Rajasthan High Court - Jaipur
Dr Richa Tiwari And Ors vs State (Medical And Health Dep)Ors on 24 September, 2011
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. CIVIL WRIT PETITION No.12972/2011 (Dr. Richa Tiwari & Ors. Vs. The State of Rajasthan & Ors.) Date of Order: 24/09/2011 HON'BLE MR. JUSTICE ALOK SHARMA Mr. Prahlad Singh, for the petitioners. Mr. V.B. Sharma, AGC for the State. Ms. Shruti Dixit, for the respondents.
The petitioners are aggrieved of the refusal by the respondent No.3, the Missions Director, National Rural Health Mission (NRHM) to issue a No Objection Certificate (hereinafter, 'NOC') to them for participating in the counseling for admission to the Postgraduate (MD/MS) Course in Ayurveda pursuant to the selection of the petitioners in the Joint Postgraduate Entrance Examination (JPGEE).
The facts of the case are that all the petitioners acquired BAMS (Bachelor of Ayurved Medicine & Surgery) from duly constituted Universities between the years 2003 to 2006. All the four petitioners were appointed on the post of Ayurved Chikitsak after their selection for the said post from the open market after issuance of advertisement and considering the competing claims of all eligible candidates who applied on the basis of their merit. The petitioners were appointed initially on contract basis @ Rs.8,000/- per month consolidated under the NRHM Scheme on various dates between 15.01.2008 and 25.08.2009 and joined their respective places of posting. The petitioner Nos.1, 2 and 3 have completed three years of service and were fully eligible for admission in Postgraduate (MD/MS) Course in Ayurveda as in service candidates through participating in the Pre PG Entrance Examination. The petitioner No.4 has completed two and half years of service, but has been posted in the desert/hilly area for over two years and consequently under the Rules that against three years service for in service candidates to be eligible for a candidate for writing the Pre PG Entrance Examination, the petitioner No.4 was eligible on the basis of two years service in hilly and desert area.
The case of the petitioners is that being eligible as in service candidates, they appeared in the JPGEE Examination conducted by the respondent No.3 in 2011 and all the petitioners have successfully passed the said Entrance Examination and were selected in the merit list declared on 08.07.2011. The petitioner Nos.1, 3 & 4 have been shown in this merit list in the in service category amongst candidates from other Universities while the petitioner No.2 has been shown in the in service category amongst candidates from Rajasthan Auyrved University.
The counsel for the petitioner submits that all the petitioners have discharged and are discharging the same duties on the post of Ayurved Chikitsak, which are discharged by the other Chikitsaks appointed either on contract basis, temporary basis or ad hoc basis or regular basis. It is submitted that there is no difference between the work of the petitioners who were appointed under the NRHM Scheme and the work of others working with the Government. Not only this, the petitioners are posted in the same PHCs where other Allopathic or Ayurved Chikitsak are posted. The Ayurved Chikitsaks like the petitioners are asked to work as Medical Officer In-charge also of the PHC and an order in this regard has been referred to in the writ petition passed by the CMHO, Jhunjhunu on 20.02.2008. It is submitted that the Mission Director of NRHM has issued a job chart on 29.02.2009 for the doctors working in PHC/CHC under NRHM. It is submitted that this job chart is in respect of Ayurved Nurses/Compounders under the NRHM Scheme and this job chart shows that Ayurved Chikitsak appointed under the NRHM have been asked to perform the same work and discharge the same duties as other Ayurved Chikitsaks. In a nutshell the counsel for the petitioner submits that there is no different whatsoever in the works, duties and responsibilities of the petitioners and other doctors of Ayurveda, Allopathiy and Homeopathy. Consequently, the nature of the job and work of the petitioners is identical to other Ayurved doctors who have been considered for admission into MD/MS under in service category. The petitioners further pointed out to a magazine issued by the National Rural Health Mission in August/September 2010 wherein it was clearly mentioned by the Government that medical doctors who are working in distant rural areas and have completed three years of service are entitled for reservation in Postgraduate courses. The petitioners submit that in spite of having been selected in Pre PG Entrance Examination and being eligible as in service candidates for availing quota of such in service category in the MD/MS Ayurveda, the respondent No.3, Mission Director, National Health Rural Mission, has refused to issue No Objection Certificates to the petitioners which is a pre-condition for participation in the counseling for selection to MD/MS Ayurveda course commencing 26.09.2011.
It is submitted by the counsel for the petitioners that they are not being issued NOC despite their selection in Pre PG Entrance Examination on the ground that they have been appointed under NRHM.
In these circumstances, this writ petition has been filed before this Court.
The counsel for the petitioners has relied upon a judgment of this Court in the case of Dr. Mukesh Garg & Ors. Vs. State of Rajasthan & Ors. [2004 (3) WLC (Raj.) 639], wherein this Court has held as under :
So far the duty discharged by the regularly selection candidates through RPSC and who are appointed on contract basis are similar in nature and the eligibility criteria is also similar in nature. The only difference is that the doctors who are working on contract basis before joining the superspeciality have to submit their resignation whereas duly selected doctors through RPSC need not to resign and they are entitled to get the salary also as per the provision of law whereas on contract basis they are not entitled to get the salary.
Upon perusal of the relevant provisions of University Ordinance and University Act as well as the Medical Council Act I find no illegality if the doctors who are working on adhoc/contract/consolidated pay are allowed to appear in the Pre P/G. Examination, 2004 for admission to MD/MS/Diploma Courses in the in service category. However, as discussed herein above, it is expected from the State Government to lay down firm policy for ever and instruct the university to carry out the necessary amendment in the ordinance so that every year the doctors who are appearing in the examinations may not waste their valuable time by indulging in unwarranted litigations.
The learned counsel for the petitioners has further submitted that this Court in another judgment of this Court in the case of Dr. Deepak Goyal & Anr. Vs. University of Rajasthan & Anr. [2005 (2) WLC (Raj.) 584] has reiterated the legal position enunciated in the case of Dr. Mukesh Garg (Supra) and held that the persons working for the Government even on consolidated salary and contractual basis are to be included within the category of in service candidates and consequently would be entitled to avail of the quota for such candidates in the PG admission.
Based on the aforesaid judgments of this Court, it is submitted by the counsel for the petitioners that the petitioners who are working with the NRHM ought to be allowed to be considered for counciling for admission to MD/MS Ayurveda course as in service candidates and the Mission Director of NRHM directed to issue the NOC to the petitioners which is a pre-condition for participating in the counseling.
The counsel for the petitioner has further relied upon the judgment of the Hon'ble Supreme Court in the case of Rajesh Kumar Jain and Ors. Vs. State of Rrajasthan & Ors. [(2005) 13 SCC 370], wherein the Hon'ble Supreme Court has upheld an order where the High Court had directed that in service category would include ad hoc/temporary/contract medical officers and on that basis such candidates were entitled to be included in the in service category and were free to participate and avail of the quota for in service candidates seeking admission in the PG courses.
Per contra, the learned counsel for the respondents have joined issues with the counsel for the petitioners and stated that the petitioners cannot be treated as in service candidates for the reason that they have been engaged on contract basis under the NRHM scheme for a fixed period. The respondent-State has in fact even denied the factum of the petitioners being in the service of State. It is submitted that the NRHM is a scheme distinct and separate from the State Government. It is further submitted that the NRHM Scheme is valid till 31.03.2012 and there is no clarity with regard to the Scheme being extended beyond the said period. It has also been submitted that as Ayurved Chikitsak engaged under the NRHM Scheme, the petitioners cannot equate themselves with the other temporary employees of the State Government working as temporary/ad hoc/ contract employees of the State Government on sanctioned posts of the State Government, till the availability of duly selected candidates, from the Public Service Commission. The counsel for the respondents further submits that the NOC sought by the petitioners from the Mission Director, NRHM has been rightly rejected inasmuch as the petitioners have almost completed their contract employment (presently valid till 31.03.2012), and if NOC were to be issued to the petitioners to get admission as in service candidates then it would cause financial burden on the NRHM, as the respondents apprehend that the petitioners would claim salary/stipend for the entire duration of the PG Course. The counsel for the respondents further submits that the NRHM would not be in a position to pay the salary/stipend for the duration of PG Course and in any event beyond 31.03.2012 till when the NRHM Scheme is presently on course.
I have perused the writ petition and heard the counsel for the parties.
The whole issue in this writ petition is as to whether the petitioners having been employed in the NRHM Scheme for varying period of three and two & half years can be considered to be in service candidates for the purpose of admission into Postgraduate (MD/MS) Course in Ayurveda and granted the NOC by the respondent No.3 in view of the admitted fact of their having worked for varying period of 3 to 2 years as Ayurvedic Chikitsak with NRHM.
It is an admitted fact that the NRHM Scheme is a Scheme of the Central Government whereof funds are disbursed by the Central Government to the State Government and for the purpose of operating the Scheme, recruitment is carried out by the State Government. The petitioners have been recruited by the State Government as Ayurved Chikitsak on the basis of an advertisement where their merit has been considered with the competing claims of all eligible candidates and the petitioners selected. It is also an admitted position that the NRHM Scheme is presently valid till 31.03.2012 even though the counsel for the petitioners submits that a decision has been taken by the Central Government to extend the Scheme upto 31.03.2017. Be that as it may, the NRHM Scheme is a Government Scheme and the petitioners are in the said Scheme for varying period and are to continue till the conclusion of the Scheme. The petitionrs thus have worked as in service / in the employment of the Government for periods ranging from three to two & half years. Consequently, in terms of the judgments of this Court and of the Hon'ble Supreme Court in the cases of Dr. Mukesh Garg (Supra), Deepak Goyal (Surpa) & Rajesh Kumar Jain (Supra), the petitioners have a right to be considered as in service candidates in view of the nature of their appointment and duties being discharged. The Hon'ble Supreme Court has held that irrespective of the category in which the person is engaged in the service of the Government either as ad hoc/temporary/contractual, he has a right to be considered as in service candidate for the purpose of seeking admission in PG Courses and avail quota for in service candidates for Postgraduate study.
The case of the respondents is that the petitioners cannot be considered in government service. It is no doubt true that the NRHM Scheme is a Central Government Scheme where the funds are provided for by the Central Government, but the Scheme is made operational by the State Government for this purpose it is the State Government which inter alia recruits Ayurved Chikitsak through office of the NRHM. Quite evidently it has also been noted that the NRHM Scheme relates to an essential government function for providing medical service to the citizen more particularly in the rural areas and this Scheme is not likely to be discontinued or abandoned with increasing emphasis by the Government the social sector which primarily includes education and medical care. The employer is National Rural Health Mission as a Government Agency and the petitioners are the employees. Quite clearly a master-servant relationship is established between the Government and the petitioners employed as Ayurved Chikitsak. Consequently, the petitioners are in service of the Government albeit through the medium of the National Rural Health Mission and as such the petitioners have to be treated as in service candidates.
The upshot of the aforesaid discussion is that the petitioners are Ayurved Chikitsak with HHRM are to be treated as in service candidates for the purpose of consideration for admission into the Postgraduate Ayurveda courses (MD/MS) and for which purpose the petitioners have already written the Joint Postgraduate Entrance Examination and have been found to be meritorious for admission to Postgraduate Ayurveda courses (MD/MS).
In these circumstances, it is not for the respondent No.3 to withhold the NOC required in terms of the prospectus for the in service candidates. It is however made clear that the apprehension of the State with regard to the claims of the petitioners for salary/stipend during the period of Postgraduate study is not presently in issue. In the event, the petitioners on the basis of the merit are to be selected and admitted to the MD/MS Courses in Ayurveda, their claims for any salary/stipend would be considered by the NRHM wholly in accordance with law.
Consequently, presently I am of the view that the writ petition deserves to be allowed and the respondent No.3 is directed to issue the NOC (requisite with the necessary modification as may be warranted with reference to the nature of the petitioners' employment) to the petitioners for participating in the counseling for admission in MD/MS course in Ayurveda consequent to their having been successful the written Joint Postgraduate Entrance Examination (JPGEE) for admission to Ayurveda Vachaspati/Ayurveda Dhanvantri [MD/MS(Ayurvea)] for the academic session 2011-12 held on 03.07.2011.
(ALOK SHARMA), J.
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