Himachal Pradesh High Court
Dr. Deepanshu Dhiman vs . State Of H.P & Anr on 16 September, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
Dr. Deepanshu Dhiman Vs. State of H.P & Anr .
CWP No.6427 of 2023 16.09.2023 Present: Mr. Dilip Sharma, Sr. Advocate with Mr. Manish Sharma, Advocate for the petitioner.
Mr. Nand Lal Thakur, Sr. Penal Counsel, for respondent No.1.
of Mr. Anup Rattan Advocate General with Mr. Rupinder Singh Thakur & Mr. Y.P.S. Dhaulta, Additional Advocates General, Ms. Seema Sharma, Deputy Advocate General for respondent No.2 rt CWP No.6427 of 2023 & CMP No.12375 of 2023 Respondents have rejected petitioner's application for issuance of No Objection Certificate (NOC) for participating in the selection process for the post of Assistant Professor (Anaesthesia) in All India Institute of Medical Science (AIIMS) Bilsapur, H.P. vide communication dated 28.08.2023(Annexure P-2).
Aggrieved, petitioner has preferred instant writ petition alongwith application seeking interim directions for provisional participation in the selection process for appointment to the post of Assistant professor (Anaesthesia) in AIIMS, Bilaspur, H.P.
2. Petitioner did her MBBS from Dr. RPGMC, Tanda, District Kangra in the year 2011. She did MD in Anaesthesia from GMCH Chandigarh (Punjab University) as direct candidate. The petitioner, thereafter, completed her Senior Residency in Anaesthesia at PGIMER Chandigarh w.e.f. 11.07.2017 to 31.07.2022.
::: Downloaded on - 16/09/2023 20:36:16 :::CISOn the recommendations of the Himachal .
Pradesh Public Service Commission, petitioner was appointed as Assistant Professor as a direct recruit at Dr.YSPGMC Nahan, H.P. on 29.07.2022 (Annexure P-6).
The petitioner joined as such in the respondent of Department of Medical Education and Research on 16.08.2022.
3. rt AIIMS Bilaspur, issued a recruitment notice on 14.06.2023 (Annexure P-1), inviting applications for several faculty posts in different departments. The petitioner applied for the post of Assistant Professor Anaesthesia within the stipulated time. Simultaneously, she also applied on 22.08.2023 to the respondents-
Department for issuance of NOC and other required documents. Her application was turned down by the respondents on 28.08.2023 (Annexure P-2). Rejection is on the following grounds:-
"In this regard, Principal concerned has informed that Dr. Deepanshu Dhiman has been appointed as Assistant Professor in the Deptt. of Anesthesia in the Institution on regular basis through HPPSC and accordingly joined her duties in the Institution on 16.08.2022. Further, the Principal concerned has informed that the above named doctor intends to appear in the interview for the post of Assistant Professor (Anesthesiology) at AIIMS, Bilaspur, HP and requested to issue NOC in her favour for the same alongwtih Vigilance Clearance Certificate, Certificate of Major/Minor Penalty and Integrity Certificate. Furthermore, the Principal concerned has informed that Dr. Deepanshu Dhiman ::: Downloaded on - 16/09/2023 20:36:16 :::CIS is non-bonded candidate and she will submit the complete application on a later date. The Principal .
concerned has also informed that it is clearly mentioned in the Govt. letter No. HFW-B3(13)2- 8/2016-1 dated 13.11.2019, that the faculty members, who have already encadred under the encadrement policy on regular basis through promotion or through direct recruitment from HPPSC, of shall not be issued NOC for applying elsewhere. The present faculty position in the Deptt. of Anesthesiology at Dr. YSPGMC, Nahan is as under:-
rt Sr. No. Category Sanctioned In position Vacancy 1 Processor 1 1 0 2 Assoc. 2 0 2 Processor 3 Astt. 4 5 0 Processor 4 Senior 8 6 2 Resident This is for favour of your kind information and taking further necessary action in the matter at Govt. level please."
4(i). While rejecting the case of the petitioner for issuance of NOC, the respondents have themselves admitted that the petitioner is a non-bonded candidate.
Despite that, her case has been rejected on the ground that all the faculty members, who have already been encadred under the encadrement policy on regular basis through promotion or direct recruitment from HPPSC, shall not be issued NOC for applying elsewhere.
4(ii). In sequel to the order dated 14.09.2023, respondents have placed on record instructions memo dated 16.09.2023. The reason for rejecting the prayer of the petitioner for issuance of NOC given in Annexure P-2 ::: Downloaded on - 16/09/2023 20:36:16 :::CIS dated 28.08.2023 has been reiterated in this instructions .
memo as well. Relevant portion of the instructions memo reads as under:-
"I am directed to refer to the orders passed by the Hon'ble High Court in CWP No. 6427 of 2023 titled as Dr. Deepanshu Dhiman vs Union of India and others of and to say that petitioner is a direct candidate and she was appointed as Assistant Professor in the department of Anaesthesia at Dr. YSPGMC Nahan vide this department notification dated, 29-07-2022. The rt petitioner vide her representation dated, 22-08-2023 had represented the Government, to grant no objection certificate (NOC) for applying to the post of Assistant Professor (Anaesthesia) in AIIMS Bilaspur, H.P, before, 30-08-2023. The case of the petitioner was examined at Government level and the same was rejected on the basis of letter dated, 13-11-2019 (copy enclosed), Further it has been clarified by the Government to the Principal of all Medical Colleges that the faculty members who have been encadred under the encadrement policy on regular basis through promotion or through direct recruitment shall not be issued NOC for applying elsewhere. The case was rejected on the basis of acute shortage of faculties in Dr. YSPGMC Nahan. As far as the case of Dr. Saurabh Galoda is concerned, it is stated that his case was initially not considered for NOC, and was considered later on only in connection with CWP No. 575 of 2019, which was basically directions of Hon'ble High Court to issue provisional NOC to Dr. Sonali Kaushal, Assistant Professor, Anaesthesia, IGMC Shimla.
It is further clarified that there is acute shortage of faculties in Dr. YSPGMC Nahan, District Sirmaur and the Government after thorough consideration refused to grant the NOCS and only provisional NOCs were issued by the Government that too after the directions of Hon'ble High Court of H.P. Granting NOCs to the faculty members of new medical Colleges of the State i.e Dr. YSPGMC Nahan, Dr. RKGMC Hamirpur, Pt. JLNGMC ::: Downloaded on - 16/09/2023 20:36:16 :::CIS Chamba & Sh. LBSGMC Mandi to apply elsewhere will further worsen the faculty position as these Medical .
Colleges are already facing acute shortage of faculties.
In view of above, you are requested to apprise the Hon'ble High Court of H.P about the factual position accordingly."
Apart from rejecting the case of the petitioner on the ground of petitioner's being encadred under the of encadrement policy, another reason given is acute shortage of faculty in Dr. YSPGMC, Nahan.
rt 4(iii) The encadrement policy dated 13.11.2019 has also been placed on record alongwith instructions memo. The encaderment policy reads as under:-
"I am directed to invite your kind attention towards this department notification No. HFW-B(B)9- 4/2015-II, dated 17.11.2018 vide which the cadre of all the new Medical colleges of the State I.e. Dr. YSPGMC Nahan, Dr. RKGMC Humirpur, Pt. JLNGMC Chamba & SLBSGMC Mandi has been separated and sthe options were invited from the faculty members of TGMC & Dr. RPGMC Tanda for permanent encadrement at the level of Professor/Associate Professor/Assistant Professor in the new Medical Colleges of State. Options were further invited from the desirous and eligible GDO's including (designated Assistant Professor) for permanent encadrement in new Medical colleges.
Various faculty members have already been encadered in new medical Colleges of the State under this policy. Now after the encadrement in Medical Colleges the faculties are applying for NOC so that they could apply for IGMC & Dr. RPGMC Tanda. It is clearly mentioned in the encadrement policy that the faculty/GDO's opting for the encadrement shall have not right of repatriation or transfer to faculty cadre of ::: Downloaded on - 16/09/2023 20:36:16 :::CIS any other Medical College. In spite of this the faculties are applying for NOC.
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Therefore, it is hereby informed that the faculty members who have already encadered under the encadrement policy on regular basis through promotion or through direct recruitment from HPPSC shall not be issued NOC for applying elsewhere."
of A perusal of encadrement policy/ letter dated 13.11.2019, prima-facie shows that cadres of all the new rt colleges of the State i.e. Dr. YSPGMC Nahan, Dr. RKGMC Hamirpur, Pt. JLNGMC Chamba and SLBSGMC Mandi, were separated after inviting options from the faculty members of IGMC, Shimla and Dr.RPGMC Tanda, District Kangra. Inspite of separation of their cadres, the faculty members who had been encadred in new Medical Colleges, kept on requesting for their repatriation or transfer to the faculty cadres of other Medical Colleges in the State. It was in this background, letter dated 13.11.2019 was issued to the effect that after encadrement on regular basis in either of the colleges either through promotion or through direct recruitment from HPPSC, NOC would not be granted to the faculty members for applying elsewhere.
4(iv). In the instant case, the petitioner is not seeking changing of encadrement from Dr.YPGMC, Nahan to any other Medical College in the State. She is seeking NOC for participating/ appearing in the selection process/interview for the post of Assistant Professor, ::: Downloaded on - 16/09/2023 20:36:16 :::CIS advertised by AIIMS Bilaspur, H.P. The petitioner is .
required to submit NOC alongwith documents in terms of Annexure P-7, dated 11.07.2023, by 20.09.2023 by 4:00 p.m. 4(v) In support of the prayer for issuance of NOC, of learned counsel for the petitioner has also placed reliance upon order dated 17.12.2021 passed by a Division Bench rt of this Court in CWP No.7827/2021, wherein the respondents were permitted to grant NOC in favour of the petitioner therein to enable him to apply/appear in the interview for the post of Associate Professor in the Department of Psychiatry in Dr. RPGMC Tanda. Reliance was also placed upon another order dated 21.08.2019 passed by the Division Bench in CWP No.1775/2019, wherein respondents were directed to issue provisional NOC to the petitioner therein to compete for selection to the post of Assistant Professor in AIIMS Delhi. The order reads as under:-
"CWP No. 1775 of 2019 & CMP No. 7503 of 2019 Heard Mr. Shrawan Dogra, learned Senior Counsel for the petitioner and Mr. Ajay Vaidya, learned Senior Additional Advocate General for the respondents.
2. The main grievance with which the petitioner has come up with the above writ petition is that the respondents are refusing to issue a No Objection Certificate to enable him to compete for selection to the post of Assistant Professor of GI Surgery & Liver Transplantation at AIIMS, Delhi.
3. The petitioner is working at present, as Assistant Professor (Gastroenterology Surgery) in the Department of Surgery at IGMC, Shimla. In a short reply that the respondents have filed, it is claimed by them that since the petitioner is the only person available in the Super Specialty of GI Surgery, it is not ::: Downloaded on - 16/09/2023 20:36:16 :::CIS in public interest to issue the No Objection Certificate. Reliance is also placed by the respondents upon the decision of this Court in State of Himachal Pradesh vs. .
Dr. Sanjay Vikrant, 2008 (1) Sim. LC 331.
4. But it appears from the decision in Dr. Sanjay Vikrant (supra) that an unwilling horse cannot be retained. It is true that the issuance of a No Objection Certificate may jeopardize public interest, but the other option available to the petitioner will make the things more worse for the respondents. It is certainly a hobson's choice.
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5. Therefore, for the present, there will be an interim direction to the respondents to issue a provisional No Objection Certificate to the petitioner subject, however, to the outcome of the writ petition. rt Copy dasti."
Similar prayer in somewhat similar factual position with similar objection of the respondents was considered in CWP No.530 of 2022 (Dr.Sumit Chawla Vs. State of H.P. and others). Petitioner (therein) was provisionally permitted to participate in the interview for the post of Associate Professor, advertised by Directorate of Medical Education & Research, Haryana, notwithstanding encadrement policy of the respondents-
State.
The other ground highlighted by the respondents about shortage of faculty can be taken up for consideration at the stage of the final disposal of the writ petition as presently the matter is being considered only for granting provisional permission to the petitioner for appearing in the interview for the post in question.
5. In view of above prima-facie observations and considering the fact that the petitioner is to submit NOC of her employer alongwith relevant documents in terms of ::: Downloaded on - 16/09/2023 20:36:16 :::CIS Annexure P-7, dated 11.07.2023, with AIIMS Bilaspur, .
latest by 4:00 pm on 20.09.2023, in the interest of justice and in order to protect the interests of both the sides, the respondents are permitted to issue provisional "No Objection Certificate" to the petitioner for participating in of the selection process/appearing in the interview for the post in question. The documents required in terms of rt Annexure P-7, dated 11.07.2023, be also supplied to her.
This entire exercise be completed by the respondents by 19.09.2023.
Reply to the main writ petition be filed within four weeks.
List on 30.10.2023.
Jyotsna Rewal Dua Judge September 16, 2023 (R.Atal) ::: Downloaded on - 16/09/2023 20:36:16 :::CIS