligible for promotion to the post of Deputy Director.

         We are thus constrained to hold that the Tribunal had erred in
E holding that the Resolution of 15th December, 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,
  Homeopathy being unfair or discriminatory is not correct. Once the cadre
F of teachers is separate from the cadre of peripheral officers there is no
  question of discrimination. There is already a division among their person-
  nel 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, Homeopathy cannot be called discriminatory.
  It cannot be also called unfair as pointed out in the counter-affidavit filed
G 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. It cannot
  be said that the exclusion, on the facts and circumstances, suffer from any
  unfairness. We thus find that the revised criteria as envisaged in the
H Resolution dated 15th December, 1986 and as specifically made clear in
        SECTETARYv. LAXMIKANTENANDA(DAYAL,J.)                           709

the Resolution dated 25th November, 1987 read with the averments made          A
in the counter-affidavit is not in any way illegal 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.

     We accordingly accept this appeal with costs and set aside the            B
impugned order of the Tribunal dated 7fh May, 1990.

A.G.                                                       Appeal allowed.