State Of Punjab And Others Petitioners v. Shri Gopal And Others S

ADARSH KUMAR GOEL, J. (Oral)

1. This appeal has been preferred by the State under Clause X of the Letter Patent against judgment of learned Single Judge dated 28.11.2007

2. Respondent Nos. 1 and 2, the writ petitioners sought direction inter alia for promotion to the post of District Ayurvedic and Unani Officers from the date their juniors were promoted to the said post.

3. Case of the petitioners was that they were working as Vaidyas Incharge and were governed by Punjab Ayurvedic Department (Class-III-Technical) Services Rules, 1963. Qualification for appointment as Vaidays Incharge was diploma or degree which the petitioners had. Vide memo dated 17.2.1978, qualification of degree ‘of five years or more’ was laid down. Prior to the introduction of duration of 5 years for degree for Vaidyas, the duration was 4 years up to 1959, the same was 5 ½ years up to 1975 and 6 ½ years up to 1987. After 1987, the duration was reduced to 4 ½ years. The petitioners had passed the Ayurveda degree course prior to 1959 as per duration then prescribed.

4. Contention raised was that the petitioners having acquired the degree of the duration available at the relevant time, could not be denied promotion on the ground that under the memo dated 17.2.1978, duration of degree of 5 years or more was laid down and the same was arbitrary.

5. Stand of the State was that it had the competence to prescribe any qualification and degree of higher duration having been laid down for getting higher qualified persons, the petitioners were not eligible.

6. Learned Single Judge held that the petitioners could not be discriminated by being treated as lesser qualified only on the ground that when they were granted the degree, the duration was of lessor period. Accordingly, the writ petition was allowed and direction was issued to give deemed promotion and fix notional seniority of the petitioners from the date their juniors were given promotion, with consequential benefits. It was noticed that the petitioners had retired during the pendency of the petition.

7. We have heard the learned counsel for the State.

8. It is submitted that the prescribing of 5 years degree course as a qualification for promotion to the post of District Ayurvedic and Unani Officers was upheld in CWP No. 2656 of 1980.

9. The question for consideration is whether direction of the learned Single Judge to consider the writ petitioners eligible for promotion on the basis of degree possessed by them which was of lesser duration than the duration prescribed, vide memo dated 17.2.1978 calls for any interference.

10. There is no dispute about the proposition that the employer had a right to prescribe the qualification. The said right is, however, subject to the action not being irrational or arbitrary. The writ petitioners were already recruited on the basis of degree which was valid and duly recognised degree. Duration of degree has remained changing and the petitioners stood at par with other candidates whose degree was of slightly higher duration. Prescribing the qualification vide memo dated 17.2.1978 did not disqualify the candidates already recruited on the basis of degree possessed by them as per qualification prescribed for recruitment at that time which was at par with the qualification for recruitment of persons with degrees of higher duration if such degree had higher duration at the relevant time.

11. In view of the above, we do not find any ground to interfere with the view taken by the learned Single Judge.

12. The appeal is dismissed.

(ADARSH KUMAR GOEL) JUDGE

12.1.2009 (JITENDRA CHAUHAN)

mk JUDGE

CWP No.

Present:

Mr. Advocate for the