Dr. Umesh Chandra Sinha v. The State Of Bihar

Patna High Court LPA No.362 of 2013 (4) dt.01-07-2013 3 Departmental Promotion Committee (hereinafter referred to as the „DPC‟) on 19.2.2007 considered the case of several, including the appellant and Respondent No.3 for the post of Reader (Dravyaguna). The DPC recorded its conclusion that Respondent No.3 was not eligible as he did not possess Post Graduate Degree in Dravyaguna but did so in other discipline. According to available vacancies and the eligible candidates, both vacancies falling in the general category the appellant and one Dr. Mahendra Singh came to be promoted. The recommendation of the DPC and the consequent promotion of the appellant on 6.6.2007 was never challenged by Respondent No.3. Earlier Respondent No.3 had filed C.W.J.C. No.10293/89 questioning the appointment of one Dr. Ajoy Kumar Singh as Lecturer in Ras Shastra. It was held that he did not possess the Post Graduate qualification in Ras Shastra as according to his own claim he was a Post Graduate in Dravyaguna. Respondent No.3 has therefore been raising conflicting and inconsistent claims with regard to his own qualifications. The final gradation list was published on 28.6.2006 showing Respondent No.3 as a Post Graduate in Ras Shastra. He did not challenge the gradation list that it showed his qualifications contrary to the claimed eligibility possessed. After the impugned order dated 8.6.2010 was passed Patna High Court LPA No.362 of 2013 (4) dt.01-07-2013 4 promoting respondent no. 3 as Reader (Dravyaguna), he represented for retrospective promotion which has been rejected on 20.9.2012 holding that he possessed a Post Graduate Degree in Ras Shastra, and at his request, on the ground that he had three years experience in Dravyaguna at Banaras Hindu University had been promoted as a Reader in that discipline. The order reiterates his ineligibility for the post of Reader (Dravyaguna) as he does not possess the essential eligibility of a Post Graduate Degree in the same. It was next submitted that while Ras Shastra deals with Ayurvedic System of treatment by Metallic compositions, i.e., Mercury etc., Dravyaguna deals with Ayurvedic treatment by herbs. The two being different disciplines, merely because the discipline of Ras Shastra may at some time have been administratively under the Department of Dravyaguna, the degree issued to Respondent No.3 as Dravyaguna (Ras Shastra) does not make it a Post Graduate degree in Dravyaguna. The Post Graduate Degree in Dravyaguna mentioned only that discipline. These facts mentioned in the writ application have not been denied in the counter affidavit by the State or the private respondent. The appellant could have explained these issues if he had been given a show cause notice before issuance of the order dated

8.6.2010 annulling the promotion granted on 6.6.2007. The order also being in violation of the Principles of Natural Patna High Court LPA No.362 of 2013 (4) dt.01-07-2013 5 Justice before depriving him of the benefit of promotion granted was bad on the face of it. Learned counsel for the State submitted that earlier promotion was denied to Respondent No.3 on the post of Reader (Dravyaguna) as there was some confusion with regard to his educational qualifications and eligibility. That confusion has now been clarified as mentioned in the impugned order. The authorities were satisfied that he possessed three years of experience in Dravyaguna at B.H.U. and was thus eligible for promotion. Learned counsel for respondent No.3 submitted that no useful purpose is going to be served by entertaining these pleas as he has now superannuated and would stand to be deprived of a benefit which has come to him after much effort. It would also affect his pensionary benefits. The question of equivalence of qualifications having been decided by the authorities cannot be interfered with and it is only the University which can now decide the matter. Natural justice will not apply in every case. In the facts of this case, the order under appeal adequately notices that the authorities were satisfied with regard to the eligibility of Respondent No.3 based on the experience in the Dravyaguna Department to hold him eligible. Under the Medicine Act, a Post Graduate degree in Dravyaguna was an essential eligibility for the post of Reader. Patna High Court LPA No.362 of 2013 (4) dt.01-07-2013 6 Similarly, a Post Gradate degree in the discipline of Ras Shastra was an essential eligibility for the post of Reader in that discipline. The two constitute different systems of treatment in Ayurveda. Dravyaguna deals with study of Medicinal Herbs and Drugs, there origin, nature, properties and effects upon human beings. It finds its parallel in the modern science of Pharmacology. The word Dravyaguna consists of Dravya = Material of thing which can be living or not living, Guna = Properties. Ras Shastra is a branch of Pharmacy dealing with study of chemical substances used as Medicines in Ayurveda and their detoxification, processing etc. It deals mainly with Drugs of mineral origin, their varieties, characteristic, processing techniques, properties and their therapeuthic uses. The word Ras Shastra is composed of two words Rasa means absorbable form of drugs and Shastra means science of knowledge. The order dated 8.6.2010 states that subsequently the matter had been clarified with regard to the educational qualification of Respondent no. 3. What was the nature of the clarification which satisfied the respondents has not been mentioned in the order. The counter affidavit filed in the writ petition on behalf of the official respondents states that the controversy over the Post Graduate degree of respondent no. 3 was cleared. What was the “controversy” has not been spelt out. The only disclosure is that the respondents were of the Patna High Court LPA No.362 of 2013 (4) dt.01-07-2013 7 opinion that the Post Graduate degree of respondent no. 3 in Ras Shastra was equivalent to a Post Graduate degree in Dravyaguna. There is no material or document to disclose the nature of the consideration done by the respondents before arriving at a determination of equivalence. We have already noticed that the two constitute different systems of treatment in Ayurvedic medicine leading to different Post Graduate degrees. In absence of any material to demonstrate the satisfaction of the respondents for equivalence of qualification when our jurisdiction may have been restricted, we hold that the impugned order on the face of it is completely arbitrary and unjustified. The impugned order dated 8.6.2010 itself had to be speaking and could not be explained in a counter affidavit. We consider that as an additional ground to invalidate the order dated 8.6.2010. In Mohinder Singh Gill it has been observed : “8. The second equally relevant matter that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out.” A Post Graduate Degree in Dravyaguna was an essential eligibility for appointment as Reader in that Patna High Court LPA No.362 of 2013 (4) dt.01-07-2013 8 discipline under the Medicine Act. An essential condition of eligibility can never be relaxed and that too in teeth of statutory provisions. On 17.11.2005, the Deputy Secretary, Health Department had replied that for promotion in the concerned discipline Post Graduate degree was mandatory. Mere experience in Dravyaguna for three years cannot amount to a Post Graduate degree under the statute. In (2005) 13 SCC 365 (Umrao Singh v. Punjabi University) it has been held as follows:- “12. Another aspect which this Court has highlighted is the scope for relaxation of norms. Although the court must look with respect upon the performance of duties by experts in the respective fields, it cannot abdicate its functions of ushering in a society based on rule of law. Once it is most satisfactorily established that the Selection Committee did not have the power to relax essential qualification, the entire process of selection so far as the selected candidate is concerned gets vitiated. In P.K. Ramachandra Iyer v. Union of India this Court held that once it is established that there is no power to relax essential qualification, the entire process of selection of the candidate was in contravention established norms prescribed by advertisement. The power to relax must be clearly spelt out and cannot otherwise be exercised.” These are matters which could have been properly considered by the authorities if they had given a show cause notice to the appellant before depriving him of the promotion granted on 6.6.2007. It is not the case of the authorities that the appellant had obtained the promotion by /misrepresentation or that he did not possess the minimum Patna High Court LPA No.362 of 2013 (4) dt.01-07-2013 9 essential eligibility. It is undisputed that no show cause notice was issued before annulling the promotion. If the appellant was to be deprived of the benefits of the promotion granted to him, he was being visited with adverse consequences. A basic prerequisite of any administrative action is compliance with the Principles of Natural Justice by hearing the person sought to be deprived of the benefit already given to him. An order passed in violation of the principles of natural justice is void ab initio akin to a still born child which never comes into existence as held in (1974) 2 SCC 121(Nawabkhan Abbaskhan v. State of Gujarat) holding as follows:- In “19. the present case, a fundamental right of the petitioner has been encroached upon by the police commissioner without due hearing. So the Court quashed it — not killed it then but performed the formal obsequies of the order which had died at birth. The legal result is that the accused was never guilty of flouting an order which never legally existed.” In the result, we are unable to sustain the order under appeal. The order of cancellation dated 8.6.2010 and the order under appeal dated 11.2.2013 are set aside and the matter is remanded to the authorities to decide issues afresh. The filing of a representation by the appellant for the purpose cannot be a substitute for the issuance of a Patna High Court LPA No.362 of 2013 (4) dt.01-07-2013 10 formal show cause notice by the authorities telling him the grounds why they propose to cancel the promotion granted to him on 6.6.2007. We consider that an absolute prerequisite because the appellant must first understand what is passing the mind of the authorities before he can file a reply to convince them. The appeal is allowed. (Navin Sinha, J) (Vikash Jain, J) K.C.jha/-