Rajeev Ranjan Prasad, J.(Oral) - Heard learned counsel for the petitioner and learned AC to SC 17 on behalf of the State in CWJC No. 23649 of 2012 and learned counsel for the petitioner and learned AC to GP 10 on behalf of the State in CWJC No. 23459 of 2012.

2. Since both the Writ Applications involve a common question of law based on similar facts, the applications were tagged and have been heard together for purpose of adjudication.

3. Petitioners in both the cases have prayed for the following reliefs:-

"(A) A writ in the nature of certiorari or any other appropriate writ/writs, order/orders, direction/directions, quashing the order as communicated through memo no.- 16/H.1021/2010-384 [De.chi]/Swa dated 03.05.2012 issued under the signature of Principal Secretary Health Department, Government of Bihar showing refusal of payment of salary in the pay scale of Rs. 6500-10,500/- in accordance with Vth pay commission from the date of the petitioners appointment i.e. 13.07.1999 and the notification as communicated through Sanchika Sankhya 16/C-1-24/0831-[De-chi] Patna 15.01.2010 relating to its enforcement from the date itself.

(B) A writ in the nature of Mandamus commanding the respondents to make payment of differences of salary amount with retrospective effect i.e. from 13.07.99 till 15.01.2010 in the pay scale of Rs. 6500-10,500/- and also to pay differences of salary amount from 15.01.2010 on-wards in the pay scale as said above in prospective manner with interest.

(C) Any other reliefs to which the petitioner is found entitled to."

4. These petitioners were appointed initially on a Class III post of Deshi Chikitsak with a pay scale of Rs. 1500-2750/- in terms of the advertisement after successfully passing out the competitive examination. They gave their joining on or about 13.07.1999 as claimed by them and were working as Homoeopathic Doctor. It is an admitted fact that these petitioners obtained their Diploma Certificate after pursuing a Four-Years Course in which they were admitted prior to change of syllabus by virtue of the enforcement of Homoeopathy (Diploma Course) Regulations, 1983. Prior to their appointment in the year 1998-1999, the Secretary, Central Council for Homoeopathy vide his letter no. 13.03.1990 (Annexure-7 to the rejoinder of the petitioners) had communicated to the Secretary, Govt. of India, Ministry of Homoeopathy and Family Welfare that "the Central Council of Homoeopathy in its meeting held on 9th March, 1990, has decided that medical qualifications in Homoeopathy of having four years duration (obtained after undergoing a course of study in Homoeopathy of not less than four years duration) like D.M.S. (West Bengal Council), D.H.M.S., L.C.E.H. etc., awarded prior to the enforcement of Homoeopathy (Diploma Course) Regulations, 1983 and included in the Second Schedule to the Homoeopathy Central Council Act, 1973 may be treated as equivalent as to degree."

5. Since these petitioners had obtained their Diploma Certificate and were awarded with the certificate after coming into force of Homoeopathy (Diploma Course) Regulations, 1983, they were not treated equal to the degree holders.

6. The petitioners joined in the pay scale of Rs. 1500-2750/- which was approved by the State Govt. for Diploma holder Homoeopathic Doctor. It is worth mentioning that the Fitment Committee constituted by the State Govt. to consider conferment of benefit to its employees in terms of the benefit conferred to the Central Government employees with effect from 01.01.1996 had not recommended any pay scale for the diploma holders homoeopathic doctors, therefore for diploma holder homoeopathic doctors the State Govt. had not sanctioned any pay scale but after a consideration given to this the State Govt. had approved the pay scale of Rs. 1500-2750/-.

7. It is also a matter of record that before appointment of the petitioners, the State Govt. had taken a policy decision vide its resolution dated 15.09.1997 wherein a conscious decision was taken for replacement of pay scale of Rs. 1500-2750/- to Rs. 2200-4000/- which would be evident from the following extract of the resolution dated 15.12.1997.

"5 & ekuuh; mPp U;k;ky; ds funsZk iape vlaxfr fujkdj.k] lfefr dh vuqkalk ,oa LokLF; fpfdRlk fk{kk ,oa ifjokj dY;k.k foHkkx ds ladYi fnuakd 31-11-1992 dks n`f"V iFk esa j[krs gq, lE;d fopkjksijkUr jkT; ljdkj us ;g fu.kZ; fy;k gS fd fM+xzh/kkjh gksfe;ksiSfFkd fpfdRld@jkT; ljdkj }okjk gksfe;ksiSfFkd fpfdRlk i}fr esa fof/k }okjk LFkkfir foo fo/kky; vf/kdk; vFkok cksM+Z }okjk o"kZ 1983 rd iznRr prqFkZoxhZ;(Mh0,p0,e0,l0)fM+Iyksek bu gksfe;ksiSfFkd esM+hlhu ,oa ltZjhizek.k i=(;ksX;rk)/kkjd gksfe;ksiSfFkd fpfdRldksa ds fy, :0 1500&2750 ds LFkku ij :0 2200&4000 dk osrueku Lohd`r fd;k tk;A"

8. A reading of the Government Resolution dated 15.12.1997 would show that taking note of the notification issued by the Health and Family Welfare Department on 21.11.1992 wherein it was decided to treat the Four Years Diploma Certificate obtained upto the year 1983 in Homoeopathy Medicine equivalent to the degree, the government had decided to replace the pay scale of Rs. 1500-2750/- by the pay scale of Rs. 2200-4000/-. These petitioners were, however, not treated in terms of the resolution dated 15.12.1997 because they had not obtained the Four Years Diploma Certificate in Homoeopathy Medicine upto the year 1983 and they were provided pay scale of Rs. 1500-2750/- in terms of the advertisement.

9. These petitioners accepted the pay scale of Rs. 1500-2750/- as provided in the advertisement and after their selection they joined as Deshi Chikitsak which was a Class III post.

10. Subsequently the State Govt. came out with its resolution dated 06.11.2007 which reads as under:-

ladYi

fo"k;& fM+Iyksek/kkjh gksfe;ksiSFkh fpfdRlksa ds fy, iqujhf{kr osrueku dh Lohd`frA

jkT; dfeZ;ksa dks dsUnz ds vuq:i fnuakd 01-01-1996 ls osrueku dh vuqkalk gsrq fQVesaV dfefV dk xBu fd;k x;k FkkA

fQVesaV dfefV ds n~okjk jkT; ljdkj ds LokLF; foHkkx ds v/khu dk;Zjr fMIyksek/kkjh gksfe;ksiSFkh fpfdRldksa ds osrueku dh vuqkalk ugh dh x;hA QyLo:i fM+Iyksek/kkjh gksE;ksiSFkh fpfdRldksa dks jkT; ljdkj n~okjk dksbZ osrueku Lohd`r ugh fd;k tk ldkA

jkT; ljdkj n~okj gksfe;ksiSFkh fpfdRldksa ds fy, lE;d~ fopkjksijkUr muds viqujhf{kr osrueku 1500&2750 :0 ds fy, fnuakd 01-01-1996 ls 5000&8000 :0 dk iqujhf{kr osrueku Lohd`r djus dk fu.kZ; fy;k x;k gSA

mDr osrueku es osru fu/kkZj.k ,oa Hkqxrku foRr foHkkxh; ldaYi la0 660 fnuakd 08-02-1999 esa fu/kkZfjr izfdz;k ds vuq:i dh tk;sxhA

11. The petitioners did not agitate any issue with respect to their pay scale after appointment and remained contented with the pay scale which they got. It is only in the year 2003 these two petitioners filed CWJC No. 12353/2003 and CWJC No. 4906/2003 respectively seeking benefit of revised pay-scale of Rs. 6500-10,500/- w.e.f. their initial appointment. The writ applications remained pending till their disposal on 23.07.2010. In the year 2008 some Writ Applications were filed before this Court, the lead case beingCWJC No. 5795/2008 (Rational Committee of Homeopathies & Ors. v. The State of Bihar & Ors.). The writ petitioners in those cases were all holding Diploma in Homoeopathic Medicine and Surgery (DHMS) obtained after the year 1983, they were aggrieved by the advertisement issued by the respondent-Udhmita Vikas Sansthan established as part of National Rural Health Programme for appointment of Homoeopathic/Ayurvedic/Unani Doctors on contract basis in which so far as Homoeopathy was concerned, the educational qualification, eligibility was set as Bachelor in Homoeopathic Medicine and Surgery (BHMS) or its equivalent degree. The petitioners in those cases submitted before this Court that even though they were diploma holders in Homoeopathic Medicine and Surgery (DHMS) and are qualified to practice as Homoeopathic Doctor, by reason of the said advertisement, they were not eligible. They pleaded that their exclusion is arbitrary and unwarranted denying equal opportunity of employment under State to all.

12. In some of the Writ Applications, the petitioners had challenged the validity of the State Government Notification No. 659 dated 01.12.1992 in so far as it declared equivalence of DHMS degrees granted prior to 11.05.1983 and not extending it to all such diploma holders who had taken admission to such courses in sessions starting prior to the enforcement of the 1983 regulations and following the same course, as earlier prescribed, though degrees may be awarded subsequent to 11.05.1983.

13. Considering the said Writ Application (CWJCs No. 5795, 13583 of 2007 & 3777, 3467 of 2008), a co-ordinate bench of this Court in its concluding part of the judgment dated 24.06.2008 held as under:-

"In the facts, it would be seen that petitioners of the third set of writ applications had joined Diploma course long before the 1983 Regulations came to be enacted. They were entitled to Diploma degree which could not be any different from the one granted prior to the cut off date but for some reason or the other, the Diploma degrees were granted subsequently. Merely on this ground, they cannot be held to be not equivalent to BHMS because they pursued the same course for the same duration. Thus, even if the degrees were awarded after the cut off date but in respect of a session beginning prior to the 1983 Regulations which session also prescribed the same course for the same duration as those who were awarded their Diploma degree before the cut off date, there cannot be any distinction. Making a distinction would amount to hostile discrimination. It would clearly be a case of similars being treated dissimilarly which would be violative of Article-14 of the Constitution of India and void as such. Thus, petitioners of the third set of writ applications cannot be debarred from making applications and they would be deemed to be holding degrees equivalent to BHMS and eligible to be considered.

Therefore, the first two sets of writ applications are fit to be dismissed and the third is to be allowed."

14. Pursuant to the declaration by a co-ordinate bench of this Court that even if the degrees were awarded after the cut-off date but in respect of a session beginning prior to 1983 regulations, the diploma holders would be treated equal to the degree holders, the Govt. of Bihar through its Homoeopathy and Family Welfare Department sought an opinion of the Central Government. The Govt. of Bihar was advised to act in accordance with the direction of the Court in terms of the order dated 24.06.2008 passed in CWJC No. 3777 of 2008. This advice was received by the Govt. of Bihar on or about 09.10.2009. Thereafter, the Homoeopathic Department, Govt. of Bihar issued a Notification as contained in Memo No. 31 dated 15.01.2010, the relevant part of the said notification are quoted hereunder for a ready reference:-

"2 & LokLF; ,oa ifjokj dY;k.k ea=ky; vk;q"k foHkkx Hkkjr ljdkj ubZ fnYyh ls bl laca/k esa ijkekZ izkIr fd;k x;kA vk;q"k foHkkx ds i=kad vkj&13040@59@2008 ,p0M+h0 Vsd fnuakd 09-10-2009 }kjk leknsk ;kfpdk la[;k&3777@2008 esa fnuakd 24-06-2008 dks ekuuh; mPp U;k;ky; }kjk ikfjr vknsk ds vkyksd esa dkjZokbZ djus dk funsZk fn;k x;kA

3 & vr% lE;d fopkjksijkUr dsUnzh; gksfe;ksiSfFkd jsxqysku ykxw gksus ds o"kZ 1983 rd prqFkZoxhZ; Mh0,p0,e0,l0 fM+Iyksek bu gksfe;ksiSfFkd esfM+lhu ,oa ltZjh dkslZ esa ukekafdr Nk= Hkys gh mldk ijh{kkQy 1983 ds ckn izdkfkr gqvk gks] ds fM+Iyksek(Diploma)dh ekU;rk lHkh iz;kstuksa ds fy, fM+xzhB.H.M.S.ds lerqY; iznku dh tkrh gSA

4 & ;g vf/klwpuk rRdkfyd izHkko ls ykxw gksxhA"

15. These two petitioners, who had moved this Court, by filing CWJC No. 12353/2003 and CWJC No. 4906/2003 seeking the revised pay scale of Rs. 6500-10500/- from the date of their appointment, their writ applications were heard together and disposed of vide the judgment and order dated 23.07.2010 passed by a co-ordinate bench of this Court wherein a direction was issued to the Principal Secretary, Homoeopathic Department, Govt. of Bihar to take a decision in consultation with the Finance Department as regards the payment of salary of the petitioners in the pay scale of Rs. 6500-10,500/- in place of Rs. 5000-8000/-. It was also directed that if the respondents would reject the claim of the petitioners for payment of salary in the pay scale of Rs. 6500-10,500/-, they would be able to give a reasoned order in support of their such order. It appears that the judgment dated 24.06.2008 rendered in CWJC Nos. 5795, 13583 of 2007 & 3777, 3467 of 2008 was not brought to the notice of the Honble Judge.

16. The Principal Secretary, Department of Health has passed an order as contained in Memo no. 384 dated 23.07.2010 pursuant to and in compliance of the judgment and order passed in CWJC No. 4906/2003 and CWJC No. 12353/2003. The petitioners have been provided the benefit of the pay scale of Rs. 6500-10,500/- with effect from 15.01.2010, i.e., the date on which the departmental notification no. 31 was issued whereby the diploma certificates of the kind in possession of these petitioners were recognized as equivalent to the degree (DHMS). The reason provided in Memo No. 384 dated 03.05.2012 (Annexure-2 to the Writ Application) is obvious. The petitioners have been given benefit of the pay scale of Rs. 6500-10,500/- treating their diploma equivalent to the degree because they had been admitted to the Diploma Course pursuing the same syllabus though they got their certificate after the cut-off date, i.e. 11.05.1983.

17. Learned counsel for the petitioners have assailed the notification as contained in Memo No. 384 dated 03.05.2012 submitting that it cannot be said to be a compliance of the order passed by this Court on 23.07.2010 inasmuch as it provides no reasons. Learned counsel further submits that now because the diploma certificates of these petitioners have been found or treated equivalent to the degree, the distinction, if any, made by the State Govt. at the time of their appointment has to be given a go-bye and the petitioners would be entitled to get the same scale of pay which were being allowed to the diploma holders who had obtained their certificate/degree upto the year 1983. Learned counsel further submits that the ambiguity, if any, in the decision of the Central Council of Homoeopathy which was communicated vide letter dated 13.03.1990 to the Secretary, Govt. of India, Ministry of Health and Family Welfare has now been removed by order of this Court dated 24.06.2008. The decision of this Court would have a far reaching consequence as no distinction could have been made between the petitioners and those who had obtained the medical qualification in Homoeopathy pursuing through Four Years Course obtaining the degree prior to the enforcement of Homoeopathy (Diploma Course) Regulations, 1983.

18. On the other hand, learned counsel representing the State submits that the submissions of the learned counsel representing the petitioners are fallacious as it has no basis to stand. Pointing out the contents of the letter dated 13.03.1990 issued by the Secretary, Central Council of Homoeopathy, learned counsel submits that the Central Council of Homeopathy in its meeting held on 09.03.1990 had decided that those who had pursued their medical course of four years duration and had obtained the degree/diploma after undergoing that course in homoeopathy and those to whom the degree had already been awarded prior to the enforcement of Homoeopathy (Degree Course) Regulations, 1983 were to be treated equal to the degree holders. He submits that the petitioners were appointed pursuant to the advertisement issued by the State in the year 1998, the advertisement contained the pay scale of Rs. 1500-2750/- on which the petitioners joined. It is his submission that in the year 2008 when a question arose before a co-ordinate bench of this Court as to whether those diploma holders who had been admitted to the Four Years Diploma Course prior to coming into force of the regulations on 11.05.1983 but had obtained their degree after the cut-off date be treated equivalent to the degree holders (DHMS) for purpose of the employment which they were seeking under the advertisement issued by Udhimta Vikas Sansthan, this Court considered the issues raised in the context of the said case and then came to a conclusion that those who had obtained their diploma pursuing the same syllabus by getting admitted in Four Years Course prior to the cut-off date but got their degree after the cut-off date be treated similarly and cannot be debarred from making applications as they would be deemed to hold degrees equivalent to BHMS and eligible to be considered.

19. Learned counsel for the State thus submits that the petitioners in these two cases cannot be allowed to argue that by virtue of the view taken by a co-ordinate bench of this Court in the facts and circumstances of the case pleaded before it in a totally different context, the petitioners would be legally entitled to claim their pay scale in the scale of Rs. 6500-10,500/- from the date of their initial appointment. He submits that fixation of pay scale is the job of an expert committee and in this case for persons like the petitioner no pay scale was prescribed but Government decided to provide the pay scale of Rs. 1500-2750/-. This was also duly mentioned in the advertisement. It is submitted that the benefit of the judgment of this Court cannot be given to the petitioners with retrospective effect. It is also submitted that pursuant to the judgment of this Court rendered on 24.06.2008, the Govt. of Bihar sought opinion from the Central Govt. and thereafter it was decided to treat those diploma holders who had been admitted in the Four Years Diploma Course prior to the cut-off date (11.05.1993) but obtained their diploma degree after the cut-off date equal to the degree holders (DHMS) and a notification to that effect was issued on 15.01.2010. So far as decision of Central Council of Homeopathy as contained in letter dated 13.03.1990 is concerned, the said letter does not confer equality to the petitioner. Thus, the petitioners have been rightly conferred the benefit of the pay scale of Rs. 6500-10,500/- with effect from the said date of 15.01.2010. It is submitted that there is no illegality or infirmity in the impugned notification.

Consideration

20. Having heard learned counsel for the parties and upon perusal of the records I find force in the submissions of the learned counsel representing the State. The petitioners are the diploma holders who had been admitted in the Four Years Diploma Course prior to the cut-off date, i.e., 11.05.1983 when the Homoeopathy (Diploma Course) Regulations, 1983 came into force. The Central Council for Homoeopathy had, in its meeting held on 09.03.1990, decided that medical qualifications in homoeopathy of having four years duration (obtained after undergoing course of study in homoeopathy of not less than four years duration) awarded prior to the enforcement of the Homoeopathy (Diploma Course) Regulations, 1983 may be treated as equivalent to degree. The two words, i.e., obtained and awarded prior to are words of significance. This decision of the Central Council of Homoeopathy nowhere talks of a situation like the present one in which the petitioners are falling, therefore, neither in the government resolution of the year 1997 the cases, like the present petitioners, were covered nor there was any unequivocal declaration in favour of the petitioners diploma degree being equal to the degree (DHMS) was available prior to the judgment of this court delivered on 24.06.2008 in CWJC No. 57951, 13583 of 2007 and CWJC No. 3777, 3467 of 2008. For the first time this Court considered this aspect of the matter, that too, when a question arose before the Court as to whether or not the persons like the present petitioners be treated equivalent or equal to the DHMS or its equivalent degree for purpose of their making an application for appointment pursuant to the advertisement issued by Udhimta Vikas Sansthan. This Court, therefore, for the first time vide its judgment dated 24.06.2008 declared that their diploma should be treated equal to those who had obtained their diploma degree prior to the cut-off date. The benefit which accrued to the present petitioners is by virtue of the declaration of this court in the aforesaid Writ Applications. The Govt. of Bihar sought an opinion from the Central Govt. and thereupon the pay scale of Rs. 6500-10,500/- has been provided to the diploma degree holders like the present petitioners w.e.f. 15.01.2010 the date when notification treating both the diploma and degree came to be issued. The reasons for not providing the said pay scale from the date of their appointment since the year 1999 are very obvious from Annexure-2 and therefore it cannot be said to be an unreasoned order. The reasoning and rationale are clear and based on the principles enunciated by the Courts from time to time which are parts of service jurisprudence. The petitioners, therefore, cannot claim the pay scale of Rs. 6500-10,500/- from the date of their initial appointment.

21. These Writ Applications are devoid of merits and are accordingly dismissed.