Himachal Pradesh High Court
(Specialist) At Dr. Y.S. Parmar Govt vs State Of Himachal Pradesh on 17 May, 2022
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, AT SHIMLA
.
ON THE 17th DAY OF MAY, 2022.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
CIVIL WRIT PETITION No. 1296 of 2022
BETWEEN:
DR. SARITA NEGI, DAUGHTER OF SH. CHET
RAM NEGI, RESIDENT OF MARRIED
OFFICERS ACCOMMODATION, MILITARY
STATION NAHAN, DISTRICT SIRMOUR, H.P.
PRESENTLY SERVING AS MEDICAL OFFICER
(SPECIALIST) AT DR. Y.S. PARMAR GOVT.
MEDICAL COLLEGE & HOSPITAL, NAHAN,
SIRMOUR (HP).
......PETITIONER
(BY MR. SUNIL MOHAN GOEL, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH, THROUGH
ITS PRINCIPAL SECRETARY (HEALTH), TO
THE GOVERNMENT OF HIMACHAL
PRADESH, AT SHIMLA, TEHSIL AND
DISTRICT SHIMLA, H.P.
2. DIRECTOR HEALTH SERVICES, HIMACHAL
PRADESH, DIRECTORATE OF HEALTH
SERVICES, SDA COMPLEX, KASUMPTI,
SHIMLA.
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3. DEPARTMENT OF MEDICAL EDUCATION
AND RESEARCH, HIMACHAL PRADESH AT
SHIMLA, THROUGH ITS DIRECTOR, SDA
.
COMPLEX, KASUMPTI, SHIMLA9, TEHSIL
AND DISTRICT SHIMLA, H.P.
4. PRINCIPAL, INDIRA GANDHI MEDICAL
COLLEGE AND HOSPITALCUMMEMBER
SECRETARY COUNSELING COMMITTEE,
INDIRA GANDHI MEDICAL COLLEGE AND
HOSPITAL, AT SHIMLA, TEHSIL AND
DISTRICT SHIMLA, H.P.
5. DR. SAPNA D/O SH. MAHENDER KUMAR
DHIMAN, PRESENTLY POSTED AT CIVIL
HOSPITAL SHAHPUR, DISTRICT KANGRA,
H.P.
6. DR. SACHITA D/O SH. PRITAM CHAND,
PRESENTLY POSTED AT ZONAL HOSPITAL
DHARAMSHALA, DISTRICT KANGRA, H.P.
7. DR. SHIVBRAT SHARMA S/O SH. AMR
NATH SHARMA, PRESENTLY POSTED AT
ZONAL HOSPITAL DHARAMSHALA,
DISTRICT KANGRA, H.P.
8. DR. NARENDER KUMAR S/O SH. CHET
RAM, PRESENTLY POSTED AT CIVIL
HOSPITAL TISSA, DISTRICT CHAMBA.
9. DR. TAPENDER S/O LATE SH. BHADUR
SINGH, PRESENTLY POSTED AT CIVIL
HOSPITAL PAONTA SAHIB, DISTRICT
SIRMOUR, H.P.
......RESPONDENTS.
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(MR. AJAY VAIDYA, SENIOR ADDITIONAL
ADVOCATE GENERAL FOR R1 TO R4.
MR. AJIT SHARMA, ADVOCATE, FOR R5 TO
.
R8.)
____________________________________________________________
This petition coming on for admission after notice
this day, Hon'ble Mr. Justice Tarlok Singh Chauhan,
passed the following:
ORDER
The instant petition has been filed for grant of the following substantive reliefs: "(i). That this Hon'ble Court may kindly be pleased to issue writ of mandamus directing the respondent to only consider those research papers which are published in indexed journals as provided in the notification dated 17.2.2020 with regard to the Minimum Qualification for Teachers in Medical Institute (Amendment) Regulations, 2019 and further not to consider and grant marks for the research papers as published in predatory journals.
(ii). That this Hon'ble Court may further be pleased to issue writ of mandamus directing the respondents not to issue appointments to the private respondent No. 5 to 10 to the post of Senior Residency in the Government Medical Colleges and in case the appointments are issued ::: Downloaded on - 19/05/2022 20:04:38 :::CIS 4 to the private respondents then this Hon'ble Court may issue writ of certiorari quashing the .
appointments to the post of Senior Resident with the further direction to respondent No.4 to grant appointments to all the candidates to the post of Senior Resident in the discipline of ENT only after granting marks of the research paper published in journals as provided in 2019 Regulations issued by the National Medical Commission.
2. The petitioner completed her M.B.B.S. in the year 2013 and thereafter MD/MS in the subject of ENT in July, 2021. The official respondents on 7.1.2022 issued advertisement for filling up the posts of Senior Residents/Tutor Specialist in various disciplines in Government Colleges of Himachal Pradesh and last date for filling up the forms was 20.1.2022. The petitioner being eligible applied for the same. On 15.2.2022 the respondents issued tentative marks list, the petitioner was placed at Serial No. 9 against which she submitted objections, especially with regard to nonadhering of National Medical Commission Regulations2019. However, respondents vide order dated 26.2.2022 rejected the objections and thereafter proceeded to hold counseling on 5.3.2022. The petitioner was not offered ::: Downloaded on - 19/05/2022 20:04:38 :::CIS 5 Senior Residency constraining her to file the instant petition for the relief(s) as mentioned above.
.
3. The official respondents have contested the petition by filing a reply, wherein it has been submitted that the MCI notification governing applicability of indexing of research publications and the instructions contained therein do not apply to the Resident Doctors Policy and the instructions contained in the above mentioned Resident Doctors Policy are not same and similar things; rather these two have been devised with specific and defined area of applicability viz the Resident Doctor Policy is applicable to the selection of senior Residents/Tutor Specialists and the MCI/NMC regulations on the other hand is applicable to the faculty of Professors and Associate Professors. Though no Senior Resident is debarred from getting his/her research work published in journals mentioned in the MCI/NMC notifications referred to above, no such liberty is applicable to the post of Professors/Associate Professors, therefore, the action of officials respondents cannot be termed to be arbitrary or unfair against the resident doctors policy as well as MCI/NMC regulations.
::: Downloaded on - 19/05/2022 20:04:38 :::CIS 64. The private respondents have also filed the reply wherein it is specifically stated that the advertisement dated .
7.1.2022 (Annexure P6) does not specify that the indexed journals should be the one, which are published in the NMC regulations. Furthermore, as per past practice, similar indexed journals have been considered for appointment to the post of senior residents. Moreover, as per the petitioner herself, advertisement does not specify any indexed journals qua the senior residents.
5. It is vehemently argued by Sh. Sunil Mohan Goel, Advocate that in terms of the instructions issued by the National Medical Commission, only original papers, meta analysis, systematic reviews, and case series that are published in journals included in Medline, Pubmed Central, Citation index, Sciences Citation index, Expanded Embase, Scopus, Directory of Open access Journals (DoAJ) ought to have been considered and the publications, which are in predatory/dubious journals ought not to have been considered as otherwise has been directed by the UGC vide its communication dated 14.6.2019 (AnnexureP15).
::: Downloaded on - 19/05/2022 20:04:38 :::CIS 76. We have heard the learned counsel for the parties and have gone through the material placed on record.
.
7. At the outset, it needs to be noticed that even as per the NMC regulations, there is no requirement of any publication as regards the senior residents, therefore, the requirement of publication, as is otherwise prescribed for the post of Professor/Additional Professor and Associate Professor, cannot be imported or made the requirement for the post of Senior Resident.
8. That apart, it is the official respondents who are the best Judge of their own technical needs and requirements and in exercise of that power, they are free to prescribe qualifications suited to their requirement.
9. It is more than settled when an employee prescribes a particular qualification, then the Court would not be justified in imposing its view and would also not claim expertise so as to substitute its view or decision for that of the employer.
10. The State as an employer is entitled to prescribe the qualification as a condition of the eligibility. It is not a part of the role or function of the judicial review to expand ::: Downloaded on - 19/05/2022 20:04:38 :::CIS 8 upon the ambit of prescribed qualifications. The Court cannot lay down the conditions of eligibility; much less can it delve .
into the issue with regard to qualification.
11. The decision taken by the respondents cannot be termed to be illegal or irrational and otherwise does not suffer from procedural or other impropriety so as to call for interference by this Court; rather the petition is clearly misconceived and based upon the misconception and wrong notion of the petitioner.
12. Even if it is assumed that it could be a better decision of the respondents to have prescribed the publications, as was otherwise provided by the NMC for the post of Professor/Additional Professor/Associate Professor, even then the same cannot be made a ground for judicial review so as to interfere with the decision of the official respondents.
13. There is nothing on record to even suggest much less prove that the official respondents have considered publications made in predatory or dubious journals.
14. Having said so, we find no merit in the instant petition and the same is accordingly dismissed, so also the ::: Downloaded on - 19/05/2022 20:04:38 :::CIS 9 pending application(s), if any, leaving the parties to bear their own costs.
.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) Judge 17th May, 2022.
(Pankaj/Chander) r to
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