Himachal Pradesh High Court
Aakash Srivastava vs State Of Hp And Ors on 20 July, 2021
Author: Sandeep Sharma
Bench: Sureshwar Thakur, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
CWP No. 4423 of 2020 a/w
CWP Nos. 4245, 4424,
4425, 4427, 4428 of 2020 and 2894 of 2021
Reserved on 2.7.2021
Date of Decision: .7.2021
.
1. CWP No. 4423 of 2020
Aakash Srivastava ..... Petitioner.
Versus
State of HP and Ors. ...Respondents.
____________________________________________________________
2. CWP No. 4245 of 2020
Gaurav Katoch .....Petitioner.
Versus
State of HP and Ors. ...Respondents.
____________________________________________________________
3. CWP No. 4424 of 2020
Meekakshi Devi .....Petitioner.
Versus
State of HP and Ors. ...Respondents.
____________________________________________________________
4. CWP No. 4425 of 2020
Ankita Singh .....Petitioner.
Versus
State of HP and Ors. ...Respondents.
____________________________________________________________
5. CWP No. 4427 of 2020
Maninder Singh .....Petitioner.
Versus
State of HP and Ors. ...Respondents.
____________________________________________________________
6. CWP No. 4428 of 2020
Vikram Jeet Singh .....Petitioner.
Versus
State of HP and Ors. ...Respondents.
::: Downloaded on - 20/07/2021 20:11:40 :::HCHP
...2...
____________________________________________________________
7. CWP No. 2894 of 2021
.
Sunil Kumar .....Petitioner.
Versus
State of HP and Ors. ...Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner(s): Mr. Chander Narayan Singh and Rakesh Kumar
Dogra, Advocates.
For the Respondents: Mr. Ajay Vaidya, Senior Additional Advocate
General, for the State.
Mr. J.L. Bhardwaj and Mr. Sanjay Bhardwaj
r Advocates, for respondents No.7 and 8 in CWP
No. 4423 of 2020 and for respondent No. 7 in
4428 of 2020.
Mr. Ajay Sharma, Senior Advocate with Mr. Amit
Jamwal, Advocate, for respondent No.7 in CWP
Nos. 4424 & 4425 of 2020 and Mr. Jyoitrmay
Bhatt, Advocate, for respondent No.8 in CWP No.
4425 of 2020.
Mr. Surinder Sharma, Advocate, for respondent
No.7 in CWP No. 4427 of 2020.
Mr. Yogesh Kumar Chandel, Advocate, for
respondent No.8 in CWP No. 4424 of 2020
_______
Sandeep Sharma, J.
Since common questions of facts and law are involved in the above captioned petitions and all the petitioners have prayed for similar relief(s), with the consent of the learned counsel for the parties, all the cases are taken up together for final disposal.
2. In the year, 2016, Government of Himachal Pradesh, decided to open four medical colleges in the State i.e. 1.) Dr. YS Parmar Medical College Nahan; 2.) Sh. Lal Bahadur Shastri Government Medical College, 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 20/07/2021 20:11:40 :::HCHP...3...
Mandi; 3.) Pt. Jawahar Lal Government Medical College, Chamba; and 4.) .
Dr. Radha Krishan Government Medical College, Hamirpur, H.P. Vide notification dated 22.4.2016 (Annexure P-12), Department of Medical Education, Government of Himachal Pradesh, framed terms and conditions for the appointment of Professor, Associate Professor, Assistant Professor, Tutors, Senior Residents and Junior Residents (on contractual basis), in the newly opened Government Medical Colleges, which reads as under :
" Terms and conditions for the appointment of Professor, Associate Professor, Asstt. Professor, Tutors, Senior Residents and Junior Residents (on contract basis) in the newly opened Government Colleges in the State of Himachal Pradesh
1. The Professor/Associate Professor/Asstt. Professor/Tutor/Senior Resident/Junior Resident in the Department of Medical Education, H.P. will be engaged on contract basis initially for one year, which may be extendable on year to year basis.
2. The Professor/Associate Professor/Asstt. Professor/Tutor/Senior Resident/Junior Resident appointed on contract basis will be paid consolidated fixed contractual amount as mentioned in Annexure-A (which shall be a fixed amount of pay). An annual increase @ of 3% in contractual emoluments for the subsequent years will be allowed if contract is extended beyond one year and no other allied benefits such as senior/selection scales etc. shall be given.
3. The Addl. Chief Secretary/Pr. Secretary/Secretary (Health) to the Government of Himachal Pradesh will be appointing and disciplinary authority.
4. He /she will not be governed by the rules, regulations and orders in force from time to time as applicable to other government servants such as CCS (CCA) Rules, 1965 and CCS (Conduct) Rules, 1964 as are applicable in Himachal Pradesh.
5. Before submitting the report to the Government the contract appointee shall sign an agreement as per Annexure-B.
6. The service of the Contract Appointee will be purely on temporary basis. The appointment is liable to be terminated in case the performance/conduct of the contract appointee is not found satisfactory.
7. During the contract service, no advance will be given to him / her.::: Downloaded on - 20/07/2021 20:11:40 :::HCHP
...4...
8. Contractual Appointee Professor/Associate Professor/Asstt. Professor/Tutor/Senior Resident/Junior Resident will be entitled .
for one day's casual leave after putting in one month service. However, the contract employee will also be entitled for 12 weeks Maternity Leave and 10 day's Medical Leave. He/She shall not be entitled for Medical Re-imbursement and LTC etc. No Leave of any other kind except above is admissible to the contractual appointee Professor/Associate Professor/Asstt. Professor/Tutor/ Senior Resident/Junior Resident. Provided that the un-availed Casual Leave and Medical Leave can be accumulated upto the Calendar Year and will not be carried forward for the next Calendar Year.
9. Unauthorized absence from the duty without the approval of the Controlling Officer shall automatically lead to the termination from the contract. Contract Appointee shall not be entitled for contractual amount for the period of absence from duty.
10. Transfer of a contract appointee will be permitted from one place to another after putting three years of service at one place.
11. Selected candidate will have to submit a certificate of his/her fitness from Medical Board, DDU Hospital, Shimla-1. Woman candidate pregnant beyond 12 weeks will stand temporarily unfit till the confinement is over. The woman candidate will be reexamined for the fitness.
12. Contract appointee will be entitled to TA/DA if required to go on tour in connection with his/her official duties at the same rate as applicable to regular officials at the minimum of pay scale.
13. The candidate engaged on contract basis under these Rules shall have no right to claim for regularization/ permanent absorption as Professor in the Department at any stage.
14. The appointment is provisional and is subject to the educational qualification and other certificates being verified through the proper channels and if the verification reveals that the claim to belong to reserve categories, as the case may be is false, the services will be terminated forthwith without assigning any further reasons and without prejudice to such further action as may be taken under the provisions of the Indian Penal Code for production of false certificate.
15. He/she will have to give a declaration to the effect that he/she has only one living spouse, if married.
16. He/she will have to take an oath of allegiance/faithfulness to the Constitution of India or making a solemn affirmation.
17. He/she will have to produce all the certificates in original at the time of joining this appointment."::: Downloaded on - 20/07/2021 20:11:40 :::HCHP
...5...
But since adequate qualified medical faculty was not available to be .
appointed in newly opened Government Medical Colleges, respondents repeatedly advertised the posts of Assistant Professor, Associate Professor and Professor in leading national newspaper and recruited recognized qualified medical faculty on contract basis against the sanctioned posts through walk-in-interviews. The respondents recruited the contractual faculty for these Medical Colleges as per regulations framed by the Medical Council of India and Recruitment and Promotion Rules formulated by the respondent-State for the posts in question after having followed all the necessary codal formalities and since then, above named college has undergone various MCI inspections.
3. In the year, 2016, Director, Medical Education and Research, Himachal Pradesh, issued an advertisement inviting therein applications from candidates fulfilling the eligibility criteria for selection of Senior Residents in various specialties of Pt. Jawahar Lal Nehru Govt. Medical College, Chamba and Dr. Radhakrishnan Government Medical College, Hamirpur, H.P., on tenure basis initially for a period of six months through walk-in-interview (Annexure P-13). In the aforesaid advertisement, it stood specifically mentioned/prescribed that tenure of Senior Residency can be extended upto three years as per performance. Eligibility and essential qualification as well as other service conditions qua the posts advertised through aforesaid advertisement read as under:
"Appointment of Senior Residents through WALK-IN-INTERVIEW ::: Downloaded on - 20/07/2021 20:11:40 :::HCHP ...6...
FOR THE PERIOD OF SIX MONTHS ON TENURE BASIS FOR THE POSTS OF SR. RESIDENTS IN PT. JAWAHAR LAL NEHRU GOVT. MEDICAL .
COLLEGE, CHAMBA AND DR. RADHAKRISHNAN GOVT. MEDICAL COLLEGE, HAMIRPUR, HIMACHAL PRADESH.
The venue..................
CLASSIFICATION: CLASS-I (GAZETTED) TENURE POST The appointment to these posts will be for the period of six months on tenure basis. Once selected the Senior Resident will serve for six months and the post occupied so fall vacant only if he/she tenders resignation or his/her services are terminated by the appointing authority after following the procedure outlined in the policy. The Senior Resident will only be issued teaching experience certificate as per instructions issued to this effect by the Govt. from time to time.
Eligibility & Essential Qualifications:
Recognized Post Graduate (MD/MS) or DNB in the concerned speciality or superspeciality from a University recognized by the MCI failing which the PG Diploma in the concerned speciality/recognized by the MCI. For Non-Clinical subjects recognized MD/MS in the concerned speciality, recognized Diploma in the concerned subject, Ph.d and M.Sc. from the recognized University.
PAY & ALLOWANCES:
i) The GDOs (regular employees of H.P.H.S. (Gen. cadre) on their appointment as Senior Resident will continue to draw pay and allowances/increments as admissible to them in their pay-scale.
ii) The Specialist (PG) doctors appointed on contract by the Government and the PG doctors appointed as Senior Resident as Direct Candidate will be paid emoluments on selection as Sr. Resident as under:-
1st year Rs.55,000/- fixed per month.
2nd year Rs.57,,500/- fixed per month.
3rd years Rs.60,000/- fixed per month AGE LIMIT: 45 Years and below:
i) Provided that upper age limit will not be applicable to the candidate already in service of the government including those who have been appointed on adhoc or on contract basis by the Govt.
ii) Provided further that upper age limit is relaxable for Scheduled Castes/Scheduled Tribes/Other categories of persons to the extent permissible under the general or special order(s) of the Himachal Pradesh Government.
iii) Age limit for direct recruitment will be reckoned on the first day of the year in which the post(s) are advertised for inviting application.
METHOD OF RECRUITMENT:
i) From GDOs (75%) ::: Downloaded on - 20/07/2021 20:11:40 :::HCHP ...7...
ii) Direct Recruitment (25%) These posts will be filled up in the ratio of 75:25 from GDO and .
Direct candidate respectively. In case of non-availability of candidate in one category the posts in such faculty will be filled-up from the other category.
The GDO category shall include the doctors appointed on regular or contract basis by the Government of Himachal Pradesh.
Provided that the only those GDO's whether appointed on regular or on contract basis, shall be eligible for selection as Sr. Resident who have served in the peripheral health institutions of the State of Himachal Pradesh for a period of at least two years after completion of their Post-Graduation.
Provided further that this provision shall not apply to the specialities of 1. Anatomy 2.Physiology 3.Pharmacology
4.Pathology 5.Microbiology and 6.Biochemistry.
SELECTION PROCEDURE: The Sr. Resident will be selected from amongst the eligible candidates on the basis of a walk-in- interview and selection will be made as per the following criteria:-
The distribution of marks for the walk-in-interview will be as follows:-
PG (MD/MS)Degree Marks (in 40 Marks
concerned Speciality)
MBBS Marks (Cumulative total marks of 40 Marks
1st, 2nd and 3rd professional exam.)
Gold Medal (in MBBS or PG degree) 10 Marks
Publication of papers in Journals of 10 Marks
reputation to be decided by the (1.0
Principal of the concerned Medical Marks for
College. each
published
work
subject to
maximum
of 10
Marks)
Provided that where PG marks are not available and only grade has been awarded, the merit of the candidate will be determined on the basis of total marks (Cumulative total marks of 1st, 2nd and 3rd professional exam.) obtained in MBBS examination.
REPEAT TENURE REGULATION:
i) There will be no repeat tenure for in-service GDOs (including contractual appointees) as Senior Residents in any specialty.
ii) The repeat tenure will be available to only Direct candidates.
Provided that repeat tenure will be for six months at a time.
::: Downloaded on - 20/07/2021 20:11:40 :::HCHP...8...
iii) If a Direct candidate selected as Senior Resident is unable to complete the term of three years, he/she will be eligible to .
appear in the interview of Senior Resident and get selected in the same or other specialty. He/she will also be entitled to be selected as Sr. Resident in a super specialty.
iv) If an in-service GDOs is unable to complete the term of three years he/she shall stand debarred from doing Senior Residency for a period of three years.
REMOVAL/RESIGNATION FROM POSTS OF SENIOR RESIDENTS:
Once appointed, the incumbent can be removed from the post any time after joining in case of misconduct, misbehavior, acts of commission/omission, unbecoming of a public servant.
The HOD will make a formal request in writing to the Principal of the Medical College for removing the delinquent appointee. The Principal of the Medical College will take final decision in the matter after hearing both the parties. It will be necessary to give due opportunity to the concerned Sr. Resident to explain his/her position. Any Sr. Resident shall have to give one month's notice or salary in lieu thereof to resign and the concerned Principal accept the same.
NECESSITY OF NOC:
No application of in-service candidates (GDOs/adhoc /contract/ RKS) will be entertained by the Principal unless the "No objection Certificate" is issued by the Principal Secretary (Health) to the Government of Himachal Pradesh, Shimla-171002 / Director Health Services, H.P. in the case of regular GDOs and adhoc/contract/RKS appointee doctors by the state Govt.
IMPORTANT INSTRUCTIONS:
1. Candidates will be allowed to apply in one specialty only.
2. Speciality once chosen will be final and if selected, the candidates will not be permitted to change Specialty at any stage during this period/tenure except as provide under rules.
3. Incomplete or wrongly addressed applications shall not be considered at all and shall be rejected out-rightly. The DME will make no further correspondence with the candidate in the matter.
4. The in-service GDOs/candidates are required to route their applications through proper channel for obtaining NOC from the competent authority i.e. Additional Chief Secretary (Health) to the Govt. of Himachal Pradesh, Shimla/DHS, HP Shimla as the NOC will have to be produced at the time while appearing in the walkin-interview on 16.12.2016 and 27.12.2016 respectively.
5. The candidate should enclose the certified/attested copies of the following certificates/documents along-with application form:-
a) Certificate of Matriculation or its equivalent examination (for verification of age).
ii) Detail marks certificate of Professional examination (Degree/Diploma).::: Downloaded on - 20/07/2021 20:11:40 :::HCHP
...9...
iii) Certificate of distinction obtained by a candidate in the qualifying examination, Medals, Publications and .
position in the University qualifying examination(s) if any.
iv) Service certificate form concerned Chief Medical Officer as well as DHS, HP regarding serving in the peripheral institutions after completion of his/her post- graduation.
v) Character certificate from the employer /Head of the institution.
vi) Registration Certificate from Medical Council.
vii) Attempt certificate in respect of MBBS 2. P.G. Rest of the terms & conditions will apply the same as contained in the new policy issued by the Government vide Notification No: HFW-B(A)2-4/2007- dated 4.1.2012 and addendum dated 4.2.2012, 20.6.2012, 26.9.2012, 4.6.2013 & 29.8.2013 to this effect from time to time."
4. All the petitioners herein applied and participated in the interviews and were declared successful in their respective fields. Vide letter dated 10.4.2017, the respondent-State gave approval to appoint the petitioners as tutor in different specialties as per their qualification. Copy of appointment letter issued in case of one of the petitioner namely Akash Srivastava is Annexure P-14.
5. Though appointment of the petitioners was initially for six months, but admittedly same came to be renewed year after year. Copy of notifications dated 24.10.2019 and 27.5.2020 annexed with the petition of Akash Srivastava are placed as P-15 Colly. Vide communication dated 4.5.2017, issued under the signatures of Under Secretary (Personnel) to the Government of Himachal Pradesh, Government took a policy decision to regularize the services of contractual appointees in the government departments (P-16), who have completed three years continuous service as on 30.9.2017. Again, in the year, 2019, respondents vide notification dated 21.2.2009 (Annexure P-17), again decided that services of contractual ::: Downloaded on - 20/07/2021 20:11:40 :::HCHP ...10...
appointees, who have completed three years continuous service as on .
31.3.2019 and 30.9.2019 shall be regularized after 31.3.2019 and 30.9.2019, respectively.
6. Careful perusal of aforesaid regularization policy formulated by the Government of Himachal Pradesh, reveals that regularization, if any of the contractual appointees, who have completed three years continuous service is/was to be made on the basis of seniority subject to the condition that eligibility criteria prescribed in the R&P Rules for the post, was adhered to/observed at the time of their initial recruitment on contract basis. Since despite there being aforesaid policy decision taken by the respondents, services of the petitioners were not regularized, they applied for information under RTI, regarding applicability of aforesaid notifications dated 4.5.2017 and dated 21.2.2019. Vide communication dated 13.5.2019, petitioners were informed that letter dated 21.2.2019, is applicable to all the functionaries to whom it was sent. Copy of RTI application along information received stands enclosed as P-18 (Colly) with the writ petition filed by one of the petitioner namely Akash Shrivashtava.
7. During the subsistence of contract of the petitioners, respondent-State in terms of notification dated 22.6.2019 (Annexure P-19), notified Resident Doctor Policy for regulating the appointment of Senior/Junior Residents in the department of Medical Education, which reads as under :
"1. Short Title.--This policy may be called 'Policy for Residency in the Government Medical Colleges in the State of Himachal Pradesh' in short 'Resident Doctor Policy'.::: Downloaded on - 20/07/2021 20:11:40 :::HCHP
...11...
2. Commencement.--The Policy shall come into effect from .
the date of notification.
3. Definitions.--Notwithstanding anything to the contrary 3.1. 'Senior Resident' or 'Tutor-Specialist' shall mean the doctors who have completed their Post Graduation in any clinical and non-clinical specialty as recognized by Medical Council of India.
3.2. 'Junior Resident -Non Academic' or 'Tutor-General' shall mean the doctor who is a MBBS degree holder and is not pursuing a Post Graduation course.
3.3. 'Junior Resident -Academic' shall mean the doctor who is a MBBS degree holder and is pursuing a Post Graduation course.
4. Number of Posts.--As notified by the State Government from time to time.
5. Classification.--Class-I (Gazetted) Tenure Post.
6. Age Limit.--45 Years and below.
6.1. Provided that the upper age limit will not be applicable to the candidate already in service of the Government including those who have been appointed on adhoc or on contract basis by the Government.
6.2. Provided further that upper age limit is relaxable for Scheduled Castes/Scheduled Tribes/Other categories of persons to the extent permissible under the general or special order(s) of the Himachal Pradesh Government.
6.3. Age limit for direct recruitment will be reckoned on the first day of the year in which the post(s) are advertised for inviting application.
7. Senior Residents/Tutor-Specialist:
7.1. Essential Qualification(s)/Eligibility :
For Clinical Subjects.--Post Graduate (MD/MS/MDS) or DNB in the concerned specialty from a University/Institution recognized/permitted by the MCI/DCI; failing which the PG Diploma in the concerned specialty recognized/permitted by the MCI/DCI.
For non-clinical subjects.--Recognized MD/MS/DNB in the concerned specialty or qualifications as prescribed in the concerned specialty by the schedule-I of the existing Himachal Pradesh Medical Education Service Rules:
Provided that the percentage of Tutor-specialists in non- clinical subjects from non-medical backgrounds shall not exceed the limit prescribed as per the norms fixed by Medical Council of India;
Further provided that GDOs/Direct Candidates who have furnished bond to serve the State after Post Graduation in lieu of sponsorship/stipend shall be required to serve a period of minimum one year in field posting or any such period ::: Downloaded on - 20/07/2021 20:11:40 :::HCHP ...12...
which may be prescribed by the PG/SS policy as notified from time to time before being eligible for Senior Residency in .
the State.
7.2. Method of Recruitment:
7.2.1. The Senior Resident/Tutor-Specialist shall be selected on the basis of application invited by the Director, Medical Education & Research, Himachal Pradesh.
7.2.2.The recruitments will be conducted thrice in every year as per the following schedule:
First Round Second Third
Round Round
Requisition to be sent by End of November End of March End of July
Principals to DME & R by
Vacancies to be sent in Vacancies as on date + Vacancies as on date Vacancies as on
requisition vacancies anticipated + vacancies date + vacancies
(on the basis of anticipated (on the anticipated (on the
completion of tenure of basis of completion of basis of completion
incumbents occupying tenure of incumbents of tenure of
the posts) till end of occupying the posts) till incumbents
r January. end of May. occupying the posts)
till end of September.
Advertisement of Post in. Second week of Second week of April Second week of
December August
Personal appearance for First fortnight of January First fortnight of May First fortnight of
verification of September.
documents to be
conducted in.
7.2.3.The interested and eligible candidates as per the advertisement shall apply to the Director, Medical Education & Research, Himachal Pradesh within the time period as stipulated by the advertisement on application form as prescribed at Annexure-1. The interested and eligible candidates shall also provide their preference list listing out all the Government Medical Colleges where seats are available in their respective specialties/specialties for which they are applying.
7.2.4.The Director, Medical Education & Research, Himachal Pradesh shall send the list of all the candidates (including GDOs and Direct candidates) who have applied for the post(s) to the Director Health Services, Himachal Pradesh for issuance of No Objection Certificate with regard to the completion of the mandatory peripheral service and to scrutinize any discrepancy in status of a candidate with respect to being a GDO or a direct candidate. Such information shall be furnished by the Director Health Services within a week of the issuance of demand letter by the Director Medical Education. The Director Medical Education shall simultaneously draw a specialty wise merit list based on the documents submitted at the time of making applications keeping the following general principles in mind:
(a) The distribution of marks for drawing up of merit shall be as under:--
Sl. No. Detail Marks
::: Downloaded on - 20/07/2021 20:11:40 :::HCHP
...13...
1. MBBS Marks (Cumulative total marks of 1st, 2nd & 3rd 30
Professional examination).
.
2. . PG(MD/MS) Degree Marks (in concerned specialty) 40
3. Period of service of State As per Annexure-2
4. Publication of papers in Index Journals as first author or 2 marks for each
corresponding author (Published papers or papers in respect published work
of which letter of acceptance has been issued shall be subject to maximum
counted). of 20 marks.
(b) The candidates who have done MD/MS/DNB in a particular subject shall be higher in merit then the candidates who have done diploma in that particular specialty, irrespective of the marks earned. Similarly, for the non-clinical subjects, candidates belonging to non-medical side shall always be placed below in merit to candidates of the medical side irrespective of the marks earned and the inter se merit of the candidates from non-medical background shall be determined on the basis of marks obtained in the Essential Qualification examinations like M.Sc. etc.
(c) In case, the PG marks are not available in respect of even one candidate in a particular specialty, the PG marks shall not be taken into account while drawing up the merit of that particular specialty.
7.2.5. A date shall be fixed by the Director, Medical Education & Research, Himachal Pradesh which shall be notified in the advertisement for verification of documents. The candidates shall be required to be mandatorily present during the verification of documents, otherwise their candidature shall be deemed rejected.
7.2.6. After the verification of documents and after issuance of NOC by the Director Health Services, the Director Medical Education & Research, Himachal Pradesh shall allot the Medical Colleges to various candidates on the basis of merit and as per the preferences furnished by them at the time of making application subject to availability of vacancy in that particular Medical Colleges. In no case, shall the preference list be allowed to be changed after the submission of application. In case two applications have been submitted by one candidate for one department, the preference list as contained in the application latest submitted shall be considered.
7.2.7. The DME & R-HP shall forward the proposal for Medical College wise appointment of the Senior Residents/Tutor- Specialist to Government for issuing necessary orders in this regard.
::: Downloaded on - 20/07/2021 20:11:40 :::HCHP...14...
7.3. Terms and conditions :
7.3.1.The appointment will be ordinarily for a period of three .
years subject to satisfactory yearly performance appraisals which shall be brought to the notice of the Principal by the concerned Head of Department. The Principal shall intimate the Government if the services of a Senior Resident/Tutor-
Specialist need to be discontinued in view of non-satisfactory performance. The post occupied by the Senior Resident/Tutor-Specialist so will fall vacant only if the tenure is completed OR he/she tenders resignation OR his/her services are terminated.
7.3.2. GDOs shall continue to draw the emoluments and pay admissible to him/her with due allowances and increments during the period of Senior Residency. The direct candidates who join as Senior Resident in any of the Government Medical Colleges after completion of prescribed mandatory period of field posting as per policy notified vide letter No. HFW-B(F)4- 9/2017-II, dated 27-02-2019 or any other policy notified in its supersession, shall be eligible to draw the pay as prescribed for a Senior Resident. Similarly, the candidates who join directly as Senior Resident shall draw the pay as prescribed for a Senior Resident.
7.3.3. The salary of Senior Resident shall be drawn against the sanctioned post of Senior Resident in that Government Medical College. The GDOs selected for Senior Residency will furnish their 'Last Pay Certificate' (LPC) duly issued by their last establishment for the purpose of drawing salary against the post of Senior Resident.
7.3.4. The Senior Residents shall be entitled to leave as may be notified by the Government from time to time.
7.3.5. GDOs/Direct Candidates who have furnished bond to serve the State after Post Graduation in lieu of sponsorship shall be required to serve a period of minimum one year in field posting before being eligible for Senior Residency in the State and for this purpose the last date of submission of applications shall be taken as the cut-off date. However, this condition shall not be applicable to the direct candidates who have not availed sponsorship of the State while doing Post Graduation and who are not bound by conditions of any bond.
7.3.6. The condition of mandatory one year of field posting shall be equally applicable to all the specialties. Candidates of non-clinical specialties like Microbiology, Pathology etc. shall be posted at field institutions. Candidates of specialties like Anatomy, Physiology, Nuclear Medicine etc., in respect ::: Downloaded on - 20/07/2021 20:11:40 :::HCHP ...15...
of which there is no sufficient work in field institutions, shall be posted as Medical Officer in Medical Colleges as per the .
availability of non-teaching post. Such candidates posted on non-teaching post shall not be clubbed with Senior Residents for the purpose of roster etc. and it shall be ensured by the Principals that no teaching responsibility is assigned to them.
Such candidates shall also not be eligible for the grant of teaching experience.
7.4. Repeat Tenure:
7.4.1. There will be no repeat tenure for any candidate as Senior Resident/Tutor Specialist in any specialty in a particular Government Medical College.
7.4.2. A Senior Resident who has completed his/her tenure in one specialty will however be eligible for Senior Residency in the concerned super specialty department; provide that such candidates shall be placed below the fresh candidates while drawing up merit irrespective of the marks earned.
7.5. Teaching Experience :
7.5.1. Senior Residents will be issued teaching experience certificate by the concerned Principal, which will be valid for promotion and appointment as Assistant Professor in the respective faculty as per R&P Rules notified by the Government.
7.5.2. Senior Residents who are pursuing Senior Residency in super specialty departments of the Government Medical Colleges of the State shall be eligible to be awarded teaching experience in their own specialty; provided that the concerned specialty is the parent department of concerned super specialty.
7.5.3. The candidates who have availed maternity/paternity leave during the period of Senior Residency shall be entitled to grant of teaching experience for the period of maternity/paternity leave admissible as per rules. 7.6. Inter-transferability:
7.6.1. No Senior Resident in any institution of the State will be allowed to shift to any other institution without formal resignation from the former institution. 7.6.2. However, instances where inter-transferability is sought on couple case grounds may be given consideration subject to the availability of departmental vacancy of Senior Resident in the institution to which transfer is being sought. 7.6.3. No other exception will be made to clause 7.6.1.
However, the State Government reserves the right to transfer/depute a Senior Resident/ Tutor-Specialist from one ::: Downloaded on - 20/07/2021 20:11:40 :::HCHP ...16...
Government Medical College to another, if the administrative exigencies demand so.
.
8. Junior Residents/Tutor-General:
8.1. Eligibility : Direct candidates and those regularly appointed GDOs who possess a MBBS Degree as recognized by Medical Council of India will be eligible for the post of Junior Resident/Tutor-General. These positions will not be offered to any Post Graduate doctor/contractual GDOs. 8.2. Method of Selection:
8.2.1. These posts will be filled up by the Principal of concerned Government Medical College through walk-in-
interviews by prior notification of vacancies and inviting applications for the same.
8.2.2.Walk-in-interviews for these posts shall also be conducted thrice a year as prescribed for the post of Senior Resident.
8.2.3.The applications received will be considered as per the following criteria:
(a) First preference would be given to the direct MBBS doctors who are not in the employment of the Government of Himachal Pradesh. The selection will be made purely on the basis of merit of candidate in MBBS examinations.
(b) Second preference would be given to GDOs whose spouses are working, in order of preference, as Senior Resident or Faculty in the respective Government Medical College or in the State/ Central Government (including semi-government/autonomous bodies fully or partially funded by the Government). In case there is more than one applicant for particular position, the applicant having higher score in MBBS examination will be selected.
8.2.4. For the smooth conduct of patient care services, if any post of Senior Resident in any clinical specialty remains vacant despite advertisement in the last round of recruitment by the Director, Medical Education & Research, Himachal Pradesh and recruitment of manpower against that post is absolutely necessary in public interest, the Principal of the concerned Government Medical College may fill up the post by way of Junior Resident through walk-in-interview subject to fulfilment of following conditions:
(a) The Principal shall seek prior permission of Director, Medical Education & Research, Himachal Pradesh for advertising these posts of Senior Resident ::: Downloaded on - 20/07/2021 20:11:40 :::HCHP ...17...
against which a Junior Resident is proposed to be recruited. The Director, Medical Education & .
Research, Himachal Pradesh shall accord permission for the same only if the said post was advertised previously but no suitable candidate could be recruited against that post.
(b) It also shall be ensured by the concerned Principal that such Junior Resident who are occupying the posts of Senior Resident shall not exceed 20% of the total posts of Senior Resident in that Department.
(c) Such Junior Residents shall be appointed for a term of maximum of six months at a time following which the post shall be advertised as Senior Resident in the next round of recruitment.
(d) Such Junior Resident shall be payable pay and allowances as prescribed for their post and not for the post of Senior Resident.
8.3. Terms and conditions:
8.3.1. Junior Resident will be appointed for a term of one year at a time. Extension beyond one year will only be allowed in exceptional cases and with the prior concurrence of the State Government. 8.3.2. GDOs appointed on regular basis, on their selection as Junior Resident will continue to draw pay and allowances/increments as admissible to them in their pay scale. MBBS doctors appointed in the direct category will get emoluments as may be prescribed from time to time by the State Government.
9. Casualty Medical Officers and Blood Bank Medical Officers:
The posts of already created Casualty Medical Officers and Blood Bank Medical Officers in Medical Colleges will be filled up separately on tenure basis by the Government by way of transfer from the cadre of GDO's (regular) of the HPHS. Tenure shall normally be for three years.
10. Removal/Resignation from posts of Senior/ Junior Residents/Tutor:
10.1.Once appointed, the incumbent can be removed from the post any time after joining in case of misconduct, misbehaviour, acts of commission/ omission, unbecoming of a public servant. The HOD will make a formal request in writing to the Principal of the concerned Medical College for removing the ::: Downloaded on - 20/07/2021 20:11:40 :::HCHP ...18...
delinquent appointee. The Principal of the concerned Medical College will take decision in the matter after .
hearing both the parties. It will be necessary to give due opportunity to the concerned Senior Resident/ Junior Resident to explain his/her position. The Principal shall forwarded his/her recommendations to the Government, and the final decision shall be taken at the level of Government, being the appointing authority.
10.2. Similarly, if the performance is non-satisfactory as reported by the Head of Department during annual performance appraisals, the Principal shall hear the parties and forward the case to the Government for discontinuation of services, if so required, alongwith his/her findings and recommendations.
10.3. Any Senior/Junior Resident shall have to give one month's notice or salary in lieu thereof to resign and the concerned Principal will accept the same.
11. Reservation: Reservation roster for direct candidates will be applied as per rules applicable in the State of Himachal Pradesh. However, if candidates of reserved category are not available in any category, then the post will be filled up from General category.
12. Power to relax/change/amend the policy: Where the State Government is of the opinion that it is necessary or expedient to do so, it may, for reasons to be recorded in writing relax/change/amend any of the provision(s) of this policy.
8. Terms and conditions contained in the aforesaid Resident Doctor Policy, are para materia same to terms and conditions formulated/prescribed by the respondents at the time of inviting applications for the posts of senior residents of various specialties of Pt.
Jawahar Lal Nehru Government Medical College and Dr. Radhakrishnan Government Medical College, Hamirpur, in the year, 2016 save and except condition with regard to "Repeat Tenure". Terms and conditions formulated at the time of inviting applications in the year, 2016, provided that there will be no repeat tenure for in-service GDO's (including contractual appointees) ::: Downloaded on - 20/07/2021 20:11:40 :::HCHP ...19...
as Senior Residents in any specialty and repeat tenure will be available to .
only direct candidates, but same shall be for six months at a time. In the aforesaid terms and conditions formulated at the time of advertisement issued in the year, 2016, it was also provided that if a direct candidate selected as Senior Resident is unable to complete the term of three years, he/she will be eligible to appear in the interview of Senior Resident and get selected in the same or other specialty. He/she will also be entitled to be selected as Sr. Resident in a super specialty and if an in-service GDOs is unable to complete the term of three years, he/she shall be debarred from doing Senior Residency for a period of three years.
9. However, aforesaid condition of repeat tenure came to be completely modified in Resident Doctor Policy circulated in the year, 2019.
Repeat tenure, as provided in aforesaid Resident Doctor Policy, reads as under:
"7.4. Repeat Tenure:
7.4.1. There will be no repeat tenure for any candidate as Senior Resident/Tutor-Specialist in any specialty in a particular Government Medical College.
7.4.2. A Senior Resident who has completed his/her tenure in one specialty will however be eligible for Senior Residency in the concerned super specialty department; provide that such candidates shall be placed below the fresh candidates while drawing up merit irrespective of the marks earned."
10. As per the aforesaid clause, no candidate can have a repeat tenure as a senior resident/tutor specialist in any specialty, particularly, in GMC, however, a senior resident, who has completed his/her tenure in one specialty will be entitled for Senior Residency in the concerned super specialty department, but he/she shall be placed below the fresh ::: Downloaded on - 20/07/2021 20:11:40 :::HCHP ...20...
candidates while drawing up merit irrespective of the marks earned. In the .
aforesaid background, all the petitioners herein after having completed three years as senior residents/tutor approached the respondents for their regularization against the post(s) they were appointed on contractual basis, but fact remains that respondents did not accede to the request of the petitioners herein, whereas in terms of Regularization Policy framed from time to time, proceeded to regularize the contractual service of Medical Officers in the Directorate of Health Service over and above the R&P Rules.
Copies of the notifications dated 5.8.2017 and 17.2.2018, regularizing the services of the Medical Officers in the Directorate of Health Services are annexed as Annexure P-21. Respondents instead of considering the claim of the petitioners for regularization issued fresh advertisement qua the post of senior residents/tutor specialist, against which, petitioners had already rendered three years continuous service on contract basis (Annexure P-21).
Petitioners besides making comprehensive representation dated 28.9.2020 to respondent No.1 (Annexure P-23) also applied for the post in question in terms of fresh advertisement. Though, all the petitioners herein, stood selected against the post in question in their specialty, but since they were not given appointment at Pt. Jawahar Lal Nehru Government Medical College, Chamba, where they were earlier working, they filed representation, to the Secretary (Health) to the Government of Himachal Pradesh, praying therein to allow them to continue in the same college again. Since no heed, if any, was paid to the aforesaid request made by ::: Downloaded on - 20/07/2021 20:11:40 :::HCHP ...21...
the petitioners, they have approached this in the instant proceedings .
praying therein for following main reliefs:
"i) Issue a writ of Certiorari, Mandamus or other appropriate writ or direction quashing Notification dated 22.06.2019 Clause 7.4 (Repeat Tenure) under 7.4.1. which forbids repeat of tenure from any candidate as Senior Resident/Tutor-Specialist in any specialty in a particular Government Medical Collage, for all intents and purposes.
ii)Issue a writ of Certiorari, Mandamus or other appropriate writ or direction quashing the advertisement,( Annexure P-21) qua one post of Sr. Resident/Tutor-Specialist (Physiology ) against which the Petitioner is already working) at Pt.
Jawahar Lal Government Medical College, Chamba , for all intents and purposes.
iii). Issue a writ of Certiorari, Mandamus or other appropriate writ or direction in case the result card/merit list is prepared in reference to the advertisement,( Annexure P-21) ,the same may kindly be quashed for all intents and purposely accordingly.
iv). Issue a writ of Certiorari, Mandamus or other appropriate writ or direction ,directing the respondents to regularize the contractual services of the petitioner after completion of his three years of Contractual services, in terms of the regularization policy of the respondent State against the post of Sr. Resident/Tutor-Specialist (Physiology ) at Pt. Jawahar Lal Government Medical College, Chamba on which petitioners is presently working, for all intents and purposes.
v). Issue a writ of Certiorari, Mandamus or other appropriate writ or direction quashing the action of the respondents i.e. the respondent no.5 from replacing one contractual employee( i.e. the Petitioner ) by another contractual employee."
::: Downloaded on - 20/07/2021 20:11:40 :::HCHP...22...
11. We have heard the learned counsel for the parties and .
perused the material available on record.
12. Precisely, in the petitions at hand, this Court needs to decide two following questions; 1.) whether the petitioners, who being duly qualified and eligible were appointed as tutors in the department of Anatomy, physiology, pharmacology and microbiology on contract basis, can claim regularization against the post of Tutors and Senior Residents in terms of regularization policies framed by the state of Himachal Pradesh; 2.) Whether condition of "repeat tenure" provided under clause 7.4 of the Resident Doctor Policy notified vide notification dated 22.6.2019, is unfair, unlawful, un-constitutional and defeats the purpose of regularization policy.
13. Having heard learned counsel for the parties and perused material available on record, this Court sees no dispute inter-se parties qua the fact that respondents after having failed to appoint the qualified medical faculty in newly opened Medical Colleges, framed terms and conditions for appointment of the Professors, Associated Professors, Assistant Professors, Tutors, Senior Residents and Junior Residents (on contractual basis) vide notification dated 22.4.2016 (Annexure P-12). As per aforesaid terms and conditions, Professors, Associate Professors and Assistant Professors in the department of Medical Education are/were to be engaged on contractual basis initially for a period of one year, which could be extended on year to year basis. Appointment made if any, in terms of aforesaid terms and conditions formulated vide notification dated 22.4.2016 is to be made purely on temporary basis and candidate shall not have any right to ::: Downloaded on - 20/07/2021 20:11:40 :::HCHP ...23...
claim for regularization/permanent absorption as Professor in the .
Department at any stage. Condition No. 13 of aforesaid terms and conditions specifically provides that they are barred for claiming regularization/permanent absorption against the post of Professors in the Department of Medical Education, but definitely not against other posts of Associate Professors, Assistant Professors, Tutors/Senior Residents and Junior Residents. Rather R&P Rules notified in Rajpatra vide department notification No. Health-A(A)(3) 6 98 dated 2.12.1999, which came to be amended vide notification dated 10.1.2006 clearly provides that post of Assistant professors shall be filled up (i) 50 % by promotion, failing which by recruitment or on contract basis; and (ii) 50% by direct recruitment or on contract basis, in the manner specified in Appendix-D appended with the aforesaid notification.
14. Similarly, clause 10 of aforesaid terms and conditions provides for transfer of a contract appointee from one place to another after putting three years service at one place, meaning thereby, condition of repeat tenure as contained in clause 7.4 of the Resident Doctor Policy is/was not binding on the candidates, who immediately after promulgation of terms and conditions vide notification dated 22.4.2016 applied for the appointment against various posts in the department of Medical Education on contract basis. Similarly, it is undisputed that after framing of aforesaid terms and conditions vide notification dated 22.4.2016, respondents invited applications by way of an advertisement from candidates fulfilling the eligibility criteria for selection of Senior Residents in various specialties of Pt.
::: Downloaded on - 20/07/2021 20:11:40 :::HCHP...24...
Jawahar Lal Nehru Government Medical College, Chamba and Dr. .
Radhakrishnan Government Medical College, Hamirpur H.P., on tenure basis initially for a period of six months, but same could be extended upto three years as per performance. Terms and conditions provided alongwith aforesaid advertisement though provided for "repeat tenure" regulation, but it categorically provides that the repeat tenure will be available to only direct candidates, but for six months at a time. However, in-service GDOs including contractual appointees are not held entitled for "repeat tenure".
Material available on record clearly reveals that all the petitioners herein though were initially appointed on tenure basis for six months, but they were given extension on year to year basis and as of today have served the respondent department for more than three years uninterruptedly.
15. During proceedings of the case, Mr. Ajay Vaidya, learned Senior Additional Advocate General, representing the State, while refuting the claim of the petitioners for regularization in terms of Regularization Policy(s) framed by the Government of Himachal Pradesh , argued that since there are no substantive posts of Senior Residents/tutor specialists in the Department of Medical Education, benefit, if any, of regularization in terms of aforesaid Regularization Policy, cannot be claimed by the petitioners. Besides above, Mr. Vaidya, learned Senior Additional Advocate General, also argued that regularization policy formulated by the Government of Himachal Pradesh for regularization of persons, who have completed three years regular service on contract basis, cannot be applied in the case of the petitioners keeping in view the nature and responsibility ::: Downloaded on - 20/07/2021 20:11:40 :::HCHP ...25...
attached to the post in question. However, learned Senior Additional .
Advocate General, was unable to dispute that in terms of aforesaid regularization policies, Medical Officers, 1st Class Gazetted (General Wing) in the Department of Health and Family Welfare appointed on contractual basis stand regularized in terms of regularization policy framed by the Government from time to time.
16. On 2.7.2021, this Court after having heard aforesaid submission of Mr. Vaidya, learned Senior Additional Advocate General, that there are no substantive posts, against which, services of the petitioners can be regularized, reserved the judgment, but before judgment could be dictated, petitioners filed an application bearing CMP No. 7057 of 2021, enclosing therewith notification dated 26.5.2016, issued by the Department of Medical Education and Research (Annexure P-28) with regard to creation of 80 posts of different faculty in different departments in the newly opened Medical Colleges, which reads as under:
"The Governor of Himachal Pradesh is pleased to order creation of following posts in each of the proposed three new Medical Colleges to be established at Nahan, Hamirpur and Chamba:
(A) Faculty in each Medical College:
Sr. Name of the Professor Associate Assistant Tutor Sr. Jr. Other No. Department Professor Professor Resid Residen Faculty ent t 1 Anatomy 01 01 02 04 -- -- --
2 Physiology 01 01 02 04 -- -- --
3 Biochemistry 01 01 01 04 -- -- --
4 Pharmacology 01 01 02 02 -- -- --
5 Pathology 01 03 03 04 -- -- --
6 Microbiology 01 01 01 03 -- -- --
7 Forensic Medicine 01 -- 01 02 -- -- --
8 Community Medicine 01 02 02 04 -- -- 1 Post each of Epiderolo ::: Downloaded on - 20/07/2021 20:11:40 :::HCHP ...26...
gist-cum Asst.
.
Professor and Statisticia n-cum-
Asst, Professors 2 post LMO=2 posts 9 General medicine 01 03 04 -- 06 12 --
10 Pediatrics 01 01 02 -- 03 06 --
11 Tuberculosis & 01 -- 01 -- 02 03 --
Respiratory Diseases 12 Dermatology, 01 -- 01 -- 02 03 --
Venereology and
Leprosy
13 Psychiatry 01 -- 01 -- 02 03 --
14 General Surgery 01 03 04 -- 06 12 --
15 Orthopedics 01 01 02 -- 03 06 --
16 Oto-Rhino- 01 -- 01 -- 02 03 --
17
Laryngology
Ophthalmology
r 01 -- 01 -- 02 03 --
18 Obstetrics & 01 02 03 -- 03 06 ANMC
Gynecology Post
MWOs
Post
19 Anaesthesiology 01 02 03 -- 08 -- --
20 Radio-Diagnosis 01 01 01 -- 05 -- --
21 Dentistry 01 -- 01 -- 02 -- --
22 Physical medicines & 01 -- 01 -- 02 01 00
Rehabilitation
23 Radio Therapy 01 01 01 03 -- -- --
Total 23 24 43 30 48 58 06
and as such, matter again came to be listed before this Court on 5.7.2021.
This Court after having heard the learned counsel appearing for the parties and perused material available on record, allowed the aforesaid application and ordered that the document annexed with the application be taken no record.
17. Mr. Ajay Vaidya, learned Senior Additional Advocate General, after having perused aforesaid communication was unable to dispute that in the year, 2015 i.e. prior to opening of newly opened medical colleges, posts of Tutor, Senior Residents and Junior Residents in various departments of Medical Colleges were created alongwith various other posts of teaching ::: Downloaded on - 20/07/2021 20:11:40 :::HCHP ...27...
faculty as well as para-medical staff. Careful perusal of aforesaid .
notification clearly reveals that there are sanctioned/substantive posts of Sr. Residents/Tutors in the department of physiology, anatomy, microbiology and pharmacology, in the newly opened medical colleges including Pt.
Jawahar Lal Nehru Government Medical College, Chamba and as such, prayer made for regularization on behalf of the petitioners in terms of the regularization policy after completion of three years of service on contract basis cannot be rejected on the ground that there is no substantive post qua which services of the petitioners can be regularized.
18. At this stage, it is important to take note of the fact that recently Government of Himachal Pradesh, vide communication dated 30.3.2021, again decided to regularize the services of the contractual appointees, who have completed three years continuous service as on 31.3.2021. As per aforesaid notification, services of contractual appointees, who have completed three years, shall be regularized after 30.9.2021, however such regularization shall be subject to the condition that eligibility criteria prescribed in the R&P Rules for the post was observed/adhered to at the time of the initial recruitment on contract. Interestingly, in the case at hand, respondents though have created substantive posts of Tutor, Senior Residents and Junior Residents in the newly opened Medical Colleges, as has been taken note herein above, but at no stage, made an endeavor/effort to include the aforesaid posts in R&P Rules.
19. Appendix-B appended with the Himachal Pradesh Medical Education Service Rules, promulgated vide notification dated 2.12.1999 (P-
::: Downloaded on - 20/07/2021 20:11:40 :::HCHP...28...
1), which subsequently came to be amended vide notification dated .
10.1.2006 (Annexure P-3) clearly reveals that only posts of Lecturer, Lecturer (Dentistry), Assistant Professor, Assistant Professor ( Super Specialty), Assistant Professor (Dentistry), Assistant Professor, Assistant Professor (Dentistry), Professor, Professor (Dentistry), Principal and Director, Medical Education and Research, came to be governed by the Himachal Pradesh Medical Education Service Rules. Though, posts of Professor, Associate Professor and Assistant professor proposed to be filled up on contractual basis in terms of notification dated 22.4.2016, whereby Government after having taken decision to open four new medical colleges in the State framed terms and conditions for the appointment of Professor, Associate Professor, Assistant Professor, Tutors, Senior Residents and Junior Residents on contractual basis, could have been governed /regulated by the Himachal Pradesh Medical Education Service rules, wherein admittedly posts of Professor, Associate Professor and Assistant Professor, stand included, but since no person having requisite qualification was available, respondents framed terms and conditions for appointment of Professor, Associate Professor and Assistant Professor alongwith posts of Tutors, Senior Residents and Junior Residents on contract basis.
20. In the year, 2016, respondents while inviting applications for fulfilling eligibility criteria of Senior Residents in various specialties of newly opened medical colleges prescribed following qualifications:
"Recognized Post Graduate (MD/MS) or DNB in the concerned speciality or superspeciality from a University recognized by the ::: Downloaded on - 20/07/2021 20:11:40 :::HCHP ...29...
MCI failing which the PG Diploma in the concerned .
speciality/recognized by the MCI. For Non-Clinical subjects recognized MD/MS in the concerned speciality, recognized Diploma in the concerned subject, Ph.d and M.Sc. from the recognized University."
Aforesaid qualification, as has been prescribed for the selection of Senior Residents in various specialties is equivalent to the qualification, which has been otherwise provided for the post graduate qualifications in HP Medical Education Service Rules as is evident from Annexure 1, of aforesaid Medical Rules (available at page 44 of the paper book.
Besides above, respondents with a view to bring more clarity with regard to Eligibility Criteria and to govern the service conditions of Senior Residents or Tutor Specialists and Junior Residents, formulated aforesaid Resident Doctor Policy (Annexure P-19)
21. Clause 7.1 of the aforesaid policy, wherein essential qualification as well as eligibility has been prescribed clearly suggests that same is para materia same to the terms and conditions circulated by the respondents at the time of inviting applications for selection of senior residents in various specialties of newly opened Medical Colleges in the year, 2016. Aforesaid condition of essential qualification/eligibility, if read juxtaposing qualification prescribed by the Medical Council of India, it cannot be said that petitioners, who belong to the category of anatomy, physiology, pharmacology and microbiology, do not possess the requisite qualification, rather in the department of anatomy, physiology, Pharmacology, Biochemistry, microbiology, non medical teachers can be ::: Downloaded on - 20/07/2021 20:11:41 :::HCHP ...30...
appointed to the extent of 30 percent of the total number of posts in the .
department. A non-medical approved medical MSC qualification shall be sufficient qualification for appointment as Lecturer in the subject oncerned, but for promotion to higher teaching post, a candidate mut possess the Ph.D. Degree in the subject. Heads of the departments of pre and para clinical subjects must possess recognized basic university degree qualification i.e. MBBS or equivalent qualification. Otherwise also, it is none of the case of the respondents that petitioner(s) do not possess requisite qualification, rather their precise case is that since posts of Tutors, Senior Residents and Junior Residents do not fall in Himachal Pradesh Medical Education Service Rules, appointment made on contract basis qua the aforesaid posts cannot be said to be made in terms of R&P Rules and as such, they cannot claim the benefit of regularization policy framed by the Government from time to time. Aforesaid stand taken by the respondents cannot be accepted for the reason that respondents though created posts of Tutors, Senior Residents and Junior Residents in the newly opened Medical Colleges, but purposely not included such posts in the Himachal Pradesh Medical Education Service Rules so that incumbents working against such posts do not stake any claim for regularization. However, respondents though may not have included posts of Tutors, Senior Residents and Junior Residents in the Medical Education Service Rules, but definitely, with a view to regulate/govern their services, framed certain terms and conditions in terms of notification dated 22.4.2016, and thereafter, also framed Resident Doctor Policy, providing therein essential qualification / eligibility as well as ::: Downloaded on - 20/07/2021 20:11:41 :::HCHP ...31...
other conditions governing the service. It is also not in dispute that the .
respondents after having found the petitioners suitable in terms of essential qualification/eligibility as prescribed in "Resident Doctor Policy" and terms and conditions contained in the notification dated 22.4.2016 selected them against the post of Tutors, Senior Residents and Junior Residents initially for six months, but subsequently, extended their contract on years to year basis.
Respondents may not have taken steps to include posts of Tutors, Senior Residents and Junior Residents in the Medical Education Service Rules, but once they framed "Resident Doctor Policy", regulating/governing the services of the aforesaid category of doctors and thereafter, made appointments on the basis of terms and conditions contained in Resident Doctor Policy as well as terms and conditions contained in notification dated 22.4.2016, it cannot be said that Eligibility Criteria prescribed in the R&P Rules for the aforesaid posts was not applied at the time of initial recruitment of the petitioners on contract basis. Interestingly, doctors possessing same and similar qualification as is/was possessed by the petitioners herein, after being selected as Medical Officers (General Wing) on contract basis, have been accorded benefit of regularization in terms of aforesaid policies framed by the Government from time to time. No doubt, R&P Rules for the post of Medical Officers, Class-I gazetted (General Wing), in the department of Health and Family Welfare stand framed vide notification dated 9.3.2012, but if, condition of essential qualification/ eligibility provided in the aforesaid R&P Rules framed for regulating the service of General Duty Officers (GDO's) is perused vis-à-vis condition of ::: Downloaded on - 20/07/2021 20:11:41 :::HCHP ...32...
essential qualification/eligibility prescribed for Tutors, Senior Residents and .
Junior Residents, it cannot be said that petitioners herein do not possess requisite qualification, rather they are equally qualified and possess qualification as framed by MCI, as provided under R&P Rules framed for governing the service of GDOs.
22. Since despite there being creation of posts of Tutors, Senior Residents and Junior Residents, respondents failed to include such posts in the Himachal Pradesh Medical Education Service Rules, coupled with the fact that petitioners possess requisite qualification as prescribed by MCI and Resident Doctor Policy, they cannot be denied the benefit of regularization on the pretext that they do not qualify eligibility criteria prescribed in the R&P Rules. At this stage, Mr. Ajay Vaidya, learned Senior Additional Advocate General, argued that since the petitioners came to be appointed in terms of notification dated 22.4.2016, wherein it has been specifically provided that candidates engaged on contract basis under these rules shall have no right to claim regularization/permanent absorption, petitioners cannot seek regularization in terms of the regularization policy formulated by the Government after their initial appointment, however, having carefully perused terms and conditions provided vide notification dated 22.4.2016, (Annexure P-12), this Court finds no force in the afore submissions made by learned Senior Additional Advocate General, because in the terms and conditions as referred herein above, though it has been provided that services of the appointees will be purely on contract basis, but in clause 13 of the terms and conditions, it has been categorically ::: Downloaded on - 20/07/2021 20:11:41 :::HCHP ...33...
provided that candidate engaged on contract basis under these rules, .
shall have no right to claim for regularization/permanent absorption as "Professor" in the Department at any stage.
23. In the case at hand, petitioners are not seeking their regularization against the post of Professor, rather against the posts of Tutors, Senior Residents and Junior Residents, respectively. Though, in the Resident Doctor Policy, it is provided that there will be no repeat tenure for any candidate as Senior Resident/Tutor-Specialist in any specialty in a particular Government Medical College, but right has been reserved to him or her to apply for senior residency in the concerned super specialty irrespective of the marks earned. If the Resident Doctor Policy for the year, 2019 is perused in its entirety, it nowhere debars a candidate from seeking regularization against the post of Tutors, Senior Residents and Junior Residents after completion of their contract.
24. Mr. Vaidya, further argued that keeping in view the nature and responsibility attached to the post in question, benefit of regularization in terms of regularization policy framed by the Government of Himachal Pradesh cannot be extended to the petitioners. He argued that regularization policy framed by the Government from time to time, does not apply to the Department of Medical Education, but aforesaid argument of him, is totally devoid of any merit. Bare perusal of Regularization Policy dated 30.3.2021, clearly reveals that same is addressed to all heads of the departments of Himachal Pradesh and it has been nowhere mentioned in the notification that same shall not apply to the Department of Medical ::: Downloaded on - 20/07/2021 20:11:41 :::HCHP ...34...
Education. Otherwise also, aforesaid argument advanced by Mr. Vaidya, .
learned Senior Additional Advocate General, is total contrary to the record, because Medical Officers 1st Class Gazetted (General Wing) in the department of Health and Family Welfare, who were also eligible to be appointed as Tutors, Senior Residents and Junior Residents in various Medical Colleges have been already given benefit of the aforesaid policy of regularization framed by the government from time to time. Since aforesaid Medical Officers have been already extended the benefit of regularization in terms of regularization policy framed by the Government, prayer made on behalf of the petitioners for regularization cannot be denied on the pretext of onerous responsibility(ies) and duties attached to the post in question. Medical Officers working in the department of Health And Family Welfare and tutors, Junior Residents and Senior Residents working in Medical Colleges have same nature of job with same responsibilities and as such, there cannot be any discrimination inter-se both the categories as referred herein above. Recruitment and Promotion Rules, prescribed for the post of Medical Officer, General Wing, if perused in its entirety, clearly suggest that service of candidates on contract will be purely on temporary basis and candidates engaged on contract basis under these rules, shall have no right to claim regularization/permanent absorption in the department at any stage. However, as has been taken note herein above, respondents despite there being aforesaid condition contained in the R&P Rules framed for the category of Medical Officers 1st Class Gazetted (General Wing) in the Department of Health and Family Welfare, have ::: Downloaded on - 20/07/2021 20:11:41 :::HCHP ...35...
regularized the services of some of the doctors belonging to this category in .
terms of regularization policy framed by the State Government. Hence, argument advanced by the learned Senior Additional Advocate General, that petitioners and other similarly situate persons are bound by terms and conditions contained in the notification, wherein it has been specifically provided that persons appointed on contract basis shall not have any right to seek regularization /permanent absorption, is otherwise bound to fail on the ground of discrimination. Once such condition provided under R& P Rules framed for the Medical Officers 1st Class Gazetted (General Wing) in the Department of Health and Family Welfare, has not been enforced by the Government while regularizing their services, same also cannot be pressed while considering claim of the petitioners for regularization in terms of Regularization Policy.
25. Since the State of Himachal Pradesh has accorded the benefit of regularization of the services, to, persons, similarly situate to the petitioners, therefore, any stipulation in the R&P Rules barring the contractual appointee(s) to stake any claim for regularization is deemed to be waived and abandoned. Even otherwise, when the petitioners were recruited though theirs undergoing the requisite processes, as, stipulated in the R&P Rules, and, their induction did occur against the substantive posts concerned, they are entitled to regularization in terms of regularization policy. Furthermore, since incontemporaniety with their induction into service, even on a contractual capacity, the State of Himachal Pradesh, has sanctioned the relevant posts against which they were appointed in a ::: Downloaded on - 20/07/2021 20:11:41 :::HCHP ...36...
substantive capacity, through, on a contractual basis, therefore, the .
barring stipulation in the R&P Rules against their staking any claim for regularization, appears to be flawed, irrational, as well as arbitrary.
Moreover, the benefit of regularization cannot be denied to the petitioners, especially when similarly situate persons rendering their services in the medical department have been extended the benefit of regularization.
26. Clause 7.4 of Resident Doctor policy, lays down the rule that there will be no repeat tenure for any candidate as Senior Resident/Tutor-
Specialist in any speciality in a particular Government Medical College, however, clause 7.4.2 provides that a Senior Resident, who has completed his/her tenure in one speciality will however be eligible for Senior Residency in the concerned super speciality department provided that such candidates shall be placed below the fresh candidates while drawing up merit irrespective of the marks earned.
27. Mr. C.N. Singh, learned counsel appearing for the petitioners argued that aforesaid condition imposed/incorporated in the Resident Doctor Policy is unfair, unlawful, unconstitutional and defeats the purpose of Regularisation policy. He furthered argued that aforesaid provision has been notified with the mala-fide motive to throw the petitioners from the job and stop them from pursuing their Ph.D., so that subsequently, they do not claim regularization against the posts. Mr. Ajay Vaidya, learned Senior Additional Advocate General, while justifying incorporation of aforesaid provision of "repeat tenure" contended that very purpose and object to provide posts of Senior Residents/Tutor Specialists in different specialties is to ::: Downloaded on - 20/07/2021 20:11:41 :::HCHP ...37...
provide adequate experience to the postgraduate doctors so that .
subsequently, they become entitled to be appointed as Assistant Professor in the different medical colleges.
28. Purpose and object to create posts of Senior Residents/Tutor Specialists in any specialty can be gathered from the channel of promotion provided to the post of Assistant Professor in Medical Education Service Rules. If the aforesaid Medical Education Service Rules are perused in its entirety, it clearly reveal that Lecturer having three years regular service, can be considered for promotion against the post of Assistant Professor, but in case, he /she is not available, then Member of the HP Medical Civil Services (General Wing), having recognized post graduation degree with at least three years' teaching experience as Lecturer, Registrar/Tutor/Senior Resident/Junior Resident in the concerned specialty can be considered for promotion to the post of Assistant Professor. However, in case both the aforesaid categories are not available, in that eventuality, posts of Assistant Professor can be filled up by way of direct recruitment or on contract basis. No doubt, very purpose and object of creating posts of Tutors and Senior Residents and Junior Residents, appears to provide essential teaching experience to the Lecturers, who possess three years' regular service and to the members of HP Civil Medical Service (General Wing), having recognized post graduate degree in the concerned specialty, but same time, careful perusal of Medical Education Service Rules clearly suggests that member of HP Civil Medical Service (General Wing), having recognized post graduate degree is required to have at least three ::: Downloaded on - 20/07/2021 20:11:41 :::HCHP ...38...
years teaching experience as Lecturer/Registrar, Demonstrator/Tutor/ Senior .
Resident/Chief resident after doing post- graduation in the concerned specialty. If one is already working as a lecturer, he/she only needs to have three years of continuous service to become eligible to be promoted against the post of Assistant Professor, whereas member of HP Civil Medical Service (General Wing) after having possessed recognized post-graduation degree can only be promoted against the post of Assistant Professor, if he/she has teaching experience as Lecturer/Registrar, Demonstrator/Tutor/ Senior Resident/Chief resident. Though there is no mention, if any, of feeder category in the Medical Education Service Rules, but definitely, post, if any, of lecturer can be considered to be at par with posts of Tutors/Senior Residents. As has been stated herein above, a lecturer with three years continuous service can be considered for promotion to the post of Assistant Professor, but Member of HP Civil Medical Service having recognized post-
graduation degree can only be considered for promotion to the post of Assistant Professor if he/she has teaching experience of three years as lecturer, tutor or senior residents. It is not in dispute that General Duty Officers, who happen to be members of HP Civil Medical Service (General Wing, possess same qualification i.e. post graduation, as is required to be possessed by the candidate desirous of becoming Senior Resident/Tutor, meaning thereby, candidate after having completed his post graduation, has two options; 1) to join against the post of Medical Officer (General Wing) in the department of Health and Family Welfare; or 2) opt for post of Senior Resident/Tutor. Medical Officer (General Wing) in the Department of ::: Downloaded on - 20/07/2021 20:11:41 :::HCHP ...39...
Health and Family Welfare becomes eligible to be promoted against the .
post of Assistant Professor after his/her having acquired three years teaching experience as lecturer/Senior Residents or tutor, whereas Senior Residents/Tutors working in the medical college though have not been included in the feeder category for the post of Assistant Professor, but careful reading of the HP Medical Education Service (Second Amendment ) Rules, 2006 (available at page 92) clearly suggest that apart from lecturer and member of HP Civil Medical Service, person having three years teaching experience as lecturer, Registrar, Demonstrator, tutor/Senior Resident/Chief Resident is also eligible to be considered for promotion to the post of Assistant professor.
29. Dehors the above, even otherwise, the petitioners' chances of promotion, to the promotional post of Assistant Professor, is/are to be protected though they became inducted into service as contractual employees by the respondents recoursing the contemplation(s) carried in the R& P Rules, Rules whereof are extracted hereinafter:
1 2 3 4 5 6 7 8 Assistant 90 Class-I Gazetted 16350- Selectio 45 As given in Professor (Technical) 20100 n years & Appendix below "B" of this Annexure Assistant 12 Class-I Gazetted 163500- Selectio 45 As given in Professor (Super (Technical) 20100 n years Appendix Speciality) and "B" of this Below Annexure 8 9 10 11 12 13 ::: Downloaded on - 20/07/2021 20:11:41 :::HCHP ...40...
Age: Not (i) 50% by By promotion As may As
applicable appointment (by from amongst be require
.
E.Q:yes selection) failing the Lecturer constitut under
which by direct who possess ed by the
recruitment. Three years the Govt. Law
(ii) 50% by regular service From
direct recruitment or regular time to
in the manner combined with time.
specified in continuous ad
Appendix "B" hoc (rendered
upto 31.3.1998)
service, if any
in the grade
which by
appointment
(by selection
from amongst
members of
H.P. Civil
Medical
r Service
(General Wing)
having
recognized
post-
graduation
degree or its
equivalent
qualification, in
the concerned
speciality and
possess as last
three years
teaching
experience as
Lecturer/Registr
ar/Demonstrat
or/Tutor/Sr.
Resident/Chief
Resident in the
concerned
speciality after
doing post
graduation in
the concerned
speciality
failing
::: Downloaded on - 20/07/2021 20:11:41 :::HCHP
...41...
Age: Not 50% by By As may As
appointment (by appointment be
.
Applicable selection) failing (by selection constitut require
which by direct from amongst ed by
recruitment. the ember of the Govt undue
(i) 50% by the Himachal from time
direct recruitment Pradesh Civil to time. law.
in the manner Medical
specified in Services
Appendix "B" (General Wing)
having post
Graduate
Degree or Post
Doctoral
degree its
equivalent
qualification
concerned
super-speciality
and possess at
r least three year
teaching
experience as
Lecturer/Registr
ar/Demonstrat
or/Tutor/Sr.
Resident/Chief
Resident in the
concerned
Speciality after
doing post-
Graduation in
the concerned
speciality
failing which by
direct
recruitment.
30. If the petitioners, who were admittedly contractual appointees are not allowed to continue beyond the period of three years in a department where they served as tutor/Junior residents/senior residents, benefit of regularisation in terms of regularisation policy extended to them would be redundant. After regularisation against the post of Sr. Resident/Tutor, petitioners would not only remain on that post indefinitely, rather they being one of the feeder category for promotion to the post of Assistant Professor would also become eligible for promotion to the post of ::: Downloaded on - 20/07/2021 20:11:41 :::HCHP ...42...
Assistant Professor alongwith other two feeder categories i.e. lecturers with .
three years teaching experience and members of HP Civil Medical Service having recognized postgraduate degree and possess at least three years experience as Lecturer/Registrar, Demonstrator/Tutor/ Senior Resident/Chief resident. Otherwise also, once the petitioners or other similarly situate persons are ordered to be regularized against the post of Senior Residents/tutor, they being members of Medical Service would otherwise become eligible to be considered for the post of Assistant Professor.
Scheme for regularization does facilitate the compliance by the respondents of condition (supra), which preserves their legitimate right for being considered for promotion to the post of Assistant Professor. Since a percentem of promotional quota is reserved for the resident tutors/Senior Resident(s), given theirs comprising the relevant stream of promotion to the promotional post of Assistant Professor, respondents are required to ensure that the petitioners continue to serve in the feeder category till the time they are not promoted to the higher post i.e. Assistant Professor. Any curbing or curtailing of the period/tenure of contractual appointees, in their respective speciality, would definitely close their chances for being promoted to the post of Assistant Professor. Though petitioners and other similarly situate persons after having acquired three years teaching experience as tutor/Sr. Resident, would become eligible for promotion to the post of Assistant Professor, but such benefit of promotion can only be extended to them in case they are allowed to exist in the feeder category. Once Senior Residents/tutors are debarred from continuing in the same specialty after a ::: Downloaded on - 20/07/2021 20:11:41 :::HCHP ...43...
period of three years, in terms of clause-7.4 i.e. repeat tenure, they would be .
no more on the rolls of the department and teaching experience gained by them on account of their having served as Senior resident/tutor, which otherwise make them eligible for promotion to the post of Assistant Professor, would go in vain. After discontinuation of category of the petitioner from the substantive posts of Sr. Resident/Tutor, fresh batch of postgraduate would join at their place and they also after completion of three years would be out of the rolls of the Government and in this process, very object and purpose to create posts of Sr. Resident/Tutor shall be defeated. No doubt person having three years teaching experience as Tutor can compete under 50% quota of direct recruitment to the post of Assistant Professor, but once he /she has chance to be promoted to the post of Assistant Professor under 50% quota of promotion, condition of "Repeat Tenure" cannot be allowed to sustain. HP Medical Education Service Rules (Annexure P-1) provide following essential qualifications for the post of Assistant Professor, which read as under:
"3. Assistant Professor Essential qualifications -(i) A recognized medical qualification included in the first or second Schedule or Part-II of the third Schedule (other than Licentiate qualifications) to the Indian Medical Council Act, 1956. Holders of Educational qualification included in Part-II of the Third Schedule should also fulfil the conditions stipulated in subsection (3) of Section 13 of Indian Medical Council Act. 1956.
(ii) A post-graduate degree in the concerned speciality mentioned in Part-A of Annexure-II or its equivalent qualifications.
(iii) Atleast 3 years teaching experience as Lecturer/Registrar/Demonstrator, Resident after doing post-
graduation in the concerned speciality in any recognized Medical College.
Desirable qualifications- (i) Knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh.
(ii) Publication of research papers in Index Journals.
::: Downloaded on - 20/07/2021 20:11:41 :::HCHP...44...
4. Assistant Professor (Super-Speciality).
.
Essential qualifications-
(i) A recognized medical qualification included in the first or second Schedule or Part-II of the third Schedule (other than licentiate qualifications) to the Indian Medical Council Act, 1956. Holders of Educational qualification(s) included in Part-II of the third Schedule should also fulfil the conditions stipulated in subsection (3) of Section 13 of Indian Medical Council Act. 1956.
(ii) Post-graduate and post-doctoral degrees as mentioned in part-A of Annexure -II or its equivalent qualifications in the concerned Super-speciality.
(iii) Atleast 3 years teaching experience as Lecturer/Registrar/Demonstrator/ Resident after doing post- graduation in the concerned speciality in any recognized Medical College.
Note-Two/Three Years degree course while doing D.M./M.Ch. shall be counted as teaching experience for the purpose of appointment as Assistant Professor (Super-Speciality).
Desirable qualifications- (i) Knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in the peculiar conditions prevailing in the Pradesh.
(ii) Publication of research papers in Index Journals."
31. In the aforesaid clause of essential qualification, a candidate aspiring to be recruited against the direct quota besides having basic qualification also needs to have three years teaching experience as Lecturer, Registrar and Demonstrator and Resident after doing post graduation in the concerned speciality in any recognised medical college.
Had the respondent included category of Sr. Residents/tutors in the aforesaid clause, Sr. Resident/tutor after having completed their three years period would have otherwise become eligible to be appointed against the post of Assistant Professor. However, in the case at hand, neither Sr. Resident/Tutor have been held entitled to be considered to be appointed against the post of Assistant Professor under direct quota nor they have been kept as one of the feeder category among other two feeder ::: Downloaded on - 20/07/2021 20:11:41 :::HCHP ...45...
categories for their being considered for promotion to the post of Assistant .
Professor against 50 % quota and as such, condition of "repeat tenure"
provided under clause 7.4 cannot be said to be lawful, rather existence of such rule in the Doctor Resident Policy would be totally unfair and unlawful.
Allowing the respondents to bar the "repeat tenure" against the post of Sr. Resident/tutor in the apposite feeder channel, would render all the previous service rendered by the petitioners and other similarly situate persons redundant/effaced. Moreover, petitioners, despite falling in the relevant point of roster, as meant for them vis-à-vis the promotional post of Assistant professor would be completely ousted from the categories, who, otherwise are eligible to be promoted against post of Assistant Professor under 50 % quota mentioned for promotion. As a corollary, this Court finds illegality and infirmity in the afore condition barring the "repeat tenure" to the petitioners, against the contractual post of Residents/tutors/tutor specialist and as such, same is declared arbitrary and unjust and accordingly, same deserves to be quashed and set-aside, as a consequence of which, selected candidates against the post concerned are required to be offered letters of appointment forthwith by the respondents provided the initial selection of the candidate concerned is /was in complete adherence of the relevant norms.
32. Consequently, in view of the detailed discussion made herein above, all the petitions are allowed and respondents are directed to regularize the service of the petitioners against the posts of Senior Resident/tutor in their respective specialties forthwith. Similarly clause 7.4 of ::: Downloaded on - 20/07/2021 20:11:41 :::HCHP ...46...
Doctor Resident Policy is declared to be arbitrary and unjust and as such, .
same is also quashed and set-aside, as a consequence of which, respondents are directed to permit the petitioners to continue serving as Senior Residents/tutor specialists, in the medical college, where they were appointed. Needful shall be done by the respondents expeditiously, preferably, within one week. Secretary (Medical Education) shall ensure the aforesaid compliance and affidavit of compliance be filed on or before 12.8.2021. r ( Sureshwar Thakur ), Judge ( Sandeep Sharma ), Judge July, 2021 (Manjit) ::: Downloaded on - 20/07/2021 20:11:41 :::HCHP