- (1.) D. K. Seth, J. In these bunch of writ petitions a common question has been raised by all the petitioners. In all these cases an advertisement was published, for the post of 'chikitsa Adhikari' in the department of Ayurvedic Bvam Unani Chikitsa Sewa, Lucknow. Thereby applications were invited for appointment on certain posts in the said department, prescribing qualifica tions that the candidates must have five years degree of Bachelor of Ayurvedic and Unani Medicines from any recognised University in Uttar Pradesh established by law or five years degree or diploma of Aynrvedic and Unani recognised by the Indian Medical Council, U. P.
(2.) THE main thrust was on the question that such a condition __ imposed amounts to unreasonable restriction in violation of principles of equal opportunity of employment as enshrined under Article 16 of the Constitution of India. THE petitioners have obtained degree of Bachelor of Ayurvedic Medicines and Surgery (hereinafter referred to as B. A. M. S.) from the Univer sity in Bihar, established by law. THErefore, the petitioners contended that it was an unreasonable restriction, by reasons whereof the petitioners have been precluded from being considered for the said posts and have thereby bees denied 'equality of opportunity for all citizens in the matters relating to employment on appointment to any office under the State'. It was further contended that the said restriction does not come within the exceptions made in sub-articles (3), (4) and (5) of Article 16. Though in all the cases counter-affidavits have not been filed but in few of these cases the State Government have filed counter-affidavits. It appears that in all the counter-affidavits identical statements have been made. The stand taken by the respondents are one and the same in all the cases where counter-affidavit have been filed. Therefore, the counter-affidavit filed in Writ Petition No. 19556 of 1987 maybe taken as the stand taken by the respondents in all these cases. In the counter-affidavit the respondents have relied upon Section 40 of the United Province Indian Medicine Act, 1939, which provides that only those Vaidyas or Hakeem, who has qualified himself or herself from an institution affiliated to the Board, who holds a degree in the Ayurvedic and Unani system of medicines from the University established by law in Uttar Pradesh shall be competent to hold the appointment of Medical Officer or other Medical Officers in Ayurvedic and Unani Hospitals. It was further contended that discrimination is based on the basis of residence within the State, the object of this classification underlining under this section and the rules were clearly to help those students who gets education from the institu tion established by State of U. P. and such classification is based on rational basis and is legitimate. It is open to the State Government to frame certain conditions regarding appointment or employment. Such conditions have been prescribed on the basis of Section 40 of United Province Indian Medicines Act, 1939 as amended in 1975. Rule framed under the said Act, being U. P. Subordinate Gazetted Services (Ayurvedic and Unani) Rules, 1964, also pres cribed similar qualifications in Rule 10 thereof.
(3.) THE same question arose in the case of Ashok Kumar Verma v. State of U. P. , 1990 (2) UPLBEC 1024, decided by Hon'ble M. P. Singh and Hon'ble R. A. Sharma, JJ. , with the bunch of other cases. In that case an advertise ment was issued on 1-12-1984 containing following conditions : (i) A candidate must possess degree of Ayurvedic of Unani from University duly established in Uttar Pradesh. (ii) A candidates is registered as Vaidya and Hakim by the Bhartiya Chikitsa Parishad, U. P. Lucknow. (iii) A candidate has done his house job for six months from any Ayurvedic or Unani Hospital. Whereas herein the fadvertisement the essential qualification required are; (i) 5 years Degree of Bachelor or Ayurvedic or Unani Medicine from any University in Uttar Pradesh established by law. Or Any 5 years degree or diploma of Ayurvedic/unani recognised by Bhartiya Chikitsa Parishad, Uttar Pradesh. (ii) Registered as Vaidya/hakeem by the Bhartiya Chifcitsa Parished, Uttar Pradesh, (iii) House job or internships for 6 years as Chikitsak in a recognized Ayurvedic or Unani College, Hospital.;